author: Robb, P.J.

text:
    CITIZENS BANK, NA, Plaintiff-Appellant, v. Kirk A. LEEK et al., Defendants-Appellees.
    No. 17 CO 0031
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: June 28, 2018
    Atty. Christopher F. Parker, Goranson, Parker & Bella, Co., LPA, 405 Madison Ave., Suite 2200, Toledo, Ohio 43604, for Plaintiff-Appellant and
    Atty. Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3810 Starrs Centre Dr., Canfield, Ohio 44406 for Defendants-Appellees.
    BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
    OPINION AND JUDGMENT ENTRY
   Robb, P.J.

{¶ 1} Plaintiff-Appellant Citizens Bank, N.A. appeals the decision of the Columbiana County Common Pleas Court confirming a foreclosure sale to a third-party purchaser after finding the bank had no right to redeem the property. The appeal revolves around the language in R.C. 2329.311(A), which allows the judgment creditor and first lienholder to redeem the residential property taken by an order of sale by paying the purchase price within fourteen days after a sale "at an auction with the minimum bid pursuant to division (B) or section 2329.52 * * *." Contrary to the trial court's holding, this language does not mean the right to redeem does not exist unless the sale had a minimum bid. A minimum bid set in R.C. 2329.20, applies to the first attempted sale and expressly excludes sales under 2329.52 The cited R.C. 2329.52(B) deals solely with subsequent sales where the minimum bid requirements (of R.C. 2329.20 ) are not applicable, as occurred here where the property failed to sell at the first residential mortgage loan foreclosure auction.

{¶ 2} For the following reasons, this court concludes R.C. 2329.311(A) provided the bank the right to redeem the residential property. In accordance, the bank's argument is sustained. The trial court's judgment is reversed, and the case is remanded with instructions to proceed by considering the bank as the redeeming party and the successful purchaser at the sale as instructed by R.C. 2329.311(A).

STATEMENT OF THE CASE

{¶ 3} In 2014, the bank filed a complaint in foreclosure against Kirk Lee as he defaulted on a promissory note with $157,549 remaining due. The note was secured by the property at 25823 State Route 62 in Beloit. A decree in foreclosure was entered on March 21, 2017. A notice of sheriff's sale was filed in March 2017, but the sale was canceled at the bank's request. In May 2017, the bank reinitiated the order of sale. A June 15, 2017 notice of sheriff's sale was filed stating: the property was appraised at $90,000; the sale would be conducted on July 11, 2017 at 10:00 a.m.; and if the property was not sold at the first sale, a second sale would be held on July 25, 2017 at 10:00 a.m. with no minimum bid. The advertised notice recited the same. As to the second sale, this notice also stated: "The property shall be sold to the highest bidder without regard to the minimum bid but subject to all relating costs, allowances, and real estate taxes."

{¶ 4} There were no bids at the first sale. At the second sale on July 25, 2017, the property was sold for $5,000 to a third-party purchaser Lorie Applegate (who filed the Appellee's Brief in this appeal). That same day, Attorney Grimm filed a motion to set aside the sale on behalf of the bank stating he failed to appear at the sale as the bank's independent contractor due to a scheduling error; he also stated the sale price was inadequate. The next day, he filed a supplemental brief in support stating if the court rejected the motion to set aside the sale, the court should permit the bank to exercise its statutory right of redemption (and initially sought permission to do so by credit bid).

{¶ 5} On August 7, 2017, the bank filed a notice of redemption pursuant to R.C. 2329.311, declaring the bank redeemed the property by depositing the purchase price of $5,000 plus additional costs to the Columbiana County Clerk of Courts in a timely manner (within fourteen days of the sale). Quoting the statute, the bank stated the court shall proceed to confirm the sale with the redeeming party considered the successful purchaser at the sale.

{¶ 6} On August 22, 2017, the trial court denied the motion to set aside the sale, finding the sale was made in conformity with RC. 2329.01 through 2329.61. As for the redemption notice, the court concluded: "Because there was no mandatory minimum bid at the sale, the Plaintiff cannot take advantage of R.C. § 2329.311." The court found the right of redemption for the judgment creditor and first lienholder existed "only when the sale of property occurs at an auction with the minimum bid pursuant to R.C. § 2329.52(B)." The court confirmed the sale to the third-party purchaser and ordered the sheriff to deliver the deed to this purchaser. The court also ordered the clerk to return the $5,141.50 deposited by the bank on August 7, 2017.

{¶ 7} The bank filed a timely notice of appeal. The trial court granted a stay of execution of its August 22, 2017 judgment pending appeal. Before setting forth the arguments presented on appeal, we set forth the pertinent statutes and how they relate to the case at bar.

RESIDENTIAL FORECLOSURE SALE STATUTES

{¶ 8} "Except as otherwise provided in this section or sections 2329.51 and 2329.52 of the Revised Code, no tract of land shall be sold for less than two-thirds the amount of the appraised value as determined pursuant to section 2329.17 of the Revised Code." R.C. 2329.20. The first auction occurred in accordance with this requirement as the minimum bid was set at $60,000, which is 2/3 of the $90,000 appraised value. The property did not sell at the first auction, which leads to the application of division (B) of R.C. 2329.52. This statutory section provides in pertinent part:

When a residential property is ordered to be sold pursuant to a residential mortgage loan foreclosure action, and the sale will be held at a physical location and not online, and if the property remains unsold after the first auction, then a second auction shall be held and the property shall be sold to the highest bidder without regard to the minimum bid requirement in section 2329.20 of the Revised Code, but subject to section 2329.21 of the Revised Code relating to costs, allowances, and real estate taxes .

(Emphasis added.) R.C. 2329.52(B) (version effective April 6, 2017). This division also states: "This second auction shall be held not earlier than seven days and not later than thirty days after the first auction."Id. If the property remains unsold after two auctions, it "may be subsequently offered for sale without regard to the minimum bid requirement in section 2329.20 of the Revised Code, but subject to section 2329.21 of the Revised Code relating to costs, allowances, and real estate taxes, or disposed of in any other manner pursuant to this chapter or any other provision of the Revised Code." Id.

{¶ 9} A second auction was held here without regard to the minimum bid requirement in R.C. 2329.20, as instructed by R.C. 2329.52(B). The redemption statute provides in pertinent part:

In sales of residential properties taken in execution or order of sale that are sold at an auction with the minimum bid pursuant to division (B) of section 2329.52 of the Revised Code , the judgment creditor and the first lienholder each have the right to redeem the property within fourteen days after the sale by paying the purchase price. The redeeming party shall pay the purchase price to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon timely payment, the court shall proceed as described in section 2329.31 of the Revised Code, with the redeeming party considered the successful purchaser at the sale.

(Emphasis added to disputed language.) R.C. 2329.311(A) (version effective April 6, 2017). The next division provides: "If the judgment creditor and the first lienholder each seek to redeem the property, pursuant to division (A) of this section, the court shall resolve the conflict in favor of the first lienholder." R.C. 2329.311(B). There is no dispute the bank is the judgment creditor and the first lienholder.

ASSIGNMENT OF ERROR

{¶ 10} The bank's sole assignment of error provides:

"THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS INTERPRETATION OF R.C. 2329.311 AND R.C. 2329.52(B) FINDING THAT PLAINTIFF, THE FIRST SECURED CREDITOR, COULD NOT EXERICSE ITS STATUTORY RIGHT OF REDEMPTION AND THEREAFTER CONFIRMING A SALE TO A THIRD PARTY IN VIOLATION OF THE STATUTORY RIGHT OF REDEMPTION."

{¶ 11} The bank asks this court to conduct a de novo review of the legal issue of statutory interpretation. The bank asserts an absolute right of redemption under R.C. 2329.311(A) and urges the language (referring to "the auction with the minimum bid pursuant to division (B) of section 2329.52") does not mean an auction with a set minimum bid but means an auction with a minimum bid governed by R.C. 2329.52(B), the successful bid at second auction. The bank then reviews the latter statute, pointing out R.C. 2329.52(B) allows for subsequent sales with no minimum bid but subject to costs, allowances, and real estate taxes. A set minimum bid of 2/3 the appraised value is required under R.C. 2329.20, but R.C. 2329.52(B) removes this requirement for a second sale at auction; so, the language referring to property "sold at an auction with the minimum bid pursuant to division (B) of section 2329.52" is the second auction as occurred here where a bid was made The bank asserts the language is clear and should be applied as written. The bank alternatively points to a Final Bill Analysis for H.B. 390, which stated the judgment creditor had the right to redeem within fourteen days of the sale at an auction "with no set minimum bid * * *."

{¶ 12} The third-party purchaser filed an Appellee's Brief. Initially, we note her brief addresses two issues: the statutory issue regarding redemption and the trial court's decision denying the motion to set aside the sale. The bank asked to exercise its right of redemption if the court overruled the motion to set aside the sale. The court overruled the motion and also refused to allow the bank to redeem the property as the court found the statutory right did not exist in this case. The bank only appeals the decision denying redemption. The bank does not appeal the trial court's denial of its motion to set aside the sale, which motion was filed on the day of sale and raised as grounds a scheduling error of the bank's independent contractor and an insufficient sale price. The subject of the appeal is clear from the bank's brief, and the bank's reply confirms it is not contesting the trial court's decision denying the motion to set aside the sale but is only contesting the refusal to permit the bank to redeem the property under R.C. 2329.311. In accordance, the propriety of denying the bank's July 25, 2017 motion to set aside the sale is not before this court.

{¶ 13} As to the issue presented by the bank on appeal, the third-party purchaser agrees we are to conduct a de novo review and contends the plain language of R.C. 2329.311 means the redemption right applies only when the sale occurs with a set minimum bid (above zero) and does not apply to a sale with no minimum bid (but subject to costs, allowances, and real estate taxes). The third-party purchaser also points out the Final Bill Analysis quoted by the bank was for the prior version of R.C. 2329.311 which contained the following statutory language: "at an auction with no set minimum bid pursuant to division (B) of section 2329.22 * * *." That statute first went into effect on September 28, 2016, but on April 6, 2017, this language changed to "auction with the minimum bid pursuant to division (B) of section 2329.52."

{¶ 14} The parties agree the interpretation of the statute is a question of law to be reviewed de novo. See State v. Pountney , 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478. Under a de novo standard of review, we review the case independently and give no deference to the trial court's decision. See, e.g., Diley Ridge Med. Ctr. v. Fairfield Cty. Bd. of Revision , 141 Ohio St.3d 149, 2014-Ohio-5030, 22 N.E.3d 1072, ¶ 10. When analyzing a statute, the court must apply the legislative intent as manifested in the words of the statute. Proctor v. Kardassilaris , 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 12. "Statutes that are plain and unambiguous must be applied as written without further interpretation." Id.

{¶ 15} "Rules for construing the language * * * may be employed only if the statute is ambiguous." Proctor , 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872 at ¶ 12 (such as "expressio unius"). Ambiguity means the statutory provision is "capable of bearing more than one meaning." State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 17. The "in pari materia" rule of statutory construction (where statutes relate to the same general subject matter) can only be applied "where some doubt or ambiguity exists in the wording of a statute." Id. at ¶ 17, 20 (analyzing a statutory division that did not cite the statute which the party asked to be considered "in pari materia"). See also R.C. 1.49(D). Likewise, the legislative history of a statute and former statutory provisions are used to determine legislative intent only if a court finds the statute ambiguous. R.C. 1.49(C) - (D).

{¶ 16} Where the statutory division at issue specifically cites another statute, it is "incorporating by reference" the other statute, and the other statute must be considered in determining plain language. See, e.g., General Motors Corp. v. Kosydar , 37 Ohio St.2d 138, 146, 310 N.E.2d 154 (1974) ("use tax statute, incorporates by reference the sales tax exceptions" in a different statute). Otherwise, words would be improperly eliminated from the text of the statute. See generally State ex rel. Carna v. Teays Valley Loc. Sch. Dist. Bd. of Edn. , 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18 (accord significance and effect to every word, phrase, sentence, and part of the statute).

{¶ 17} "Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." R.C. 1.42. "No part [of the statute] should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative." Carna , 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193 at ¶ 19. "Statutes must be construed, if possible, to operate sensibly and not to accomplish foolish results." Id. See also Clay , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498 at ¶ 22 ("The absurd result principle in statutory interpretation provides an exception to the rule that a statute should be interpreted according to its plain meaning.").

{¶ 18} Under the plain language of R.C. 2329.311(A), the redemption right applies to this case. The property was "sold at an auction with the minimum bid pursuant to division (B) of section 2329.52 * * *."; there was a successful bidder. Determination of the minimum bid was pursuant to R.C. 2329.52(B), which was the very authority for selling "to the highest bidder without regard to the minimum bid requirement in section 2329.20 of the Revised Code, but subject to section 2329.21 of the Revised Code relating to costs, allowances, and real estate taxes." R.C. 2329.311 unambiguously provides the judgment creditor and first lienholder the right to redemption for a sale at an auction where the minimum bid is prescribed by R.C. 2329.52(B) (as opposed to a minimum bid prescribed by R.C. 2329.20 ).

{¶ 19} The meaning attributed to R.C. 2329.311 by the third-party purchaser requires the court to ignore the statute's direct citation to R.C. 2329.52(B) and the contents of that statute. The plain and clear language of R.C. 2329.311(A) incorporates R.C. 2329.52(B). Division (B) of R.C. 2329.52 only deals with sales involving no set minimum bid (but subject to costs, allowances, and real estate taxes). It has no relevance to sales with a set minimum bid. Rather, it provides an exception to the set minimum bid in R.C. 2329.20 (of 2/3 of the appraisal value) for the second sale at auction.

{¶ 20} If R.C. 2329.311 was not applicable to sales required by R.C. 2329.52(B) to be conducted "without regard to the minimum bid requirement," then R.C. 2329.311 would have no meaning. The statute would not function in any manner. A statute is presumed to have a meaning.

{¶ 21} The trial court believed the statute provided a right of redemption only when the sale occurred at an auction with a set minimum bid above zero dollars under R.C. 2329.52(B). However, R.C. 2329.52(B) has no set minimum bid; again, it is the exception to minimum bid requirements contained in R.C. 2329.20. In other words, R.C. 2329.311 does not create a right of the judgment creditor or first lienholder to redeem the property after the first sale (the sale with the minimum bid under R.C. 2329.21 ). Rather, the statute creates a right of the judgment creditor or first lienholder to redeem the property after the property is sold at a second auction.

{¶ 22} In summary, the statutory redemption right in R.C 2329.311 clearly applies when the method of determining the minimum bid was pursuant to R.C. 2329.52(B), a successful bid at the second auction. The incorporated statute provides the property at the second auction shall be sold to the highest bidder without regard to the minimum bid but subject to costs, allowances, and real estate taxes. R.C. 2329.52(B). The property here was sold at the second auction with a minimum bid determined pursuant to R.C. 2329.52(B). Therefore, the judgment creditor and first lienholder had the right to redeem under R.C. 2329.311 which was utilized here. The bank's argument has merit.

{¶ 23} In accordance, the trial court's judgment is reversed, and the case is remanded with instructions to proceed in accordance with this opinion and as instructed by R.C. 2329.311(A).

Donofrio, J., concurs.

Waite, J., concurs.

      R.C. 2329.20 also contains instructions for determining the minimum amount where a junior mortgage or lien is sought to be enforced and a prior lien is unaffected by the court order.

      The Final Bill Analysis for the bill that made this change (H.B. 463) referred to the prioritizing procedure in division (B) of R.C. 2329.311 for when the judgment creditor and first lienholder each seek to redeem and also explained that the change to R.C. 2329.52(B) was to ensure costs, allowances, and real estate taxes were required for sales subsequent to the second auction (similar to pre-existing language for the second auction).

      R.C. 2329.52(B) also provides a sale occurring after two unsuccessful auctions can be offered without regard to the minimum bid requirement in R.C. 2329.20 but will be subject to costs, allowances, and real estate taxes.


source: Caselaw Access Project

author: WELBAUM, P.J.

license: Public Domain

text:
    Troy COOPER, Plaintiff-Appellant v. CITY OF WEST CARROLLTON, Ohio, Defendant-Appellee
    No. 27789
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on the day of June 29, 2018
    DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 West Second Street, Suite 2101, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant.
    TIMOTHY G. PEPPER, Atty. Reg. No. 0071076, 40 North Main Street, Suite 1700, Dayton, Ohio 45423, Attorney for Defendant-Appellee.
   WELBAUM, P.J.

{¶ 1} This case is before us on appeal of Plaintiff-Appellant, Troy Cooper, from a summary judgment rendered in favor of Defendant-Appellee, City of West Carrollton, Ohio ("City"). As a ground for his appeal, Cooper contends that the trial court erred in dismissing his breach of contract claim. He also argues that the trial court erred in concluding that the statute of limitations expired with respect to his contract claims. For the reasons set forth below, we find Cooper's assignments of error without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 2} On December 2, 2016, Cooper filed a complaint against the City, alleging three causes of action: breach of contract, breach of implied contract, and promissory estoppel. The case was a refiling of a prior action that Cooper had filed against the City on June 1, 2015, and had dismissed without prejudice on December 4, 2015.

{¶ 3} Cooper's claims arose from his employment with the City. Cooper began part-time employment with the City's Parks and Recreation Department ("Parks Dept.") in 1980, when he was still in high school. Right after he graduated from high school in 1985, Cooper began full-time employment with the Parks Dept. as a Maintenance Repair Person I. At that time, Cooper reported to Dixon Chaney, who was the supervisor of the Parks Dept.

{¶ 4} Cooper was employed continuously in the Parks Dept. until he retired on April 26, 2016. During his employment, Cooper belonged to a union, the West Carrollton Independent Employees Association ("Union"). At all pertinent times, the Union had a contract with the City that protected Union members.

{¶ 5} When Cooper was hired, there was no Maintenance II position; however, at some point, a Maintenance II position was created, and in 1998, Cooper was promoted to the position. Cooper applied for this position, which was competitive, and was chosen over another person who had also applied. Cooper continued in the Maintenance II position until he retired in 2016.

{¶ 6} Chaney continued to be Cooper's supervisor and retired on January 1, 2008. At that time, Cooper was acting supervisor because Chaney took a lot of vacation right before he retired. The Union contract allowed employees to receive a "plus rating to a supervisory position," and be paid a higher rate, which was calculated as an 8% increase from the employee's current hourly rate. This could be approved by the Department Director, on an as-needed basis and was solely at the director's discretion. Pursuant to this paragraph of the contract, Cooper was given an 8% increase in his hourly rate when he became acting supervisor, while still retaining his Maintenance II classification and Union membership. Cooper Deposition, pp. 71-72 and 77-78, and Union contract, Article IV, Section 3, p. 12 (attached as Ex. B to Cooper's Deposition, and hereafter referenced as "Contract").

{¶ 7} At all relevant times, Christian Mattingly was the Director of the Parks Dept. and Brad Townsend was the City Manager. When Chaney retired, the City did not publicly post the supervisor's position and did not establish a list of eligible candidates. Cooper also did not apply for the supervisor's position.

{¶ 8} Around January 25, 2008, Townsend and Cooper had a brief meeting, during which Townsend offered Cooper the position of supervisor of the Parks Dept. Because Cooper had previously spoken to Mattingly about a potential promotion, Cooper anticipated that he would receive an offer at the meeting. As a result, Cooper had prepared a letter requesting a guaranteed employment contract. See Ex. C attached to Cooper's Deposition.

{¶ 9} The letter, which was dated January 25, 2008, stated, in pertinent part, as follows:

In order for me to accept the Parks and Recreation, Supervisor Position and leave the security of my current position as Maintenance Repair Person, I need to ask that this letter or some other legal agreement be signed by the City of West Carrollton and myself, guaranteeing me the opportunity to fall back in my current title and keep my seniority, in the event of cutbacks, Layoffs, or you find that my performance isn't satisfactory, or for any other reasons deemed necessary until my retirement is up November 2013.

Ex. C at p. 1.

{¶ 10} When Cooper wrote this letter, he was aware that supervisors did not have job security because they were not in the Union. In contrast, as a Union member, Cooper had seniority rights, including bumping rights; thus, if layoffs occurred, employees junior to Cooper would generally be laid off first. Cooper Deposition at p. 60. When Cooper wrote the letter, he was unaware of any other City employee who had ever received such a contract. Id. at pp. 61-62.

{¶ 11} Townsend read Cooper's letter during the meeting and told Cooper that the City did not enter into employment contracts. Doc. # 32, City's Motion for Summary Judgment, Affidavit of Brad Townsend, ¶ 7; Cooper Deposition at p. 63. When Townsend made this statement, Cooper told Townsend he would get back with him. Id. at p. 63. Cooper did not recall what Townsend said after that. However, Cooper thought that Townsend was not very happy with the letter. Apparently, during the meeting, Cooper also brought up the fact that, as City Manager, Townsend had a contract. Cooper concluded that Townsend did not like this reference. Id. at p. 64.

{¶ 12} Mattingly did not have authority to promote Cooper; he only could make recommendations to Townsend. A few days after the meeting, Cooper told Mattingly he would accept the job basically without a contract. According to Cooper, Mattingly said "great, he'll let [Townsend] know." Cooper Deposition at p. 66. No further discussion occurred, including what Cooper's salary would be. Cooper indicated that the supervisor position had a range of salaries, from low to high. Id. at p. 90.

{¶ 13} While acting in both the acting supervisor capacity and what Cooper thought was his new position as "supervisor," Cooper performed his usual duties as a Maintenance II worker, but also performed other duties. After being promoted, Cooper prepared monthly reports for Mattingly about the department's activities and assigned work to other employees. Cooper also helped Mattingly with the budget by making recommendations about needed equipment and obtaining prices.

{¶ 14} When Cooper received the promotion, he expected that his pay rate would change and that he would receive supervisor pay rather than the rate for Maintenance II, plus 8%. However, after receiving a few paychecks, Cooper noticed that he was not being paid any more than before his promotion. Cooper Deposition at pp. 75-76. In 2008, a few months after becoming supervisor, Cooper discussed the issue with Mattingly, who said he would "get with" Brad Townsend and look into it. Mattingly did not get back to Cooper with an answer, however.

{¶ 15} After that, Cooper asked about the issue several times a year, although he did not specify exactly when he asked. He said that in one incident he could recall, which he thought was in 2008, Mattingly said, "you turned down the job." Id. at p. 82.

{¶ 16} About four or five years later, Cooper demanded to talk to Townsend. Cooper had tried to talk to Townsend several times, but Townsend was not available. On this occasion, Townsend basically laughed at Cooper and said, "you've been doing it for four or five years, how do you expect me to take it to council?" Id. at p. 83.

{¶ 17} In 1982, the City adopted personnel rules and regulations. See Ex. D. (City of West Carrollton Personnel Rules and Regulations) ("Personnel Rules"), attached to the Cooper Deposition. Rule XII provides for a grievance procedure "through which all City employees may have an opportunity to have their problems and complaints considered in a fair and reasonable manner." Personnel Rules at p. 61, Section 12.01.

{¶ 18} Rule XII defines a grievance as a dispute based on one or more of the following items: "1. The lack of a clearly defined City or Department Policy; 2. The existence of a policy which is unfair or discriminatory to a specific group of employees; 3. The deviation from established policy; [and] 4. The improper application of the rules, regulations or policies of the City." Id. at p. 61, Section 12.03. Employees initiate the process by filing grievances in writing with their supervisors within 10 days of when they "knew or should have known of the event on which the grievance is based." Id. at p. 62, Section 12.04. A three-level process, including appeals, is involved, ending with the City Manager's decision on the subject. Id. at pp. 62-63, Sections 12.04-12.05. Cooper testified that any full-time employee would know the rules and regulations, and that this was a general obligation of City employees. Cooper Deposition at pp. 92-93.

{¶ 19} During his deposition and in interrogatory answers, Cooper claimed that the City violated Section 6.10 of the Personnel Rules, which stated that:

A. Whenever a vacancy occurs in the civil service of the City and there is no current eligible list from which a certification can be made, the Personnel Director shall so inform the appropriate Department Head. If, in the judgment of the Department Head, it is not expedient to wait until the establishment of a list, he shall request the Personnel Director to submit to him the application(s) of one or more persons who possess the minimum qualifications established for the position. Upon review of the applications, the Department Head may recommend to the City Manager the appointment of one of the candidates. Upon approval by the City Manager, the appointment shall become official.
B. A provisional appointment shall not last longer than three months, during which time an examination shall be given and an eligible list established. The name of the provisional candidate shall be certified to the Department Head along with the names of the top five candidates on the eligible list, provided that the provisional employee receives a passing score on the examination. The probationary service of a provisional employee may be shortened by the length of time spent in a provisional status.

Ex. D, Personnel Rules, at p. 21.

{¶ 20} Both Townsend and Mattingly testified that Cooper was not a provisional appointee and was not given a test for provisional appointees; Cooper did not present contrary evidence. In fact, Cooper said that supervisory positions do not have to be posted. Cooper Deposition at p. 53. Cooper also stated that apparently Townsend considered him a provisional appointee because he paid Cooper less, but Cooper did not consider himself as such; he considered himself to have been actually appointed to the position of supervisor. Id. at p. 104. In any event, Cooper never said that he ever filed any grievances concerning his appointment or pay.

{¶ 21} The Union contract also contained grievance, mediation, and arbitration procedures. See Cooper Deposition, Ex. B, Contract, Article 8, at pp. 5-8. Again, Cooper failed to provide any evidence of attempts to use any grievance or other procedures contained in any Union contracts.

{¶ 22} As was noted, Cooper filed an initial complaint against the City in June 2015, dismissed it without prejudice, and refiled in December 2016. In February 2017, the City filed a Civ.R. 12(C) motion to dismiss, contending that Cooper's claims for promissory estoppel and implied contract were barred by the statute of limitations. The City further argued that Cooper's breach of contract action, which was allegedly based on Section 6.10 of the City's personnel rules, failed to state a claim because there was no meeting of the minds.

{¶ 23} On March 30, 2017, the trial court sustained the City's motion to dismiss in part, and denied it in part. The court concluded that the statute of limitations for the promissory estoppel and implied contract claims expired in early to mid-2014, well before the initial complaint was filed. However, the court overruled the motion to dismiss the contract claim. The court noted the City's argument that Cooper had not offered any evidence about the meeting of the parties' minds, but stressed that it could not consider evidence outside the pleadings.

{¶ 24} Subsequently, on August 8, 2017, the City filed a motion for summary judgment with respect to the remaining claim. In support of its motion, the City filed affidavits from Townsend and Mattingly, as well as Cooper's deposition and the exhibits identified at the deposition. On September 29, 2017, the trial court sustained the City's motion for summary judgment and dismissed the case. Cooper then filed a timely appeal of the court's decision.

II. Breach of Contract Claim

{¶ 25} Cooper's First Assignment of Error states that:

The Trial Court Erred When It Dismissed Appellant's Breach of Contract Claim.

{¶ 26} In granting summary judgment on the contract claim, the trial court first held that the matter involved an oral contract because no evidence of a written contract was provided. The court further concluded that there was no evidence of a meeting of minds. While the court concluded that some sort of agreement existed, the terms were not evident, and there was no evidence of mutual assent to any of the material pay terms. As a result, the court held that the contract was not enforceable because it was indefinite as of its making and was not binding on the parties.

{¶ 27} In arguing that the trial court erred, Cooper contends that he was orally offered the position of supervisor and orally accepted the offer. According to Cooper, a meeting of the parties' minds took place for purpose of contract formation because his job duties changed after his acceptance of the offer, including that he provided monthly reports about the department's activity, presented budget items to Mattingly, attended meetings and seminars scheduled for City supervisors, was paid by the City for the use of his cell phone, responded to City emergencies, set daily work schedules for the department, and hired and fired seasonal employees.

{¶ 28} Before addressing these points, we note that "[a] trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor." Smith v. Five Rivers MetroParks , 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999), citing Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). "We review decisions granting summary judgment de novo, which means that we apply the same standards as the trial court." GNFH, Inc. v. W. Am. Ins. Co. , 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

{¶ 29} As the trial court observed, the alleged agreement in this case was oral, as there is no evidence of any writing. Courts may enforce oral agreements if the terms " 'can be established by clear and convincing evidence.' " Clemens v. Clemens , 2d Dist. Greene No. 07-CA-73, 2008-Ohio-4730, 2008 WL 4278216, ¶ 93, quoting Pawlowski v. Pawlowski , 83 Ohio App.3d 794, 798-799, 615 N.E.2d 1071 (10th Dist. 1992). The party asserting the existence of such an agreement also has the burden of proof. Id. at ¶ 102.

{¶ 30} " 'A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.' " Kostelnik v. Helper , 96 Ohio St. 3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc. , 436 F.Supp. 409, 414 (N.D.Ohio 1976). "A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract." Id. , citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations , 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). " 'In order for a meeting of the minds to occur, both parties to an agreement must mutually assent to the substance of the exchange.' " Champion Gym & Fitness, Inc. v. Crotty , 178 Ohio App.3d 739, 2008-Ohio-5642, 900 N.E.2d 231, ¶ 12 (2d Dist.), quoting Miller v. Lindsay-Green, Inc. , 10th Dist. Franklin No. 04AP-848, 2005-Ohio-6366, 2005 WL 3220215, ¶ 63.

{¶ 31} The Supreme Court of Ohio has stressed that:

A court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract. They must have expressed their intentions in a manner that is capable of being understood. It is not even enough that they had actually agreed, if their expressions, when interpreted in the light of accompanying factors and circumstances, are not such that the court can determine what the terms of that agreement are. Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement, have often been held to prevent the creation of an enforceable contract.

Rulli v. Fan Co. , 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997), quoting 1 Corbin on Contracts 525, Section 4.1 (Rev. Ed. 1993).

{¶ 32} Assuming for the sake of argument that the parties had agreed for Cooper to be considered a supervisor, the terms of their agreement would have been insufficient for purposes of either determining if a breach occurred or the appropriate remedy to be provided. See Nilavar v. Osborn , 127 Ohio App.3d 1, 13, 711 N.E.2d 726 (2d Dist.1998). Specifically, a range of salaries existed for the supervisor's position, and the parties did not discuss a salary. During his deposition, Cooper speculated about what his starting salary might have been, by stating that he expected it would be "about middle ways"; however, even this is indefinite. Cooper Deposition at p. 90. More importantly, there was simply no evidence indicating what the parties intended the salary to be, nor would there be any way to decide whether a breach occurred, since no salary was specified. The only claim Cooper asserts in this case is that he was not paid the salary he thinks he should have received.

{¶ 33} A fundamental contract rule "is that a contract which is not binding on one party because it is too indefinite and uncertain as to a material matter, is not binding on the other party thereto." Messner v. Beals , 16 Ohio Law Abs. 506, 508 (9th Dist.1934) (finding no binding contract where salary was not specified). See also Snell Environmental Group v. Bd. of Commrs. of Warren Cty. , 12th Dist. Warren No. 64, 1983 WL 4436, *2-3 (Aug. 3, 1983) (contract was unenforceable where parties did not agree to a fee when they contracted);

Cahill v. Owens , 2016-Ohio-4972, 67 N.E.3d 1242, ¶ 18 (10th Dist.) (no enforceable contract existed due to lack of definite terms and mutual understanding where parties disagreed as to terms and amount of fees); Allied Erecting & Dismantling Co. v. Uneco Realty Co. , 146 Ohio App.3d 136, 142-143, 765 N.E.2d 420 (7th Dist.2001) (no meeting of minds where compensation was not agreed upon); Ramun v. Ramun , 7th Dist. Mahoning No. 12 MA 61, 2014-Ohio-4440, 2014 WL 4977495, ¶ 29 (lack of agreement as to compensation rendered alleged oral contract unenforceable).

{¶ 34} In light of the preceding discussion, the trial court did not err in concluding that the parties did not enter into a binding and enforceable contract. Accordingly, the First Assignment of Error is overruled.

III. Statute of Limitations

{¶ 35} Cooper's Second Assignment of Error states that:

The Trial Court Erred When It Found that the Applicable Statute of Limitations Had Ran [Sic].

{¶ 36} In addition to finding that no enforceable contract existed, the trial court held that Cooper's actions for promissory estoppel and implied contract were barred by the statute of limitations. Cooper concedes that the six-year statute of limitations in R.C. 2305.07 applies, but argues that he did not truly feel injured until he took his concerns to the City Manager in 2012 or 2013. Alternatively, Cooper contends that the statute of limitations should be tolled because of the continuing nature of his alleged injury.

{¶ 37} R.C. 2305.07 provides for a six-year statute of limitations for actions based on "a contract not in writing, express or implied * * *." Causes of action for breach of contract accrue when the alleged breach causes actual damages to the complaining party. Kincaid v. Erie Ins. Co. , 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 13, modified on reconsideration on other grounds , 127 Ohio St.3d 1550, 2011-Ohio-647, 941 N.E.2d 805, ¶ 20; Columbus Green Bldg. Forum v. State , 2012-Ohio-4244, 980 N.E.2d 1, ¶ 27 (10th Dist.).

{¶ 38} Again, assuming that an oral contract existed and that it was enforceable, the alleged breach would have occurred in early 2008, when Cooper failed to receive the salary raise (whatever that was) to which he says he was entitled. Six years from that time would have been in early 2014. However, Cooper's first action was not filed until June 2015, about a year and a half after the statute of limitations expired. The fact that Cooper did not "think" a problem existed until 2012 or 2013 is irrelevant; in addition, it defies logic.

{¶ 39} We also reject Cooper's assertion that the statute of limitations was tolled under the "continuous violation" doctrine. As authority, Cooper cites Ohio Adm. Code 4112-3-01(D)(2), which states that "[i]n cases of recurring or continuing violations, the filing period begins to run anew with each new discriminatory act or with each new day of the continuing violation." This regulation pertains to civil rights violations. Marok v. Ohio State Univ. , 10th Dist. Franklin No. 13AP-12, 2014-Ohio-1184, 2014 WL 1347535, ¶ 26, fn.1.

{¶ 40} The Supreme Court of Ohio has stressed that courts are very reluctant to use the continuing violation doctrine outside the Title VII context. State ex rel. Nickoli v. Erie MetroParks , 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 31, citing Natl. Parks Conservation Assn., Inc. v. Tennessee Valley Auth. , 480 F.3d 410, 416 (6th Cir. 2007). Furthermore, continuing violations are distinguished from "continuing effects of prior violations"; in this context, " ' "[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." ' " Id. at ¶ 32, quoting Broom v. Strickland , 579 F.3d 553, 555 (6th Cir. 2009). (Other citation omitted.) See also Painesville Mini Storage, Inc. v. Painesville , 124 Ohio St.3d 504, 2010-Ohio-920, 924 N.E.2d 357, ¶ 3 (in takings case, continual violation doctrine did not apply because "the city did not perform any additional challenged actions after it issued the permit. Every event that occurred thereafter 'was merely a continuation of the effects of that solitary event rather than the occurrence of new discrete acts.' ")

{¶ 41} In rejecting a claim that the continuing violation doctrine should be applied to toll the limitations period for actions based on breach of contract, the Tenth District Court of Appeals quoted a federal case, which said that " 'the plaintiff has not cited any cases, nor is the court aware of any, indicating that Ohio would entertain extending the continuing violation doctrine to breach of contract cases.' " Marok at ¶ 26, citing Vitek v. AIG Life Brokerage , S.D. Ohio No. 06-cv-615, 2008 WL 4372670 (Sept. 22, 2008). Our research also has not disclosed any Ohio cases that have extended the continuing violation doctrine to contract actions.

{¶ 42} In arguing that the statute of limitations should have been tolled, Cooper has additionally cited two cases from other jurisdictions. One case applied a continuous violation theory to avoid the effect of the statute of limitations on claims against a lessee for an air-conditioning unit that repeatedly leaked into the apartment below. 1050 Tenants Corp. v. Lapidus , 289 A.D.2d 145, 735 N.Y.S.2d 47 (1st Dept. 2001). The court found that a violation of law resulting in "a continuous condition of nuisance" stated "a continuous and recurring wrong * * *." Id. at 147, 735 N.Y.S.2d 47. That is not the situation here, and even though a lease agreement was involved in the cited case, the court's focus was on the alleged continuing nuisance.

{¶ 43} In the other case cited by Cooper, the California Supreme Court rejected application of the continuous violation theory in a situation involving breach of a copier lease agreement. Aryeh v. Canon Business Sols. , Inc. , 55 Cal.4th 1185, 1199, 151 Cal.Rptr.3d 827, 292 P.3d 871 (2013). However, the court did apply what it called a "continuous accrual" theory, which "supports recovery only for damages arising from those breaches falling within the limitations period." Id. Thus, where the plaintiff alleged that the lessor of the copier had breached "the duty not to impose unfair charges in monthly bills," the court held that "each alleged breach must be treated as triggering a new statute of limitations." Id. at 1200, 151 Cal.Rptr.3d 827, 292 P.3d 871. The court also noted allegations in the complaint, which it construed as true, that the defendant's "bills periodically included test copy charges that were unfair or fraudulent." Id.

{¶ 44} We find no evidence that Ohio recognizes a similar "continual accrual" theory. However, even if Ohio recognized such a theory, the case before us does not involve such circumstances. Here, the alleged damages arose from a single event - the City's purported breach of an oral agreement to promote Cooper. The cause of action arose at that time, not on every payday from January 2008 until Cooper retired in 2016. See Barnett v. Connecticut Mut. Life Ins. Co. , 8th Dist. Cuyahoga No. 69253, 1996 WL 284878, *2 (May 30, 1996) (rejecting plaintiff's contention that a separate cause of action arose every year that he did not receive a cost of living benefit adjustment on a disability policy. Instead, the damage arose from a single alleged wrongful act, which was the insurance agent's alleged failure to obtain coverage that included a cost of living increase).

{¶ 45} Cooper was clearly aware in early 2008 that he was not receiving the salary he expected, after having been "promoted" to supervisor. However, he failed to file his action for more than six years, and the trial court correctly concluded that his claim was barred under R.C. 2305.07. The Second Assignment of Error, therefore, is overruled.

IV. Conclusion

{¶ 46} All of Cooper's assignments of error having been overruled, the judgment of the trial court is affirmed.

HALL, J. and TUCKER, J., concur.

      The dates in this paragraph with respect to Cooper's high school attendance reflect the evidence in the record, but we note that they appear to span more than four years.

      This contract was effective from November 10, 2011, to November 10, 2013, but neither side has noted any relevant differences between this and other Union contracts that were in effect during Cooper's employment.

      A factual dispute exists in this context, as both Mattingly and Townsend stated that Cooper had declined the position. See Doc. # 32, Mattingly Affidavit, ¶ 8, and Townsend Affidavit at ¶ 8. According to Townsend, Cooper decided to stay in his current classification and receive the 8% salary increase, while staying under Union protection. Id. For reasons that will become clear in our discussion, this is not a material factual dispute.

      The Supreme Court of Ohio has allowed tolling of the statute of limitations where "an act carried out on the actor's own land causes continuing damage to another's property and the actor's conduct or retention of control is of a continuing nature * * *." State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph two of the syllabus. However, this type of conduct did not occur in the case before us; instead, the City's alleged breach of the parties' oral agreement was a single act.


author: SINGER, J.

text:
    Marc MEYER, et al., Appellants v. UNITED AIRLINES, INC., Appellee
    No. L-17-1176
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: June 29, 2018
    James G. O'Brien, Toledo, for appellants.
    Scott R. Torpey and Justin M. Schmidt, for appellee.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellants, Marc and Paula Meyer, appeal the June 14, 2017 summary judgment of the Lucas County Court of Common Pleas granted in favor of appellee, United Airlines Inc. For the reasons that follow, we affirm.

Assignments of Error

{¶ 2} Appellants set forth the following assignments of error:

1. The Court erred in granting Summary Judgment to Defendant United Airlines, Inc. when Plaintiffs have pointed to evidence showing United violated Federal Aviation Regulations and it is axiomatic that violations of those regulations that lead to injury are actionable under state law.
2. The Court erred in granting Summary Judgment to Defendant United Airlines, Inc. when significant questions of fact remain, particularly considering that Plaintiffs can point to evidence indicating United did not verify the incident bin was secure, as federal regulations require.
3. The Court erred in accepting Defendant United Airlines, Inc.'s unsupported restatement of the facts and in drawing conclusions in United's favor in granting summary judgment.

Background

{¶ 3} Appellants were aboard appellee's flight from Honolulu, Hawaii to Chicago, Illinois on October 26, 2013. Appellants were returning home to Toledo, Ohio. At some point after push-back from the gate or taxi onto the runway, but before landing in Chicago, appellant Marc Meyer was struck by luggage that had fallen from an overhead bin.

{¶ 4} Marc suffered injuries and sought medical treatment upon returning to Toledo. He was in pain and lost use of his shoulder. It was eventually determined Marc had a full-thickness rotator cuff injury, and he underwent surgery to repair the injury.

{¶ 5} On October 20, 2015, appellants filed a complaint claiming appellee breached a duty of care by not securing the overhead bin, there proximately causing Marc's injuries. Paula claimed loss of consortium.

{¶ 6} During discovery, appellants Marc and Paula, a passenger-witness Reatta Barnfield, and flight attendant David Carney were deposed as fact witnesses.

{¶ 7} On January 23, 2017, appellee moved the court for summary judgment claiming that, based on facts produced at the depositions, no dispute of material fact existed.

{¶ 8} Appellants opposed summary judgment on April 24, 2017, contending that disputes of material fact existed and that resolution was necessary to determine whether appellee breached a standard of care imposed by federal aviation regulations.

{¶ 9} The trial court granted appellee's motion for summary judgment, there disposing of appellants' claims on June 14, 2017. The judgment was journalized that day, and appellants now timely appeal.

Standard of Review

{¶ 10} When reviewing a trial court's summary judgment decision, the appellate court conducts a de novo review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Accord Lopez v. Home Depot, USA, Inc. , 6th Dist. Lucas No. L-02-1248, 2003-Ohio-2132, 2003 WL 1962360, ¶ 7.

Assignment of Error No. 1

{¶ 11} First, appellants argue they have satisfied their burden to withstand summary judgment where evidence shows appellee's violations of federal aviation regulations proximately caused their injuries. In response, appellee contends appellants adduced no evidence showing appellee was negligent or that appellee violated a federal aviation regulation.

{¶ 12} "Ohio law provides that in order to prove negligence, a plaintiff must establish duty, a breach of that duty, and damage or injury proximately caused by the breach." See , e.g. , Gilbert v. Norfolk S. Ry. , 6th Dist. Lucas No. L-09-1062, 2010-Ohio-2618, 2010 WL 2333773, ¶ 61.

{¶ 13} To establish the duty and applicable standard of care, appellants here specifically point to the regulations codified in 14 C.F.R. 121.589, which cross-references 14 C.F.R. 121.285(d), and, in pertinent part, state as follows:

(b) No certificate holder may allow all passenger entry doors of an airplane to be closed in preparation for taxi or pushback unless at least one required crewmember has verified that each article of baggage is stowed in accordance with this section and § 121.285 (c) and (d).
(c) No certificate holder may allow an airplane to takeoff or land unless each article of baggage is stowed:
(1) In a suitable closet or baggage or cargo stowage compartment placarded for its maximum weight and providing proper restraint for all baggage or cargo stowed within, and in a manner that does not hinder the possible use of any emergency equipment; or
(2) As provided in § 121.285 (c) and (d) ; or
(3) Under a passenger seat.
(d) Baggage, other than articles of loose clothing, may not be placed in an overhead rack unless that rack is equipped with approved restraining devices or doors.

See 14 C.F.R. 121.589(b) - (d) ; see , e.g. , Levy v. Continental Airlines, Inc. , E.D.Pa. No. 07-1266, 2007 WL 2844592, *6 (Oct. 1, 2007) (" Section 121.589 establishes the standard of care that airlines must use for securing carry-on baggage.").

{¶ 14} 14 C.F.R. 121.285(d), in pertinent part, provides:

(d) Cargo, including carry-on baggage, may be carried anywhere in the passenger compartment of a nontransport category airplane type certificated after December 31, 1964, if it is carried in an approved cargo rack, bin, or compartment installed in or on the airplane, if it is secured by an approved means, or if it is carried in accordance with each of the following:
(1) For cargo, it is properly secured by a safety belt or other tie-down having enough strength to eliminate the possibility of shifting under all normally anticipated flight and ground conditions, or for carry-on baggage, it is restrained so as to prevent its movement during air turbulence. * * *
* * *
(6) It is stowed in compliance with this section for takeoff and landing.

See 14 C.F.R. 121.285(d)(1) and (6).

{¶ 15} Here, we find the federal aviation regulations cited above provide an applicable standard of care. With respect to 14 C.F.R. 121.589(b) through (d), appellee is to verify carry-on baggage aboard its flight is safely stowed and restrained prior to takeoff. Additionally, 14 C.F.R. 121.285(d)(1) and (6) explain that it is appellee's duty to restrain and properly stow away carry-on baggage "so as to prevent movement[.]"

{¶ 16} Accordingly, we review the record to find whether appellee breached this standard of care on October 26, 2013, and we will address this with the second assigned error.

Assignment of Error No. 2

{¶ 17} Appellants argue that questions of material fact remain as to whether appellee verified that the incident bin was secure or that the bags therein were properly stowed before takeoff. Appellee contends appellants adduced no evidence showing appellee either failed to verify the bin was secure or failed to secure the bag before takeoff.

{¶ 18} When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleading, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E) ; Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984).

{¶ 19} Here, appellants argue a de novo review of the record demonstrates that appellee breached the duty imposed by the above federal regulations. See 14 C.F.R. 121.589(b) - (d) ; 14 C.F.R. 121.285(d)(1) and (6), supra .

{¶ 20} More specifically, appellants point to deposition testimony in the record to support that appellee failed to verify the incident bin was secure, or alternatively, it failed to properly stow the baggage away safely, before takeoff of the flight on which appellant Marc Meyer was injured.

{¶ 21} Appellants first point to Marc's deposition, where he testified about boarding the plane and the events leading to the bag falling on him from the overhead bin during the flight's takeoff and ascent.

{¶ 22} Marc stated that after he and his wife boarded the plane, an unidentified passenger opened the bin above his seat and inserted the incident bag. Marc testified the bin did not appear to be entirely closed after the passenger loaded the bag, but that he took no action and did not inform the flight attendants about the opened bin. Marc said he did not take action because he expected the flight attendants to check the bin before takeoff, but that he did not notice any attendants check or close the bin. Appellee's counsel questioned why he did not insist on a flight attendant closing the bin, and Marc explained as follows:

[Marc]: They normally are checking those things as we're taxiing to the runway, okay? And by the time I realized that nobody had done anything, we were on the runway getting ready to take off. So there was no way of getting anyone at that point because even if you ring for a flight attendant at that point, they're strapped in their seats. They don't normally want to get out of their seat for something until the plane has taken off.

{¶ 23} Marc also testified that he specifically recalled that the incident bag fell on him as the plane ascended during takeoff.

{¶ 24} Appellants rely on Marc's deposition to support their claim that appellee failed to verify the baggage was secure in the overhead bin, arguing that had the flight attendants done so Marc would have seen them. Appellants further rely on Marc's deposition to show that appellee failed to properly stow away the incident bag prior to takeoff, arguing that had it done so then no bag would have fallen.

{¶ 25} Appellants also point to Paula's deposition testimony in support of their timeline and rendition of the events. Paula recalled the visible gap in the overhead bin prior to takeoff, and that she did not see any flight attendant shut the incident bin or verify that it was secure.

{¶ 26} Appellee counters arguing appellants' testimony, when viewed in conjunction with passenger-witness Reatta Barnfield and lead flight attendant David Carney's testimony, leaves no genuine question of material fact.

{¶ 27} Appellee contends Barnfield's testimony provides the sequence of events, and shows that a flight attendant closed the incident bin and verified it was secure before the unknown passenger reopened it. Appellee contends Carney's testimony supports that the bins were checked and found to be securely closed.

{¶ 28} Appellants counter, urging this court to find that Barnfield's testimony shows genuine disputes of material fact because Barnfield stated that the incident did not occur until closer to when the plane was arriving in Chicago, and stated that a flight attendant was the last to touch the bin before takeoff.

{¶ 29} In terms of the timing of the incident, appellants and Carney testified the incident happened during takeoff, and Carney actually said that Marc was provided with the option of returning to Honolulu after the injury occurred.

{¶ 30} With respect to the last person to touch the bin before the bag fell, all deposition testimony reveals it was an unidentified passenger. More specifically, appellants said the unidentified passenger touched the bin and that no flight attendants did so afterward, and Barnfield said that the passenger was the last person to touch the bin before the bag fell.

{¶ 31} Consequently, appellee argues that despite there being conflicts with the witnesses' "immaterial differences" in the timing of the events, there is yet no dispute with regard to the sequence of events. In other words, appellee asserts there remains no question that appellee closed the incident bin and verified it was secure before takeoff and before the unidentified passenger placed his or her bag in the bin. Appellee notes specifically that the requirement that it verify the bins are secure can be satisfied by a visual inspection, and that the verification in this case was completed visually. And by natural extension, appellee argues there is no evidence in the record to show appellee violated any duty or regulation.

{¶ 32} The trial court addressed this issue, stating as follows: "Plaintiff offers neither evidence nor authority to dispute Purser Carney's testimony that the required verification may be completed visually and that a manual verification is not required."

{¶ 33} We agree and find appellants offer no evidence to place in dispute Carney's claim that a visual inspection occurred. Further, we find no legal authority offered by appellants to convincingly support the contention that a manual, as opposed to a visual, inspection or verification is required under 14 C.F.R. 121.589(b).

{¶ 34} Accordingly, the first and second assigned errors are not well-taken.

Assignment of Error No. 3

{¶ 35} Third and lastly, appellants argue the trial court erred by accepting appellee's facts and drawing conclusions favorable to appellee. Appellee contends no genuine issue of material fact exists because all evidence in the record shows an unidentified passenger was last to touch the bin after appellee checked and verified the bins were securely closed.

{¶ 36} "A 'material' fact is one which would affect the outcome of the suit under the applicable substantive law." See Advantage Renovations, Inc. v. Maui Sands Resort, Co. , LLC , 6th Dist. Erie No. E-11-040, 2012-Ohio-1866, 2012 WL 1493826, ¶ 14, citing Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999) ; Needham v. Provident Bank , 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶ 37} As articulated above, we find no genuine dispute of material fact where an unidentified passenger touched the bin before the bag fell out. Because appellants have not met their burden of showing there remains a genuine issue of material fact, or showing that appellee is not entitled to judgment as a matter of law, we affirm the trial court. Appellants' assignments of error are not well-taken.

Conclusion

{¶ 38} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Christine E. Mayle, P.J.

CONCUR.


author: Gwin, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Tiffany L. GORDON, Defendant-Appellant
    No. 17 CAC 12 0075
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT ENTRY: July 9, 2018
    MELISSA SCHIFFEL, Delaware City Attorney's Office, 70 North Union Street, Delaware, OH 43015, For Plaintiff-Appellee
    MICHAEL DALSANTO, 33 West Main Street, Ste. 106, Newark, OH 43055, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.
   Gwin, J.

{¶ 1} Defendant-appellant Tiffany Gordon ["Gordon"] appeals her conviction and sentence for driving under an OVI suspension in violation of R.C. 4510.14 in the Delaware Municipal Court.

Facts and Procedural History

{¶ 2} On July 1, 2016, Gordon was charged with Operating a Vehicle under the Influence in violation of R.C. 4511.19(A)(1)(a) in the Mount Vernon Municipal Court. On that date, Gordon was placed under a one-year Administrative License Suspension ("ALS") due to a "refusal." On December 7, 2016, Gordon pleaded guilty to a violation of R.C. 4511.19(A)(1)(a). The Mount Vernon Municipal Court terminated the ALS and suspended her license for 365 days. The Court "back-dated" the suspension to July 15, 2016, giving her credit for the ALS she had served between the date of arrest and the date of the plea.

{¶ 3} On May 9, 2017, Gordon was driving in Delaware County. She was stopped and cited for operating a motor vehicle while under an OVI suspension. On May 10, 2017, Gordon entered a plea of not guilty in the Delaware Municipal Court. The case was set for a pre-trial conference on June 14, 2017.

{¶ 4} On May 16, 2017 upon Gordon's motion, the Mount Vernon Municipal Court filed the following Journal Entry,

This matter came before the Court on Defendant, Tiffany Gordon's motion to reduce the length of her Class 5 driver's license suspension from 365 days to 180 days. The Defendant states that she has completed the Driver Intervention Program, attended AA meetings as required, kept all appointments with her Probation Officer, paid all fines and court costs, and is otherwise in full compliance with the Court's sentencing orders.
The Court finds the Defendant in full compliance with the Court's sentencing orders, and, therefore ORDERS that the length of her Class 5 driver's licenses suspension is reduced from 365 days to 180 day, beginning July 1, 2016.

State v. Tiffany Gordon , Mount Vernon Municipal Court, Case No. 16TRC02490, Journal Entry , filed May 16, 2017. This amendment had the effect of terminating the court-issued suspension on December 28, 2016, long before May 9, 2017.

{¶ 5} The matter was subsequently scheduled for a bench trial on November 13, 2017. At the bench trial, the parties stipulated to all relevant facts. The parties also agreed on the following legal issues:

16. The parties agree that on the date of offense. May 9th, 2017, Ms. Gordon was suspended out of Mount Vernon Municipal Court Case No. 16TRCO2490. The parties further agree that the Mount Vernon Municipal Court retroactively lifted her suspension on May 16th, 2017, eliminating the date of offense from the period of suspension.
17. In the view of the parties, the sole issue presented to the Court is the import of the May 16th, 2017, judgment entry as it relates to the criminal offense that allegedly occurred on May 9th, 2017.

{¶ 6} The trial court found Gordon guilty after consideration of the stipulated facts.

Assignment of Error

{¶ 7} Gordon raises one assignment of error,

{¶ 8} "1. THE APPELLANT'S CONVICTION FOR DRIVING UNDER OVI SUSPENSION IN VIOLATION OF R.C. 4510.14 WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE BECAUSE ALL EVIDENCE INTRODUCED AT TRIAL INDICATED THAT SHE WAS NOT SUSPENDED ON MAY 9, 2017."

Law and Analysis

{¶ 9} In her sole assignment of error, Gordon argues her conviction for driving under an OVI suspension was not supported by sufficient evidence. Specifically, Gordon contends the May 16, 2017 Journal Entry from the Mount Vernon Municipal Court had the effect of removing her OVI suspension retroactively, and, therefore, her driver's license was not suspended on May 9, 2017.

STANDARD OF APPELLATE REVIEW.

A. Sufficiency of the Evidence.

{¶ 10} The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013) ; Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker , 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson , 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

{¶ 11} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed.

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Walker , at ¶ 30. "The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus. State v. Pountney , 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19. Thus, "on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, 'if believed , [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.' " State v. Murphy , 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶ 31. We will not "disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.' " State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997) ; State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 74.

ISSUE FOR APPEAL

Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, "if believed, would convince the average mind of the Gordon's guilt on each element of the crime beyond a reasonable doubt."

{¶ 12} Gordon was convicted of Driving under an OVI Suspension in violation of R.C. 4510.14(A), which provides,

(A) No person whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended under section 4511.19, 4511.191, or 4511.196 of the Revised Code or under section 4510.07 of the Revised Code for a conviction of a violation of a municipal OVI ordinance shall operate any motor vehicle upon the public roads or highways within this state during the period of the suspension.

{¶ 13} A municipal court in Ohio has jurisdiction over misdemeanors occurring within its territorial jurisdiction. R.C.1901.20(A)(1). Thus, the Mount Vernon Municipal Court has jurisdiction over misdemeanors alleged to have occurred in Knox County; the Delaware Municipal Court has jurisdiction over misdemeanors alleged to have occurred in Delaware County. R.C. 1901.20(A) and (B). See also, State v. Mbodji , 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 11.

{¶ 14} In Mbodji , the Supreme Court noted the filing of a complaint invokes the jurisdiction of the municipal court. Mbodji , 129 Ohio St.3d 325, 951 N.E.2d 1025, ¶ 12. Crim.R. 3 defines what constitutes a valid complaint. It states, "The complaint is a written statement of the essential facts constituting the offense charged." In addition, the rule requires that the complaint "state the numerical designation of the applicable statute or ordinance" and that it "be made upon oath before any person authorized by law to administer oaths."

{¶ 15} The complaint filed in this case in Delaware County was valid under Crim.R. 3. The complaint stated that Gordon on May 9, 2017 at 18:32 pm Gordon operated her 2004 Jeep on US Highway 23 North at Willey Road in the township of Troy in Delaware County while under an OVI suspension in violation of R.C. 4510.14(A). The complaint was sworn to and signed by the officer. Thus, the jurisdiction of the Delaware Municipal Court was properly invoked.

{¶ 16} In her stipulation, Gordon agreed that she was under an OVI suspension issued by the Mount Vernon Municipal Court when she operated her vehicle in Delaware County on May 9, 2017. Gordon does not dispute that the case was properly filed in the Delaware Municipal Court.

{¶ 17} Viewing the evidence in the case at bar in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Gordon operated her vehicle in Delaware County on May 9, 2017 while under an OVI suspension. We hold therefore that the state met its burden of production regarding driving under an OVI suspension and, accordingly, there was sufficient evidence to support Gordon's conviction.

{¶ 18} The May 16, 2017 entry from the Mount Vernon Municipal Court was filed after Gordon committed the offense of driving under an OVI suspension in Delaware County. The Mount Vernon Municipal Court cannot reverse, annul, undo, or suspend what has already been done. We find no authority authorizing a municipal court to backdate a driver's license suspension. Cf. State v. Crosby , 1st Dist. Hamilton, 174 Ohio App.3d 97, 2007-Ohio-6511, 880 N.E.2d 977, ¶ 7.

{¶ 19} We find Gordon's arguments extremely disingenuous. She drove a car on May 9, 2017 in Delaware County knowing full well that her driver's license was suspended. She cannot escape responsibility for her actions by having the court that issued the suspension in a different jurisdiction backdate that suspension to relieve her of criminal liability for her actions.

{¶ 20} Gordon's sole assignment of error is overruled.

{¶ 21} The judgment of the Delaware Municipal Court is affirmed.

Wise, John, P.J., and Delaney, J., concur.

      This Court notes that there is no written transcript of the proceedings filed in this case; rather only a DVD of the bench trial held Nov 13, 2017. See , App.R. 9(A)(3).


author: TIM McCORMACK, P.J.:

text:
    Latoya CEASOR, Individually and as Administratrix, Plaintiff-Appellee v. CITY OF EAST CLEVELAND, et al., Defendants-Appellants
    No. 106544
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: July 12, 2018
    Willa M. Hemmons, Law Director, City of East Cleveland, 14340 Euclid Avenue, East Cleveland, OH 44112, ATTORNEY FOR APPELLANTS
    Michael D. Goldstein, Joseph N. Cindric, Goldstein & Goldstein Co., L.P.A., 55 Public Square, Suite 2075, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} Defendants-appellants, the city of East Cleveland ("the city") and East Cleveland patrol officer Kyle Pettus ("Pettus"), appeal from the trial court's denial of their motion for summary judgment. For the reasons that follow, we affirm and remand.

Procedural and Substantive History

{¶ 2} This appeal stems from a wrongful death action instituted against the city of East Cleveland. The following factual summary is based on the Ohio State Highway Patrol Reconstruction Report. Both parties relied on this report in their filings before the trial court.

{¶ 3} On October 3, 2015, at approximately 9:30 p.m., 22-year-old Christopher Kimble ("Kimble") was in a crosswalk when Pettus struck and killed him. Pettus was driving a police cruiser with one nonfunctioning headlight. Additionally, the cruiser's lights and sirens were not activated. The speed limit for the area of the incident, the intersection of Superior Avenue and Emily Street in East Cleveland, was 25 miles per hour. At the time of the accident, Pettus was traveling eastbound on Superior Avenue at a speed of approximately 35 to 40 miles per hour. At the time of the accident, the painted crosswalks at the intersection were worn out and not visible. Further, the crosswalk signs were inoperable. Superior Avenue had flashing yellow lights, and Emily Street had flashing red lights. The roadway was dark, and the nearby overhead street lights were inoperable.

{¶ 4} On February 12, 2016, plaintiff-appellee Latoya Ceasor ("Ceasor") filed a complaint against the city and Pettus in the Cuyahoga County Court of Common Pleas. Ceasor is the decedent Kimble's mother and the duly appointed administrator of his estate.

{¶ 5} The complaint alleged that Pettus's operation of the police cruiser that struck Kimble constituted negligent, reckless, willful, and/or wanton misconduct. These allegations were based on Pettus's driving at an excessive rate of speed through an intersection known to be heavily populated by pedestrians, traveling at an excessive rate of speed without implementing his sirens or emergency lights, operating the vehicle with only one working headlight at night, and failing to keep proper lookout.

{¶ 6} The complaint further alleged that the city was negligent in failing to properly maintain or design the intersection, failing to properly maintain its police motor vehicles and property, and failing to properly train its officers.

{¶ 7} The complaint also specifically alleged that the city was vicariously liable for Pettus's actions and that Pettus was liable pursuant to the exception to political subdivision immunity codified in R.C. 2744.03(A)(6)(b). Finally, Ceasor alleged that the city and/or Pettus were liable for spoliation for intentionally and/or negligently destroying or failing to record and preserve body camera evidence.

{¶ 8} On February 26, 2016, the city and Pettus (collectively, "defendants") filed a joint answer.

{¶ 9} On August 28, 2017, defendants filed a motion for summary judgment and a motion to dismiss pursuant to Civ.R. 56, arguing that none of the exceptions to sovereign immunity in R.C. 2744.02(B) apply to this case, and that Ceasor failed to present evidence sufficient to create a genuine issue of material fact.

{¶ 10} On September 26, 2017, Ceasor filed a memorandum in opposition to defendants' motion for summary judgment.

{¶ 11} On October 4, 2017, defendants filed a motion to strike the expert report attached to Ceasor's September 26 memorandum in opposition to summary judgment. The report in question was a crash reconstruction report prepared by Ohio State Highway Patrol Lieutenant John C.

Thorne and was attached to defendants' motion for summary judgment. On October 6, 2017, defendants filed a reply brief in support of their motion for summary judgment.

{¶ 12} The city appeals from the trial court's denial of its motion for summary judgment, presenting the following four assignments of error for our review:

I. In the absence of any genuine issue of material fact the trial court's denial of defendants'/appellants' motion for summary judgment asserting entitlement to R.C. [Chapter] 2744 immunity constituted reversible error.
II. The trial court erred to the prejudice of defendants/appellants in failing to strike plaintiffs' expert report.
III. Absent an expert opinion on the issues of proximate causation and culpability Ms. Ceasor was incapable of defeating the city defendants' entitlement to immunity; and accordingly this court should find that summary judgment in favor of the city defendants was warranted.
IV. In the absence of any genuine issue of material fact, the trial court's denial of [defendants'/appellants'] motion for summary judgment on [plaintiff's] claim of spoliation constituted reversible error.

Law and Analysis

I. Jurisdiction

{¶ 13} We must, as an initial matter, address jurisdiction. In general, an order denying a motion for summary judgment is not a final, appealable order. Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9, citing State ex rel. Overmeyer v. Walinski , 8 Ohio St.2d 23, 24, 222 N.E.2d 312 (1966). However, "when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and thus is a final, appealable order pursuant to R.C. 2744.02(C)." Id. at ¶ 27.

{¶ 14} Our jurisdiction in this case is limited to the review of alleged errors in the portion of the trial court's decision that denied the city the benefit of immunity. Reinhold v. Univ. Hts. , 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, 2014 WL 1775999, ¶ 21, citing Riscatti v. Prime Properties Ltd. Partnership , 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 20. This jurisdictional limitation includes a denial of summary judgment based on proximate causation, as whether immunity applied is a separate and distinct inquiry from whether conduct is a proximate cause of harm. Gates v. Leonbruno , 2016-Ohio-5627, 70 N.E.3d 1110, ¶ 30 (8th Dist.), citing Hardesty v. Alcantara , 2015-Ohio-4591, 48 N.E.3d 127 (8th Dist.). Therefore, we decline to consider the arguments raised in the third and fourth assignments of error, relating to the merits of Ceasor's negligence and spoliation claims, because they do not pertain to the issue of immunity and are thus not yet ripe for review. Id. at ¶ 47.

II. Immunity

{¶ 15} A trial court's summary judgment determination is reviewed de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This court independently reviews the record to determine whether summary judgment is appropriate. Summary judgment is appropriate when "(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion which is adverse to the nonmoving party." Hull v. Sawchyn , 145 Ohio App.3d 193, 762 N.E.2d 416 (8th Dist.2001).

{¶ 16} On a motion for summary judgment, the moving party carries the initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate. Id. at 283, 662 N.E.2d 264. If the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. If the nonmoving party fails to meet this burden, summary judgment is appropriate. Id.

{¶ 17} In its first assignment of error, the city argues that summary judgment was inappropriate because it was entitled to immunity and Ceasor failed to expressly contest that in her opposition to its motion for summary judgment.

{¶ 18} To determine whether a political subdivision is immune from liability, courts employ a three-tiered analysis pursuant to R.C. Chapter 2744. Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). The first tier of the analysis is the general rule that political subdivisions are immune from liability incurred in performing governmental or proprietary functions. Id. The first tier is not at issue here. "Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions in R.C. 2744.02(B) apply." Id. If any of these exceptions apply, and no defense in R.C. 2744.02(B) applies to protect the political subdivision from liability, we turn to the third tier of analysis. Colbert v. Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. The third tier requires a court to determine "whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability." Id.

{¶ 19} In arguing that it was entitled to immunity, the city asserted that none of the exceptions to immunity apply in this case. This assertion was accompanied by a recitation of several of the relevant exceptions but was unsupported by law or facts from the case. According to the city, because none of the exceptions to immunity apply, it is unnecessary to engage in the third tier of the analysis. In response, Ceasor argues that R.C. 2744.02(B)(1) provides an exception to the city's general grant of immunity. That section states:

[P]olitical subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.

{¶ 20} R.C. 2744.02(B)(1)(a) provides that where "[a] member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct," that constitutes a full defense to liability. A further exception to immunity can be found in R.C. 2744.03(A)(6)(b), which provides that an employee will not be immune from liability where "the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." Ceasor argues that defendants are not entitled to immunity because of Pettus's negligent operation of a motor vehicle, pursuant to R.C. 2744.02(B)(1). The city asserts that Pettus was responding to an emergency call when the fatal accident occurred. We note that the city implicitly asserts that Pettus was not negligent, and therefore it does not expressly argue that his responding to an emergency call operates as a full defense to liability pursuant to R.C. 2744.02(B)(1)(a). Even if it did, though, Ceasor argues that this cannot operate as a full defense because Pettus acted in a "wanton or reckless manner" pursuant to R.C. 2744.03(A)(6)(b).

{¶ 21} We find the city's unsupported assertions insufficient for summary judgment purposes. A party moving for summary judgment must affirmatively establish that the nonmoving party's claims lack support by pointing to evidence in the form of pleadings, depositions, answers to interrogatories, written admissions, or affidavits. Civ.R. 56(C). While the city appended several documents to its motion for summary judgment, at no point has it pointed to any evidence that support its entitlement to immunity. We agree with the trial court that there are genuine issues of material fact as to whether Pettus was engaged in "willful or wanton misconduct" or acted in a "wanton or reckless manner." Because the issue of whether an employee acted in a wanton or reckless manner under R.C. 2744.03(A)(6)(b) is typically a question of fact for the jury, a trial court may not grant summary judgment on the basis of R.C. 2744.03(A)(6) immunity unless reasonable minds could only conclude that the employee did not act in a wanton or reckless manner. Chavalia v. Cleveland , 2017-Ohio-1048, 87 N.E.3d 705, ¶ 33 (8th Dist.).

{¶ 22} "Wanton misconduct is the failure to exercise any care toward those whom a duty of care is owed in circumstances in which there is a great probability that harm will result." Id. at ¶ 34, citing Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. "Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Id. Here, Pettus was speeding through a dark intersection known to be frequently populated with pedestrians in a vehicle with one working headlight. His own testimony establishes that his visibility was significantly compromised and that he had not activated his overhead lights or sirens. This evidence is sufficient to create a genuine issue of material fact as to the city's entitlement to immunity. Therefore, the city's first assignment of error is overruled.

III. Motion to Strike

{¶ 23} In its second assignment of error, the city argues that the trial court failed to strike Ceasor's expert report. This assignment of error is meritless. We review a trial court's decision to grant or deny a motion to strike for abuse of discretion. "The trial court has broad discretion in the admission of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should not disturb the decision of the trial court." State v. Joseph , 73 Ohio St.3d 450, 460, 653 N.E.2d 285 (1995), citing State v. Maurer , 15 Ohio St.3d 239, 239, 473 N.E.2d 768 (1984). An abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Here, the city filed a motion to strike the crash reconstruction report that Ceasor attached to her opposition to the city's motion for summary judgment. This report had previously been attached to the city's motion for summary judgment. The city does not argue that the report is not proper Civ.R. 56 evidence. Instead, in support of this motion, the city argued that it was untimely filed and therefore failed to comply with Loc.R. 21.1(B) of the Court of Common Pleas of Cuyahoga County, General Division. Because the motion was properly before the trial court as Civ.R. 56 evidence for summary judgment purposes, we cannot conclude that the trial court abused its discretion in denying the city's motion to strike.

{¶ 24} For these reasons, we affirm the judgment of the trial court and remand for further proceedings.

ANITA LASTER MAYS, J., and LARRY A. JONES, SR., J., CONCUR