author: BROWN, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. William HENRY, Defendant-Appellant.
    No. 16AP-846
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered March 27, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee. Argued: Barbara A. Farnbacher, Columbus.
    On brief: Yeura R. Venters, Public Defender, and John W. Keeling, Columbus, for appellant. Argued: John W. Keeling, Columbus.
    DECISION
   BROWN, P.J.

{¶ 1} This is an appeal by defendant-appellant, William Henry, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of assault and obstructing official business.

{¶ 2} On March 21, 2016, appellant was indicted on one count of assault, in violation of R.C. 2903.13, and one count of obstructing official business, in violation of R.C. 2921.31. The matter came for trial before a jury beginning October 4, 2016.

{¶ 3} The first witness for plaintiff-appellee, State of Ohio, was Marla Broadwater, a clerk at a Bureau of Motor Vehicles ("BMV") office, the Grove Licensing Agency, located at 1583 Alum Creek Drive. On February 12, 2016, appellant entered the BMV office on Alum Creek Drive and requested a replacement driver's license. Broadwater assisted appellant that day, and appellant became "agitated" filling out a form because of an address discrepancy. (Tr. Vol. I at 38.) Appellant eventually "corrected" the information and Broadwater was able to process the form. (Tr. Vol. I at 40.)

{¶ 4} Broadwater then instructed appellant to proceed "to the photo booth" for an identification photograph. (Tr. Vol. I at 40.) Appellant was wearing a knit hat, and Broadwater said to him: "[S]ir, you're not going to be able to wear your head covering or your hat." (Tr. Vol. I at 41.) Broadwater testified that "once we got down there, he was saying that he wasn't going to remove * * * what he had on." (Tr. Vol. I at 44.)

{¶ 5} Other BMV managers were present, and they informed appellant head coverings were not allowed in photographs unless "for a religious purpose." (Tr. Vol. I at 44.) Appellant responded "it was for a religious purpose." (Tr. Vol. I at 44.) Broadwater inquired about the religious purpose, and appellant responded: "Orthodox Taekwondo." (Tr. Vol. I at 44.) Broadwater stated she had not "heard of that particular religion," and informed appellant he would not be able to have his picture taken. (Tr. Vol. I at 45.)

{¶ 6} BMV managers began researching whether this was "an acceptable type of headgear for that particular religion." (Tr. Vol. I at 45.) Broadwater returned to her work station while other supervisors discussed the matter with appellant. While waiting on another customer, Broadwater heard a "commotion going down, * * * chairs moving." (Tr. Vol. I at 46.) Broadwater walked toward the noise and observed appellant and an officer "down there on the floor." (Tr. Vol. I at 46.) She then observed another individual who "came out from the testing center and was assisting with what was going on down there." (Tr. Vol. I at 47.) The officer was eventually able to restrain appellant.

{¶ 7} Lisa Littler is a field representative with the Ohio Department of Public Safety; her duties include monitoring paperwork of deputy registrars at BMV locations. On February 12, 2016, Littler was performing duties at a work station at the Alum Creek BMV facility when Tara Grove, a BMV manager, asked her to come to the front office area and assist with a customer who was wearing a head covering.

{¶ 8} According to Littler, the state has a policy prohibiting individuals from being photographed with a head covering unless required for religious purposes; the policy is designed to deter "identity theft." (Tr. Vol. I at 70.) Littler explained that "if we can't find that religion or we don't recognize it, we * * * ask you to get a letter from your church, your clergy, and bring that to us so that we can have that on file so that you can wear that hat or scarf." (Tr. Vol. I at 69.)

{¶ 9} On the date of the events at issue, BMV employees inquired about appellant's religion, and appellant "kept saying it was Raffian Condo or something." (Tr. Vol. I at 88.) Appellant "couldn't spell it," and a Google search did not indicate "a religion that Ohio recognized." (Tr. Vol. I at 68.) After further research, BMV personnel "told him that all we saw was the Rastafarian hat * * * and it wasn't recognized in the State of Ohio as a religion here and that he couldn't wear it." (Tr. Vol. I at 77.) Littler explained to appellant he could obtain a "letter and come back, or we could issue [the license] today without the hat on, and then if he got the letter, he could also come back to have it corrected." (Tr. Vol. I at 70.) Appellant "was yelling," and told Littler "he was not leaving without it." (Tr. Vol. I at 70.) Appellant had his arm extended and was pointing his finger "about six to eight inches" from Littler's face. (Tr. Vol. I at 82.)

{¶ 10} Glenn Rondo, a BMV investigator, came to the front area and assisted Littler in explaining the policy to appellant. An officer also approached and stood near Littler behind the counter. Littler testified that appellant "told them that he wasn't talking to anybody but me, and he continued to point at me to say that he was talking to me." (Tr. Vol. I at 71.)

{¶ 11} Appellant "was getting so loud that the officer kept saying, 'Sir, calm down, please * * * you're scaring the other customers.' And [appellant] wouldn't acknowledge him." (Tr. Vol. I at 71.) Littler testified that appellant "just kept talking to me about how I was going to issue the I.D." (Tr. Vol. I at 71.) The officer "kept saying, 'Sir,' probably three, four times, maybe five times." (Tr. Vol. I at 71.)

{¶ 12} The officer finally laid his hand "very lightly" on appellant's shoulder "to say, 'Sir,' * * * and when he did that, [appellant] jerked away and said, 'Step back and give me three feet of space. Get out of my space.' " (Tr. Vol. I at 71.) The officer said " 'I'm not in your space. I just need you to calm down. You're scaring our other customers. * * * I'm going to have to ask you to leave.' " (Tr. Vol. I at 72.) Appellant "continued to yell and told the officer that he was talking to me [Littler], not him. And the officer then said, 'Sir, I'm going have to place you under arrest.' " (Tr. Vol. I at 72.) The officer "reached for the handcuffs," and as he attempted to place the handcuffs on appellant's wrist, the two men "were on the floor." (Tr. Vol. I at 83-84.)

{¶ 13} At that point, BMV "employees up front were all pushing the panic buttons * * * for assistance." (Tr. Vol. I at 72.) Another individual in the building "helped pull [appellant] off * * * the trooper, and then once they got [appellant] to his feet and got the handcuffs on him, the officer proceeded to take him out the doors." (Tr. Vol. I at 84.) Littler testified that "they no more than got through the first set of doors, and [appellant] threw [himself] backwards on to the officer, and they landed up against the wall in the little walkway of the two doors." (Tr. Vol. I at 84.)

{¶ 14} On February 12, 2016, Rondo, who has an office at the Alum Creek Drive facility, was asked to assist at the front desk with a customer who had a disagreement with a clerk regarding a head covering. Rondo testified that he "came out to try to help the clerk explain to the customer what we were doing and what was going on." (Tr. Vol. I at 101.) Rondo described appellant as "agitated." (Tr. Vol. I at 102.) Appellant's "voice was starting to rise. You could tell he was getting upset as time went on." (Tr. Vol. I at 102.) According to Rondo, "we were trying to explain to the customer that unless you have some sort of a religious exception, we cannot allow you to take a photograph with any kind of head covering. So we're just trying to find out what religion he was involved in and if it was an approved religion." (Tr. Vol. I at 100.)

{¶ 15} Rondo further testified: "[T]he deputy came out, and * * * the customer was getting really agitated and starting to get really, really loud. At some point, the deputy came around the counter and explained to the customer that he had to leave." (Tr. Vol. I at 102.) The officer placed his hand on appellant's shoulder, and appellant "knocked it off * * * and then they just started wrestling." (Tr. Vol. I at 103.) The two individuals "started tussling and they ended up on the floor." (Tr. Vol. I at 104.)

{¶ 16} Randy Clucas has been a police officer with the Ohio State Highway Patrol ("OSP") "for just over five years." (Tr. Vol. I at 117.) Officer Clucas, who attended the police academy for training, described his general duties with the OSP as "[b]uilding security for the most part of my shift. We do routine traffic patrols as well. We enforce the Ohio Revised Code. Individuals with warrants, we also take care of them as well." (Tr. Vol. I at 118.)

{¶ 17} On February 12, 2016, Officer Clucas was on duty as a uniformed police officer at 1583 Alum Creek Drive. On that date, BMV employee Grove informed Officer Clucas that a customer was "upset towards them," and asked Clucas to "hang around * * * just to see what's going on with this individual." (Tr. Vol. I at 121, 122.) Officer Clucas described the individual as "a male black, had a Rastafarian-style hat on, * * * a knitted hat, a salt and pepper beard." (Tr. Vol. I at 123.) At trial, Officer Clucas identified appellant as the customer at the BMV office that day.

{¶ 18} Officer Clucas observed appellant "getting * * * more loud and aggressive in his body language," and "leaning over towards the counter in an aggressive way." (Tr. Vol. I at 122.) Appellant's shoulders were "slanted forward," and he was pointing his hands at the clerk. (Tr. Vol. I at 122.) Appellant "was yelling about his hat," stating that it was a "religious hat, and that he should be allowed to wear it in his picture. Then he began saying * * * if I was white, * * * I wouldn't be having this problem right now." (Tr. Vol. I at 124-25.)

{¶ 19} The officer stepped up to the counter and stood beside the BMV clerk, attempting to draw appellant's attention. Officer Clucas, who testified there were "a lot of people in the BMV at the time," told appellant that he could not "be yelling like this in front [of] all these people. You're going to get people out here in the crowd upset." (Tr. Vol. I at 126.) Appellant looked over at Officer Clucas but did not respond to him; rather, appellant "just kept on directing his attention toward the BMV investigators." (Tr. Vol. I at 126.) Officer Clucas then "tried to get his attention again * * * saying, 'Hey, if you have a problem, just come talk to me in the back, and we'll just discuss it without any issues whatsoever.' " (Tr. Vol. I at 126.)

{¶ 20} Officer Clucas then stepped out from behind the counter. The officer "didn't want to embarrass" appellant if he "could have avoided it even though [appellant] was pretty upset with the BMV staff." (Tr. Vol. I at 127.) Officer Clucas attempted to "calm down" appellant by talking with him. (Tr. Vol. I at 127.) When this proved unsuccessful, the officer told appellant: "Either you're going to quit this, or I'm going to have to criminal trespass you." (Tr. Vol. I at 128.) Appellant "began saying, 'This is just like Ferguson. This is just like Ferguson.' " (Tr. Vol. I at 128.) Some of the customers "were saying, 'This is not like Ferguson at all.' So the people were starting to get upset." (Tr. Vol. I at 128.) Officer Clucas "stepped closer to [appellant] and advised him that * * * '[w]e're not going to play this race game. That's not what this is about. You're upset about this. I would like to go talk to you.' " (Tr. Vol. I at 128.)

{¶ 21} Officer Clucas placed his hand on appellant's elbow and shoulder in an attempt to escort him out the door. At that point, appellant pushed Officer Clucas on the chest and told the officer he was "invading my private space or personal space." (Tr. Vol. I at 130.) The officer then reached for his handcuffs "and said, '[w]ell, you're done. Place your hands behind your back. You're under arrest.' " (Tr. Vol. I at 128.)

{¶ 22} As Officer Clucas attempted to place the handcuffs on appellant's wrist, appellant "lunged" at the officer "with his arm." (Tr. Vol. I at 130.) At that point, Officer Clucas "tried to grab [appellant's] arm to try to wrap him," but the officer's "back ended up hitting the customer service counter behind [him]," and Officer Clucas "ended up falling on [his] back." (Tr. Vol. I at 130.) The officer further testified: "The suspect then got on top of me in a mount position. I was on my back. He was on me * * * kneeling down over top of me up to my chest and started to gouge my left eye with his right thumb." (Tr. Vol. I at 130.) Officer Clucas related that appellant "was pressing his thumb into my eye, my eyeball socket. And then also at the same time he kept on repeating, 'You can't take me. You can't take me. You don't have what it takes,' * * * basically telling me that I'm not going to be able to get out of this." (Tr. Vol. I at 131-32.) At that point, the officer reached out with his left arm and "grabbed some of [appellant's] hair," and Officer Clucas then "began using facial strikes" with his right hand. (Tr. Vol. I at 130.)

{¶ 23} Eventually, "[s]omebody from the crowd" pushed appellant away from the officer, and Officer Clucas and appellant both stood up. (Tr. Vol. I at 132.) Officer Clucas testified that appellant "then tried to lunge at me in a tackling spear position, and I put him into a * * * standing headlock." (Tr. Vol. I at 132.) As Clucas held appellant in that position, a BMV maintenance worker assisted the officer in handcuffing appellant. Officer Clucas then "escorted him outside the property." (Tr. Vol. I at 132.) During this time, appellant "kept talking about the Ferguson thing. Then he kept on calling me a tyrant. He was resisting me all the way * * * to the office where we keep our detainees." (Tr. Vol. I at 133.)

{¶ 24} Officer Clucas testified that, as a result of the altercation, he had a "black eye," his "nose was busted," and his back, wrist, and left shoulder were in pain. (Tr. Vol. I at 135.) Officer Clucas went to an emergency room for treatment after his shift ended. Upon returning to work, Clucas was placed on light duty assignment because of shoulder pain, and he subsequently had shoulder surgery. At trial, the officer identified photographs taken of his eye, neck, and hands following the incident.

{¶ 25} Grove is the assistant manager at the Grove Licensing Agency. On February 12, 2016, appellant came into the office and spoke with one of the clerks, Broadwater. There was a "discrepancy in his address," and Broadwater requested that Grove speak to appellant. (Tr. Vol. II at 159.) Grove explained to appellant the office system was "linked to the United States Postal Service, * * * so that's the correct address. We have to go with that." (Tr. Vol. II at 159.) Grove went back to her desk, and appellant was directed to the photo booth where he was asked to remove his head covering. Appellant "would not do it," stating "it was for religious purposes." (Tr. Vol. II at 159.)

{¶ 26} Grove asked Littler, a field representative, to go to the front and assist with the customer. (Tr. Vol. II at 159.) Appellant "began getting irate, began raising his voice." (Tr. Vol. II at 160.) At that point, Grove informed Officer Clucas, "the officer, * * * that [appellant] was starting to get irate and starting to raise his voice." (Tr. Vol. II at 160.)

{¶ 27} Grove "did not see the initial altercation." (Tr. Vol. II at 164.) She "heard the yelling of * * * people, customers, some of our employees. People were yelling, and I came out and saw [appellant and Officer Clucas] on the ground wrestling." (Tr. Vol. II at 164.) Grove stated that Officer Clucas and appellant "were on the floor * * * tangled up, * * * not letting go. * * * Officer Clucas was trying to regain control and couldn't because he was being fought." (Tr. Vol. II at 164.) Grove began "pressing the panic buttons * * * that alert the highway patrol's call center." (Tr. Vol. II at 164.)

{¶ 28} Following the altercation, Grove "looked at the surveillance footage." (Tr. Vol. II at 165.) Grove turned the agency's surveillance video over to OSP, and the testing center also turned over a surveillance video.

{¶ 29} On February 12, 2016, Michael Paul Lester, an intern with the Department of Public Safety, was performing maintenance duties at the Alum Creek Drive facility; while checking on a front entrance door, Lester noticed that customers seated inside had "jumped out of their chairs." (Tr. Vol. II at 175.) Lester then observed "the police officer[,] [appellant,] and another gentleman on the floor wrestling." (Tr. Vol. II at 175.) Lester stated that appellant "was on the opposite side of the police officer with another gentleman straddling both of them but laying more on top of [appellant]." (Tr. Vol. II at 176.) Appellant "was reaching and had ahold of the police officer's face, his upper face. And the police officer had reached around and actually had grabbed some of [appellant's] hair and was yanking back on him, and then [appellant] had let go of the officer's face." (Tr. Vol. II at 179.)

{¶ 30} Lester "noticed that the officer's handcuffs were on the ground a couple feet from him." (Tr. Vol. II at 178.) Lester picked up the handcuffs and placed them in the officer's hand. The officer and appellant continued to struggle, and the officer dropped the handcuffs; appellant's "foot kicked the cuffs even farther away." (Tr. Vol. II at 178.) Lester retrieved the handcuffs again and held them in his hand. Appellant and the officer eventually stood up, and Lester grabbed appellant's arm in order to assist the officer "in restraining him." (Tr. Vol. II at 179.) Lester helped the officer place the handcuffs on appellant.

{¶ 31} On February 12, 2016, OSP Sergeant Hugh Fredendall was notified of an incident at the Alum Creek Drive BMV facility. He went to the facility to speak with Officer Clucas and to take photographs of the officer's injuries. Sergeant Fredendall instructed Officer Clucas to obtain witness statements as to the incident, and to obtain a copy of the surveillance video from the BMV manager. The sergeant subsequently received surveillance video.

{¶ 32} Sergeant Fredendall testified as follows regarding OSP procedure for handling of surveillance video: "The officer will write up the case report. I will go in * * * or a supervisor will go in and put in any type of documentation in that report as to the findings. Then from there, it just goes up through our chain of command. It goes to my supervisor, then to his, and ultimately it goes to the RTR committee." (Tr. Vol. II at 196.) Sergeant Fredendall stated that "[s]omewhere * * * going through that chain the video came up missing." (Tr. Vol. II at 196.) He was later informed that the video "had been rewritten over." (Tr. Vol. II at 197.) He denied that OSP purposely destroyed the video.

{¶ 33} Following deliberations, the jury returned verdicts finding appellant guilty of assault and obstructing official business. By judgment entry filed November 22, 2016, the trial court sentenced appellant to two years of community control.

{¶ 34} On appeal, appellant sets forth the following six assignments of error for this court's review:

ASSIGNMENT OF ERROR NUMBER ONE
THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE ALLEGED VICTIM OF THE ASSAULT WAS A PEACE OFFICER AS DEFINED IN R.C. 2935.01 SINCE "SPECIAL POLICE OFFICERS" OF THE HIGHWAY PATROL ARE NOT TROOPERS AND ARE NOT DEFINED AS PEACE OFFICERS BY THE STATUTE.
ASSIGNMENT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT ON THE ASSAULT AND OBSTRUCTING OFFICIAL BUSINESS CONVICTIONS WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT BEYOND A REASONABLE DOUBT.
ASSIGNMENT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT ON THE ASSAULT AND OBSTRUCTING OFFICIAL BUSINESS CONVICTIONS WHEN GUILT WAS NOT ESTABLISHED BY THE MANIFEST WEIGHT OF THE EVIDENCE BEYOND A REASONABLE DOUBT.
ASSIGNMENT OF ERROR NUMBER FOUR
THE DEFENDANT DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL AS MANDATED BY THE FEDERAL AND STATE CONSTITUTIONS WHEN COUNSEL FAILED TO FILE A MOTION TO DISMISS BASED UPON THE DESTRUCTION OF THE VIDEO RECORDING OF THE INCIDENT BY AGENTS OF THE STATE.
ASSIGNMENT OF ERROR NUMBER FIVE
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY, PURSUANT TO R.C. 2945.11, ON ALL MATTERS OF LAW NECESSARY TO RENDER A VERDICT AND THE DEFENDANT WAS ALSO DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF COUNSEL TO REQUEST ESSENTIAL JURY INSTRUCTIONS RELEVANT TO HIS DEFENSE.
ASSIGNMENT OF ERROR NUMBER SIX
THE TRIAL COURT ERRED WHEN IT SENTENCED THE DEFENDANT ON BOTH THE ASSAULT AND OBSTRUCTING OFFICIAL BUSINESS WHEN THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT AND HE CAN ONLY BE SENTENCED ON ONE.

{¶ 35} Appellant's first, second, and third assignments of error are interrelated and will be addressed together. Under these assignments of error, appellant challenges both the sufficiency and the weight of the evidence underlying his convictions for assault and obstructing official business.

{¶ 36} Under Ohio law, " '[t]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.' " State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691, ¶ 94 (10th Dist.), quoting State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. In addressing a sufficiency of the evidence claim, an appellate court "must determine whether the evidence presented at trial, viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt." Id.

{¶ 37} By contrast, in considering whether a conviction is against the manifest weight of the evidence, an appellate court "reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id. at ¶ 111, citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 38} We begin with appellant's assertion, raised under the first assignment of error, that the state presented insufficient evidence to establish that the alleged victim of the assault offense was a "peace officer" as defined under R.C. 2935.01. According to appellant, the only OSP employees defined as peace officers under R.C. 2903.13(D)(1) and 2935.01(B) are troopers and the superintendent of OSP.

{¶ 39} R.C. 2903.13(A) defines the offense of assault, and states in part: "No person shall knowingly cause or attempt to cause physical harm to another." Further, R.C. 2903.13(C)(5) states in part: "If the victim of the offense is a peace officer * * * while in the performance of their official duties, assault is a felony of the fourth degree." Pursuant to R.C. 2903.13(D)(1), the term " '[p]eace officer' has the same meaning as in section 2935.01 of the Revised Code."

{¶ 40} As observed by one court, R.C. 2935.01(B)"sets forth a lengthy definition of 'peace officer' [which] includes any kind of police officer, law enforcement officer, enforcement agent, etc." State v. McKinley, 5th Dist. No. 2006CA00176, 2007-Ohio-3512, 2007 WL 1976582, ¶ 11. R.C. 2935.01(B) states in part: " 'Peace officer' includes, * * * for the purpose of arrests within those areas, for the purposes of Chapter 5503. of the Revised Code, and the filing of and service of process relating to those offenses witnessed or investigated by them, the superintendent and troopers of the state highway patrol."

{¶ 41} Appellant argues that Officer Clucas testified at trial he was a "police officer" with OSP (i.e., not a trooper). Appellant contends that Officer Clucas is actually a "special police officer" under R.C. 5503.09, and further argues that special police officers are distinguishable from troopers. According to appellant, because a police officer of OSP is not specifically listed as a "peace officer" under R.C. 2935.01, there was insufficient evidence to convict him of assault of a peace officer for purposes of the sentencing enhancement under R.C. 2903.13(C)(5).

{¶ 42} In response, the state acknowledges a distinction between OSP troopers and OSP police officers, but asserts there was sufficient evidence establishing that Officer Clucas was a "peace officer" within the meaning of R.C. 2935.01(B). In support, the state maintains that the list contained in R.C. 2935.01(B) is not exclusive or exhaustive, and the evidence indicated Officer Clucas was properly performing statutory law enforcement duties under R.C. 5503.09 as a "peace officer" at the time of the events at issue. Upon review, we agree.

{¶ 43} In interpreting the language of R.C. 2935.01, the Supreme Court of Ohio has held that "[t]he use of the word 'includes' in the definition of 'peace officer' evidences an intent that the General Assembly did not mean to exclude other constituted officers who may be granted enforcement powers by the General Assembly." State v. Colvin, 19 Ohio St.2d 86, 92, 249 N.E.2d 784 (1969). Rather, in order to determine if an individual is a "peace officer" for purposes of R.C. 2935.01, "it is necessary to ascertain the extent of his [or her] enforcement powers." Id.

{¶ 44} In Colvin, the Supreme Court applied the statutory definition under R.C. 2935.01(B) to hold that investigators for the State Dental Board, "charged with the responsibility of enforcing the statutes regulating the practice of dentistry and ferreting out violators thereof * * * are 'peace officers,' within the meaning of those words as used in Section 2935.09, Revised Code." Id. at 93, 249 N.E.2d 784. In State v. Glenn, 28 Ohio St.3d 451, 504 N.E.2d 701 (1986), the Supreme Court held that a volunteer reserve deputy sheriff who was transporting a prisoner from the prison to a hospital was acting as a "peace officer" for purposes of R.C. 2929.04(A)(6) and 2935.01(B). In so holding, the court in Glenn found that the victim "was in the process of activities performed pursuant to his duties to enforce Ohio's laws" at the time he was shot and killed. Id. at 454, 504 N.E.2d 701.

{¶ 45} Ohio appellate courts have also determined that certain officers, albeit not specifically listed under R.C. 2935.01, are "peace officers" within the meaning of that term. See , e.g. , State v. Moore, 2d Dist. No. 18337, 2001 WL 28670 (Jan. 12, 2001) (hospital security officer, who completed Ohio State Peace Officer training program and was designated a "Special Policeman," and who wore a uniform and carried "same equipment that police officers traditionally carry," was "acting 'in the performance of his official duties' " as a peace officer when he acted to restrain defendant at hospital); Cleveland Police Patrolmen's Assn. v. Cleveland, 118 Ohio App.3d 584, 588, 693 N.E.2d 864 (8th Dist.1997) (institutional guards whose primary duties included transporting prisoners, and who received additional training and were authorized to carry firearms, were peace officers with law enforcement duties for purposes of R.C. 2935.01 ); State v. Cammon, 8th Dist. No. 91574, 2009-Ohio-4706, 2009 WL 2894471, ¶ 19 (state presented sufficient evidence demonstrating that housing authority officer was a "peace officer" acting in his official capacity at time of assault; officer presented testimony that he was employed by housing authority police department, that he was a duly commissioned officer with the state, and that he was dressed in full uniform and on duty at time of incident).

{¶ 46} As noted, appellant contends the state presented insufficient evidence that Officer Clucas was a peace officer based on the fact that his duties, pursuant to R.C. 5503.09, are those of a special police officer. We disagree.

{¶ 47} R.C. 5503.09 states in part that "[t]he superintendent of the state highway patrol * * * may designate one or more persons to be special police officers to preserve the peace and enforce the laws of this state with respect to persons and property under their jurisdiction and control." The statute provides that special police officers "are vested with the same powers of arrest as police officers under section 2935.03 of the Revised Code when exercising their responsibilities," and such officers are "required to complete peace officer basic training for the position to which they have been appointed as required by the Ohio peace officer training commission as authorized in section 109.73 of the Revised Code." These officers "also shall take an oath of office, wear the badge of office, and provide bond to the state * * * for the proper performance of their duties." R.C. 5503.09.

{¶ 48} In the present case, Officer Clucas testified he attended the police academy, his duties included building security, routine traffic patrols, enforcing the Ohio Revised Code, and dealing with individuals with outstanding warrants. On the date of the incident, Officer Clucas was in uniform and performing his assigned duties at the Alum Creek Drive facility. As set forth above, R.C. 5503.09 authorizes the superintendent to designate special police officers "to preserve the peace and enforce the laws of this state with respect to persons and property under their jurisdiction and control," and special police officers are "vested with the same powers of arrest as police officers under" R.C. 2935.03. (Emphasis added.) As also noted, the Supreme Court has interpreted the word "includes" in the definition of "peace officer" as expansive, not limiting. Colvin at 92, 249 N.E.2d 784. Upon review of the record and applicable statutes, including a consideration of the extent of the enforcement powers at issue, we find the state presented sufficient evidence that Officer Clucas was acting as a "peace officer" under R.C. 2935.01 and 2903.13.

{¶ 49} In light of that determination, we next consider whether the state presented sufficient evidence upon which the trier of fact could have found all the essential elements of assault and obstructing official business beyond a reasonable doubt. We have previously set forth the elements of assault under R.C. 2903.13. The offense of obstructing official business is defined under R.C. 2921.31(A), which states: "No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties." R.C. 2921.31(B) states in part: "If a violation of this section creates a risk of physical harm to any person, obstructing official business is a felony of the fifth degree."

{¶ 50} As to the assault conviction, appellant argues he was only attempting to exercise his right to free speech and that he did not knowingly cause or attempt to cause physical harm to the officer. According to appellant, the officer was the first to use force by grabbing him.

{¶ 51} R.C. 2901.22(B) states in part: "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist." In general, whether an individual acts knowingly "must be determined from all the surrounding facts and circumstances," and "[t]herefore, 'the test for whether a defendant acted knowingly is a subjective one, but it is decided on objective criteria.' " State v. Bettis, 1st Dist. No. C-060202, 2007-Ohio-1724, 2007 WL 1095682, ¶ 9, quoting State v. McDaniel , 2d Dist. No. 16221, 1998 WL 214606 (May 1, 1998).

{¶ 52} In the present case, the state presented evidence appellant became agitated and began yelling at BMV personnel in regard to their request that he remove his head covering for a driver's license photograph. Officer Clucas testified that he attempted to calm appellant down, and warned him that he could not be "yelling like this in front [of] all these people." Littler testified that Officer Clucas attempted to calm appellant down, telling appellant he was "scaring our other customers," and that he was "going to have to ask [him] to leave." (Tr. Vol. I at 72.) Rondo similarly testified that appellant "was getting really agitated and starting to get really, really loud" and that "the deputy came around the counter and explained to [appellant] that he had to leave." (Tr. Vol. I at 102.)

{¶ 53} When appellant refused to comply, the officer approached appellant and placed his hand on appellant's elbow and shoulder, at which point appellant pushed the officer in the chest and told the officer he was "invading" his "space." Officer Clucas then reached for his handcuffs, but appellant lunged at the officer, causing the officer's back to hit the nearby counter; the officer fell to floor, landing on his back. Appellant then got on top of the officer and "started to gouge" the officer's left eye with his right thumb. Michael Lester, who witnessed the altercation, stated that appellant "was reaching and had ahold of the police officer's face." Grove testified that the officer was attempting to regain control but "couldn't because he was being fought." Officer Clucas testified as to injuries to his eye, back, wrist, and shoulder as a result of the incident, and photographs of the officer were admitted into evidence.

{¶ 54} Here, construing the evidence most strongly in favor of the state, as we are required to do in considering a sufficiency challenge, the state presented sufficient evidence to support the elements of assault beyond a reasonable doubt. Further, there was sufficient evidence that Officer Clucas was engaged in the performance of his official duties at the time of the assault for purposes of R.C. 2903.13.

{¶ 55} The offense of obstruction of official business, pursuant to R.C. 2921.31(A), has the following elements: "(1) an act by the defendant; (2) done with the purpose to prevent, obstruct, or delay a public official; (3) that actually hampers or impedes a public official; (4) while the official is acting in the performance of a lawful duty; and (5) the defendant does so act without a privilege to do so." State v. Dice, 3d Dist. No. 9-04-41, 2005-Ohio-2505, 2005 WL 1205336, ¶ 19. Thus, under Ohio law, "[a] conviction under R.C. 2921.31(A) requires proof of an affirmative act that hampered or impeded the performance of the lawful duties of a public official." State v. Overholt, 9th Dist. No. 2905-M, 1999 WL 635717 (Aug. 18, 1999). Further, "[t]he proper focus in a prosecution for obstructing official business is on the defendant's conduct, verbal or physical, and its effect on the public official's ability to perform the official's lawful duties." State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 12 (1st Dist.).

{¶ 56} Verbal acts alone can constitute a "proscribed act" under the statute. State v. Jeter , 1st Dist. No. C-040572, 2005-Ohio-1872, 2005 WL 927013, ¶ 12, citing State v. Lazzaro, 76 Ohio St.3d 261, 667 N.E.2d 384 (1996). In this respect, Ohio courts have upheld convictions for obstructing official business in instances in which an individual prevented law enforcement officers from gaining control of a situation based upon "belligerent and argumentative" behavior. Wellman at ¶ 13. See also State v. Florence, 12th Dist. No. CA2013-08-148, 2014-Ohio-2337, 2014 WL 2526069, ¶ 13 (conviction for obstructing official business upheld where defendant's "purposeful loud, boisterous, and uncooperative conduct made the performance of [the officers'] duties more difficult").

{¶ 57} Courts have also held that a defendant's refusal to leave the scene when requested, as well as verbal altercation with officers and interference with their attempt to effectuate an arrest, constituted sufficient acts upon which the jury could conclude the defendant purposefully hampered the officers' official duties. Overholt . See also State v. Gau, 11th Dist. No. 94-A-0031, 1995 WL 237078 (Mar. 17, 1995) (oral statements by defendant and act of pushing officer sufficient to support conviction for obstructing official business).

{¶ 58} In the present case, the state presented evidence appellant became argumentative, yelled at BMV agency employees, pointed his finger in the face of an employee, refused the officer's requests to calm down and to leave the building, pushed the officer and resisted the officer's attempt to remove him from the agency. Upon review, there was sufficient evidence upon which a trier of fact could have found that appellant acted purposely in impeding the officer from performing his duties, and that in doing so created a risk of physical harm. Accordingly, we reject appellant's claim insufficient evidence existed to support his conviction for obstructing official business.

{¶ 59} Turning to appellant's manifest weight challenge, we find the jury did not lose its way and create a manifest injustice in rendering guilty verdicts for assault and obstructing official business. A conviction is not against the manifest weight of the evidence because the trier of fact chose to credit the state's version of events. State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, 2010 WL 3582502, ¶ 18. Here, there was competent, credible testimony by the state's witnesses regarding appellant's conduct on the date of the events.

{¶ 60} Appellant's claim that the officer was the aggressor and he used excessive force is not supported by the record. There was evidence presented which, if believed, indicated appellant, while engaged in a verbal dispute with BMV employees, ignored the officer's admonition to calm down. When appellant refused to comply, Officer Clucas laid his hand "very lightly" on appellant's shoulder, at which time appellant shoved the officer and then lunged at him, causing the officer's back to hit the desk counter; as noted above, the evidence further indicated that the officer fell to the ground, at which time appellant began gouging the officer's eye with his thumb. Lester, who witnessed the altercation, testified appellant "had ahold of the police officer's face, his upper face." As also noted, the evidence before the jury included photographs depicting the officer's face following the incident.

{¶ 61} Appellant also contends the state's failure to preserve the surveillance video casts doubt on its version of events. Appellant suggests that the video evidence was deliberately destroyed, and that it would have incriminated the officer. The record, however, does not support these assertions. At trial, Sergeant Fredendall testified he directed Officer Clucas to obtain any surveillance video from the licensing agency. The evidence indicated that video was obtained and turned over to OSP, but that Sergeant Fredendall was subsequently informed it "had been rewritten over." Sergeant Fredendall denied OSP purposely destroyed any videos. Here, the jury was not required to infer that OSP acted in bad faith or willfully destroyed surveillance video, nor was there any evidence suggesting the state was aware of exculpatory materials on any videos.

{¶ 62} Based on the foregoing, appellant's first, second, and third assignments of error are not well-taken and are overruled.

{¶ 63} Under the fourth assignment of error, appellant argues his trial counsel rendered ineffective assistance of counsel. Specifically, appellant contends counsel's performance was deficient in failing to file a motion to dismiss based on the misplaced surveillance videos.

{¶ 64} In order to establish an allegation of ineffective assistance of counsel, a defendant must show "(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel's errors, the proceeding's result would have been different." State v. Jones , 8th Dist. No. 102260, 2016-Ohio-688, 2016 WL 762690, ¶ 15, citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

{¶ 65} The failure of counsel to file a motion, "in and of itself, is not per se ineffective assistance of counsel." State v. Schlosser, 3d Dist. No. 14-10-30, 2011-Ohio-4183, 2011 WL 3658382, ¶ 34, citing In re Smith , 3d Dist. No. 5-01-34, 2002 WL 255126, citing State v. Vires , 25 Ohio App.2d 70, 266 N.E.2d 245 (2d Dist.1970) ; State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) ; Kimmelman v. Morrison , 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Rather, "[w]ithout proving that trial counsel was deficient for failing to make certain motions and that those motions had a reasonable probability of success, the ineffective assistance of counsel claim fails." Id.

{¶ 66} Appellant contends the failure to file a motion to dismiss was prejudicial, asserting it is "fairly clear" that agents took it upon themselves to suppress the videos because they were favorable to him and not supportive as to the claims of the agents. According to appellant, had defense counsel filed a motion to dismiss based on the disappearance of the video recordings, the trial court would have likely dismissed the charges.

{¶ 67} We find appellant's arguments unpersuasive. As previously discussed, Sergeant Fredendall denied OSP purposely destroyed surveillance video and, despite appellant's suggestion that the videos must have contained evidence favorable to him, there is nothing in the record to indicate the videos would have been exculpatory. Here, appellant cannot demonstrate that counsel's performance was deficient or that a motion to dismiss would have been successful.

{¶ 68} Appellant's fourth assignment of error is not well-taken and is overruled.

{¶ 69} Under the fifth assignment of error, appellant argues the trial court erred in failing to instruct the jury with respect to an individual's right to protect him or herself from excessive or unnecessary force. Appellant argues that such an instruction would have been consistent with his defense that he was only attempting to defend himself and not trying to harm the officer. Appellant relies in part on R.C. 2945.11, which states in part: "In charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict."

{¶ 70} In general, when determining whether a proposed jury instruction shall be given to a jury, "the trial court must decide if sufficient evidence was presented to warrant such an instruction." State v. Holaday, 4th Dist. No. 1210, 1987 WL 15485 (Aug. 11, 1987). In the instant case, appellant did not request an instruction on excessive force and, therefore, "this court's review is under the plain error standard." State v. Bridgewater, 10th Dist. No. 07AP-535, 2008-Ohio-466, 2008 WL 324407, ¶ 24. Under this standard, "[p]lain error is error that involves an 'obvious defect in the trial proceedings,' and such error 'must have affected the outcome of the trial.' " Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 71} In response to appellant's argument, the state asserts the trial court did not err because there was insufficient evidence to support an instruction that Officer Clucas used excessive or unnecessary force. We agree. In addressing appellant's manifest weight challenge, we previously determined that the evidence did not support appellant's claim that Officer Clucas was the aggressor and/or that he used excessive force. Accordingly, the trial court did not commit plain error in failing to provide an instruction on excessive force.

{¶ 72} Appellant's fifth assignment of error is not well-taken and is overruled.

{¶ 73} Under the sixth assignment of error, appellant asserts the trial court erred in sentencing him on both assault and obstructing official business. Appellant contends the offenses are allied offenses of similar import that the court should have merged for purposes of sentencing.

{¶ 74} R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 75} The Supreme Court, in construing the above statutory provisions, has held: "In determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors-the conduct, the animus, and the import." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus. A defendant may be convicted and sentenced for multiple offenses when: "(1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation." Id. at ¶ 25.

{¶ 76} As noted by the state, appellant did not raise the issue of merger during the sentencing hearing. Under Ohio law, "[a]n accused's failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.

{¶ 77} Ohio courts have "concluded that assault and obstructing official business convictions will not merge for sentencing when committed by separate conduct." State v. Ulinski , 2016-Ohio-8386, 77 N.E.3d 375, ¶ 11. See , e.g. , State v. Standifer, 12th Dist. No. CA2011-07-071, 2012-Ohio-3132, 2012 WL 2700454, ¶ 68 (offenses of assault and obstructing official business committed by separate conduct where defendant's act of kicking officer was separate from defendant's conduct in screaming, jerking, and pulling away from officer while in custody);

State v. Hendricks, 8th Dist. No. 101864, 2015-Ohio-2268, 2015 WL 3632226, ¶ 23 (defendant's assault convictions, stemming from physical confrontation with deputies, constituted separate conduct from his conviction for obstructing official business when he initially interrupted proceedings and failed to comply with deputy's order).

{¶ 78} In the present case, appellant cannot demonstrate plain error as the record sets forth facts indicating the offenses were committed separately. Here, the offense of obstructing official business was initially committed when appellant became belligerent and disruptive, yelling at BMV employees, disregarding the officer's admonition to calm down, and refusing the officer's instruction to leave the premises. The assault occurred subsequently when the officer attempted to effectuate an arrest and appellant pushed the officer, lunged at him, and began gouging the officer's eye.

{¶ 79} Having failed to demonstrate plain error, appellant's sixth assignment of error is overruled.

{¶ 80} Based on the foregoing, appellant's six assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

DORRIAN and LUPER SCHUSTER, JJ., concur.


source: Caselaw Access Project

author: SEAN C. GALLAGHER, J.:

license: Public Domain

text:
    MYOCARE NURSING HOME, INC., Plaintiff-Appellant v. William HOHMANN, et al., Defendants-Appellees
    No. 105907
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 29, 2018
    Stephen D. Dodd, Stephen D. Dodd Co., L.L.C., 38109 Euclid Avenue, Willoughby, Ohio 44094, ATTORNEY FOR APPELLANT
    David Ross, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115, For William Hohmann
    Matthew B. Barbara, Taft Stettinius & Hollister, L.L.P., 200 Public Square, Suite 3500, Cleveland, Ohio 44114, Holly M. Wilson, Reminger Co., L.P.A., 1400 Midland Building, 101 Prospect Avenue West, Cleveland, Ohio 44115, For Kenneth Boukis
    BEFORE: S. Gallagher, J., Kilbane, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Myocare Nursing Home, Inc. ("Myocare"), appeals the judgment entered in favor of William Hohmann ("Attorney Hohmann"), Kenneth Boukis, and Hohmann, Boukis & Curtis, L.P.A. (collectively "Hohmann"), upon Myocare's legal malpractice claims and the law firm's counterclaim for unpaid legal fees. For the following reasons, we affirm.

{¶ 2} Myocare retained Hohmann in June 2011 to commence collection efforts on a judgment Myocare obtained against a third party ("debtor"). Originally, Hohmann agreed to undertake the representation for a "basic contingent fee of 5% and an additional amount depending upon whether or not the claim is contested." The debtor had been awarded a multi-million-dollar judgment in an unrelated action filed in Summit County, and at the time, the debtor's case was pending in the appellate court. An appellate bond had been posted with the Summit County Clerk of Courts. Myocare intended to use the debtor's judgment and the bond in that case in order to satisfy the $253,828.66 outstanding debt.

{¶ 3} On June 22, Hohmann filed a creditor's bill action on behalf of Myocare in Cuyahoga County Court of Common Pleas, naming the Summit County Clerk of Courts as a defendant, in an effort to establish a lien on the $2.5 million bond. The debtor, around the same time, executed a settlement agreement in which the bond would be used for partial satisfaction of the judgment he received. Ninety days later, the debtor was to be paid an additional amount of approximately $190,000. Sometime on June 22, the Summit County Clerk of Courts transferred the multi-million-dollar bond to the debtor's attorney, at Buckingham, Doolittle & Burroughs ("Buckingham"), as partial satisfaction of the judgment awarded to the debtor.

{¶ 4} Realizing the transfer had occurred, Hohmann immediately contacted the debtor's attorney at Buckingham and notified him of the lien established against the bond. Buckingham paid the debtor's other creditors but retained $260,000 to cover Myocare's lien. Perhaps partially concerned that the lien established by the creditor's bill had been ineffective to prevent the transfer, Hohmann followed up by filing a garnishment of property proceeding in municipal court against Buckingham. In the process, Myocare's judgment lien was transferred to municipal court on June 30, and in mid-July, the notice of garnishment was served. Myocare claims there is a dispute regarding the date of the filing; however, the earliest date that could be considered as the commencement of the garnishment proceedings was June 30. After the filing of the garnishment proceedings, Hohmann was discharged as Myocare's attorney and new counsel entered an appearance.

{¶ 5} Before the garnishment action was filed, a second creditor entered the picture. On June 27, First Federal of Lakewood Bank and Trust ("First Federal") filed its own creditor's bill action, also in the Cuyahoga County Court of Common Pleas, against Buckingham in an attempt to place a lien on the debtor's money. First Federal was owed over $700,000 by the debtor. Both Myocare's and First Federal's creditor's bills were consolidated into one action, and Myocare appears to have abandoned the garnishment proceeding. The creditor's bill actions were settled among the parties with Myocare agreeing to receive $160,733.26 and First Federal agreeing to receive $250,000 as partial satisfaction of their respective judgments.

{¶ 6} Myocare then filed a legal malpractice action against Hohmann, claiming that its failure in amending the June 22 creditor's bill to name Buckingham as a defendant caused Myocare to lose its priority to First Federal over the $260,000 Buckingham withheld. The trial court granted partial summary judgment upon the malpractice action in favor of Hohmann. The parties filed a contingent dismissal entry in order to allow Myocare to challenge the interlocutory ruling. Myocare appealed the partial summary judgment in Myocare Nursing Home, Inc. v. Hohmann , 8th Dist. Cuyahoga No. 104290, 2017-Ohio-186, 2017 WL 235479. The appeal was dismissed for the want of jurisdiction. Id.

{¶ 7} Upon remand, the trial court resolved the counterclaim for unpaid legal services in Hohmann's favor following a bench trial, ultimately awarding Hohmann $20,452 in reasonable attorney fees.

{¶ 8} In the current appeal, Myocare claims that it demonstrated the existence of genuine issues of material fact with respect to whether Hohmann committed legal malpractice. According to Myocare, the failure to amend its creditor's bill effectively gave First Federal priority over the debtor's monies being held by Buckingham.

{¶ 9} Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Argabrite v. Neer , 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when "[1] no genuine issue of material fact remains to be litigated, [2] the moving party 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 reach a conclusion only in favor of the moving party." Id. , citing M.H. v. Cuyahoga Falls , 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12.

{¶ 10} There is one evidentiary issue that must be briefly addressed. Myocare claims that Attorney Hohmann's affidavit attached to the motion for summary judgment contained hearsay that should have resulted in the entire affidavit being excluded under Civ.R. 56. Attorney Hohmann averred that the Summit County Clerk of Courts transferred the bond funds two days after the debtor reached a settlement in his litigation and that Buckingham distributed the funds to the debtor's creditors.

{¶ 11} The decision to admit or exclude affidavit testimony "is left to the discretion of the trial court, and we will not disturb that decision on appeal absent a showing that the trial court abused its discretion in a manner that materially prejudices a party." Logansport Savs. Bank, FSB v. Shope , 10th Dist. Franklin No. 15AP-148, 2016-Ohio-278, 2016 WL 373722, ¶ 28, citing Cashlink, L.L.C. v. Mosin, Inc. , 10th Dist. Franklin No. 12AP-395, 2012-Ohio-5906, 2012 WL 6484299, ¶ 9 ; and Boggs v. The Scotts Co. , 10th Dist. Franklin No. 04AP-425, 2005-Ohio-1264, 2005 WL 647560, ¶ 35. Myocare did not dispute the veracity of the averments and, in fact, agreed that both events occurred in its own factual recitation. Further, the inadmissibility of individual averments does not render the entire affidavit inadmissible-it only affects the individual statements. Myocare failed to demonstrate the need to reject the entire affidavit. App.R. 16(A)(7).

{¶ 12} In order to "establish a cause of action for legal malpractice, a plaintiff must show 'the existence of an attorney-client relationship giving rise to a duty, a breach of that duty, and damages proximately caused by that breach.' " Ratonel v. Roetzel & Andress, L.P.A. , 147 Ohio St.3d 485, 2016-Ohio-8013, 67 N.E.3d 775, ¶ 6, quoting New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 25. Generally when the malpractice is alleged to have occurred in the course of litigation, "although not always, 'the requirement of causation often dictates that the merits of the malpractice action depend upon the merits of the underlying case.' " Pipino v. Norman , 2017-Ohio-9048, 101 N.E.3d 597, ¶ 56, quoting Vahila v. Hall , 77 Ohio St.3d, 421, 427-428, 674 N.E.2d 1164 (1997) ; Environmental Network Corp. v. Goodman Weiss Miller, L.L.P. , 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 18.

{¶ 13} Along those lines, Hohmann contends that Myocare's settlement of the creditor's bill actions waived any malpractice that could have occurred because Myocare voluntarily relinquished its rights through the settlement of the creditor's bill action and the failure to pursue the garnishment proceeding. Sawchyn v. Westerhaus , 72 Ohio App.3d 25, 29, 593 N.E.2d 420 (8th Dist.1990) (settlement of underlying claim generally extinguishes or merges the rights to hold defendants liable for malpractice in the underlying claim); but see E.B.P., Inc. v. Cozza & Steuer , 119 Ohio App.3d 177, 182, 694 N.E.2d 1376 (8th Dist.1997) (settlement of underlying action does not always operate as a waiver of a legal malpractice claim). We need not consider Hohmann's claim regarding proximate causation because we agree with the trial court that Hohmann did not deviate from the standard of care as a matter of law.

{¶ 14} " 'A creditor's bill action enables a judgment creditor to secure a lien on those assets of the judgment debtor that cannot be reached by the mere execution of the judgment.' " Luck v. Klayman , 8th Dist. Cuyahoga No. 105239, 2017-Ohio-8231, 2017 WL 4711864, ¶ 17, quoting Am. Transfer Corp. v. Talent Transport, Inc. , 8th Dist. Cuyahoga No. 94980, 2011-Ohio-112, 2011 WL 208287, ¶ 8, and Union Properties, Inc. v. Patterson , 143 Ohio St. 192, 54 N.E.2d 668 (1944). A creditor's bill is an action in equity and is only available if the party has no legal recourse. In re Estate of Mason , 109 Ohio St.3d 532, 537, 2006-Ohio-3256, 849 N.E.2d 998. R.C. 2333.01 provides as follows:

When a judgment debtor does not have sufficient personal or real property subject to levy on execution to satisfy the judgment, any equitable interest which he has in real estate as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint-stock company, or in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person or body politic or corporate, shall be subject to the payment of the judgment by action.

Id. Thus, where a judgment debtor " has insufficient property subject to levy on execution to satisfy the judgment, then any equitable interest he possesses in any of the enumerated items in the statute shall be subject to payment of the judgment." Fed. Deposit Ins. Co. v. Willoughby , 19 Ohio App.3d 51, 55, 482 N.E.2d 1267 (8th Dist.1984).

{¶ 15} The filing of a creditor's bill establishes a lien on the identified property against the named parties in the case. Id. at 55, 482 N.E.2d 1267 ; see also Domo v. Boulder Bluff Corp. , 6th Dist. Ottawa No. 92OT065, 1993 WL 527911, 2 (Dec. 17, 1993), citing Gaib v. Gaib , 14 Ohio App.3d 97, 99, 470 N.E.2d 189 (10th Dist.1983). The lien is effective from the date the creditor's bill is commenced, which under Civ.R. 3 occurs upon the filing of the complaint for a creditor's bill. Willoughby at 55, 482 N.E.2d 1267 ; see also Morgan Bank, N.A. v. Security-Connecticut Life Ins. Co. , 9th Dist. Summit No. 20594, 2001 WL 1545657, *5 (string citing cases in support of the proposition of law); Huston Assocs., Inc. v. VWV, Inc. , 11th Dist. Lake No. 92-L-050, 1992 WL 387351, 2 (Dec. 18, 1992) (lien established on new party defendant in creditor's bill action upon the serving of the amended complaint on the new party defendant); but see Rushworth v. Rosie , 11th Dist. Geauga No. 98-G-2186, 1999 WL 1073793, 3 (Oct. 22, 1999) (extending VWV for the proposition that a lien is not established until service of the original complaint is perfected). The lien obtained through the filing of a creditor's bill complaint, however, is contingent upon the successful prosecution of the action. Huwe v. Knecht , 10 Ohio App. 487, 495 (1st Dist.1919). In other words, even though the party establishes a lien through commencing the action, the lien is subject to the party's ability to prosecute the creditor's bill action. If the creditor's bill action fails, so does the lien.

{¶ 16} On the opposite end of the spectrum, a party may initiate legal proceedings to garnish personal property of a debtor held by third party. R.C. 2716.11 ; Wilson v. Dixon , 73 Ohio App.3d 706, 708, 598 N.E.2d 158 (8th Dist.1991). Personal property includes money, property, or credits other than personal earnings. R.C. 2716.11(C). A judgment creditor may only garnish the property of the debtor if the "property is in the possession of a person other than the person against whom the judgment was obtained." R.C. 2716.01(B). If those conditions are met, the creditor must act "only through a proceeding in garnishment." Thus, when a third party possesses monies of a debtor, those monies can only be encumbered through the legal process of an action in garnishment.

{¶ 17} The difference between the two forms of collection are important. In In re Estate of Mason , 109 Ohio St.3d 532, 2006-Ohio-3256, 849 N.E.2d 998, the Ohio Supreme Court addressed the question of when an interest converts from being equitable in nature, and thus the property would be attachable through a creditor's bill, into a legal interest subject to garnishment. Id. at ¶ 18. Although the interest at issue dealt with an interest in an estate, the court broadly concluded as follows:

Garnishment is an action in law "by which a creditor seeks satisfaction of the indebtedness out of an obligation due the debtor from a third person, the garnishee." Alternatively, a creditor's bill is an action in equity by which a judgment creditor seeks to subject an interest of the judgment debtor that cannot be reached on execution to the payment of the creditor's existing judgment.

(Internal citations omitted.) Id., citing Union Properties, Inc. v. Patterson , 143 Ohio St. 192, 195, 54 N.E.2d 668 (1944), and R.C. 2333.01. If a debtor's property is reachable through garnishment proceedings, a creditor's bill cannot be used to encumber that property. Accordingly, it was concluded that a creditor's bill is the appropriate mechanism to secure the interest in potential distributions to heirs of an estate until the distribution actually occurs, at which time the equitable claim converts to a legal one subject to a garnishment proceeding if the distribution is held by a third party. Id. at ¶ 22.

{¶ 18} Thus, until the monies upon which the encumbrance is sought are actually distributed to a party to hold on behalf of a judgment debtor, the creditor's bill is the appropriate action. See, e.g., Lakeshore Motor Freight Co. v. Glenway Industries, Inc. , 2 Ohio App.3d 8, 10, 440 N.E.2d 567 (1st Dist.1981) (anticipated proceeds from a debtor's successful lawsuit attachable through R.C. 2333.01 ); WesBanco Bank, Inc. v. Ettayem , 10th Dist. Franklin Nos. 14AP-452 and 14AP-455, 2015-Ohio-1230, 2015 WL 1432551, ¶ 20 (unvested interest in contractually owed lease payments attachable through R.C. 2333.01 ). However, once a third party attains possession of monies or other property of the judgment debtor, the creditor must file an action in garnishment under R.C. Chapter 2716. See, e.g., Dixon at 709, 598 N.E.2d 158.

{¶ 19} In this case, the Summit County Clerk of Courts maintained a bond posted in the action on behalf of someone other than the debtor. As long as the clerk maintained those funds, the creditor's bill action was the appropriate action to encumber any potential distribution to the debtor. Once the bond was transferred to the debtor as partial satisfaction of his judgment, and thus once the intangible property become the debtor's tangible property, the monies were the property of the debtor and reachable through an action to garnish property. Buckingham's acceptance of the transfer placed the monies reachable through garnishment because Buckingham was in possession of the debtor's monies. See generally In re Estate of Mason .

{¶ 20} With that in mind, we note the absence of a fact that would have streamlined our analysis. Nothing from the record establishes when the Summit County Clerk of Courts transferred the bond proceeds to Buckingham, only the day is known. We, therefore, have to address two scenarios: (1) if Myocare's creditor's bill was filed before the transfer, and (2) if the clerk transferred the funds before the creditor's bill was commenced, and thus the lien would not have encumbered the transfer. Under either scenario, however, Hohmann did not commit legal malpractice as a matter of law.

{¶ 21} If Myocare's creditor's bill action was filed before the clerk transferred the funds to Buckingham, Myocare's contingent lien was established upon commencement of the creditor's bill action. In that case, Buckingham was put on notice of the encumbrance after Hohmann contacted Buckingham and provided notification of the lien. To require the creditor to chase down the encumbered property and to name all such recipients in the creditor's bill action would defeat the purpose of the lien being established upon the filing of the creditor's bill. The purpose of establishing a lien is to prevent the occurrence of the debtor of the judgment debtor making payments to the judgment debtor. Union Bank of Rochester v. Union Bank of Sandusky , 6 Ohio St. 254, 258 (1856). In this respect, once the lien is established, the creditor's bill has a lis pendens effect and any party receiving any portion of the encumbered property does so subject to the encumbrance. Id. at syllabus. If Myocare's creditor's bill action was filed before the transfer, Myocare retained priority over the monies held by the Summit County Clerk of Courts such that no further action by Hohmann was required other than prosecuting the creditor's bill action to maintain the lien.

{¶ 22} If, on the other hand, the clerk transferred the funds to Buckingham before Myocare commenced the creditor's bill action, then the monies distributed to Buckingham were the debtor's property; the monies did not belong to Buckingham. Buckingham, as a "person other than the person against whom judgment was obtained" in the statutory parlance, was in possession of property of the debtor (the $2.5 million the debtor received through the settlement of the unrelated action). Under R.C. 2716.01(B), the only remedy any creditor had after Buckingham took possession of the debtor's settlement proceeds was through an action to garnish property. In re Estate of Mason , 109 Ohio St.3d 532, 2006-Ohio-3256, 849 N.E.2d 998, ¶ 18 ; R.C. 2716.01(B) (a creditor may garnish the property of a debtor "only through a proceeding in garnishment and only in accordance with this chapter").

{¶ 23} Either way, amending Myocare's creditor's bill against Buckingham was unnecessary. The contingent lien established by a creditor's bill is subject to the creditor's ability to avail itself of R.C. 2333.01, which expressly applies if the debtor lacks sufficient personal or real property on which to levy execution. If Myocare was required to amend its creditor's bill to name Buckingham following the transfer of the funds-in other words, if the lien established by the initial filing was insufficient to encumber the property-such an amendment would have been facially deficient in that Buckingham possessed the debtor's monies that were subject to garnishment proceeding under R.C. Chapter 2716. Whatever lien would have been created by the amended complaint would have failed because a creditor's bill action against Buckingham could not have been successful as a matter of law-the allegation that the debtor had no funds, upon which an action in garnishment would lie, would have been without support.

{¶ 24} Myocare's entire malpractice claim is predicated upon Hohmann's action, which Myocare believes caused it to lose priority in the initial distribution of the $2.5 million. There is no dispute that Myocare had established a lien on the subsequent distribution of approximately $190,000 that was to occur 90 days after the initial transfer through the timely filed creditor's bill against the Summit County Clerk of Courts. The implications of First Federal's creditor's bill action is irrelevant; Myocare either secured its lien on the entirety of the settlement proceeds that flowed through the Summit County Clerk of Courts through the filing of the creditor's bill action, or it secured its interest in the $2.5 million through the garnishment action that was filed after Buckingham took possession of the debtor's monies. There is no dispute that Myocare was the only creditor to initiate garnishment proceedings against Buckingham. The trial court did not err in granting summary judgment upon Myocare's claims. As a matter of law, Myocare was unable to establish that Hohmann committed legal malpractice by failing to amend its creditor's bill action to name Buckingham as a defendant.

{¶ 25} Finally, Myocare claims the trial court's judgment upon Hohmann's counterclaim is against the manifest weight of the evidence. Myocare concedes that when a client discharges an attorney or law firm, the attorney cannot recover on the contingent-fee agreement. The discharged attorney can only recover the reasonable value of services rendered at the time of discharge. Reid, Johnson, Downes, Andrachik Webster v. Lansberry , 68 Ohio St.3d 570, 574, 629 N.E.2d 431 (1994). "A trial court called upon to determine the reasonable value of a discharged contingent-fee attorney's services in quantum meruit should consider the totality of the circumstances involved in the situation[,]" which included (1) the number of hours worked by the attorney before the discharge; (2) the recovery sought; (3) the skill demanded; (4) the results obtained; and (5) the attorney-client agreement itself. Id. at paragraph three of the syllabus. It is not a defense to claim that the attorney failed to complete the services undertaken; a discharged attorney is entitled to compensation for services rendered. Id. at 574, 629 N.E.2d 431.

{¶ 26} Myocare contends that Hohmann's counterclaim only asserted a claim for breach of contract, and therefore, Hohmann cannot recover based on the theory of quantum meruit. As conceded, however, the only theory of recovery available to Hohmann was through quantum meruit. Fox & Assocs. Co., L.P.A. v. Purdon , 44 Ohio St.3d 69, 70, 541 N.E.2d 448 (1989). In light of that fact, the counterclaim was sufficient to provide Myocare notice of the theory of recovery under which Hohmann was proceeding. Civ.R. 8. In addition, even if we assumed the counterclaim was insufficiently pleaded, the trial court expressly proceeded to consider the quantum meruit theory under Civ.R. 15(B), which provides that if evidence is objected to at trial on the basis that the evidence is not within the issues advanced in the pleadings, the court may allow the pleadings to be amended. Myocare did not object to the trial court's reliance on Civ.R. 15(B). Tr. 38:12-14.

{¶ 27} We briefly note that although a discharged attorney's recovery is capped at the value of the disavowed contingent fee arrangement, in this case the trier of fact was required to determine whether the original 5 percent contingent fee arrangement between Hohmann and Myocare was applicable in light of the limiting language in the contract, which provided that Hohmann would not bind himself to a 5 percent contingent fee if the issue became disputed or complicated. There was evidence to that effect, and Hohmann attempted to amend the fee arrangement before Myocare discharged his services. As such, any remaining arguments pertaining to the counterclaim challenge the weight of the evidence.

{¶ 28} Manifest weight of the evidence "refers to the greater amount of credible evidence and relates to persuasion * * *." Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. The reviewing court must "[weigh] the evidence and all reasonable inferences, [consider] the credibility of witnesses, and [determine] whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way * * *.' " Id. at ¶ 20, quoting Tewarson v. Simon , 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001). Every reasonable presumption is made in favor of the judgment. Id. , citing Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3. "If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment." Id. Plain error, in the civil context, is proceeded upon with "the utmost caution." Goldfuss v. Davidson , 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997).

{¶ 29} Myocare's sole claim with respect to the weight of the evidence is that the evidence offered in support of the time spent, the requisite knowledge needed to perform the services Myocare required, and the interruption of the attorney's ability to perform other services was not based on competent or credible evidence because the self-serving evidence produced at trial came from Attorney Hohmann. Myocare did not present any contradicting evidence and solely relied on the self-serving nature of Attorney Hohmann's testimony. The trier of fact was in the best position to adjudge the witness's credibility. This is not an exceptionally rare case warranting a conclusion that the judgment is against the manifest weight of the evidence to prevent the miscarriage of justice. Goldfuss at 121, 679 N.E.2d 1099.

{¶ 30} The judgment is affirmed.

MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR


author: BRUNNER, J.

text:
    NEW ASIAN SUPER MARKET, Plaintiff-Appellee, v. JIAHE WENG, et al., Defendants-Appellants.
    No. 17AP-207
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 30, 2018
    On brief: Willis Law Firm LLC, and Michael J. Cassone, Columbus, for appellee. Argued: Michael J. Cassone.
    On brief: Abroms Law Office, and Hillard M. Abroms, Columbus, for appellants. Argued: Hillard M. Abroms.
    DECISION
   BRUNNER, J.

{¶ 1} This matter commenced as an action for restitution of the premises filed in the Franklin County Municipal Court by plaintiff-appellee, New Asian Super Market ("landlord"), against defendants-appellants, Jiahe Weng and Magnificent, LLC ("tenants"). Landlord brought suit for restitution of a leased commercial premises, alleging tenants had breached a lease agreement. Tenants filed an answer and counterclaimed for damages exceeding the municipal court's jurisdiction limitation. A magistrate conducted the trial solely on landlord's claim for restitution of the premises after bifurcating it from tenants' counterclaim. Tenants have appealed the judgment of the Franklin County Municipal Court entered on March 14, 2017 adopting the magistrate's decision that landlord was entitled to restitution or possession of the premises. Because we find that bifurcation of the counterclaim for damages was improper and that the matter should have been transferred in its entirety to the Franklin County Court of Common Pleas, we reverse the decision of the trial court and remand the matter for action consistent with this decision.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} On or about December 14, 2015, landlord and tenants executed a lease for a commercial building located at 3635 West Dublin-Granville Road in Columbus, Ohio. Landlord had operated the building as a grocery store, and tenants desired to convert it to a restaurant. Yong Cun Huang signed the lease on behalf of landlord New Asian Super Market, and Jiahe Weng "individually and representing Magnificent LLC" signed the lease on behalf of tenants. (Ex. A, attached to Dec. 20, 2016 Compl.) Under the lease's terms, tenants were required to pay rent on or before the first day of the month, beginning May 1, 2016.

{¶ 3} The lease required landlord to keep and maintain certain structural portions of the building, including the roof. The lease also contained a handwritten provision for other repair work to be undertaken by landlord, as follows:

Landlord's Work:
Landlord shall install new HVAC at landlord's expense before rent commencement date. It shall not delay Tenant's remodeling and opening. Tons of HVAC must satisfy the restaurant needs. Landlord shall provide one year warranty of HVAC.
Landlord shall repair parking before rent commencement date.

(Ex. A at 41, Compl.) Landlord and tenants had signed off on the handwritten provision.

{¶ 4} It is undisputed that tenants did not pay rent for five months from May 1 until October 2016, at which time they paid $15,000. Landlord alleged tenants did not timely tender rent for November and December 2016. On December 15, 2016, landlord gave tenants notice of default under R.C. 1923.04 and to vacate the premises. (Ex. B, attached to Compl.) Nothing in the record indicates landlord demanded payment of rent before issuing the notice.

{¶ 5} On December 20, 2016, landlord filed a complaint for restitution of the premises, in forcible entry and detainer, alleging tenants were in default of the lease agreement as of May 1, 2016 for failing to pay rent as agreed; that landlord had duly served tenants with notice under R.C. 1923.04 to vacate the premises; that landlord was entitled to immediate possession of the premises; and that tenants were unlawfully and forcibly detaining the premises. Landlord requested judgment for immediate restitution and costs.

{¶ 6} On January 9, 2017, tenants filed their answer to landlord's complaint, with defenses that the lease and parts of it were void and unenforceable. Tenants also offered affirmative defensives and counterclaimed for damages. Tenants counterclaimed that they had entered into an oral partnership/member/business agreement with landlord under which landlord represented it would waive tenants' rent for the months of May, June, July, and August 2016 as consideration for landlord receiving a 25 percent partnership/business interest in Magnificent, LLC. Tenants further counterclaimed that landlord promised tenants it would repair the roof and replace the HVAC of the leasehold premises before tenants took possession. Tenants counterclaimed that landlord made false representations on the waiver of rent and roof and HVAC repairs and that tenants detrimentally relied on them, incurring significant monetary damages. Tenants counterclaimed specifically:

10. Defendant was damaged in an amount to be determined at trial, by the misrepresentation and suffered damages from Plaintiff's fraud and fraudulent inducement, including lost revenue, the costs of improvements to the premises, and damages to the Defendant's business reputation caused by delay in opening the restaurant and in lost business due to a leaky roof and non-functioning HVAC unit, and the costs of having to defend this action, in excess of $500,000.00.
11. On account of Plaintiff's failure to abide by the partnership/business agreement, Defendant is entitled to dissolution of the partnership/business agreement and/or cancellation of the LLC membership interest of Plaintiff, and damages for Plaintiff's breach of the duty of loyalty.
12. Defendants are entitled to their actual money damages, attorney's fees, punitive damages, and the costs of this action.

(Jan. 9, 2017 Answer & Counterclaim at ¶ 10-12.)

{¶ 7} The trial court's magistrate conducted a two-day bench trial on January 10 and 17, 2017. On the first day of the trial, January 10, and before any witnesses testified, tenants' counsel argued "merger and jurisdiction" such that, "to preserve the tenants' rights, possession and [to] guarantee the existence of a fund to settle the various claims that matters merge and should all be heard together because of the defenses that were raised as well as the counterclaims." (Jan. 10, 2017 Tr. at 11.) Tenants' counsel stated that tenants had improved the subject property by $400,000. Counsel for landlord responded that the only matter before the magistrate was the issue of possession and requested that the magistrate bifurcate from landlord's complaint for possession, the monetary issues, and associated partnership claim raised in tenants' counterclaim. The magistrate overruled tenants' objections that the eviction would cause tenants irreparable damage based on tenants' concerns about landlord's promise to repair the roof and HVAC system. Instead, the magistrate found that the matter could be "easily" bifurcated between landlord's claim for possession and tenants' claim for damages, declaring those to be issues of the counterclaim that could be dealt with at a later date. (Jan. 10, 2017 Tr. at 22.)

{¶ 8} Thus, the trial proceeded solely on landlord's cause for possession with no consideration of the mutual promises of the parties that related to tenants' defense for not paying rent for a period of time. At the trial's conclusion, the magistrate found that landlord was entitled to restitution of the premises. After excluding evidence about the parties' agreement concerning their business relationship and consideration for their mutual promises related to that, the magistrate found there was no lease agreement and concluded from the limited facts before the court that a failure to pay rent based on the condition of the premises as a matter of law is not a reason not to pay rent. The magistrate completed a pre-printed magistrate's decision form, checking off the following paragraph:

Case called for trial. Plaintiff and defendant(s) J. Weng appeared. Based on the evidence presented, the magistrate finds that the Notice to Vacate conforms to R.C. 1923.04 and was properly served, and that plaintiff has proven non-payment of rent and allegations set forth in the complaint by a preponderance of the evidence. Judgment for plaintiff for restitution of the premises and costs.

(Jan. 18, 2017 Mag.'s Decision.)

{¶ 9} Tenants timely filed eight objections to the magistrate's decision:

1. The Magistrate erroneously bifurcated this action and defendant's Counterclaim.
2. The matter and damages exceed the jurisdiction of this court.
3. The Magistrate erroneously failed to transfer this litigation to the Common Pleas Court.
4. The Magistrate erroneously voided the lease.
5. The Magistrate erroneously failed to dismiss Plaintiff's Complaint due to lack of standing.
6. Until it can be established who the landlord is, and who the owner of the real property is, the court cannot properly rule.
7. Irreparable harm will be caused if Plaintiff is evicted.
8. Other issues of fact and law will be further developed and presented.

(Jan. 25, 2017 Objs. to Mag.'s Decision at 1-2.) Landlord timely filed a memorandum opposing tenants' objections.

{¶ 10} On March 2, 2017, the trial court conducted a hearing on tenants' objections to the magistrate's decision. The trial court stated on the record that it was awaiting the magistrate's written findings of fact and conclusions of law but, in the meantime, it would move forward with tenants' objection to the magistrate's decision.

{¶ 11} Counsel for tenants' challenged landlord New Asian Super Market's standing as plaintiff and questioned whether the correct parties were before the court. Counsel for tenants also challenged the magistrate's decision to bifurcate landlord's forcible entry and detainer action from tenants' counterclaim; tenants' counsel argued that, given the damages counterclaimed exceeded the municipal court's jurisdiction, the magistrate should have transferred the entire case to the court of common pleas and not bifurcated it.

{¶ 12} The trial court stated at the conclusion of the hearing that it would decide the case after the magistrate filed her findings of fact and conclusions of law. The magistrate thereafter filed her three-page report on March 2, 2017. The magistrate's report contained the following:

FINDINGS OF FACT

1. Defendant, Jiahe Weng on behalf of Magnificent LLC, leased a building located at 3635 West Dublin Granville Road in Columbus Ohio that is owned by New Asian Super Market Inc., which Yong Cun Huang and his wife run this business. The Lease that was attached to the complaint is void, due to the names of the parties and there was not a meeting of the minds as to material terms of the lease.
2. Mr. Weng paid $15,000 in October 2016 for rent for the building. Mr. Weng then failed to pay rent for November or December 2016.
3. On December 15, 2016, plaintiff served the defendants with a notice to leave the premises which conforms to R.C. 1923.04 on or before December 19, 2016.
4. Defendants still remains in default of rent.
5. Neither Mr. Huang nor Mr. Weng can read English.

CONCLUSION OF LAW

Plaintiff proved by a preponderance of the evidence the right to a judgment for possession of the property based upon the defendants' failure to pay rent.
The lease attached to the complaint was drafted by Mr. Huang's attorney. New Asian Supermarket is identified as the landlord on the first page of the document, but New Asian Star China Buffet, Inc. is the landlord on the signature page. There is some concern about whether either of the listed parties was a legal entity at the time of this contract. This document was sent to Mr. Weng who had his Chinese attorney review and revise the document, making several material changes. The document was never sent back to Mr. Huang's attorney for review. It was unclear who explained the revisions to Mr. Huang, but the lease does not state what he thought it said, nor what Mr. Weng thought it said. The parties signed the lease in front of a notary. The parties were never in the same room together and have different understandings to what they signed. Neither Mr. Weng nor Mr. Huang read English. Therefore, this Magistrate declares the lease void.
Mr. Weng testified that he paid Mr. Huang $15,000 in October for rent. This created a month to month tenancy. Mr. Weng further testified that he did not pay rent November or December. Mr. Weng testified that he did not pay rent because the roof was leaking. The roof had allegedly been leaking since December 2015. Mr. Huang testified that he bought materials and that Mr. Weng's people made repairs. Mr. Weng continued to run his business out of this property. Mr. Weng make an offer to pay rent after December 7, 2016, but never tendered a check or money order.
Relief against the forfeiture of a lease for non-payment of rent is not a matter of right and the tenant must show facts which would permit a trial court to decide that it was inequitable for the lessor to enforce his legal rights. Southern Hotel v. Miscott , 44 Ohio App.2d 217, 337 N.E.2d 660 (1975) citing Pierce v. Kennedy , 205 Ark. 419, 168 S.W.2d 1115 (1943). The tenant rented the property which was a grocery store. He converted it to a restaurant. He has been in possession of the property since December 2015. Mr. Weng has only paid $15,000, one month's rent. Based on the evidence presented, the Magistrate finds that the Notice to Vacate conforms to R.C. 1923.04 and was properly served, and that Plaintiff has proven by a preponderance of the evidence non-payment of rent.

DECISION

For the foregoing reasons, the plaintiff is entitled to a judgment for possession of the premises and costs.

(Sic passim; emphasis sic and added.) (Mar. 2, 2017 Mag.'s Findings of Fact & Conclusions of Law at 1-3.)

{¶ 13} On March 14, 2017, the trial court entered its decision overruling the tenants' objections and adopting the magistrate's decision, stating it had listened to a tape recording of the trial before the magistrate and heard arguments on tenants' objections to the magistrate's decision. The trial court adopted the magistrate's decision "in its entirety," finding landlord to be entitled to judgment for possession of the premises and costs and finding a final, appealable order. (Mar. 14, 2017 Entry at 1.)

{¶ 14} Tenants timely appealed the trial court's decision that adopted the magistrate's decision.

II. ASSIGNMENTS OF ERRORS

{¶ 15} Tenants present four assignments of error for review:

I. The Trial Court erred when it bifurcated the forcible entry and detainer from the affirmative defenses and counterclaim.
II. The Trial Court erred when it failed to dismiss Plaintiff's complaint for lack of standing.
III. The Trial Court erred when it found the written lease was void.
IV. The Trial Court erred when it found the Defendants in default of the lease.

III. LAW AND DISCUSSION

A. Standard of Review

{¶ 16} When objections are filed to a magistrate's decision, the trial court must undertake an independent, de novo review of the matters objected to in order to "ascertain [whether] the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). See also James v. My Cute Car, LLC , 10th Dist. No. 16AP-603, 2017-Ohio-1291, 2017 WL 1283502, ¶ 13.

In ruling on objections to a magistrate's decision, the trial court must undertake an independent review of the matters objected to in order "to ascertain [whether] the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). Generally, an appellate court reviews the trial court's decision to adopt, reject, or modify the magistrate's decision under an abuse of discretion standard. Bell v. Nichols , 10th Dist. No. 10AP-1036, 2013-Ohio-2559, [2013 WL 3193682] ¶ 16. "An abuse of discretion may be found when the trial court 'applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.' " PHH Mtge. Corp. v. Ramsey , 10th Dist., 2014-Ohio-3519, ¶ 14, 17 N.E.3d 629, quoting Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15, 892 N.E.2d 454 (8th Dist.). We review questions of law de novo. Id. , citing State v. Vinson , 11th Dist. No. 2013-L-015, 2013-Ohio-5826, [2013 WL 6875528] ¶ 8.

Tedla v. Al-Shamrookh , 10th Dist. No. 15AP-1094, 2017-Ohio-1021, 2017 WL 1058744, ¶ 11.

{¶ 17} This Court has reviewed the record of this appeal, including but not limited to the magistrate's decision, the transcript of the bench trial before the magistrate on January 10 and 17, 2017, and the transcript of the hearing held on tenants' objections by the trial court on March 2, 2017, as well as the written briefs of the parties and applicable law. On review, we find that the municipal court erred in severing landlord's forcible entry and detainer claim from tenants' counterclaim for damages because tenants' answer and counterclaim are sufficient to demonstrate that the issues in their counterclaim are so intertwined with the forcible entry and detainer claims that the municipal court should not have severed the two actions. Isaiah's Wings, LLC v. McCourt , 5th Dist. No. 2005-CA-39, 2006-Ohio-3573, 2006 WL 1901015, ¶ 12. Consequently, this Court finds well taken the tenants' objection to the decision to bifurcate the matter. We find that the magistrate failed to properly construe and apply the applicable law regarding bifurcation, and in adopting the magistrate's decision in its entirety, the trial court erred as a matter of law and as such abused its discretion. Tedla at ¶ 11.

B. First Assignment of Error

{¶ 18} Accordingly, we sustain tenants' first assignment of error. We note that the municipal court generally has jurisdiction to hear a forcible entry and detainer action pursuant to R.C. 1923.04, but when a case involves issues over which the municipal court does not have jurisdiction, such as on issues directly related to the claim on which the municipal court heard the case, no jurisdiction exists.

{¶ 19} It is well-settled law that the court of common pleas also has jurisdiction to hear forcible entry and detainer actions. Richwood Homes, Inc. v. Brown , 3 Ohio App.3d 204, 444 N.E.2d 463 (10th Dist.1981), citing Seventh Urban, Inc. v. Univ. Circle , 67 Ohio St.2d 19, 423 N.E.2d 1070 (1981). Here, the court of common pleas had jurisdiction over the matters the municipal court dismissed, and such matters could not be bifurcated from the forcible entry and detainer portion of the action, because there is a clear relationship between the complaint and counterclaim.

The municipal court should have found them to be intertwined and not able to be severed. Isaiah's Wings . Because the common pleas court has jurisdiction to decide all matters in this action, it was error for the municipal court to decide only the forcible entry and detainer part of the case, rather than transfer the entire action to the common pleas court for a complete adjudication upon all issues. This also is consistent with our longstanding precedent in Richwood Homes , in which we found similarly intertwined issues that prevented bifurcation and in which we stated, "[s]uch a limited disposition would necessarily leave defendant with an inadequate remedy of moving out and then suing for title and damages." Id. at 205, 444 N.E.2d 463.

{¶ 20} We find the instant case "involve[s] more than a forcible entry and detainer," and that "a limited disposition would necessarily leave defendant with an inadequate remedy of moving out and then suing for title and damages." Id. The record before us indicates tenants have made over $400,000 in improvements to the premises while converting it from a grocery store to a restaurant and are operating a restaurant at the premises while they deposit rent in escrow pending the outcome of this appeal. Tenants claim they detrimentally relied on various promises landlord made regarding the waiver of rent and for repair of the premises. Tenants claim they will be irreparably harmed if they are forced to vacate the premises before their counterclaims are litigated, losing the time, effort, and money they invested in the renovation, losing their business, and losing their business reputation. And the damages alleged in the counterclaim are well beyond the jurisdictional limit of the municipal court.

{¶ 21} We find the parties' competing claims are too interwoven to be adjudicated separately. Under these circumstances, the municipal court was without jurisdiction to determine landlord's forcible entry and detainer claims once tenants' related counterclaim that exceeded the jurisdiction of the municipal court had been filed. Isaiah's Wings ; Richwood Homes ; see also Rithy Props. v. Cheeseman , 10th Dist., 2016-Ohio-1602, 63 N.E.3d 752 (Brunner, J., dissenting at ¶ 4). For these reasons, tenants' first assignment of error is sustained.

C. Second, Third, and Fourth Assignments of Error

{¶ 22} Because we sustain tenants' first assignment of error, we find their remaining assignments of error moot and we consider them no further.

IV. CONCLUSION

{¶ 23} Because the trial court lacked jurisdiction, the judgment of the Franklin County Municipal Court is reversed and remanded with instructions that the trial court enter an order transferring this action to the Franklin County Court of Common Pleas for determination of all issues raised by the parties in their pleadings in this case.

Judgment reversed and remanded with instructions.

BROWN, P.J., and KLATT, J., concur.

      The record indicates that the clerk's office accepted tenants' pleading without assessing the filing fee for a counterclaim, apparently unaware that the pleading contained a counterclaim. Tenants paid the filing fee for the counterclaim on January 10, 2017, before the first witness was called to testify on the first day of the bench trial before the magistrate.