author: MOCK, Presiding Judge.

text:
    BOARD OF EDUCATION OF the LOVELAND CITY SCHOOL DISTRICT, and State ex rel. Board of Education of the Loveland City School District, Plaintiffs-Relators-Appellants/Cross-Appellees, v. BOARD OF TRUSTEES OF SYMMES TOWNSHIP, and Symmes Township, Ohio, Defendants-Respondents-Appellees/Cross-Appellants.
    NOS. C-170407 C-170419
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: May 4, 2018
    Ennis Britton Co., LPA, and Gary T. Stedronsky, Cincinnati, for Plaintiffs-Relators-Appellants/Cross-Appellees.
    Squire Patton Boggs (US) LLP, Scott A. Kane and Joseph P. Ashbrook, Cincinnati, for Defendants-Respondents-Appellees/Cross-Appellants.
   MOCK, Presiding Judge.

{¶ 1} Plaintiffs-relators-appellants/cross-appellees Board of Education of the Loveland City School District and State ex rel. Board of Education of the Loveland City School District (collectively "Loveland School Board") filed a complaint against defendants-respondents-appellees/cross-appellants Board of Trustees of Symmes Township and Symmes Township, Ohio, (collectively "Symmes Township") in which they sought a declaratory judgment, a writ of mandamus and injunctive relief. The trial court granted summary judgment in favor of Symmes Township on all of Loveland School Board's claims because they were barred by the applicable statute of limitations. We find no merit in Loveland School Board's four assignments of error, and we affirm the trial court's judgment. We also hold that Symmes Township's cross-appeal was improper, and we, therefore, dismiss it.

I. Factual Background

{¶ 2} In 1991, Symmes Township passed Resolution No. F-9101, which authorized and approved the Symmes Station Development Tax Increment Financing Project ("STIF") to make infrastructure improvements in the vicinity of Fields Ertel and Montgomery Roads. Resolution F-9101 declared these improvements to be a public purpose and authorized a 100 percent real-property-tax exemption for more than 90 acres of privately-owned property. The resolution also stated that the exemption was to last for 30 years, subject to earlier termination upon the retirement of the tax-increment debt.

{¶ 3} In April 1993, Symmes Township passed resolution F-9303, which authorized the issuance of notes for the purpose of financing the public improvements. Symmes Township entered into service agreements with the owners of the real property in late 1993.

{¶ 4} Under those agreements, owners of the real property made service payments called PILOT payments in lieu of paying real-estate taxes. Those payments were paid into a special tax-increment-equivalent fund to pay for the construction of the specified public improvements. The agreements stated that they would expire on the earlier of December 31, 2010, or "the day following the date on which the final payment of principal * * * and interest on the Bonds or any refunding issues thereof is made or deemed to be made to a trustee for the benefit of the holder or holders thereof." Even after the service agreements expired, Symmes Township continued to collect PILOT payments from the property owners.

{¶ 5} The tax-increment-equivalent fund was pledged as security for the principal and interest on the notes authorized in Resolution F-9303. The debt owed on the notes was guaranteed solely by the tax-increment-equivalent fund.

{¶ 6} The development of the property subject to the STIF was successful. It was ultimately developed into a number of retail establishments and a large apartment complex.

{¶ 7} In 2003, Symmes Township passed Resolution F-0303 to amend Resolution F-9101 to specify additional public infrastructure improvements that could be funded by the STIF. It subsequently adopted Resolutions F-0304, F-0305 and F-0306, which related to the debt instruments used to fund the public infrastructure improvements. At the time those resolutions were adopted, approximately $400,000 in notes used to finance the original improvements set out in F-9101 were still outstanding, unmatured and unpaid. The township claimed that it sought to refinance the debt so that it could continue to use the funds generated by the STIF for the additional improvements.

{¶ 8} The original STIF notes were special revenue obligations that limited Symmes Township's liability to tax-increment revenue. Resolution F-0304 provided for the refunding of the outstanding STIF debt with general-obligation bonds. Those bonds were not secured with PILOT payments from the tax-increment-equivalent fund. Instead they were secured by "the full general obligation of the Township" and "the faith, credit and revenue of said Township."

{¶ 9} Resolution F-0305 authorized Symmes Township to issue bonds for the purpose of park-land acquisition. Resolution F-0306 authorized it to combine the park-land acquisition debt and the outstanding $400,000 debt from the 1991 infrastructure improvements into a single consolidated bond issue.

{¶ 10} The STIF continued to be successful. It generated funds to pay for the purchase of a park, the construction of a park maintenance building, the construction of a safety center, and the purchase of police and fire equipment.

{¶ 11} Loveland School Board filed its complaint on March 11, 2016. It alleged that the "refinancing" of the original STIF debt instruments in 2003 was actually the retirement of that debt, and that the STIF should have terminated at that time. It further alleged that the expansion of the scope of the public improvements funded by the STIF in Resolution F-0303 was improper, and that Symmes Township had improperly spent PILOT payments from the tax-increment-equivalent fund on expenditures that were not necessary for the development of the subject property as originally specified in 1991.

{¶ 12} Both Loveland School Board and Symmes Township filed motions for summary judgment. In its motion, Symmes Township argued that it was entitled to judgment as a matter of law because Loveland School Board's complaint was filed outside of the applicable statute of limitations.

{¶ 13} The trial court found that the six-year statute of limitations set forth in R.C. 2305.07 for actions "upon a liability created by statute" applied. The court also found that the cause of action accrued in 2003 when Symmes Township amended the STIF and, as argued by Loveland School Board, failed to terminate the STIF when it refunded the original securities with general-obligation bonds. Thus, the court determined that the Loveland School Board's claims were time-barred. It entered judgment in favor of Symmes Township on all counts of Loveland School Board's complaint. Both parties have appealed the trial court's judgment.

II. Improper "Cross-Appeal"

{¶ 14} Symmes Township has filed what it refers to as a "cross-appeal," although it was filed under a separate appeal number. Even if it were a cross-appeal, App.R. 3(C)(1) provides that "[a] person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order * * * shall file a notice of cross-appeal within the time allowed by App.R. 4." App.R. 3(C)(2) further provides that "[a] person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice or cross-appeal or raise a cross-assignment of error."

{¶ 15} The trial court granted summary judgment in Symmes Township's favor. The township does not seek to change the judgment from which Loveland School Board has appealed. Consequently, its use of a "cross-appeal" to assert its arguments is improper, and we dismiss the appeal numbered C-170419. See SP9 Ent. Trust v. Brauen , 3d Dist. Allen No. 1-14-03, 2014-Ohio-4870, 2014 WL 5510413, ¶ 60-64. Nevertheless, we can still address the township's arguments as we would any appellee's, and we do so where appropriate. See McCarthy v. Sterling Chemicals, Inc. , 1st Dist. Hamilton Nos. C-110805 and C-110856, 2012-Ohio-5211, 2012 WL 5471457, ¶ 9.

III. TIFs Generally

{¶ 16} Tax-increment financing (TIF) is a "method for funding public improvements in an area slated for redevelopment by recapturing, for a time, all or a portion of the increased property tax revenue that may result if the redevelopment stimulates private reinvestment." Princeton City School Dist. Bd. of Edn. v. Zaino , 94 Ohio St.3d 66, 68, 760 N.E.2d 375 (2002), quoting Meck & Pearlman, Ohio Planning and Zoning Law , Section T 15:29, 704 (2000). Townships may declare improvements to real property to be exempt from property taxes and to require the owner of the property to make service payments in lieu of the real-property taxes that would have been payable on the improvements had the property not been exempt. A township that receives service payments in lieu of taxes must establish a public-improvement-tax-increment-equivalent fund and deposit the payments into that fund. It must use the moneys deposited into that fund to pay the costs of the public improvements or the principal and interest on bonds or notes issued to pay the costs of the public improvements that are necessary for the development of the exempted real property. Princeton City School Dist. at 68, 760 N.E.2d 375, quoting 3 Princehorn & Shimp, Ohio Township Law , Section T 2.6, 42 (2000).

{¶ 17} The General Assembly enacted R.C. 5709.93 et seq., which authorize townships to construct public improvements that will benefit specified parcels of property through TIF programs. It has empowered townships to redirect tax receipts attributable to the increase in value of the benefited parcels to a fund out of which a township pays for the improvements. Princeton City School Dist. at 70, 760 N.E.2d 375.

IV. Former R.C. 5715.27(F) does not Apply

{¶ 18} We begin our analysis with Symmes Township's argument that the statutory procedure set forth in former R.C. 5715.27(F) provides Loveland School Board's exclusive remedy to challenge the exemption. The township is correct in arguing that a court cannot grant declaratory relief where a special statutory proceeding has been provided for that purpose. See State ex rel. Taft v. Court of Common Pleas of Franklin Cty. , 63 Ohio St.3d 190, 193, 586 N.E.2d 114 (1992) ; State ex rel. Iris Sales Co. v. Voinovich , 43 Ohio App.2d 18, 19, 332 N.E.2d 79 (8th Dist.1975). But the statutory procedure on which it relies does not apply in this case.

{¶ 19} Former R.C. 5715.27(F) stated in pertinent part, "An application for exemption and a complaint against exemption shall be filed prior to the thirty-first day of December of the tax year for which exemption is requested or for which the liability of the property to taxation in that year is requested." This statute limits a board of education to contesting the exemption in the year in which the complaint is filed. It may not contest prior year exemptions. Toledo v. Levin , 117 Ohio St.3d 373, 2008-Ohio-1119, 884 N.E.2d 31, ¶ 16 ; Olmsted Falls Bd. of Edn. v. Tracy , 76 Ohio St.3d 386, 388, 667 N.E.2d 1200 (1996).

{¶ 20} Read in isolation, that provision seems to support the township's position. But when reviewing a statute, a court cannot pick out one provision and dissociate it from the context. It must "look to the four corners of the enactment to determine the intent of the enacting body." Risner v. Ohio Dept. of Natural Resources , 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12, quoting State v. Wilson , 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997).

{¶ 21} Former R.C. 5715.27 was entitled "Right to complain to tax commissioner; notice to school board." Section (A) of the statute stated that "[e]xcept as provided in section 3735.67 of the Revised Code, the owner of any property may file an application with the tax commissioner, on forms prescribed by the commissioner, requesting that such property be exempted from taxation and that taxes and penalties be remitted as provided in division (B) of section 5713.08 of the Revised Code." Section (B) stated that the board of education of any school district could request the tax commissioner to "provide it with notification of applications for exemptions from taxation for property located within that district." Section (C) allowed a board of education that had requested notifications to file a statement with the commissioner and the applicant indicating "its intent to submit evidence and participate in a hearing on any application." In sum, this statute provided a procedure for a property owner to request an exemption and for the school board to contest it.

{¶ 22} On the other hand, former R.C. 5709.73 empowered "a township to designate parcels for a public improvement area, to exempt further improvements to these parcels from the real estate tax, and to construct public improvements in the designated areas." (Emphasis added.) Princeton City School Dist. , 94 Ohio St.3d at 68, 760 N.E.2d 375. The statute described the actions a township was required to take to set up a TIF, including adopting a resolution, holding a public hearing, and notifying the property owners. See former R.C. 5709.73(A) and (B). In certain situations, the board of education had to approve the township's actions. Thus, there would be no need to notify the board of education about the exemption.

{¶ 23} When the statute is read as a whole, the plain language of former R.C. 5715.27 shows that it did not apply in a situation involving a TIF, which had its own governing statutes. In fact, in Princeton City School Dist. , the Supreme Court stated that former R.C. 5709.73, which set forth the criteria for the TIF exemption, "does not provide for any review by the commissioner on whether the declaration of the township is correct." Therefore, the commissioner "could not review the township's decision in passing the resolution; he could only record that the township had passed the resolution and determine that the resolution applied to the years under review." Princeton School Dist. at 75, 760 N.E.2d 375. Thus, Loveland School District could not have had the issues raised in its complaint decided under former R.C. 5715.27(F).

{¶ 24} Finally, the Ohio Supreme Court and this court have decided declaratory judgment actions related to TIFs. See Sugarcreek Twp. v. Centerville , 133 Ohio St.3d 467, 2012-Ohio-4649, 979 N.E.2d 261 ; Hyde Park Circle, LLC v. Cincinnati , 2016-Ohio-3130, 66 N.E.3d 99 (1st Dist.). We find no merit to the township's argument that former R.C. 5715.27(F) provided the school district's exclusive remedy.

V. Applicable Statute of Limitations

{¶ 25} In its first assignment of error, Loveland School Board contends that the trial court erred in concluding that the six-year statute of limitations in R.C. 2305.07 applied. Instead, it contends that the ten-year statute of limitations set forth in R.C. 2305.14 applied. We hold that the trial court applied the correct statute of limitations.

{¶ 26} First, we address Symmes Township's argument that the two-year statute of limitations for actions against political subdivisions set forth in R.C. 2744.04 applies. "Courts in Ohio have been uniform in the observation that '(b)y its very language and title, (Chapter 2744) applies to tort actions for damages .' " (Emphasis sic.) State ex rel. Fatur v. Eastlake , 11th Dist. Lake No. 2009-L-037, 2010-Ohio-1448, 2010 WL 1254369, ¶ 36, quoting Big Springs Golf Club v. Donofrio , 74 Ohio App.3d 1, 2, 598 N.E.2d 14 (9th Dist.1991). It has no application to equitable actions. Cincinnati v. Harrison , 1st Dist. Hamilton No. C-130195, 2014-Ohio-2844, 2014 WL 2957946, ¶ 29-30 ; Fatur at ¶ 36-37 ; State ex rel. Johnny Appleseed Metro. Park Dist. v. Delphos , 141 Ohio App.3d 255, 258, 750 N.E.2d 1158 (3d Dist.2001).

{¶ 27} Loveland School Board's complaint primarily sought equitable relief in the form of a declaratory judgment, injunctive relief, and a writ of mandamus. Though it also sought an award of money damages, it was seeking to recover money to which it contends that it was entitled under the TIF statutes, but for Symmes Township's allegedly improper actions. Consequently, the essence of the claim was not money damages, but equitable relief. Therefore, R.C. Chapter 2744 does not apply. See B.H. v. Ohio Dept. of Adm. Serv. , 10th Dist. Franklin No. 16AP-747, 2017-Ohio-9030, 103 N.E.3d 169, ¶ 21-25 ; State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio School Facilities Comm. , 2015-Ohio-435, 28 N.E.3d 633, ¶ 15-16 (9th Dist.) ; Interim Health Care of Columbus, Inc. v. Ohio Dept. of Adm. Serv. , 10th Dist. Franklin No. 07AP-747, 2008-Ohio-2286, 2008 WL 2025153, ¶ 15-17.

{¶ 28} We also find no merit in Loveland School Board's argument that the ten-year statute of limitations set forth in R.C. 2305.14 applies. R.C. 2305.14 states that "[a]n action for relief not provided for in sections 2305.04 to 2305.131 and section 1304.35 of the Revised Code shall be brought within ten years after the cause thereof accrued." It is a catch-all provision that Ohio courts have generally applied to equitable actions. State ex rel. Lien v. House , 144 Ohio St. 238, 244-245, 58 N.E.2d 675 (1944) ; Schlabach v. Kondik , 3d Dist. Harrison No. 16 HA 0017, 2017-Ohio-8016, 98 N.E.3d 1048, ¶ 19 ; Seitz v. Stevenson , 4th Dist. Pickaway No. 97 CA 42, 1998 WL 328413, *6 (June 16, 1998) ; Biggins v. Garvey , 90 Ohio App.3d 584, 606, 630 N.E.2d 44 (11th Dist.1993).

{¶ 29} R.C. 2305.07, on the other hand, provides a six-year statute of limitations for a "liability created by statute other than a forfeiture or penalty." An action upon a liability created by statute is "one that would not exist but for the statute." McAuliffe v. W. States Import Co., Inc. , 72 Ohio St.3d 534, 538, 651 N.E.2d 957 (1995) ; Miller v. Lincoln Hts. , 1st Dist. Hamilton No. C-110276, 2011-Ohio-6722, 197 Ohio App.3d 285, 967 N.E.2d 255, ¶ 8.

{¶ 30} The statute of limitations to be applied is determined from the essential ground or gist of the complaint. Kunz v. Buckeye Union Ins. Co. , 1 Ohio St.3d 79, 80-81, 437 N.E.2d 1194 (1982) ; Chateau Estate Homes, LLC v. Fifth Third Bank , 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, 95 N.E.3d 693, ¶ 11. Though Loveland School District sought equitable relief, all of its claims were based on the statutory sections governing TIFs.

{¶ 31} Loveland School Board argues that its claims were not based on the statutes, but on the language of the resolutions authorizing the STIF in 1991 and 1993 and the resolutions amending the STIF in 2003. But without the statutes authorizing townships to create TIFs, Symmes Township could not have enacted the resolutions. Without the statutes, Loveland School Board's claims would not exist. Therefore, R.C. 2305.07 applies. The ten-year statute of limitations set forth in R.C. 2305.14 does not apply, because that statute specifically states that it only applies to actions for relief not provided for in R.C. 2505.04 to 2305.131. Consequently, we overrule Loveland School Board's first assignment of error.

VI. Accrual of the Cause of Action

{¶ 32} We discuss the remainder of Loveland School Board's assignments of error out of order. In its third assignment of error, Loveland School Board contends that the trial court erred in concluding that the cause of action accrued in 2003 when the township amended the original 1991 STIF to add additional public infrastructure improvements. It argues that a new cause of action accrued each time an additional expenditure from the tax-increment fund was actually made. This assignment of error is not well taken.

{¶ 33} As a general rule, a cause of action accrues at the time the wrongful act is committed. Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co. , 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 13 ; Chateau Estate Homes , 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, 95 N.E.3d 693, at ¶ 13. It is only in narrow circumstances that exceptions are made to this rule. LGR, Realty, Inc. v. Frank & London Ins. Agency , 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 26. A cause of action arising from a statute accrues when the violation of the statute occurs. Younker v. Citizens Commercial Bank & Trust Co. , 3d Dist. Mercer No. 10-04-05, 2004-Ohio-4162, 2004 WL 1770439, ¶ 19 ; Arbor Village Condominium Assn. v. Arbor Village, Ltd., L.P. , 95 Ohio App.3d 499, 506, 642 N.E.2d 1124 (10th Dist.1994) ; Perry v. Cincinnati , 1st Dist. Hamilton No. C-880451, 1989 WL 107588, *3 (Sept. 20, 1989).

{¶ 34} The alleged statutory violation occurred in 2003 when Symmes Township amended the STIF and, according to Loveland School Board, improperly expanded the scope of the public improvements funded by the STIF. Further, according to Loveland School Board, at that time Symmes Township retired the debt, causing the termination of the STIF. Thus, the cause of action accrued at that time.

{¶ 35} Loveland School Board's complaint was not filed until March 11, 2016. Therefore, it was filed well after the expiration of the six-year statute of limitations provided for in R.C. 2305.07. Even if we would have accepted Loveland School Board's argument that the ten-year statute of limitations set forth in R.C. 2305.14 applied, the complaint was still filed well after the expiration of the statute of limitations.

A. Continuous-Violation Doctrine

{¶ 36} In its second assignment of error, Loveland School Board contends that the trial court erred in finding that the continuous-violation doctrine did not apply. It argues that the failure to terminate the STIF in 2003 when the tax-increment debt was retired allowed the township to continue to collect the PILOT payments, which deprived the school district of its tax revenue. This assignment of error is not well taken.

{¶ 37} Loveland School Board relies upon State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, which involved a takings claim resulting from flooding caused by a spillway on a lake. The Ohio Department of Natural Resources ("ODNR") had constructed a new spillway to replace one that was inadequate. After the construction of the new spillway, ODNR considered the lake to be self-regulating and stopped drawing down the water annually or as needed. Also, after the construction of the spillway, nearby landowners had suffered from persistent flooding.

{¶ 38} The plaintiffs filed their complaint in 2009. The state argued that the actions that would have fixed liability were completed when the spillway was built in 1997 and that the plaintiffs knew or should have known of damage by 2003, when a catastrophic flood had occurred. Id. at ¶ 36. In rejecting the state's argument, the Ohio Supreme Court stated that "[i]n construing the statute of limitations for actions for trespass upon real property, we have held that if a trespass is continuing rather than a single completed act, the limitations period is tolled." Id. at ¶ 37. The court held that "[w]hen an action carried out on the actor's own land causes continuing damage to another's property and the actor's conduct or retention of control is of a continuing nature, the statute of limitations is tolled." Id. at paragraph two of the syllabus.

{¶ 39} The court reasoned that "the 'defendant's ongoing conduct or retention of control is the key' to distinguishing a continuing trespass, which tolls a statute of limitations, from a permanent trespass, which does not." A continuing trespass occurs when there is " 'some continuing or ongoing allegedly tortious activity attributable to the defendant. A permanent trespass occurs when the defendant's allegedly tortious act has been fully accomplished.' " Id. at ¶ 44, quoting Sexton v. Mason , 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013, ¶ 45.

{¶ 40} The court further stated that "a cause of action against the government does not accrue until 'all of the events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence.' " State ex rel. Doner at ¶ 48, quoting State ex rel. Nickoli v. Erie MetroParks , 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 34. Thus, whether the plaintiff had notice of the alleged tortious activity is relevant in determining when the cause of action accrued.

{¶ 41} In rejecting Loveland School Board's argument, the trial court relied on Painesville Mini Storage, Inc. v. Painesville , 124 Ohio St.3d 504, 2010-Ohio-920, 924 N.E.2d 357. In that case, the plaintiff had filed a petition for a writ of mandamus to compel a city to commence an appropriation proceeding for the alleged taking of plaintiff's property through the issuance of a building permit. The Ohio Supreme Court found that the complaint was filed outside the alleged applicable statute of limitations.

{¶ 42} The court in that case stated that "the continuous-violation doctrine did not toll the statute of limitations, because the city did not perform any additional challenged actions after it issued the permit. Every event that occurred thereafter 'was merely a continuation of the effects of that solitary event rather than the occurrence of new discrete acts.' " Id. at ¶ 3, quoting Nickoli at ¶ 33 ; see State ex rel. Lee v. Plain City , 12th Dist. Madison No. CA2017-01-002, 2017-Ohio-8931, 102 N.E.3d 10, ¶ 27-29 (sewers and other infrastructures constitute a permanent trespass of which the property owners had notice at the time they were put in place with no further action by the village); Byers DiPaola Castle, LLC v. Portage Cty. Bd. of Commrs. , 2015-Ohio-3089, 41 N.E.3d 89, ¶ 43 (11th Dist.) (the present effects of a single past action do not trigger a continuing-violations exception to the statute of limitations).

{¶ 43} The trial court found that the events that occurred after 2003 were a continuation of the effects of the 2003 amendment and the expansion of the STIF. Loveland School Board argues that State ex rel. Doner applies, and not Painesville Mini Storage , because Symmes Township exercised sole control over the STIF by continuing to collect PILOT payments and continuing to use the tax-increment fund to make expenditures. Thus, all of the events that fixed the township's liability could not have occurred in 2003, and the continuing-violation doctrine applies.

{¶ 44} We disagree. In State ex rel. Doner , the alleged tortious activity was continuing in that ODNR controlled the waterway and failed to draw down the lake as needed. Thus, the tortious activity remained in the control of ODNR.

{¶ 45} In this case, the alleged tortious activity was the 2003 amendment of the STIF to expand it for allegedly improper purposes and the failure to terminate it when the debt on the original notes was paid. All of the tortious activity occurred in 2003. The continued collection of the PILOT payments and continued expenditures from the tax-increment fund flowed from that alleged tortious activity. The township had no authority to continue to collect the payments or make expenditures out of the fund without the authorization provided by the amendment of the STIF. Any of its actions after 2003 were the result of the allegedly improper amendment of the STIF and the failure to terminate it. Thus, the tortious activity was completed in 2003, and the township's acts after 2003 were merely a continuation of the effects of the 2003 amendment.

{¶ 46} We also cannot ignore the fact that Loveland School Board knew or should have known about the amendment of the STIF more than six years before it filed its complaint. First, the 2003 resolutions were public records and gave notice to Loveland School Board and the public about the expansion of the STIF. See Stewart v. Allen , 9th Dist. Wayne No. 06CA0039, 2008-Ohio-1645, 2008 WL 918528, ¶ 17-18 ; Wendover Road Property Owners Assn. v. Kornicks , 28 Ohio App.3d 101, 103, 502 N.E.2d 226 (8th Dist.1985).

{¶ 47} Further, the record shows that Symmes Township held an annual meeting of the Tax Increment Review Council ("TIRC"), which included representatives from the various school districts in the township, including Loveland School District. During those meetings, the township provided a packet of information related to the STIF and discussed the STIF expenditures. Loveland School District actually produced the packet from the 2004 TIRC meeting, which included information regarding new public improvements to be funded by the TIF, including "construction of a new fire/safety building and miscellaneous park improvements." That packet stated that it had been provided to Loveland School Board's representative. The school district's treasurer testified that although he was not at the 2004 meeting, he had attended the TIRC meetings himself and was familiar with the information historically reported by Symmes Township. He also acknowledged that the Loveland School District superintendent had attended TIRC meetings. Thus, the record shows that Loveland School Board had notice in 2004 about the expansion and the continuation of the STIF.

{¶ 48} Finally, we note that courts have been reluctant to expand the continuous-violation doctrine beyond the original context in which it was applied. See Byers DiPaola Castle , 2015-Ohio-3089, 41 N.E.3d 89, at ¶ 45 ; Rosenbaum v. Chronicle Telegram , 9th Dist. Lorain Nos. 01CA0079896 and 01CA007908, 2002-Ohio-7319, 2002 WL 31890101, ¶ 28-29. Under the circumstances, we hold that the continuing-violation doctrine did not toll the running of the statute of limitations, and the trial court did not err in failing to apply it. We overrule Loveland School Board's second assignment of error.

B. Delayed-Damage Rule

{¶ 49} Under its third assignment of error, Loveland School Board also contends that the delayed-damage rule applies. Under that rule, "where the wrongful conduct complained of is not presently harmful, the cause of action does not accrue until actual damage occurs." Flagstar , 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, at ¶ 19 ; Chateau Estate Homes , 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, 95 N.E.3d 693, at ¶ 14. The delayed-damage rule does not toll the running of the statute of limitations, it adjusts when the cause of action accrues. Chateau Estate Homes at ¶ 14.

{¶ 50} Loveland School Board contends that the statutory violation of the improper expenditure of PILOT payments did not occur until the expenditures were actually made. It argues that most of those expenditures were not contemplated at the time of the 2003 amendment. For example, starting in 2003, Symmes Township spent $350,000 of the PILOT payments to purchase a park. From 2003 through 2005, it spent about $2,500,000 on a safety-services center. In 2008 and 2009, it spent $360,000 to construct a park maintenance building. Finally, in 2012 and continuing each year through 2016, it spent over $2,000,000 on police and fire equipment. Loveland School Board argues that the damage resulting from any statutory violation did not occur until those expenditures had been made.

{¶ 51} We find no case law applying the delayed-damage rule where R.C. 2305.07 is the applicable statute of limitations. We also note that the Ohio Supreme Court recently declined to apply the delayed-damage rule in a case involving the four-year statute of limitations set forth in R.C. 2305.09 for negligent procurement of a professional-liability insurance company and negligent representation. See LGR Realty , 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, at ¶ 31. This court reached the same conclusion in Chateau Estate Homes , 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, 95 N.E.3d 693, at ¶ 15-25. Therefore, we decline to apply the delayed-damage rule in this case.

{¶ 52} Nevertheless, even if the rule does apply, the damage occurred in 2003 when the allegedly overreaching amendment to the original STIF was passed. Without this amendment, the continued expenditures could not have been made. Thus, all of the conduct giving rise to Symmes Township's alleged liability occurred at that time. Consequently, we overrule Loveland School Board's third assignment of error.

C. Discovery Rule

{¶ 53} In its fourth assignment of error, Loveland School Board contends that the trial court erred in concluding that the discovery rule did not apply. It argues that it did not know, and could not have known, that Symmes Township had retired its tax-increment debt until it made a public records request in 2014 for various STIF-related documents. This assignment of error is not well taken.

{¶ 54} The discovery rule provides that a cause of action does not arise until the plaintiff knows, or by the exercise of reasonable diligence should know, that he or she has been injured by the defendant's conduct. Flagstar , 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, at ¶ 13-14 ; Chateau Estate Homes , 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, 95 N.E.3d 693, at ¶ 13. The discovery rule tolls the running of the statute of limitations. Chateau Estate Homes at ¶ 13. It is typically applied in tort and medical-malpractice cases, and it is doubtful it would apply to a case under R.C. 2305.07 or 2305.14. See Miller v. Cloud , 2016-Ohio-5390, 76 N.E.3d 297, ¶ 52 (7th Dist.) ; Wilkerson v. Hartings , 1st Dist. Hamilton No. C-081160, 2009-Ohio-4987, 2009 WL 3051468, ¶ 9-11. At least two courts have refused to apply the discovery rule to cases involving statutory violations under R.C. 2305.07. See Arbor Village Condominium Assn. , 95 Ohio App.3d at 506, 642 N.E.2d 1124 ; Arandell Corp. v. Amer. Elec. Power Co. , S.D. Ohio No. 2:09-cv-231, 2010 WL 3667004, *7-8 (Sept. 15, 2010).

{¶ 55} Even if the discovery rule applies, the school district should have known that it was injured by the township's conduct long before 2014. This court has stated that "[n]o more than a reasonable opportunity to discover" the injurious conduct is required to start the running of the statute of limitations. Wilkerson at ¶ 15, quoting Craggett v. Adell Ins. Agency , 92 Ohio App.3d 443, 454, 635 N.E.2d 1326 (8th Dist.1993). "Information sufficient to alert a reasonable person to the possibility of wrongdoing gives rise to a party's duty to inquire into the matter with due diligence." Id.

{¶ 56} The record shows that Loveland School Board knew in 2004 of the amendment to the STIF and the expansion of the public improvements funded by the STIF. At that time, it had information sufficient to put it on notice of the possibility of wrongdoing which gave rise to a duty to inquire into the matter. Thus, the cause of action would have accrued, at the latest, in 2004. Even if we apply the discovery rule, the complaint was not filed within the six-year statute of limitations. We overrule Loveland School Board's fourth assignment of error.

VII. Summary

{¶ 57} In sum, we find no merit in Loveland School Board's four assignments of error. We find no issues of material fact. Construing the evidence most strongly in Loveland School Board's favor, we hold that reasonable minds can come to but one conclusion-that Loveland School Board's claims were time-barred and that Symmes Township was entitled to judgment as a matter of law. Consequently, the trial court did not err in granting summary judgment in favor of Symmes Township. See Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977) ; Wal-Mart Realty Co. v. Tri-County Commons Assoc., Inc. , 1st Dist. Hamilton No. C-160747, 2017-Ohio-9280, 2017 WL 6626349, ¶ 8. Having overruled Loveland School Board's assignments of error, we affirm the trial court's judgment in the appeal numbered C-170407. We dismiss the appeal in the case numbered C-170419.

Judgment affirmed in C-170407 and appeal dismissed in C-170419.

Cunningham and Zayas, JJ., concur.


source: Caselaw Access Project

author: DONOVAN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Todd D. HARRISON, Defendant-Appellant
    NO.: 27591
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on May 4, 2018
    MATHIAS H. HECK, JR., by ALICE PETERS, Atty. Reg. No. 93945, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
    TODD D. HARRISON, 718 Heck Avenue, Dayton, Ohio 45417, Defendant-Appellant, Pro Se.
   DONOVAN, J.

{¶ 1} This matter is before the Court on the May 18, 2017 pro se Notice of Appeal of Todd Harrison. Harrison appeals from the May 4, 2017 "Entry Denying Sealing of Records after Not Guilty Finding, Dismissal of Proceedings, or No Bill (O.R.C. 2953.552(A)(B) )." We hereby affirm the judgment of the trial court.

{¶ 2} On February 12, 2004, Harrison was indicted in the Montgomery County Common Pleas Court on one count of having weapons while under disability, in violation of R.C. 2903.11(A)(2), and one count of felonious assault, in violation of R.C. 2923.13(A)(2), in Case No. 2003 CR 4725. The indictment provides that the offenses occurred on or about December 25, 2003. Harrison pled not guilty on February 17, 2004. Following a jury trial, Harrison was found not guilty of both offenses on July 16, 2004.

{¶ 3} On April 7, 2017, Harrison filed a pro se "Application for Sealing of Record, after Not Guilty Finding, Dismiss[al] of Proceedings or No True Bill." His application was limited to his acquittal for felonious assault. Prior to a hearing on his application, on May 2, 2017, Harrison filed a lengthy pro se "Motion in Opposition and to Objected to the Courts [sic] Judgment Entry Denying the Sealing of a 2003 Felonious Assault Mr. Harrison was Exonerated by a Jury and in Accordance to Ohio Law the Sealing of Record after Not Guilty Pursuant to O.R.C. 2953.52(B)(2) Denial by the Court is Flawed and Decided in Error of Law and Theory." Attached to the Motion in part is correspondence to Harrison, dated April 5, 2017, on "Lyons Gate Apartments" letterhead, denying Harrison's application for a lease due to a "criminal record match." Also on May 2, 2017, Harrison filed a pro se "Reconsideration on Application to Sealing the Arrest Record & the Charge of Felonious Assault, after being Acquitted by a Jury Rendering a Not Guilty Verdict," with a supporting memorandum.

{¶ 4} At the May 3, 2017 hearing on Harrison's application, the court indicated that it considered what it characterized as "premature" filings of May 2, 2017. The court then confirmed that the State did not file written objections to Harrison's application to seal the record, and the prosecutor responded, "[w]e only received notice of this this [sic] morning or close to this afternoon and did not have time to file written objections. We would, for the record, object due to the defendant's criminal history." Harrison responded that any objections by the State should be "in writing." The court allowed the oral objection, noting, "[t]here was a mistake made by my case management that did not get this on the docket in a timely fashion. Notice went out but it wasn't on the docket for the prosecution to see."

{¶ 5} The court indicated that "there does appear to be a government need to maintain the record of not guilty." The court concluded as follows:

I have found that you incurred two counts of felonious assault, which were ignored by the grand jury, back in October of 2014. You also have a criminal history which contains the following convictions-aggravated trafficking in '89, 89CR3137; felonious assault, a felony of the first degree in Hamilton County; a failure to comply with signal or order of a police officer, felony of the third degree; illegal possession of firearms in a liquor permit premises, a felony of the fifth degree; tampering with evidence, a felony of the fifth degree.
And due to your consistent criminal history, this record of not guilty, I believe, should be maintained for potential future involvement with law enforcement.

{¶ 6} Harrison asserted that he has been denied public housing. When asked by the court if he was previously convicted as the court just indicated, Harrison responded, "I have no recollection at this time." He asserted that he met the "criteria" pursuant to R.C. 2953.52. Harrison asserted that "my housing situation outweighs the manifest weight for the government to even maintain that record and it still, to this day, has been held against me and that's a discriminatory act under the doctrine of the Discriminatorial (sic) Act." Harrison argued, "I've been maintaining and staying out of trouble for well over 13 years without any incident," and "because I was mistakenly misidentified, I was clear of those charges." The court again inquired "whether or not those charges that I read to you were convictions. Were you convicted of those offenses or has it been some sort of mistake?" Harrison responded, "I mean-I-it could be sort of a mistake. I don't recollect because I take medication, Your Honor, and I have a disability." The court concluded that Harrison was convicted of the offenses the court recited on the record.

{¶ 7} The court's written decision provides as follows:

The Court has determined whether the applicant was found not guilty, or the complaint, indictment, or information in the case was dismissed; or a no bill was returned in the case; whether criminal proceedings are pending against the applicant at the present time; and whether the interest of the applicant in having the records pertaining to the case sealed are not outweighed by the government's need to maintain these records, and whether, in the case of a no bill, the application was filed in a timely manner.
The Court has determined that the applicant does not meet the criteria according to O.R.C. 2953.52(B)(2). THEREFORE, the Court finds that the application is DENIED for the following reasons:
There does appear to be a governmental need to maintain the record of Not Guilty. Due to his consistent criminal history, this record of Not Guilty should be maintained for potential future involvement with law enforcement.

{¶ 8} On May 11, 2017, Harrison filed a pro se "Motion to Object to the Courts [sic] Judgment Entry Denying the Sealing of Record after, Not Guilty Pursuant to O.R.C. 2953.52 (A)(1) & (B)(2)." The court did not address the motion.

{¶ 9} Harrison's brief contains 12 assignments of error. Each of his last two assignments of error are enumerated "Eleventh Assignment of Error." We will consider his final assignment of error to be his twelfth assignment of error, and we will consider the assigned errors out of order for ease of analysis.

{¶ 10} In his tenth, eleventh, and twelfth assignments of error, Harrison asserts that the trial court erred and abused its discretion in denying his application to seal the records.

{¶ 11} As noted by the Supreme Court of Ohio:

The right of public access, as examined in the context of a criminal proceeding, serves several lofty goals. First, a crime is a public wrong, and the interest of the community to observe the administration of justice in such an instance is compelling. Harrison, How Open is Open? The Development of the Public Access Doctrine under State Open Courts Provisions (1992), 60 U.Cin.L.Rev. 1307, 1322. Also, the general right of public access promotes respect for and an understanding of the legal system and thus enables the public to engage in an informed discussion of the governmental process. Bechamps, Sealed Out-of-Court Settlements: When Does the Public Have a Right to Know? (1990), 66 Notre Dame L.Rev. 117, 127. The right, however, is not absolute. "No one has a right to any particular degree of openness or secrecy, except as provided by law." State ex rel. Beacon Journal Publishing Co. v. Waters (1993), 67 Ohio St.3d 321, 324, 617 N.E.2d 1110. We have further held that it is a proper role of the General Assembly to balance competing private and public rights. State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 266, 602 N.E.2d 1159. The General Assembly has done so in R.C. 2953.52.

State ex rel. Cincinnati Enquirer v. Winkler , 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 9.

{¶ 12} R.C. 2953.52(A)(1) provides:

Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person's official records in the case. Except as provided in section 2953.61 of the Revised Code, the application may be filed at any time after the finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.

{¶ 13} R.C. 2953.52(B)(1) and (2) provide:

(1) Upon the filing of an application pursuant to division (A) of this section, the court shall set a date for a hearing and shall notify the prosecutor in the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons the prosecutor believes justify a denial of the application.
(2) The court shall do each of the following, except as provided in division (B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in the case, or the complaint, indictment, or information in the case was dismissed, or a no bill was returned in the case and a period of two years or a longer period as required by section 2953.61 of the Revised Code has expired from the date of the report to the court of that no bill by the foreperson or deputy foreperson of the grand jury;
(ii) If the complaint, indictment, or information in the case was dismissed, determine whether it was dismissed with prejudice or without prejudice and, if it was dismissed without prejudice, determine whether the relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the person;
(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
(d) Weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.

{¶ 14} "The defendant's right to privacy takes into account the public policy of providing a second chance to criminal defendants who have been found not guilty." Winkler , ¶ 10. It is the applicant's burden to "demonstrate that his interest in having the records sealed are equal to or greater than the government's interest in maintaining those records." State v. Newton , 10th Dist. Franklin Nos. 01AP-1443, 2002-Ohio-5008, 2002 WL 31111849, ¶ 9. The "mere fact of an acquittal does not require the sealing of records." Id. The "trial court is not to tip the balance in favor of the government when it is weighing the parties' relative interests. The court is to approach the parties' interests initially from an equal basis."

State v. Sheibenberger, 115 Ohio App.3d 529, 685 N.E.2d 841 (2d Dist. 1996).

{¶ 15} As this Court has previously noted:

"The sealing of a criminal record is an 'act of grace created by the state.' " State v. D.L., 2d Dist. Montgomery No. 26394, 2015-Ohio-1664 [2015 WL 1966036], ¶ 8, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). An appellate court reviews a trial court's decision to grant or deny an application to seal records for an abuse of discretion. [ State v. ] Capone [,2d Dist. Montgomery No. 20134, 2004-Ohio-4679, 2004 WL 1949423] at ¶ 7. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). "It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary." Id. "A decision is unreasonable if there is no sound reasoning process that would support that decision." Id.

State v. Myers , 2d Dist. Clark No. 2015-CA-88, 2016-Ohio-4893, 2016 WL 3655276, ¶ 13.

{¶ 16} As this Court has further noted, "the mere fact that we might have exercised that discretion differently, to arrive at a different result, is immaterial." State v. Webb , 2d Dist. Montgomery No. 24866, 2012-Ohio-2962, 2012 WL 2499510, ¶ 14.

{¶ 17} Since it is undisputed that Harrison was found not guilty of felonious assault, and since there were no pending charges against him at the time of the hearing, the sole issue before the trial court was whether Harrison's interest in having the record sealed was outweighed by the legitimate governmental need to maintain the records. We conclude that nothing in the record suggests that the court acted unreasonably in denying Harrison's application.

{¶ 18} As the State notes, the correspondence addressed to Harrison regarding the denial of his housing application "does not state what specifically in Harrison's criminal record prevented his application from being approved." We agree with the State that given Harrison's extensive, felonious criminal history (which Harrison appears not to recall), "it is unlikely that this record of acquittal was what was preventing him from obtaining public housing." We conclude that Harrison has not demonstrated actual harm from his acquittal, and that his argument is somewhat speculative. We further conclude, as the State asserts, that it "was not unreasonable for the trial court to put transparency and the government's awareness of the charges above Harrison's personal interests." In the absence of a showing that appellant's interest in having his criminal record sealed was equal to or greater than the government's interest in maintaining such records, we cannot say that the trial court abused its discretion in denying Harrison's application. Since these three assignments of error lack merit, they are overruled.

{¶ 19} In his ninth assignment of error, Harrison asserts that the trial court erred by allowing the prosecutor to verbally object to his application at the hearing, and that he was denied reasonable notice of the objection. We conclude that any error is harmless. Pursuant to the plain language of R.C. 2953.52(B)(1), the "prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing."

In the absence of a written objection to an application, the "trial court still must weigh the interests of the applicant against the legitimate needs, if any, of the government to maintain the records." State v. Crews , 179 Ohio App.3d 521, 2008-Ohio-6230, 902 N.E.2d 566, ¶ 26 (2d Dist.).

{¶ 20} Crim. R. 52(A) provides: "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." As noted by the Supreme Court of Ohio:

" * * * Under the harmless-error standard of review, 'the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant.' (Emphasis sic.)" State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. (Other citation omitted.)
"In most cases, in order to be viewed as 'affecting substantial rights,' ' "the error must have been prejudicial. " (Emphasis added.)' " Id. , quoting State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7. (Other citation omitted.) "Accordingly, Crim.R. 52(A) asks whether the rights affected are 'substantial' and, if so, whether a defendant has suffered any prejudice as a result." (Citation omitted.) Id.

State v. Sibrian , 2d Dist. Montgomery No. 27041, 2017-Ohio-2613, 2017 WL 1592713, ¶ 54-55.

{¶ 21} The "harmless-error rule, was created in essence to forgive technical mistakes." State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24.

{¶ 22} The trial court indicated that the court's staff erred in not timely docketing Harrison's motion. The court further indicated that it considered Harrison's application, as well as his "premature" and lengthy submissions filed ahead of the hearing. The trial court itself was aware of Harrison's extensive criminal history at the time of the hearing and based its decision upon its evaluation thereof. In other words, prejudice is not demonstrated. Since any error by the trial court was harmless, Harrison's ninth assignment of error is overruled.

{¶ 23} In his first, seventh, and eighth assignments of error, Harrison argues that the trial court exhibited bias against him because the same judge presided over a 2009 traffic case of Harrison's in Kettering Municipal Court. Harrison argues that the trial court judge "should have disqualified himself [due] to this past conflict," and that "self-disqualification was warranted."

{¶ 24} The State responds that as "an initial matter, Harrison failed to seek disqualification of the trial court judge in the Ohio Supreme Court or raise this issue before the trial court." According to the State, although Harrison provided documentation in his brief supporting his claim that the judge who presided over his application also presided over his misdemeanor case in Kettering Municipal Court, "there is no evidence to support his contention that the trial court judge remembered him or acted in a biased manner towards him in this case." Further, the State asserts that "there is absolutely nothing, other than Harrison's baseless accusations, to suggest that the trial court judge was racist or acted in a racially biased manner towards Harrison."

{¶ 25} As the State asserts, "a party's disagreement or dissatisfaction with a court's rulings of law, without more, does not demonstrate bias or prejudice." In re Disqualification of Hurley , 113 Ohio St.3d 1228, 2006-Ohio-7229, 863 N.E.2d 630, ¶ 4. Harrison has not demonstrated that he was prejudiced by the judge's prior involvement in his Kettering Municipal Court case. Moreover, the Supreme Court of Ohio "has exclusive jurisdiction to determine a claim that a common pleas judge is biased or prejudiced." In re Miller , 2d Dist. Montgomery No. 17592, 1999 WL 960975, *1 (July 16, 1999). If Harrison was concerned about the trial court's objectivity, he should have brought a challenge pursuant to the procedure set forth in R.C. 2701.03. Harrison's first, seventh and eighth assignments of error are overruled.

{¶ 26} Finally, we will review Harrison's remaining assignments of error. We initially note that App.R. 16(A)(3) requires an appellate brief to include, in part, a "statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected. " (Emphasis added.) Each of Harrison's remaining assignments of error fail due to his failure to comply with App.R. 16(A)(3). For example, Harrison's second assignment of error provides: "Holding [ ] citizens/consumers to outdated information thats [sic] over the (7) or (10) years and (1) day Consumer Protection Clause/Act ." We note that elsewhere in his brief, Harrison further refers to "his objections based on the Right under the Fair Credit Reporting Act on reporting outdated negative information that are over the (7) or (10) years statute." The "Fair Credit Reporting Act ('FCRA') * * *, codified at Section 1681 et seq., Title 15, U.S. Code, was enacted to protect 'consumers from inaccurate information in consumer reports * * *.' " Hall v. CFIC Home Mtg. , 175 Ohio App.3d 587, 2008-Ohio-1016, 888 N.E.2d 469, ¶ 22 (12th Dist.). To the extent that Harrison may be referring to the FCRA's prohibition against consumer reporting agencies issuing consumer reports containing certain information that antedates the reports by more than seven or ten years, see 15 U.S.C. § 1681c, the FCRA does not apply to Harrison's application, and R.C. 2953.52 does not place temporal limits on the criminal history that a trial court may consider in ruling on an R.C. 2953.52 application. Harrison's second assignment of error is overruled.

{¶ 27} Harrison's third assignment of error provides: "Rights, Rules, Law & Procedural Violations Against Appellant Harrison Due Process, Redress, & Equal Protection of Law entitled rights that against Title 18 U.S. Deprivation of Rights under the Color of Law ." Title 18 of the United States Criminal Code does not apply to Harrison's application. Accordingly, his third assignment of error is overruled.

{¶ 28} Harrison's fourth and fifth assignments of error appear related. His fourth assignment of error provides: "Ex part[e] Communication initiated by Judge Dennis J. Adkins and/or his court[']s staff in providing Barbara P. Gorman and/or her court staff with the exact same copy of his deny entry and order, with the exception of only changing the date and case no[.] was the only difference." Harrison's fifth assignment of error provides: "Judge Adkins Interfering with a pending court proceedings." Harrison's arguments are not supported by the record and are accordingly not properly before us. His fourth and fifth assignments of error are accordingly overruled.

{¶ 29} Finally, Harrison's sixth assignment of error provides: "Violations of Ohio & Federal Codes of Procedures, Criminal & Civil has affected Appellant[']s substantive right ." As noted above, we have addressed the sole issue before the trial court, namely whether Harrison's interest in having the record sealed was outweighed by the legitimate governmental need to maintain the records. This vague assignment of error fails to advance a meritorious argument, and it is overruled. Having overruled Harrison's assignments of error, the judgment of the trial court is affirmed.

FROELICH, J. and TUCKER, J., concur.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellant v. Wendell BUIS, Defendant-Appellee
    No. 27778
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on May 4, 2018
    MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
    SUSAN F. SOUTHER, Atty. Reg. No. 0058529, 117 S. Main Street, Suite 400, Dayton, Ohio 45422, Attorney for Defendant-Appellee
   HALL, J.

{¶ 1} The State of Ohio appeals from the trial court's dismissal of an indictment against defendant-appellee Wendell Buis based on pre-indictment delay.

{¶ 2} In its sole assignment of error, the State challenges the trial court's ruling as an abuse of discretion.

{¶ 3} The record reflects that a grand jury indicted Buis on April 18, 2017 on one count of cocaine possession, a fifth-degree felony. The indictment alleged that the offense had occurred on or about February 7, 2015. Buis moved to dismiss the indictment. He asserted that an unjustifiable and prejudicial delay of more than two years between the alleged offense and the indictment violated his due-process rights. (Doc. # 20). Buis noted that the indictment stemmed from a traffic stop for speeding and that his address and telephone number had not changed since the date of the offense. He asserted that a police cruiser-cam recording of the traffic stop no longer existed, that a dispatch recording about sending a K-9 unit to the scene no longer existed, that the dog involved had retired, and that the alleged drugs at issue (which had been tested by the State and found to be cocaine) had been destroyed. (Id. at 2-3). Buis also argued that the Ohio State Highway Patrol trooper involved in the traffic stop had apparently moved to a local police department and it would not have been difficult for the State to have located him more promptly. (Id. at 4-5). Buis insisted that there was no valid reason for the delay, which had resulted in actual prejudice to him. (Id. at 3-6).

{¶ 4} The State opposed dismissal. It asserted that the trooper who made the traffic stop had left the Ohio State Highway Patrol shortly after the incident. The State acknowledged that a crusier-cam recording of the stop had not been saved and that the alleged cocaine had been destroyed. The State asserted that on March 9, 2017 Trooper Kyle Pohlabel brought the case to the prosecutor's office for review. The State attributed the more than two year delay to "a change in officers." (Doc. # 22 at 2). Despite the delay, the State insisted that Buis had not shown any actual prejudice. Absent a showing of prejudice, the State argued that it had no burden to provide a justifiable reason for the delay. (Id. at 3). With regard to prejudice, the State reasoned:

In the present case not all of the evidence has been destroyed. The testimony of the Officers as well as the laboratory technician is still in existence. The testimony would still be subject to cross examination. The Defendant's biggest grievance with the delay is the lack of cruiser cam. A lack of cruiser cam is not an uncommon occurrence. A lack of cruiser cam footage does not make a case unwinnable for the Defense. It is not an essential element. Based upon this, the alleged prejudice claimed by the Defendant is minimal at best.

(Id. at 4).

{¶ 5} Neither party requested an evidentiary hearing on Buis' motion, which the trial court sustained in a September 28, 2017 decision and entry. (Doc. # 29). The trial court began its review by citing the undisputed facts that the alleged cocaine had been seized during a traffic stop, a cruiser-cam video had been destroyed, and the alleged drugs had been analyzed and destroyed after the preparation of a report. (Id. at 1). Applying State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, the trial court then concluded that Buis had established actual prejudice due to the missing evidence. The trial court opined that Buis was not required to show that the missing evidence necessarily would have exonerated him. ( Id. at 3 ). Rather, the trial court found it sufficient that the missing evidence would have enabled him to attack the credibility of the State's evidence or to minimize the impact of that evidence. ( Id. at 3-7 ). The trial court then reasoned:

The charge against Buis is "knowingly" possessing cocaine in an amount less than 5 grams. To the extent the seized substance was small or otherwise not obvious, defendant would be able to reasonably argue lack of knowledge at trial. Without that evidence he is denied the opportunity to "minimize or eliminate" the impact of the state's evidence specifically with regard to his "knowingly" possessing cocaine.
* * *
The Court finds that the combination of the missing cruiser cam video, dispatch, and the seized substance, would adversely affect the defense case at trial. It leaves the accused unable to contest the alleged controlled substance with respect to defendant's alleged knowing possession. R.C. 2901.22(B) defines "knowingly" in the sense of awareness of circumstances that probably exist. The size of the container seized, its location, and particularity may be important to contest the alleged awareness. Therefore, the absence of the opportunity to inspect, examine, and independently test the alleged cocaine negatively impacts the defendant's ability to defend himself at trial. Even without knowing what such testing would reveal as to the amount of cocaine, (no longer material after State v. Gonzales , [150] Ohio St.3d [276], [S]lip Opinion, 2017-Ohio-777, [81 N.E.3d 419]), the presence of the alleged cocaine is important to the defense. "[I]t cannot be said that the missing evidence ... would not have minimized or eliminated the impact of the state's circumstantial evidence." Luck, supra , 15 Ohio St.3d 150, 157 [472 N.E.2d 1097].
Defendant is denied the opportunity to verify by independent analysis that the police seized cocaine. He is denied the opportunity to verify whether the police violated his Fourth Amendment rights in the traffic stop, search, and seizure. He is denied the opportunity to verify whether he was detained too long before there was a canine alert justifying a search. See Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609 [191 L.Ed.2d 492] (2016).
The state's response is that the absence of this evidence is harmless because defendant can cross-examine witnesses, and it is speculative because defendant cannot show that if he had the missing evidence it would support a dismissal or acquittal. It does not, and cannot, demonstrate that the availability of the missing evidence would have presented the opportunity to attack the credibility of the state's evidence. The demonstrably missing evidence does not have to be "directly exculpatory." Jones, supra , ¶ 27.

( Id. at 3-6 ).

{¶ 6} On appeal, the State challenges the trial court's finding of actual prejudice attributable to pre-indictment delay. The State first insists that the trial court was required to hold an evidentiary hearing on the prejudice issue. We disagree. The trial court apparently found itself able to assess prejudice based on undisputed facts contained in the parties' written arguments. Whether the trial court's decision was correct is a separate question, which we will address below. But we are unconvinced that it had a per se duty to hold an evidentiary hearing where the parties did not request one, electing instead to proceed on their written arguments.

{¶ 7} The case the State cites to support its argument, State v. Dixon , 8th Dist. Cuyahoga No. 100332, 2014-Ohio-2185, 2014 WL 2168447, is not to the contrary. In Dixon , the Eighth District acknowledged that "a trial court may not always be required to hold an evidentiary hearing upon a motion for preindictment delay[.]" Id. at ¶ 11. It found a hearing necessary in that case, however, where the defendant asserted in his motion that prejudice existed because his memory had faded, he was unable to locate witnesses, and the victim's credibility was suspect. Id. at ¶ 4. Under those circumstances, a hearing may have been proper to test the defendant's memory and to explore his claim about locating witnesses and the victim's credibility. Here Buis' prejudice claim rested on the undisputed destruction of evidence including a cruiser-cam recording of the traffic stop, a dispatch recording about sending a K-9 unit to the scene, and the drugs at issue. Particularly in the absence of a request by either party, we are unpersuaded that the trial court had an obligation to hold an evidentiary hearing to assess the prejudice resulting from the loss of this evidence.

{¶ 8} The State next argues that Buis failed to establish actual prejudice based on the missing cruiser-cam video, the missing dispatch recording about a K-9 unit, and the destroyed drug evidence. The State contends it is speculation whether this evidence would have aided Buis' defense by undermining the case against him. The State asserts that the cruiser-cam video and dispatch recording very well may not have revealed anything useful to the defense and that the alleged drugs already had been tested and confirmed to be cocaine. The State further notes that the officers involved in the traffic stop are available to testify at trial about the size, location, and packaging of the drugs, that a police report is available, that the lab analyst and a lab report are available, and that a typed log of the dispatch recording is available. (Appellant's brief at 6-10).

{¶ 9} In response, Buis insists the missing evidence constitutes "critical information" material to a determination of his guilt or innocence. His appellate argument on the actual-prejudice issue addresses only the destruction of the drug evidence. Relying on State v. Chambers , 8th Dist. Cuyahoga No. 90142, 2008-Ohio-3068, 2008 WL 2487249, he asserts that the destruction of this evidence precludes him from conducting independent testing as authorized by statute and violates due process. (Appellee's brief at 4-6).

{¶ 10} It is well established that "[d]elay between a defendant's involvement in alleged criminal conduct and an indictment involving such conduct may deprive a defendant of his constitutionally protected due process rights." State v. Moore , 2017-Ohio-1307, 88 N.E.3d 593 (2d Dist.), citing State v. Luck , 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus. When reviewing a decision on a motion to dismiss an indictment for pre-indictment delay, we afford "great deference" to the trial court's factual findings while examining legal issues de novo. State v. Hawkins , 2d Dist. Montgomery No. 27019, 2018-Ohio-867, 2018 WL 1225736, ¶ 37-38 (citing cases). In Moore , we recited the framework for analyzing a claim based on pre-indictment delay:

In State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, the Ohio Supreme Court recently reiterated that "* * * preindictment delay violates due process only when it is unjustifiable and causes actual prejudice." Id. at ¶ 12. The court also reaffirmed its firmly established "burden-shifting framework for analyzing a due-process claim based on preindictment delay [which states that] [o]nce a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay." Id. at ¶ 13, citing State v. Whiting , 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998) ; State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99.
A reviewing court must scrutinize a defendant's claim of prejudice by "consider[ing] the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay." Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20. "* * * [S]peculative prejudice does not satisfy the defendant's burden." Id. "Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state's evidence and bolster the defense." Id. at ¶ 28.

Moore at ¶ 24-25.

{¶ 11} With the foregoing standards in mind, we conclude that the trial court erred in finding actual prejudice to Buis based on pre-indictment delay of a little more than two years. We recognize that lost evidence can satisfy the actual-prejudice requirement. Jones at ¶ 21. We also agree with the trial court that missing evidence need not be "demonstrably exculpatory" to establish actual prejudice. Id. at ¶ 23. Rather, "the proven unavailability of specific evidence or testimony that would attack the credibility or weight of the state's evidence against a defendant and thereby aid in establishing a defense may satisfy the due-process requirement of actual prejudice." Id. at ¶ 25. Here, however, Buis made a purely speculative argument that the missing evidence would attack the credibility or weight of the case against him. Although a defendant need not identify precisely what missing evidence would have shown, Jones at ¶ 27-28, we see no basis on which to conclude that the destroyed evidence would have yielded anything useful to his defense.

{¶ 12} With regard to the destroyed drug evidence, which is the focus of Buis' appellate argument, he concedes that it already was tested and found to be cocaine. Nothing in the record indicates that the destruction of the evidence was anything other than routine according to a drug destruction schedule. Although destruction of that evidence precludes re-testing, a lab report of the test results exists and defense counsel can cross examine the lab analyst at trial. When assessing actual prejudice resulting from the missing evidence, we must consider this remaining evidence. Id. at ¶ 26. We note too that destruction of the incriminating drug evidence may work to Buis' advantage. If anything, its absence seemingly would benefit the defense. Compare Adams at ¶ 103 (noting that the death of a potential witness was not prejudicial where the witness already had implicated the defendant in a crime before he died); State v. Brown , 170 Ohio App.3d 235, 2007-Ohio-179, 866 N.E.2d 584, ¶ 21 (2d Dist.) ("Ironically, the most significant exculpatory feature of the destroyed evidence is the very fact of its destruction. The state's error in destroying the evidence, which denies the jury an opportunity to see what it actually looks like, preponderates in the defendant's favor."); see also State v. Barron , 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, 2011 WL 1936104, ¶ 21 ("The sample already had tested positive for cocaine, and Barron cannot establish that he was actually prejudiced by his inability to conduct a second examination.").

{¶ 13} Buis' citation to the Eighth District's opinion in Chambers, supra , fails to persuade us that destruction of the drug evidence resulted in actual prejudice. In Chambers , the trial court refused to allow the defendant to conduct an independent drug analysis of an existing sample. On appeal, the defendant argued that an independent analysis was authorized by R.C. 2925.51(E) and that the trial court's refusal to allow independent analysis of the drugs violated due process. For its part, the prosecution simply conceded error. Chambers at ¶ 14-15.

{¶ 14} Analogizing to Chambers , Buis argues that destruction of the drug evidence in this case violated his right under R.C. 2925.51(E) to have the substance independently tested, thereby violating due process and establishing actual prejudice. We disagree. In Barron, supra , we rejected an argument that destruction of a urine sample violated due process. Even if destruction of the sample violated R.C. 2925.51(E), we found no due-process violation where the sample already had tested positive for cocaine and its destruction was not in bad faith. The same reasoning applies here.

{¶ 15} Finally, we are unpersuaded that Buis established actual prejudice based on destruction of the cruiser-cam video or the K-9 dispatch recording. It appears that the officers involved in the traffic stop are available to testify at trial, and a police report of the incident exists. Therefore, to the extent that the size, location, and packaging of the drugs may be relevant to whether Buis knowingly possessed cocaine, those issues can be addressed on cross examination (and, of course, Buis is free to testify about them himself if he chooses). The availability of the officers militates against a finding of actual prejudice resulting from destruction of the cruiser-cam video, which was of speculative evidentiary value anyway.

{¶ 16} We reach the same conclusion with regard to the K-9 dispatch recording. The trial court reasoned that the missing recording prevented Buis from challenging whether he was detained too long before a drug dog alerted. Of course, whether Buis actually was detained too long is purely speculative. Although the recording conceivably might support such an argument, "speculative prejudice does not satisfy the defendant's burden." Jones at ¶ 20. We note too that a typed log of the dispatch call remains available. Buis argued below that the typed log would be hearsay (although it seemingly would qualify as a business record). In any event, the State insists on appeal that Buis may use the typed log at trial in lieu of the actual recording. (Appellant's brief at 9). This assertion reasonably may be construed as a waiver of any possible hearsay objection.

{¶ 17} For the reasons set forth above, we conclude that Buis failed to establish actual prejudice stemming from the pre-indictment delay in this case. That being so, we have no need to consider the State's argument about whether a justifiable reason for the delay existed. Absent a showing of actual prejudice, the trial court erred in dismissing the indictment regardless of the reason for the delay. Jones at ¶ 16. Accordingly, the State's assignment of error is sustained.

{¶ 18} The judgment of the Montgomery County Common Pleas Court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

WELBAUM, P.J., concurs.

{¶ 19} The difficulty faced by a defendant to prove the relevance, let alone materiality, of destroyed evidence was discussed in State v. South , 162 Ohio App.3d 123, 2005-Ohio-2152, 832 N.E.2d 1222 (9th Dist.) ; the Ninth District, with one judge concurring in judgment only and one dissenting, cited both Alice in Wonderland and Catch-22 and commented, "The tautology is too obvious." South at ¶ 13.

The defendant has not justified his right to have the evidence presented for testing, which might help prove him not guilty, because he has not shown that the testing would produce evidence which would prove him not guilty. That is to say, if the defendant cannot prove the tests would have come back negative, he could not be prejudiced by not being able to test the substance which potentially would have come back negative. This argument proves nothing but that the defendant has conducted no testing on a sample he does not have. It is a logical truism that the absence of evidence is not the evidence of absence and it is impossible for anyone to prove a negative or, specifically in this case, for the defendant to prove a negative test without the sample to test.

State v. Barron , 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, 2011 WL 1936104, ¶ 28 (Froelich, J., concurring), citing South at ¶ 13.

{¶ 20} Nonetheless, I concur that based on this record-or lack of record-Buis did not sustain his burden of demonstrating actual prejudice. For limited examples, did the content of the police report(s)-if any-raise questions about the stop and/or the seizure; did Buis make incriminating statements; were there photographs of the scene and/or suspected drugs; what did the dispatch log demonstrate? Further, if Buis meets his burden of showing prejudice, can the State provide a justifiable reason for the over-one-year delay in testing and the additional eight-month delay on indictment?

{¶ 21} The destruction of certain evidence may or may not be a per se violation of due process. While there is no requirement for a hearing, there is the need for a record that supports the defendant's burden and avoids speculation.

      The State also asserts that no actual prejudice exists because "Buis was Mirandized and made incriminating statements" after the traffic stop. (Appellant's brief at 9). Unfortunately, the State did not elaborate on the nature of those statements in its memorandum in opposition to Buis' motion to dismiss the indictment, and the record does not reveal what incriminating statements were made. Although incriminating statements in the nature of a confession might preclude any actual prejudice in the destruction of the evidence at issue, we cannot make that determination on the record before us.

      Near the end of its decision, the trial court opined that if it had not dismissed the indictment against Buis "it would have precluded the prosecution's use of the laboratory report as prima facie evidence." (Doc. # 29 at 9). This statement was dicta because the trial court did dismiss the indictment, and the State has not raised the trial court's statement as an issue on appeal. Therefore, for present purposes, we express no opinion as to whether the trial court on remand may preclude the State from using the lab report as a sanction for destroying the drug evidence.