source: Caselaw Access Project

license: Public Domain

text:
    GEORGETOWN OF THE HIGHLANDS CONDOMINIUM OWNERS' ASSOCIATION, Plaintiff-Appellee v. Stella NSONG, et al., Defendants-Appellants
    No. 106025
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 17, 2018
   Michael A. Heller, Mike Heller Law, L.L.C., 333 Babbit Road, Suite 233, Euclid, Ohio 44123, ATTORNEY FOR APPELLANT

Jared S. Klebanow, Klebanow Law, L.L.C., 850 Euclid Avenue, Suite 701, Cleveland, Ohio 44114, Steven B. Potter, Dinn, Hochman & Potter, L.L.C., 5910 Landerbrook Drive, Suite 200, Cleveland, Ohio 44124, For Georgetown of the Highlands Condominium Association

Kimberly Y. Smith Rivera, McGlinchey Stafford, P.L.L.C., 25550 Chagrin Blvd., Suite 406, Cleveland, Ohio 44122, For Bank of New York Trust Company, N.A., as Successor

Ruchi V. Asher, James R. Bennett, U.S. Attorney's Office, Northern District, 400 United States Courthouse, 801 W. Superior Avenue, Cleveland, Ohio 44113, For Internal Revenue Service

Michael C. O'Malley, Cuyahoga County Prosecutor, Adam D. Jutte, Assistant County Prosecutor, 310 W. Lakeside Avenue, Suite 300, Cleveland, Ohio 44113, Cuyahoga County Treasurer

Mike DeWine, Ohio Attorney General, 30 East Broad Street, Columbus, Ohio 43215, For State of Ohio Department of Taxation

BEFORE: Jones, J., E.T. Gallagher, P.J., and Laster Mays, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., JUDGE

{¶ 1} Defendant-appellant, Stella Nsong ("Nsong"), appeals from the trial court's June 20, 2017 judgment that overruled Nsong's objections to a magistrate's decision, and adopted the magistrate's decision. For the reasons that follow, we affirm.

I. Factual and Procedural History

Georgetown v. Nsong

{¶ 2} Plaintiff-appellee Georgetown of the Highlands Condominium Owners' Association is a not-for-profit corporation organized under the laws of Ohio in accordance with R.C. Chapter 5311. It acts as the association of unit owners for the Georgetown of the Highlands condominiums in Euclid, Ohio. Nsong owned a condominium unit on the property.

{¶ 3} By virtue of owning the property, Nsong was bound by the association's declaration and its bylaws. Under the declaration, she was bound to pay the association's monthly assessments, which were charged against her property for her share of the common expenses incurred for administration and maintenance of common areas, facilities, and other services provided to all of the unit owners.

{¶ 4} In November 2015, the association filed this complaint in foreclosure against Nsong, alleging that she failed to pay her share of common expenses and owed the association in the amount of $7,417.48 as of October 2015. The association alleged that it had a continuing lien on the property for the unpaid fees. Other persons and entities who may have had a claim or interest in the property were named as defendants as well, including the United States of America.

Procedural History

{¶ 5} The procedural history of this case spans from the filing of the complaint in November 2015 through the summer of 2017, when the judgment now being appealed was issued. The history, for the purpose of this appeal, is detailed below.

{¶ 6} After the complaint was filed in November 2015, the trial court referred the matter to a foreclosure magistrate. As mentioned, in addition to Nsong, there were several other people and entities named as defendants and, as such, service on all the defendants took awhile. In regard to Nsong, certified service to her went unclaimed two times; service was perfected on her by regular mail in January 2016.

{¶ 7} In January 2016, the United States of America filed an answer. In February 2016, Nsong, pro se, filed a "response" to the complaint, "disputing the validity of a portion" of the claim. In March 2016, the trial court put forth an entry stating that the association had perfected service on all the defendants and ordering the association to proceed with the case, including the filing of any dispositive motions.

{¶ 8} In May 2016, Nsong, by and through counsel, sought leave to file an answer; the trial court granted the request and Nsong's answer was timely filed. The court then ordered the association to file "any dispositive motions necessary to address defendant Stella Nsong's answer." The association timely filed a motion for summary judgment on July 11, 2016.

{¶ 9} Thereafter, Nsong requested that the matter be referred to mediation. Over the association's objection, the trial court granted Nsong's request, and the matter was referred to mediation in August 2016. Discovery and motion practice were stayed during the mediation proceedings.

{¶ 10} The mediation was held on November 22, 2016, but the case did not settle and therefore was returned to the magistrate for further proceedings. On December 5, 2016, the magistrate issued an order granting the association's motion for summary judgment in its favor on its complaint and against Nsong. Nsong had not filed an opposition to the summary judgment motion. The association had requested attorney fees; the trial court stated that the issue would be addressed at a hearing.

{¶ 11} On December 13, 2016, Nsong filed two motions: one for relief from judgment, and the other for leave to file counterclaims. The court granted her leave, and she timely filed counterclaims on January 19, 2017. The motion for relief from judgment was denied.

Nsong v. Georgetown

{¶ 12} In her counterclaims against the association, Nsong alleged that in 2015, while she was out of town, the association entered her unit on the "pretense" of repairing a pipe, and engaged in "destructive activities." Specifically, Nsong alleged that the association "dug up" her kitchen and bathroom and "left it in damaged condition, to wit, [with] mountains of debris and huge holes * * *." She contended that the association's actions created a defective and unsafe condition that put her at risk of harm and did actually harm her. She asserted relief based on the following claims: (1) trespass to land/trespass to chattel; (2) negligence; (3) discharge of lien; (4) invasion of privacy/intrusion of seclusion; and (5) breach of contract.

{¶ 13} After the association timely answered the counterclaims, on January 30, 2017, the trial court ordered "the parties * * * to submit, within forty-five (45) days of the date of this order, any dispositive motions necessary to address the defendant's counterclaims." On March 10, 2017, the association filed a motion for summary judgment on Nsong's counterclaims.

{¶ 14} Nsong requested an extension of time to file a dispositive motion relative to her counterclaims. In ruling on her request, the magistrate noted the parties were "previously granted sufficient leave (of forty-five (45) days) to file dispositive motions to address the counterclaims in this case and the defendant/counterclaimant only moved the court for additional time to file her own dispositive motion five (5) days after the expiration of the period of leave described above."

{¶ 15} Notwithstanding the above mentioned, the trial court granted Nsong leave until April 3, 2017, to file a motion for summary judgment relative to her counterclaims. Nsong never filed a dispositive motion, however; nor did she oppose the association's motion for summary judgment. On April 13, 2017, the magistrate granted the association's motion for summary judgment on Nsong's counterclaims.

{¶ 16} In May 2017, the magistrate issued a decision with findings of fact and conclusions of law. Defendant, the United States of America, objected to the decision because it failed to include "equity of redemption" language. The magistrate withdrew his May 2017 decision, and overruled as moot the federal government's objection. The magistrate thereafter issued another decision with findings of fact and conclusions of law on May 18, 2017.

{¶ 17} On June 1, 2017, Nsong filed objections to the magistrate's decision. Meanwhile, a hearing was held on the association's request for attorney fees. On June 20, 2017, the trial court overruled Nsong's objections, adopted the magistrate's decision, and among other things awarded the association $7,417.48 in unpaid fees and $6,397.50 in attorney fees. The court also awarded judgment in favor of the United States of America. This appeal ensues; Nsong sets forth ten assignments of error.

{¶ 18} The first assignment of error relates to summary judgment in favor of the association on its complaint; the second assignment asserts that the trial court erred in "ordering [Nsong] to file a dispositive motion within 35 [sic] days of her counterclaim, without allowing for discovery or other litigation"; assignments of error three through seven relate to summary judgment in favor of the association on her counterclaims; the eighth assignment of error relates to the trial court's judgment against her in the amount of $7,417.78; the ninth assignment of error relates to the award of $6,397.50 to the association for attorney fees; and the tenth assignment of error relates to the judgment in favor of the federal government in the amount of $160,280.33.

II. Law and Analysis

Summary Judgment Standard

{¶ 19} Summary judgment is proper when: "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party, that party being entitled to have the evidence construed most strongly in his favor." Frano v. Red Robin Internatl., Inc. , 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d 796, ¶ 12 (11th Dist.).

{¶ 20} The party seeking summary judgment on the ground that the nonmoving party cannot prove his or her case bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).

{¶ 21} The moving party must point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support his or her claim. Id. at 293, 662 N.E.2d 264. If this initial burden is not met, the motion for summary judgment must be denied. Id. However, if the moving party has satisfied his or her initial burden, the nonmoving party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against him or her. Id.

{¶ 22} Since a trial court's ruling on a motion for summary judgment involves only questions of law, we conduct a de novo review of the trial court's judgment. DiSanto v. Safeco Ins. of Am. , 168 Ohio App.3d 649, 2006-Ohio-4940, 861 N.E.2d 573, ¶ 41 (11th Dist.).

The Association's July 11, 2016 Motion for Summary Judgment on its Complaint

{¶ 23} The association's foreclosure complaint was based on Nsong's failure to pay fees and assessments as required under its bylaws. In support of its motion for summary judgment on its complaint, the association submitted the affidavit of one of its board members, Frank DiNardo. DiNardo averred that "exhibit A" was a true and accurate copy of the association's billing statement relative to Nsong's account, and that it reflected that, as of July 2016, she owed the association $7,489.72, plus interest at the rate of 8% per annum for unpaid assessments, late fees, interest and collection cost charges.

{¶ 24} As mentioned, Nsong did not oppose the association's motion and, therefore, did not present any evidence to the trial court creating a genuine issue of material fact that there was a dispute as to what she owed the association. Our de novo review of the record, including the association's billing statement for Nsong that shows "all transactions" dating back to April 2009, demonstrates that as of July 2016, she owed the association $7,489.72. The trial court, therefore, properly granted summary judgment in favor of the association and against Nsong on the association's complaint.

{¶ 25} Nsong's first assignment of error is overruled.

Trial Court's Order on Dispositive Motion

{¶ 26} For her second assigned error, Nsong contends that the trial court abused its discretion by "ordering" her to file a motion for summary judgment, when Civ.R. 56(A) states that a party "may" move for summary judgment. We are not persuaded by Nsong's contention.

{¶ 27} The "order" she complains of was put forth to allow her to demonstrate that there was no genuine issue of material fact as to her counterclaims and, thus, she was entitled to judgment as a matter law. Apparently, Nsong wanted to do just that, and requested an extension of time to file a dispositive motion relative to her counterclaims. In ruling on her request, the magistrate noted the parties were "previously granted sufficient leave (of forty-five (45) days) to file dispositive motions to address the counterclaims in this case and the defendant/counterclaimant only moved the court for additional time to file her own dispositive motion five (5) days after the expiration of the period of leave described above." Notwithstanding this, the trial court granted Nsong leave until April 3, 2017, to file a motion for summary judgment relative to her counterclaims. Nsong never filed a motion, however.

{¶ 28} In Gen. Motors Acceptance Corp. v. Hern Oldsmobile-GMC Truck, Inc. , 8th Dist. Cuyahoga No. 67921, 1995 WL 527593, 11 (Sept. 7, 1995), this court noted that a summary judgment deadline represents a perfectly reasonable attempt by a trial court to efficiently control its docket. The Ohio Supreme Court has held that docketing decisions can be overturned only where there has been an abuse of discretion. State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). There was no abuse of discretion here. The trial court's order, as stated, was to give Nsong an opportunity to demonstrate that she was entitled to judgment as a matter of law. The court gave her more than ample time to do so, and even taking into account allowing her additional time, she failed to file her motion.

{¶ 29} On this record, the second assignment of error is without merit and overruled.

The Association's March 10, 2017 Motion for Summary Judgment on Nsong's Counterclaims

{¶ 30} In support of its motion for summary judgment on Nsong's counterclaims, the association submitted another affidavit of DiNardo, its board member who had previously averred in regard to summary judgment on the association's complaint.

{¶ 31} DiNardo averred that in approximately mid-January 2015, water began leaking at the unit directly next to Nsong's unit. After an initial assessment of the problem, it was determined by a sewer company that the sewage piping was shared by Nsong's unit and the next-door unit. It was determined that repairs would have to made from inside Nsong's unit.

{¶ 32} DiNardo averred that the association attempted to contact Nsong by telephone to gain entry, but its attempts failed. The association therefore entered the unit. Upon entering the unit, it was discovered that Nsong's toilet had overflowed and her living room carpet was covered in raw sewage. The sewer company was able to stop the active leak, but it determined it could not fix the problem.

{¶ 33} DiNardo further averred that, over the course of the following month, the association continuously tried to reach Nsong but was unable to make contact with her. In February 2015, the association hired a plumbing company to make the necessary repairs to ensure that another leak would not occur.

{¶ 34} The plumbing company determined that the sewage line repairs for the two units had to occur under the half bathroom in Nsong's unit. The association authorized the plumbing company to conduct the repairs in Nsong's unit. It also authorized its maintenance employees to rip out the carpeting in Nsong's living room to reduce the risk of black mold or other hazardous bacteria from spreading, because there had been raw sewage sitting on her carpet. DiNardo averred that the cost of the repairs was $2,850, but it only billed her $1,000, which she failed to pay.

{¶ 35} As mentioned, Nsong neither filed an opposition to the association's summary judgment motion nor a motion for summary judgment in her favor on her counterclaims. Thus, there is no Civ.R. 56 evidentiary material in the record in opposition to the association's motion for summary judgment on the counterclaims. We now consider each of Nsong's counterclaims vis-à-vis the association's motion.

Trespass to Land and to Chattel

{¶ 36} Nsong's first counterclaim against the association was for trespass upon her property. "Trespass is the unlawful entry upon the property of another." Chance v. BP Chems., Inc. , 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996). Thus, the elements of trespass are "(1) an unauthorized intentional act, and (2) entry upon land in the possession of another." Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993).

{¶ 37} In support of its summary judgment motion, the association submitted its bylaws, which granted it a "maintenance easement" over the units "for access as may be necessary for the purpose of maintaining * * * each unit." The bylaws also provided that "[i]n the event of any emergency originating in or threatening any unit * * * the management agent or his or her representative or any other person designated by the board of directors may enter the unit immediately, whether the owner is present or not."

{¶ 38} The record demonstrates that an emergency situation existed and access to Nsong's unit was needed to fix it. After attempts to contact Nsong were unsuccessful, the association exercised its maintenance easement and went into her unit. There simply was no evidence of an "unauthorized intentional act." Thus, Nsong's trespass claim fails. The third assignment of error is overruled.

Negligence

{¶ 39} Nsong asserted a negligence claim for her second counterclaim against the association. In order to establish a claim for negligence, Nsong needed to demonstrate that the association (1) owed a duty to her; (2) breached that duty; and (3) she suffered an injury proximately resulting from the breach of its duty. Armstrong v. Best Buy Co. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8. For the reasons that follow, Nsong failed to demonstrate that the association was negligent in the manner in which it responded to this situation.

{¶ 40} The association entered Nsong's unit, after attempts to contact her were unsuccessful, because a plumbing leak was discovered and fixing the plumbing fixtures in her unit was the only way the problem could be rectified. Upon entering Nsong's unit, the association discovered that the toilet was leaking, causing raw sewage to soak the carpeting in the unit. Because of the emergency situation, the association repaired the leak and removed the damaged carpeting.

{¶ 41} On this record, Nsong failed to demonstrate that the association owed her any duty, that it breached the duty, and that she suffered injury from the breach. Under the terms of the association's declaration, it was Nsong's duty to maintain and repair the plumbing in her unit. When she failed to do so, the association, under emergency circumstances, entered her unit and repaired the plumbing. It also removed the damaged carpeting, thus mitigating further damage to Nsong's unit and the adjoining unit owners. Its actions were not negligent. The fourth assignment of error is therefore overruled.

Discharge of Lien

{¶ 42} Nsong's fifth assignment of error relates to her discharge of lien counterclaim, which she brought under R.C. 5311.18(C). That statute governs the discharge of condominium liens, and provides as follows:

A unit owner who believes that the portion of the common expenses chargeable to the unit, for which the unit owners association files a certificate of lien pursuant to division (a) of this section, has been improperly charged may commence an action for the discharge of the lien in the court of common pleas of the county in which all or a part of the condominium property is situated. In the action, if it is finally determined that the portion of the common expenses was improperly charged to the unit owner or the unit, the court shall enter an order that it determines to be just, which may provide for a discharge of record of all or a portion of the lien.

{¶ 43} The lien that Nsong sought to have discharged was the lien that was the subject of the association's complaint against her. As discussed in resolving the first assignment of error, Nsong did not oppose the association's motion for summary judgment on its complaint and, therefore, did not present any evidence to the trial court creating a genuine issue of material fact that there was a dispute as to what she owed the association.

{¶ 44} Nsong likewise did not oppose the association's motion for summary judgment on her counterclaims. Thus, she again failed to demonstrate that a genuine issue of material fact existed as to what she owed the association. We therefore again find, after our de novo review of the record, including the association's billing statement for Nsong that shows "all transactions" dating back to April 2009, that as of July 2016, she owed the association $7,489.72. Nsong's fifth assignment of error is overruled.

Invasion of Privacy

{¶ 45} Nsong also asserted an invasion of privacy claim against the association, and the trial court granted summary judgment in favor of the association on the claim. The trial court properly did so.

{¶ 46} The following are the elements of an invasion of privacy claim: (1) intrusion upon the plaintiff's seclusion or solitude, or into his or her private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; or (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Retuerto v. Berea Moving Storage & Logistics , 2015-Ohio-2404, 38 N.E.3d 392, ¶ 75.

{¶ 47} In her counterclaim, Nsong alleged that the association's entry into her unit "would be offensive [to] a reasonable person." However, there was neither an allegation in the counterclaim, nor evidence in the record, that the association made any type of public disclosure about Nsong that placed her in a false light in the public eye. On this record, the trial court properly granted summary judgment in favor of the association on Nsong's invasion of privacy counterclaim. The sixth assignment of error is overruled.

Breach of Contract

{¶ 48} For her breach of contract counterclaim, Nsong alleged that she and the association "had an agreement regarding ownership, duties, services, and the like. [She] performed. [The association] breached. [She] suffered damages as a result." We disagree.

{¶ 49} Nsong correctly alleged the elements of a breach of contract claim: the existence of a contract, performance by the plaintiff under the terms of that contract, breach by the defendant, and damage or loss to the plaintiff. Powell v. Grant Med. Ctr. , 148 Ohio App.3d 1, 10, 771 N.E.2d 874 (10th Dist.2002). But she failed to demonstrate that there is a genuine issue of material fact as to her claim.

{¶ 50} Initially, we note, as did the trial court, that Nsong failed to even state the binding contract or agreement upon which her claim was based. But to the extent that her claim was based on the associations declaration and by-laws, as already discussed, the association was permitted to enter Nsong's unit in the event of an emergency, which the situation here constituted. Moreover, the responsibility of maintaining and repairing the plumbing belonged to Nsong; the record demonstrates that she did not fulfill her responsibilities. As such, the trial court properly granted summary judgment in favor of the association on Nsong's breach of contract counterclaim and the seventh assignment of error is overruled.

Monetary Judgment in Favor of Association

{¶ 51} In her eighth assignment of error, Nsong repeats her contention that "genuine issues of material fact remain on [the association's] claim that they are owed $7,417.48." For the reasons already discussed in resolving the first assignment of error, we reject Nsong's contention and overrule the eighth assignment of error.

Attorney Fees to the Association

{¶ 52} The ninth assignment of error challenges the trial court's award of attorney fees to the association. We affirm the trial court's award.

{¶ 53} Nsong contends that the award was improper because the trial court found it was allowed under the association's declaration, but the declaration was not admitted into evidence at the hearing. That was not a bar to the association being able to recover attorney fees, however. As mentioned, the declaration was in the record and was reviewed by the trial court during motion practice.

{¶ 54} In prosecuting a foreclosure action, an owners' association is entitled to recover attorney fees and court costs if recovery is permitted by the association's declaration. Nottingdale Homeowners' Assn. v. Darby , 33 Ohio St.3d 32, 514 N.E.2d 702, syllabus (1987). The declaration here provided that the association may recover attorney fees in prosecuting a foreclosure action.

{¶ 55} Nsong further contends that the trial court erred in deeming the attorney the association presented at the hearing on attorney fees an expert witness. The admission of expert testimony is governed by Evid.R. 702, which states:

A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness testimony is based on reliable scientific, technical, or other specialized information. * * *

{¶ 56} This court stated the following as the standard of review of a trial court's determination on qualifying an expert witness:

The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court. [Thus], the qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion on the part of the trial court.

State v. Wages , 87 Ohio App.3d 780, 786, 623 N.E.2d 193 (8th Dist.1993).

{¶ 57} We note that Nsong has failed to make the transcript of the hearing on attorney fees part of the record and, therefore, we presume the regularity of the proceeding. Cleveland Hts. v. Aziz , 8th Dist. Cuyahoga No. 92538, 2009-Ohio-3885, 2009 WL 2400349, ¶ 29. As noted by the magistrate's decision and the trial court's judgment accepting the decision, the association presented, and the court accepted, the testimony of attorney Eric Hoffman ("Hoffman") as an expert witness. Hoffman was a disinterested attorney in regard to this case, who testified that he had almost 40 years' experience in foreclosure law, which included serving as a master commissioner in foreclosure cases in federal court.

{¶ 58} Based on his experience, attorney Hoffman testified that (1) the hourly rate charged by the association's attorney ($150/hour) and the legal assistant ($90/hour) were reasonable and (2) the $6,397.50 total amount of attorney fees incurred by the association in prosecuting this case was reasonable.

{¶ 59} Other than lodging a general objection to Hoffman's qualifications as an expert, Nsong failed to specifically demonstrate how his qualifications were unacceptable to deem him an expert; she also did not present any evidence to counter his testimony and demonstrate that the association's legal fees in this case were unreasonable. On this record, therefore, we presume the regularity of the proceeding and find that the trial court did not abuse its discretion in deeming attorney Hoffman as an expert witness and accepting his testimony.

{¶ 60} The ninth assignment of error is overruled.

Judgment in Favor of the United States of America

{¶ 61} In her final assignment of error, Nsong contends that the trial court erred in awarding judgment to the United States of America because, although it filed an answer, it "did not otherwise appear in any proceedings, * * * submit any evidentiary material, * * * file a dispositive motion, and no documentary evidence or materials supported [its] claim to * * * liens."

{¶ 62} Nsong is correct that the United States of America only filed an answer in this case. But in its answer, the government set forth its interest in the property by virtue of liens it had against the property, notices of which were filed with the Cuyahoga County Recorder on December 21, 2011, November 22, 2013, and September 11, 2014.

{¶ 63} In a similar case, the Sixth Appellate District upheld a judgment in favor of the United States of America when the government only filed an answer claiming an interest in property to be foreclosed on and stating that party was indebted to the government. First Fed. S. & L. Assn. v. Szigeti , 6th Dist. Lucas No. L-88-164, 1989 WL 32572, 1-2, 5-6 (Apr. 7, 1989).

{¶ 64} In awarding judgment to the federal government, the trial court in Szigeti stated the following:

The court further finds that the defendant, United States of America, filed its Notice of Federal Tax Lien No. 30683 against Ohio Building Association, A. J. Szigeti, a Partnership on April 24, 1987 in the Recorder's Office of Lucas County, Ohio upon which there is now due and owing * * *.

Id. at 5.

{¶ 65} In upholding the judgment in favor of the United States, the Sixth Appellate District stated:

In conclusion, we find that the United States did not move for summary judgment, nor was a summary judgment granted in its favor by the trial court. Appellants [,however,] have failed to set forth any evidence tending to prove that the trial court's finding of a federal tax lien was in any way erroneous or against the weight of the evidence.

Id. at 6.

{¶ 66} Likewise here, the trial court found that Nsong was indebted to the United States and that notices of her indebtedness were filed with the Cuyahoga County Recorder. She has failed to set forth any evidence demonstrating otherwise. We therefore affirm the trial court's judgment in favor of the federal government.

{¶ 67} The tenth assignment of error is overruled.

{¶ 68} Having overruled all assignments of error, the trial court's judgment is affirmed.

EILEEN T. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR

      The trial court actually allowed Nsong 45 days from its January 30, 2017 entry to file a dispositive motion.


author: MAYLE, P.J.

text:
    STATE of Ohio, Appellee v. Ronald ROBERSON, Appellant
    No. L-16-1131
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: May 18, 2018
    Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
    Mollie B. Hojnicki-Mathieson, for appellant.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} On June 16, 2016, defendant-appellant, Ronald Roberson, was convicted by a jury of domestic violence, two counts of aggravated burglary, rape, and participating in a criminal gang. The trial court sentenced Roberson to serve 11 months in prison on the domestic violence count; 9 years in prison on each aggravated burglary count; 9 years in prison on the rape count; and 6 years in prison on the participating in a criminal gang count. The court ordered Roberson to serve his sentences for domestic violence, the two aggravated burglaries, and rape consecutively, and his sentence for participating in a criminal gang concurrently with the other counts, for an aggregate prison sentence of 27 years and 11 months in prison.

{¶ 2} Roberson appealed his convictions, and we affirmed his rape, aggravated burglary, and domestic violence convictions, but reversed and vacated his conviction for participating in a criminal gang for insufficient evidence. State v. Roberson , 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339 ("Roberson I ").

{¶ 3} On August 17, 2017, Roberson moved to reopen his appeal pursuant to App.R. 26(B), arguing that appellate counsel was ineffective for failing to raise the following assignment of error:

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO MERGE THE AGGRAVATED BURGLARY CONVICTION WITH THE RAPE CONVICTION, THEREBY VIOLATING THE DOUBLE JEOPARDY CLAUSES OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶ 4} We granted the motion to reopen, and we now consider the merits of this new assignment of error under App.R. 26(B)(7).

{¶ 5} For the following reasons, we find that the trial court did not commit plain error by failing to merge the aggravated burglary and rape convictions because they are offenses of dissimilar import. We find that appellate counsel was not ineffective, and we confirm our prior judgment under App.R. 26(B)(9).

I. Facts

{¶ 6} In our prior decision, we summarized the facts that supported Roberson's five criminal convictions. Roberson I , ¶ 4-34. The only facts that are relevant to the assignment of error before us now are those relating to the August 27, 2015 incident, which supported two of Roberson's convictions: aggravated burglary and rape. The relevant facts are these:

Roberson met C.G. in August of 2015. He introduced himself as "Gotti" and asked for her phone number. The day after they met, Roberson called C.G. and asked to come to her house. She assented and the pair smoked marijuana until C.G. asked Roberson to leave. Later that week Roberson came to C.G.'s home with a friend. The three of them smoked marijuana and then Roberson and his friend left. This was the extent of C.G.'s interactions with Roberson prior to August 27, 2015.
Roberson and C.G. both testified that late in the evening of August 26 or early in the morning of August 27 Roberson went to C.G's home and she voluntarily let him into her home. Beyond that, they presented different versions of the events that occurred.
C.G. testified that Roberson called her around midnight while she was sleeping. He told her that he was at a nearby gas station and asked to come over. She agreed. When Roberson knocked on the door, C.G. opened it and let him in. He immediately asked to use her bathroom, which was upstairs where her children were sleeping. She said he could, but he did not return after several minutes. She went up to check on her children and found Roberson in her bedroom, not the bathroom. He asked C.G. to sleep with him, but she told him they should take their time before making the relationship sexual. Roberson grabbed C.G.'s hand to pull her toward the bed, started kissing her, removed her underwear, and engaged in vaginal intercourse with her. Although C.G. was not interested in sleeping with Roberson, she did not tell him "no" when he initiated the sexual activity. She claimed that she was scared to fight him because she did not know him well and did not know what he would do if she refused. C.G. did, however, reply "no" when Roberson asked her if she liked what he was doing and she testified that she also said "no" two other times during the encounter. She also scratched Roberson on his side or his back during sex.
C.G. further testified that after Roberson finished he asked to use C.G.'s phone charger, which he retrieved from the first floor. He charged his phone in her bedroom for a brief time and then went back downstairs. C.G. testified that she was scared so she laid in her bed after Roberson went downstairs. C.G. heard voices downstairs, but could not identify how many people she heard or if one of them was Roberson. After the voices stopped, C.G. went downstairs and saw that her front door was open and her TVs, computer, and game system were missing. She later discovered that smaller items from upstairs, including her children's tablets, were also missing. C.G. then texted Roberson, telling him that he had 15 minutes to return her property or she was going to call police. She sent him 14 text messages over the course of approximately 30 minutes. One of the messages said, "And you rapped [sic] me I told you no over and over again." Roberson did not respond to any of the messages.
C.G. testified that she called the police after texting Roberson. Officers responded and took C.G. to the Toledo Hospital to have a rape kit performed. At trial, C.G. read from a certified copy of her hospital records. Although C.G.'s testimony largely matched the information in the hospital records, the records contained some additional details. According to the medical records, C.G. told the SANE who examined her that she had asked Roberson to leave when she found him upstairs. The medical records also described her encounter with Roberson in the bedroom a bit differently. She claimed that Roberson said "come here," grabbed her by both arms, and threw her on the bed. The defense did not object to the admission of the records or to C.G. reading from the records.
Roberson provided a different version of the evening's events. He testified that C.G. contacted him and asked him to come to her house. He walked over from a nearby gas station. When he arrived, the two of them smoked marijuana and engaged in some foreplay. He claimed that he never asked to use the bathroom. He also claimed that C.G. suggested they go upstairs to her bedroom where the two engaged in consensual sex. He testified that C.G. became uncomfortable after they had sex and asked him to leave, which he did. He did not lock the door when he left. He claimed he did not take any of C.G.'s property and it would have been impossible for him to take a television, a computer, and a game system with him because he walked to C.G.'s house.
The SANE who examined C.G. testified at trial. She said that C.G.'s demeanor when she arrived at the hospital was "very distraught." She testified that C.G. did not have any physical injuries, which she said is not uncommon in rape victims. She also testified from the hospital records, which contained her notes of the evening's events as told to her by C.G. According to the SANE, C.G. had met a man named Gotti approximately a year before. He called C.G. in the middle of the night and asked to come over. She agreed. When Gotti came to the house he asked to use the restroom. C.G. followed him upstairs and found him sitting on her bed. Gotti grabbed her by both arms, threw her on the bed, and raped her. C.G. did not want to make any noise because she did not want to wake her children. When Gotti finished, he asked to use her phone charger, which she gave him. When his phone was charged he went downstairs, but C.G. did not know what he did while he was downstairs. C.G. stayed in her room, but could hear noises and voices coming from downstairs. When the noises stopped she went downstairs, locked the door, noticed that some of her property was missing, and called the police. Roberson I at ¶ 4-10.

{¶ 7} Based on this evidence, a jury convicted Roberson of aggravated burglary and rape, and the trial court ordered Roberson to serve the sentences consecutively. We upheld both convictions in Roberson I. Roberson now argues that the two convictions are allied offenses of similar import and the trial court committed plain error by failing to merge them at sentencing.

II. Law and Analysis

{¶ 8} Roberson was convicted of aggravated burglary in violation of R.C. 2911.11(A)(1) and rape in violation of R.C. 2907.02(A)(2) and (B).

{¶ 9} Under the relevant aggravated burglary statute, R.C. 2911.11(A)(1), it is illegal for any person "by force, stealth, or deception" to trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when a person other than the person's accomplice is present, with purpose to commit any criminal offense if "the offender inflicts, or attempts or threatens to inflict physical harm on another." Under R.C. 2901.01(A)(3), "physical harm to persons" means "any injury, illness, or other physiological impairment, regardless of its gravity or duration."

{¶ 10} A rape conviction under R.C. 2907.02(A)(2) requires the state to prove that the defendant engaged in sexual conduct with another by compelling the other person to submit by force or threat of force. "Force" is defined as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1).

{¶ 11} In Roberson I , 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, at ¶ 44-59, 64-69, we found that Roberson's separate convictions for aggravated burglary and rape, which both related to the August 27, 2015 incident at C.G.'s home, were supported by sufficient evidence and were not against the manifest weight of the evidence. We specifically found that the rape was the "physical harm" that supported the aggravating circumstance of the burglary conviction. Id. at ¶ 56. We now consider whether the aggravated burglary and rape convictions should have merged at sentencing.

{¶ 12} We review de novo a trial court's ruling as to whether convictions merge under the allied-offenses doctrine. State v. Corker , 10th Dist. Franklin Nos. 13AP-264, 13AP-265, and 13AP-266, 2013-Ohio-5446, 2013 WL 6569852, ¶ 28, citing State v. Roush , 10th Dist. Franklin No. 12AP-201, 2013-Ohio-3162, 2013 WL 3808173, ¶ 67. Roberson, however, did not raise the issue of allied offenses of similar import in the trial court. Our review of this issue on appeal is therefore limited to plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Roberson must "demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus," and "absent that showing, the accused cannot demonstrate that the trial court's failure to inquire whether the convictions merge for purposes of sentencing was plain error." Id.

{¶ 13} The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This protection applies to Ohio citizens through the Fourteenth Amendment to the U.S. Constitution. Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The right against double jeopardy is also guaranteed by the Ohio Constitution, Article I, Section 10 ("No person shall be twice put in jeopardy for the same offense."). "The protection provided by the Ohio Constitution's Double Jeopardy Clause is coextensive with that provided by the Double Jeopardy Clause of the United States Constitution." Clark v. Adult Parole Auth. , 151 Ohio St.3d 522, 2017-Ohio-8391, 90 N.E.3d 909, ¶ 13.

{¶ 14} The Double Jeopardy Clause "protects against three abuses: (1) 'a second prosecution for the same offense after acquittal,' (2) 'a second prosecution for the same offense after conviction,' and (3) 'multiple punishments for the same offense.' " State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

{¶ 15} R.C. 2941.25 codifies the Double Jeopardy Clause's third protection, which prohibits multiple punishments for the same offense. The statute prohibits multiple convictions for "allied offenses of similar import" arising out of the same conduct. R.C. 2941.25 states:

(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.

{¶ 16} "At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's conduct." Ruff at ¶ 26. This means that the " 'analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases. But different results are permissible, given that the statute instructs courts to examine a defendant's conduct-an inherently subjective determination.' " Id. at ¶ 32, quoting State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52.

{¶ 17} In Ruff , the Supreme Court of Ohio announced that whenever a court considers whether there are allied offenses that merge into a single conviction, the court "must first take into account the conduct of the defendant. In other words, how were the offenses committed?" Id. at ¶ 25. When considering this overarching question, the court must address three sub-questions: (1) Were the offenses "dissimilar in import," meaning did the offenses involve either separate victims or "separate and identifiable" harm? (2) Were the offenses committed separately? and (3) Were the offenses committed with separate animus? Id. at ¶ 23 -25. " 'An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.' " (Emphasis added.) State v. Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting Ruff at ¶ 31. The defendant bears the burden to establish that R.C. 2941.25 prohibits multiple punishments. State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni , 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

{¶ 18} Under the Ruff test, we first address whether the aggravated burglary and rape offenses were "dissimilar in import"-i.e., whether the offenses involved separate victims or "separate and identifiable" harm.

{¶ 19} Whether the aggravated burglary and rape offenses involved separate victims is not a simple issue given that three of C.G.'s children, her 9-year-old daughter and 1-year-old twin boys, were asleep in their beds when Roberson trespassed in C.G.'s home. The issue is therefore whether C.G.'s children were separate "victims" of the aggravated burglary simply because they were home at the time, albeit asleep and completely unaware of Roberson's presence.

{¶ 20} We first note that the indictment does not identify the victims of the aggravated burglary. See State v. Welninski , 6th Dist. Wood Nos. WD-16-039 and WD-16-040, 2018-Ohio-778, 2018 WL 1136991, ¶ 89, fn. 3 (finding that felonious assault and attempted murder offenses did not involve separate victims because the indictment identified only one victim). A "victim," as defined by Black's Law Dictionary, means " '[a] person harmed by a crime, tort, or other wrong.' " State v. Williams , 6th Dist. Sandusky No. S-13-007, 2013-Ohio-4838, 2013 WL 5941060, ¶ 8, quoting Black's Law Dictionary (9th Ed.2009). Here, there was no evidence presented that C.G.'s children suffered any personal "harm" as a result of the aggravated burglary. See State v. Bankston , 6th Dist. Ottawa No. OT-17-016, 2017-Ohio-9305, 2017 WL 6628517, ¶ 23 (finding that felonious assault and attempted aggravated burglary involved separate victims because the defendant physically injured one victim and was ordered to pay restitution to another victim, the homeowner, who was not involved in the physical altercation). Moreover, the relevant police report identifies C.G. as the only "victim" of both the aggravated burglary and rape. We therefore find that the aggravated burglary and rape did not involve separate victims.

{¶ 21} Next, we address whether the aggravated burglary and rape involved "separate and identifiable" harm. If so, the offenses are dissimilar in import and do not merge.

{¶ 22} The state argues that the victim, C.G., suffered two distinct harms as a result of the aggravated burglary: "the very personal and physical harm involved in the rape and the property crime involved in the theft of personal belongings." The state further argues that it is immaterial that Roberson was not charged with theft because "uncharged criminal conduct" can constitute separate harm as recognized in one of our prior cases, State v. Greely , 6th Dist. Lucas No. L-16-1161, 2017-Ohio-4469, 2017 WL 2709810.

{¶ 23} In Greely , the defendant trespassed into the victim's home and raped her orally, anally, and vaginally in her bed, and then raped the victim again in the shower as he attempted to remove his DNA from her anal and vaginal areas. Like Roberson, the defendant was convicted of aggravated burglary in violation of R.C. 2911.11(A)(1) and one count of rape in violation of R.C. 2907.02(A). On appeal, we found that the aggravated burglary and rape offenses were not allied offenses of similar import because one rape supported the rape conviction, and the other rapes-although not charged as separate crimes-were separate and identifiable harm that resulted from the aggravated burglary. Or, in other words, in Greely there was separate and identifiable physical harm that supported the aggravating element of the burglary charge.

{¶ 24} In contrast, while the uncharged theft of C.G.'s TVs, computer, and game system was separate and identifiable harm that resulted from the aggravated burglary offense, it was not separate and identifiable physical harm that could support the aggravating element of the burglary charge on its own. Thus, unlike Greely , this case involves a situation "where one offense [i.e., aggravated burglary] involves multiple harms, and one offense [i.e., rape] constitutes an aggravating element [i.e., physical harm] of the other." State v. Ruff , 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, 2015 WL 4992012, ¶ 14 (" Ruff II ").

{¶ 25} In the seminal merger case from the Supreme Court of Ohio, State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the defendant was convicted of three counts of aggravated burglary and three counts of rape based on three separate burglaries, and corresponding rapes, of three different victims. After the Supreme Court of Ohio fashioned a new three-part test for determining whether convictions are subject to merger under R.C. 2941.25, it remanded the case back to the First District Court of Appeals to consider the import of the defendant's aggravated burglary and rape convictions-that is, whether the offenses resulted in "separate and identifiable" harm to each victim. On remand, the First District observed that the aggravated burglary offenses "involve[d] two distinct harms: the intrusion into the sanctity of the home and [sic] the subsequent physical harm (here, the rapes). One harm-the intrusion in the dwelling-is separate and identifiable * * *, but the other harm-the physical harm-is not separate and identifiable." Ruff II at ¶ 13. The court then stated:

If there only needed to be one harm that was separate and identifiable, then rape and aggravated burglary could never merge because aggravated burglary will always involve the "separate and identifiable" harm caused by the intrusion into the dwelling. The same would be true of assault or any other crime constituting the aggravating element of physical harm for aggravated burglary. Thus, implicit in its rejection of a categorical rule and remand to this court is the idea that the offenses are of similar import when the harm caused by one crime is the same harm that is the aggravating circumstance of another crime. Id. at ¶ 16.

{¶ 26} Roberson argues that this case is indistinguishable from Ruff II because the harm caused by his rape conviction is the same harm that is the aggravating circumstance of the aggravated burglary conviction and, therefore, the two offenses are of similar import and should have merged. We, however, disagree with Ruff II's recognition of an "implicit" rule from the Supreme Court of Ohio that requires merger whenever one crime results in multiple "separate and identifiable" harms but one of those harms is the aggravating circumstance of the other crime. Indeed, this rule runs contrary to the Supreme Court of Ohio's explicit pronouncement that the defendant's conduct in each individual case should be the paramount consideration, and merger is not warranted "if the harm that results from each offense is separate and identifiable from the harm of the other offense." Ruff at ¶ 26.

{¶ 27} We do, however, recognize that under the Supreme Court of Ohio's decision in Ruff , the mere "intrusion into the sanctity of the home" that results from aggravated burglary is not a separate harm that is sufficient to support a finding of dissimilar import on its own-otherwise, aggravated burglary would always be a crime of dissimilar import to another offense, and the Supreme Court of Ohio rejected the notion of such a categorical rule. But here, there was an additional harm that resulted from the aggravated burglary-theft of C.G.'s TVs, computer, and game system-and this harm is separate and identifiable from the physical harm that resulted from the rape. Under Ruff , separate convictions are permissible if "the harm that results from each offense is separate and identifiable." (Emphasis added.) Id. at paragraph two of the syllabus. Contrary to the First District's holding in Ruff II , separate convictions do not require separate and identifiable physical harm whenever physical harm is the aggravating element of one crime, nor is there an exception to the general rule, expressly pronounced by the Supreme Court of Ohio in Ruff , that requires merger when separate and identifiable harm exists but some of that harm overlaps with the aggravating element of another crime. We therefore find that the two offenses were dissimilar in import because the aggravated burglary resulted in harm to C.G. that was "separate and identifiable" from the harm that resulted from the rape.

{¶ 28} Given that we have answered the first prong of the Ruff test in the affirmative and determined that the aggravated burglary and rape convictions were offenses of dissimilar import, we need not address the remaining two elements of Ruff . Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, at ¶ 12 ("An affirmative answer to any of the [required questions under Ruff ] will permit separate convictions." (Emphasis added.) ). We therefore find that the trial court did not commit plain error by failing to merge the aggravated burglary and rape offenses.

III. Conclusion

{¶ 29} Based on the foregoing, we find that the trial court did not commit plain error by failing to merge the aggravated burglary and rape convictions because they are offenses of dissimilar import. Roberson's sole assignment of error is found not well-taken. We find that appellate counsel was not ineffective, and we confirm our prior judgment under App.R. 26(B)(9).

{¶ 30} Roberson is ordered to pay the costs of this application to reopen pursuant to App.R. 24(A).

Judgment confirmed.

Arlene Singer, J.

Thomas J. Osowik, J.

CONCUR.


text:
    IN RE J.V. et al., Minors, Respondents (People State of Illinois, Respondent, v. Alyssa G., Petitioner).
    No. 124297
    Supreme Court of Illinois.
    December 28, 2018
    Petition for Leave to Appeal Denied.


text:
    IN RE JOSE A., a Minor (People State of Illinois, Respondent, v. Jose A., Petitioner).
    No. 124232
    Supreme Court of Illinois.
    December 27, 2018
    Petition for Leave to Appeal Denied.


text:
    ILLINOIS TROOPERS LODGE NO. 41, Fraternal Order of Police, Petitioner, v. The ILLINOIS LABOR RELATIONS BOARD, State Panel; and the Department of Central Management Services (State Police), Respondents.
    The Department of Central Management Services (State Police), Petitioner, v. Illinois Troopers Lodge No. 41, Fraternal Order of Police; and the Illinois Labor Relations Board, State Panel, Respondents.
    Nos. 1-17-1382 & 1-17-2003 cons.
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    October 5, 2018
    Asher, Gittler & D'Alba, Ltd., of Chicago (Joel A. D'Alba and Ryan A. Hagerty, of counsel), for petitioner Illinois Troopers Lodge No. 41.
    Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Ann C. Maskaleris, Assistant Attorney General, of counsel), for respondent Illinois Labor Relations Board.
    Thomas S. Bradley, Mark W. Bennett, David A. Moore, and Darin M. Williams, Special Assistant Attorneys General, of Laner Muchin, Ltd., of Chicago, for respondent State of Illinois.
   PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 The State of Illinois Department of Central Management Services (State) filed an unfair labor practice charge before the Illinois State Labor Relations Board, State Panel (Board), against Illinois Troopers Lodge 41, Fraternal Order of Police, a union representing a unit of state police officers (the union). The Board dismissed the unfair labor practice charge and denied the union's motion for sanctions against the State. Both the Board and the union have sought direct administrative review of the decision in this court. We affirm both the Board's dismissal of the unfair labor practice charge and the Board's decision not to impose sanctions against the State.

¶ 2 BACKGROUND

¶ 3 The union is the bargaining unit for about 1500 state police officers. Because of the nature of their work, the officers in the union are not allowed to strike. 5 ILCS 315/2, 14, 17 (West 2016). This court has explained how the bargaining process operates with respect to groups of employees who may not strike:

"Mandatory subjects of bargaining are those matters that neither party can refuse to negotiate. [Citation.] If an agreement cannot be reached, impassed mandatory subjects must be decided by the arbitrator. [Citation.] On the other hand, permissive subjects of bargaining are terms that the parties are not required to negotiate, but if one side proposes negotiation on those matters, the other side may voluntarily negotiate. [Citation.] A party cannot insist on bargaining over a permissive subject to the point of impasse and negotiation can be cut off at any time without recourse. [Citation.] Permissive subjects of bargaining are not to be decided by the arbitrator."
Skokie Firefighters Union, Local 3033 v. Illinois Labor Relations Board, State Panel , 2016 IL App (1st) 152478, ¶ 6, 412 Ill.Dec. 100, 74 N.E.3d 1023.

¶ 4 Pursuant to the State Employees Group Insurance Act of 1971 ( 5 ILCS 375/1 et seq. (West 2016) ) (Group Insurance Act), the State administers a plan providing health insurance coverage to about 350,000 state employees, dependents, and retirees, including the police officers who are members of the union. Section 7 of the Illinois Public Labor Relations Act (Labor Relations Act) requires the State and union to collectively bargain with employee unions over matters concerning "wages, hours and other conditions of employment." 5 ILCS 315/7 (West 2016). However, the State is not required to bargain over matters that are "matters of [the State's] inherent managerial policy" as defined in section 4 of the Labor Relations Act (id. § 4).

¶ 5 The Labor Relations Act has long contained a "supremacy clause" providing that it takes precedence over conflicting state laws. Id. § 15(a). In 2004, the State of Illinois enacted Public Act 93-839, which amended both the Labor Relations Act and the Group Insurance Act. Pub. Act 93-839 (eff. July 30, 2004). Public Act 93-839 excised benefits provided under the Group Employees Insurance Act from the Labor Relations Act's "supremacy clause". Section 15(a) of the Labor Relations Act now provides: "In case of any conflict between the provisions of this Act and any other law (other than Section 5 of the State Employees Group Insurance Act of 1971 * * *), executive order or administrative regulation relating to wages, hours and conditions of employment and employment relations, the provisions of this Act or any collective bargaining agreement negotiated thereunder shall prevail and control." (Emphasis added.) 5 ILCS 315/15(a) (West 2016).

¶ 6 With that legal backdrop in place, we proceed to explain the facts of the case now before us. The record is 21,909 pages long, so we have omitted large portions of background and facts that are not relevant to our ultimate disposition. To avoid repetition and provide reading continuity, we will set forth some additional facts later in the Analysis section of this opinion. The following chronology and recitation of facts is taken from the pleadings, exhibits, affidavits, and other evidence in the record, most of which was adduced at a 10-day hearing before a Board administrative law judge on the unfair labor practice charge.

¶ 7 In 2015, the State and the union were in the process of bargaining a successor collective bargaining agreement to replace an existing agreement set to expire on June 30, 2015. Two union officials, Bruce Bialorucki and Michael Powell, negotiated the union's 2012-2015 collective bargaining agreement with the State. Health insurance was a significant issue during that bargaining. The parties exchanged various proposals aimed at saving the State some of its health insurance costs. No agreement was reached, and the union filed an unfair labor practice charge against the State. The Board's general counsel issued a declaratory ruling that health insurance was a mandatory subject of bargaining. An arbitrator awarded the health insurance plan that the State had previously implemented unilaterally.

¶ 8 Bialorucki, who is an attorney, also participated in negotiations for the successor 2015-2019 collective bargaining agreement. Once again, the parties exchanged numerous written proposals regarding health insurance. Bialorucki testified regarding those negotiations as follows. The State never contended that it was not required to bargain over health insurance during the negotiation sessions, at the bargaining table, or before interest arbitration.

There being no agreement on the issue, interest arbitration began before a three-member panel consisting of Bialorucki as the union representative, Joseph Hartzler representing the State, and a neutral arbitration panel member, Daniel Nielsen. The panel had over a dozen sessions beginning in late 2015 and ending in April 2016. Bialorucki attended every session. Both the union and State submitted health insurance proposals to the panel. Both sides stipulated to the arbitration panel's jurisdiction over health insurance, and the State did not object to arbitrating health insurance issues until the "final submissions" stage at the very end. The "process" in place required each party to submit final offers. The other party could submit an objection to that final offer, and the submitting party could file something to "cure or fix" its final offer. However, because the union was waiting for certain information, the parties agreed to submit final offers on all issues except health insurance first, to be followed by final offers on health insurance only. During the time final offers were being exchanged regarding non-health-insurance issues, the State provided health insurance information to the union as requested. In early January 2016, the parties exchanged final offers regarding health insurance. This exchange included a final offer from the State and objections by the union to the State's offer.

¶ 9 Despite its active participation in ongoing bargaining regarding health insurance, on January 13, 2016, the State requested a declaratory ruling from the Board's general counsel on whether its own final offer on health insurance encompassed permissive or mandatory subjects of bargaining. The State requested that the general counsel find that Public Act 93-839's amendment to the "supremacy clause" in 2004 made health insurance a prohibited subject of bargaining, with the result that the State could take the issue of health insurance entirely out of postimpasse arbitration if it desired to do so. See Skokie Firefighters Union, Local 3033 , 2016 IL App (1st) 152478, ¶ 6, 412 Ill.Dec. 100, 74 N.E.3d 1023. On March 1, 2016, the general counsel ruled that the State's final offer related to a mandatory subject of bargaining. This ruling relied on an earlier 2013 ruling issued by a prior general counsel to the same effect. But recognizing that the issue would be better resolved after a full factual hearing, the general counsel suggested that a party file an unfair labor practice charge to trigger such a hearing. The State followed up on that suggestion and filed the charge at issue here on March 14, 2016.

¶ 10 The arbitration panel's hearings concluded in April 2016. In a posthearing brief filed in June, the State referenced its pending unfair labor practice charge but noted: "For purposes of efficiency and without waiving any arguments raised by the State before the [Board] which could impact this panel's jurisdiction to issue an award on health insurance, until such time as the [Board] issues a ruling in that matter, the State does not object to this panel's consideration of the parties' respective health insurance proposals."

¶ 11 Then, in August 2016, the Board directed that a complaint issue on the charge and that an administrative hearing be held on it. One day later, the State notified the arbitration panel (which had already closed its record on July 1, 2016) that it now had a "good faith objection" to the arbitration panel deciding the health insurance issue, based on the Board's order. The State requested a stay of the arbitration pending the Board's resolution of the unfair labor practice charge. Bialorucki characterized the State's August notification as the first time the State objected to arbitrating health insurance. Despite the Board having issued a complaint on its unfair labor practice charge, the State did not withdraw its pending final health insurance offer.

¶ 12 On October 3, 2016, the arbitration panel denied the State's request for a stay. The panel found that the State did not make its objection to arbitrating health insurance in "good faith" as required by the Board's rules ( 80 Ill. Adm. Code 1230.90(k) (2003) ), because the State did not object until seven months after the January 2016 objections deadline that the panel had set. The panel further found that the Board's decision to issue a complaint and hold an evidentiary hearing on the unfair labor practice charge was not relevant to its consideration of the stay request. As an alternative ground, the panel relied on the Board general counsel's prior ruling that health insurance was a mandatory subject of bargaining. On December 2, 2016, the arbitration panel issued an award that granted the union's health insurance proposal. About the same time, the Board also denied the State's request for a stay.

¶ 13 The next proceedings involved an entity established by sections 3(h) and 14(n) of the Labor Relations Act ( 5 ILCS 315/3(h), 14(n) (West 2016) ) called the "governing body." The governing body consists of various State department heads and the members of the Board. The governing body has the authority to reject an arbitration panel's award and return the matter for supplemental arbitration proceedings. Id. On December 13, 2016, the governing body rejected the arbitration panel's award, and the matter proceeded to supplemental arbitration proceedings.

¶ 14 That brings us back to the unfair labor practice charge. The complaint issued on the charge proceeded to a full evidentiary hearing before the Board's administrative law judge. Hearings, which included Bialorucki's testimony, were held on various dates between October 18, 2016, and January 6, 2017. At the conclusion of the hearings, the union moved for sanctions because, among other things, a State witness allegedly provided false testimony regarding the State's past bargaining practices, namely that the State had never bargained with any union other than the American Federation of State, County, and Municipal Employees (AFSCME) over health insurance. The union also objected to similar assertions the State's counsel made in his opening statements. The State responded that sanctions were not warranted because the issue was one of genuine disputed fact.

¶ 15 On March 31, 2017, the administrative law judge issued a 106-page opinion exhaustively detailing the testimony and evidence presented at the nine-day hearing. In summary, she found that the State had bargained over health insurance with employee unions for over 28 years. The State primarily bargained over health insurance with the AFSCME union, which represented the largest number of employees. Through the acquiescence of smaller unions, which allowed AFSCME to take the lead, the terms of the AFSCME agreement were generally applied to other bargaining units. However, beginning in 2015, the State began bargaining over health insurance with other unions before it had reached an agreement with AFSCME. In generally, health insurance bargaining did not include vendor contracts and overall premium rates. The premium rates that were negotiated with unions concerned the share of the insurance premium cost that employees would pay vis-à-vis the State. The judge found that the State and union exchanged numerous health insurance proposals during the 2015 negotiations and the State never objected to the topic's inclusion in the bargaining process. She also found that the State never objected to including health insurance in the interest arbitration convened following the parties' impasse and, in fact, that the parties stipulated to the "arbitrator's jurisdiction over wages, hours, and conditions of employment, including health insurance." Further, she stated, the State did not even make a reservation of rights regarding the topic before submitting its final proposals and that the matter proceeded to interest arbitration at which the State never objected to the inclusion of health insurance as a topic of bargaining. The judge found that the State did not object to the consideration of health insurance in its June 2016 arbitration brief and had not objected before filing its August 9, 2016, stay request.

¶ 16 Notwithstanding her findings regarding the State's failure to make a timely objection to consideration of health insurance, the administrative law judge addressed the merits of the State's contention that the Public Act 93-839 amendments took the entire issue of health insurance outside of the scope of the collective bargaining process. She disagreed with the State's interpretation of the relevant statutes and found that health insurance, in all of its aspects, was a mandatory subject of bargaining.

¶ 17 The administrative law judge granted the union's motion for sanctions in part and denied in part. She declined to impose a sanction on the basis that the State engaged in frivolous litigation, finding in relevant part as follows:

"there is insufficient evidence that the State advanced the disputed claim for the purpose of delay or to needlessly increase costs. At the time the State claimed that it had never bargained health insurance with unions other than AFSCME, it already knew that Union planned to call at least one witness on the issue of the State's bargaining history. From the State's perspective, its claim would not have changed the course of the hearing and it is therefore difficult to find that the State made the claim for purposes of delay or to increase the Union's costs."

She likewise denied sanctions for the opening statement comments of the State's counsel, noting that doing so would be unprecedented in unfair labor practice charge hearings. However, she granted the union's motion for sanctions regarding the testimony of the State's witness who claimed that the State had never bargained over health insurance with any union other than AFSCME. The administrative law judge found that those statements were untrue, in that "the evidence without a doubt proved the contrary" because "[t]he State repeatedly bargained over health insurance with many unions other than AFSCME, most notably, the respondent union in this case." The sanction was an "admonishment" rather than an award of fees and costs, which the union had sought.

¶ 18 The administrative law judge concluded that (1) the union did not violate section 10(b)(4) of the Labor Relations Act when it submitted its proposal on health insurance to the arbitration panel, (2) health insurance is a mandatory subject of bargaining, and (3) the union's motion for sanctions should be denied in part and granted in part, as explained above. She dismissed the complaint brought under the unfair labor charge, subject to the filing of exceptions and the Board's consideration of those exceptions.

¶ 19 Both parties filed exceptions to the administrative law judge's recommended decision and order. On July 11, 2017, the Board issued a written decision and order that (1) accepted and adopted the administrative law judge's findings of fact; (2) determined that the union did not commit an unfair labor practice when it submitted the issue of health insurance to arbitration and refused to withdraw it; (3) health insurance premiums, copayments, deductibles, and out-of-pocket maximums (OPMs) are mandatory subjects of bargaining; and (4) procurement and choice of vendor are permissive subjects of bargaining. In so holding, the Board specifically rejected the State's contention that the Public Act 93-839 amendments to section 15(a) of the Labor Relations Act took health insurance completely outside the scope of collective bargaining. The Board rejected the administrative law judge's recommendation to sanction the State with an admonishment, finding that sanctions were not warranted in light of "the extensive record of this case, the amount of time devoted to describing the bargaining history, and the State's legal arguments regarding the duty to bargain."

¶ 20 Although it held that certain aspects of health insurance were permissive, rather than mandatory, subjects of bargaining, the Board nonetheless dismissed the unfair labor charge, finding that the State interposed its objection too late. The Board explained as follows:

"Based on the conduct of both parties, and their bargaining history, the Union did not have a clear indication that health insurance was a permissive subject of bargaining, nor did the State timely and clearly object to consideration of this issue by the interest arbitration panel. Therefore, we find that the Union did not commit an unfair labor practice when it insisted that health insurance proposals be submitted to and considered by the interest arbitrator and panel."

¶ 21 Both the State and the union have filed petitions for administrative review of the Board's decision in this court pursuant to Illinois Supreme Court Rule 335 (eff. July 1, 2017). This court consolidated the two petitions.

¶ 22 ANALYSIS

¶ 23 Union's Petition for Review ( Case No. 1-17-1382 )

¶ 24 We first address the union's petition for review, which contains two primary contentions. First, the union takes issue with the Board's parsing of the various elements of health insurance, finding some to be mandatory subjects of bargaining but others only permissive subjects. Second, the union requests that this court reverse the Board's determination not to impose sanctions on the State.

¶ 25 The administrative law judge found that health insurance, as a whole, is a mandatory subject of bargaining under the test established in Central City Education Ass'n v. Illinois Educational Labor Relations Board , 149 Ill. 2d 496, 523, 174 Ill.Dec. 808, 599 N.E.2d 892 (1992). The Central City court established a three-part test to determine whether a matter is a permissive or mandatory subject of bargaining:

"The first part of the test requires a determination of whether the matter is one of wages, hours and terms and conditions of employment. * * * If the answer to this question is no, the inquiry ends and the employer is under no duty to bargain.
If the answer to the first question is yes, then the second question is asked: Is the matter also one of inherent managerial authority? If the answer to the second question is no, then the analysis stops and the matter is a mandatory subject of bargaining. If the answer is yes, then the hybrid situation * * * exists: the matter is within the inherent managerial authority of the employer and it also affects wages, hours and terms and conditions of employment." Id.

¶ 26 The administrative law judge determined that all five elements of health insurance at issue-premiums, deductibles, copayments, OPMs, and procurement/vendors-were mandatory subjects of bargaining. The Board modified that recommendation. It found that "those items that directly impact the compensation of covered employees-namely, premiums, deductibles, co-payments, and OPMs," were mandatory subjects of bargaining pursuant to Central City . But the Board found that items that "did not bear on wages or terms and conditions of employment, including choice of vendor and procurement of health care" were permissive subjects of bargaining.

¶ 27 The union requests us to reverse the Board and reinstate the administrative law judge's determination on this particular issue. It contends that choice of vendor and procurement are mandatory, rather than permissive, subjects of bargaining, and it seeks review of the Board's decision on that basis. But it is a basic principle of Illinois law that "one who has obtained * * * all that has been asked for" in the lower tribunal "cannot appeal from the judgment." Material Service Corp. v. Department of Revenue , 98 Ill. 2d 382, 386, 75 Ill.Dec. 219, 457 N.E.2d 9 (1983) (citing cases). Further, our supreme court has explained, " 'It is fundamental that the forum of courts of appeal should not be afforded to successful parties who may not agree with the reasons, conclusion or findings below.' " Id. (quoting Illinois Bell Telephone Co. v. Illinois Commerce Comm'n , 414 Ill. 275, 282-83, 111 N.E.2d 329 (1953) ); see also Finko v. City of Chicago Department of Administrative Hearings , 2016 IL App (1st) 152888, ¶ 27, 410 Ill.Dec. 386, 70 N.E.3d 203 (rejecting appeal of party who obtained a full refund of a fee he paid but insisted that it should be paid by the City of Chicago rather than the court clerk).

¶ 28 The union never filed any affirmative litigation of its own before the Board. The case before the Board, and before this court, solely involves the State's charge that the union engaged in an unfair labor practice, and the complaint that the Board issued on that charge. Section 11(c) of the Labor Relations Act ( 5 ILCS 315/11(c) (West 2016) ) provides that "[i]f there is no preponderance of evidence to indicate to the Board that the person named in the charge has engaged in or is engaging in the unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the complaint." Since the union obtained all the relief it was entitled to-a dismissal of the unfair labor charge-it cannot complain about the Board's rationale in reaching that result. See Illinois Bell , 414 Ill. at 282-83, 111 N.E.2d 329.

¶ 29 As its second contention of error, the union takes issue with the Board's refusal to grant sanctions against the State because one of the State's witnesses testified that the State had not bargained over health insurance with unions other than AFSCME in the past. The administrative law judge recommended that the State be sanctioned with an admonishment because of that testimony. The Board found, however, that sanctions were not warranted. The Board explained there was an "extensive record in this case" and noted "the amount of time devoted to describing the bargaining history, and the State's legal arguments regarding the duty to bargain." The Board determined that sanctions were not appropriate because the testimony did not ultimately impact the case, the State's pursuit of the point was not clearly frivolous, and the testimony stemmed from a factual dispute. In this court, the union requests reinstatement of the admonishment and an award of fees and costs.

¶ 30 Section 11(c) of the Labor Relations Act governs sanctions that the Board may impose. It provides, in relevant part, the following:

"The Board's order may in its discretion also include an appropriate sanction, based on the Board's rules and regulations, and the sanction may include an order to pay the other party or parties' reasonable expenses including costs and reasonable attorney's fee, if the other party has made allegations or denials without reasonable cause and found to be untrue or has engaged in frivolous litigation for the purpose of delay or needless increase in the cost of litigation; the State of Illinois or any agency thereof shall be subject to the provisions of this sentence in the same manner as any other party." 5 ILCS 315/11(c) (West 2016).

¶ 31 We review the Board's determination not to impose sanctions for abuse of discretion. City of Bloomington v. Illinois Labor Relations Board, State Panel , 2011 IL App (4th) 100778, ¶ 17, 352 Ill.Dec. 96, 953 N.E.2d 32. An abuse of discretion exists where the underlying decision is arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view adopted by the tribunal. Seymour v. Collins , 2015 IL 118432, ¶ 41, 396 Ill.Dec. 135, 39 N.E.3d 961.

¶ 32 On this record, we cannot say that the Board abused its discretion in refusing to impose sanctions for the testimony at issue and the related opening statement comments. The testimony was isolated and hardly led anyone astray. The Board correctly recognized that, based on the full and exhaustive record, the testimony did not "ultimately impact the case" and that the testimony involved "a fact dispute about the collective bargaining history." We must agree. The record contains evidence that the State had a history of bargaining health insurance with AFSCME with the intent that "lead" bargaining would apply to smaller unions. While the witness's testimony that AFSCME was the only union with which the State bargained over health insurance was imprecise and ultimately found to be inaccurate, the underlying facts were complex and nuanced. In sum, we cannot say the Board abused its discretion in refusing to impose a sanction for it, nor for the related arguments of counsel.

¶ 33 State's Petition for Review ( Case No. 1-17-2003 )

¶ 34 In its petition for review, the State asks us to determine that the Board erred in dismissing the unfair labor practice charge. The State focuses most of its arguments on its contention that the Board erred in finding that any aspect of health insurance was either a mandatory or permissive subject of bargaining. The State takes the position that the Public Act 93-839 amendments made health insurance a completely prohibited subject of collective bargaining. The Board interpreted the relevant statutes differently and rejected this contention. The second part of the Board's decision, which addresses this issue, contains no language linking its interpretation of Public Act 93-839 to its disposition of the unfair labor practice charge. Therefore, it appears that the Board's decision regarding that issue is akin to dicta and that the Board's interpretation of the Public Act did not provide an independent basis to dismiss the unfair labor charge.

¶ 35 In contrast, the Board specifically found that the union did not commit an unfair labor practice because the State did not timely object to consideration of health insurance by the arbitration panel-or put another way, because the State forfeited its right to object to arbitrating the health insurance impasse. In the conclusion of the first part of its decision, the Board stated: "Therefore, we find that the Union did not commit an unfair labor practice when it insisted that health insurance proposals be submitted to and considered by the interest arbitrator and panel."

¶ 36 We begin, therefore, with the Board's finding regarding the State's forfeiture. The Administrative Review Law ( 735 ILCS 5/3-101 et seq. (West 2016) ) governs our review of the Board's decision. The scope of that review "extend[s] to all questions of law and fact presented by the entire record before the court." Id. § 3-110. "The applicable standard of review * * * depends upon whether the question presented is a question of fact, a question of law, or a mixed question of law and fact." Marconi v. Chicago Heights Police Pension Board , 225 Ill. 2d 497, 532, 312 Ill.Dec. 208, 870 N.E.2d 273 (2006). The Board's findings of fact are "held to be prima facie true and correct" ( 735 ILCS 5/3-110 (West 2016) ) and will be disturbed on review only if they are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board , 181 Ill. 2d 191, 204, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998) ). The Board's findings of fact are against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Id.

¶ 37 After it adopted all of the administrative law judge's factual findings regarding the bargaining history between the parties, the Board recited some of them in detail to explain why the union did not commit an unfair labor practice. This history included the following facts: (1) the State "never clearly and formally objected to the interest arbitration panel considering the issue of health insurance"; (2) although the State filed the unfair labor practice charge in March 2016, it made statements in its June 2016 arbitration brief and in its August 2016 Board filings "that it believed health insurance was a permissive subject of bargaining"; (3) the State's objections were not made in "good faith" because "they were raised too late, after the parties had stipulated to health insurance as an issue before the arbitrator, had engaged in bargaining regarding health insurance, and had exchanged proposals on health insurance"; (4) given this conduct, the union had no clear indication that it should withdraw or amend its health insurance proposal; and (5) the State did not timely and clearly object to the arbitration panel's consideration of the subject. All of these facts are well supported by the record adduced before the Board-not only the voluminous documentary history of the bargaining process between the parties but also the testimony of Bruce Bialorucki.

¶ 38 Whether an unfair labor practice has been committed presents a mixed question of fact and law. City of Belvidere , 181 Ill. 2d at 205, 229 Ill.Dec. 522, 692 N.E.2d 295. Mixed questions of fact and law " 'are questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.' " (Internal quotation marks omitted.) Cinkus v. Village of Stickney Municipal Officers Electoral Board , 228 Ill. 2d 200, 211, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008) (quoting American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board , 216 Ill. 2d 569, 577, 298 Ill.Dec. 156, 839 N.E.2d 479 (2005) ). Under this standard, the Board's decision will be reversed only when the decision is clearly erroneous, that is, when, based on the entire record, we are " 'left with the definite and firm conviction that a mistake has been committed.' " (Internal quotation marks omitted.) Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board , 224 Ill. 2d 88, 97, 308 Ill.Dec. 741, 862 N.E.2d 944 (2007) (quoting AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 395, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001) ).

¶ 39 Based on our review of the entire record, we are unable to find that the Board's decision to dismiss the unfair labor practice charge because of the State's tardy objection was clearly erroneous. After leading the union down a costly primrose path for months (if not years) by bargaining over the troopers' health insurance to the point of exhaustion, the State pulled the rug out from under the union by formally objecting to bargaining over health insurance at all. When it did so, the deadline for objections had long passed, and the impasse had been fully submitted to the arbitration panel. As noted above, the arbitration panel's proceedings concluded in April 2016. In its posthearing brief filed in June, the State referred to its just-filed unfair labor practice charge, but it contradictorily stated that it would allow the arbitration panel to consider the health insurance impasse "[f]or purposes of efficiency" and further stated, "the State does not object to this panel's consideration of the parties' respective health insurance proposals" (emphasis added). The State, in essence, was trying to have it both ways. It cannot do this and justifiably claim the union was committing an unfair labor charge by taking health insurance to postbargaining impasse arbitration.

¶ 40 Because we find that the Board properly dismissed the entire unfair labor practice charge on the basis that the State acquiesced to bargaining the disputed issues and did not interpose a timely objection, we have no need to resolve the parties' dispute regarding the interpretation of the Labor Relations Act and the State Employees Health Insurance Act and determine which, if any, elements of health insurance are properly subjects of mandatory or permissive bargaining.

¶ 41 CONCLUSION

¶ 42 We affirm the Board's order dismissing the unfair labor practice charge and denying sanctions against the State.

¶ 43 Board decision affirmed.

Justices Connors and Harris concurred in the judgment and opinion.