author: DONOVAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael J. HALL, III, Defendant-Appellant
    NO. 27695
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on June 15, 2018
    MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662, 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
    CARLO McGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} Defendant-appellant, Michael J. Hall, III, appeals his conviction and sentence for the following offenses, to wit: Count I: possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree; Count II: possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(e), a felony of the first degree, accompanied by a one-year firearm specification; Count III: possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree; Count IV: improper handling of a firearm in a motor vehicle, in violation of 2923.16(B), a felony of the fourth degree; and Count V: carrying a concealed weapon, in violation of R.C. 2923.12(A)(1), a felony of the fourth degree. Hall filed a timely notice of appeal with this Court on August 16, 2017.

{¶ 2} The incident which forms that basis for the instant appeal occurred on December 7, 2015, at approximately 7:17 p.m., when Officer Eric Lane, a ranger for the Five Rivers MetroParks, was on patrol in a marked police cruiser in the area near Wesleyan MetroPark in Dayton, Ohio; he observed a Chevrolet Impala run a stop sign located at the intersection of Wesleyan Road and Princeton Drive. The intersection where Officer Lane observed the traffic infraction is an area that is adjacent to park grounds. Officer Lane testified that, as a MetroParks ranger, he has jurisdiction over criminal offenses committed on park grounds and on property adjacent to park grounds. In order to avoid traffic congestion, Officer Lane did not initiate a traffic stop of the Impala, driven by an individual later identified as Hall, until the vehicle reached the intersection of Cornell Drive and Otterbein Avenue, one street over, at approximately 7:20 p.m.

{¶ 3} After running the license plate number through his computer, Officer Lane approached the vehicle's front passenger window and obtained Hall's license, registration, and insurance information. Upon returning to his cruiser, Officer Lane contacted dispatch and requested a K-9 unit to respond to the scene to perform a free-air sniff around Hall's vehicle. The dispatcher indicated that the K-9 unit was currently in Huber Heights. Officer Lane testified that he informed dispatch that it would take too much time for the K-9 unit to arrive. The dispatcher responded that he had located another K-9 unit in west Dayton in Officer Lane's immediate vicinity. Officer Lane's exchange with the dispatcher lasted from 7:22 to 7:24 p.m. Officer Lane requested that the K-9 unit respond to his location. Officer Lane testified that he requested the K-9 unit because Hall was acting overly nervous upon being stopped. Specifically, Officer Lane observed that Hall slammed the glove box after removing his proof of insurance card, as if he did not want Officer Lane to see what was inside. Officer Lane also testified that Hall's hands were shaking when he handed over his insurance card.

{¶ 4} After successfully requesting the K-9 unit, Officer Lane entered Hall's information into the LEADS database and the Dayton Police Department's "MIS" system. Officer Lane testified that entering Hall's information took approximately three to four minutes. Thereafter, Officer Lane testified that he began writing Hall's citation for the stop sign violation. The trial court found that Officer Lane began writing the citation at approximately 7:25 p.m. Officer Lane testified that unlike other jurisdictions, Five Rivers MetroParks does not provide its rangers with citations that contain template or "pre-loaded" information. Thus, Officer Lane had to fill out all of the information in Hall's citation by hand. Furthermore, because he patrolled multiple jurisdictions, Officer Lane testified that he had to verify that Hall's citation referenced the correct court. Accordingly, Officer Lane testified that it generally takes him longer to complete a traffic citation than it does for an officer from a municipal police department.

{¶ 5} At approximately 7:42 p.m., Officer Robert Cleaver of the Dayton Police Department arrived at the scene with his K-9 unit, Phantom. When Officer Cleaver arrived, Officer Lane was in the process of completing Hall's citation. Officer Lane testified that he stopped working on the uncompleted traffic citation at approximately 7:43 and removed Hall from his vehicle so that Officer Cleaver could perform a free-air sniff with Phantom. At approximately 7:44 p.m., Phantom alerted to the presence of narcotics in Hall's vehicle. The trial court found that only nineteen minutes had passed between the time Officer Lane began writing Hall's citation and when Phantom began the free-air sniff.

{¶ 6} Once Phantom alerted, Officer Lane testified that he had probable cause to search Hall's vehicle. Officer Lane also testified that he patted Hall down and recovered approximately $700.00 from his person. The officers searched the passenger compartment of Hall's vehicle and ultimately discovered a loaded .22 caliber handgun in the center console. Without being questioned, Hall admitted that he "keeps that [the gun] for protection." Officer Lane then asked if he had a CCW permit, and Hall stated that he did not have a permit to carry a concealed weapon.

Hall was arrested, handcuffed, and placed in the back of Officer Lane's cruiser. As he was being placed in the cruiser, Hall spontaneously made the following statements, to wit: 1) "Lord, Lord, Lord, I done f*** up"; 2) "All my sh***, f***"; and 3) "I really f*** up." The statements were recorded by audio equipment inside the cruiser.

{¶ 7} Upon resuming their search of the vehicle, the officers discovered cocaine, pills, and various pieces of drug paraphernalia. Thereafter, Officer Lane read Hall his Miranda rights, and Hall indicated to Officer Lane that he understood each right. While Hall was being transported to the Montgomery County Jail, Hall made admissions regarding the contraband found in his vehicle. While in jail, Hall was questioned by Detective Jeremy Fritz. Detective Fritz testified that he provided Hall with his Miranda warnings. Hall signed the pre-interview waiver of rights form and agreed to speak with Detective Fritz. Detective Fritz testified that he questioned Hall for approximately thirty minutes, during which Hall made several admissions. At no point during the interview did Hall request an attorney.

{¶ 8} On April 25, 2016, Hall was indicted for the following offenses, to wit: Count I: possession of criminal tools; Count II: possession of cocaine, accompanied by a one-year firearm specification; Count III: possession of drug paraphernalia; Count IV: improper handling of a firearm in a motor vehicle; and Count V: carrying a concealed weapon. At his arraignment on June 7, 2016, Hall stood mute, and the trial court entered a plea of not guilty on his behalf.

{¶ 9} On June 21, 2016, Hall filed a motion to suppress the statements he made to the police before and after he was arrested. In a separate motion to suppress filed the same day, Hall sought to exclude any evidence seized during the search of his person and his vehicle. Hall also filed a motion to dismiss based upon pre-indictment delay and a motion for independent analysis of the drugs seized from his vehicle. Shortly thereafter, on June 26, 2016, Hall filed a motion for the appointment of a defense investigator, which the trial court granted one day later on June 27, 2016. On June 28, 2016, the trial court granted Hall's motion for independent drug analysis.

{¶ 10} A hearing was held on Hall's motions to suppress on July 6 and July 14, 2016. On July 19, 2016, Hall filed a supplemental motion to suppress in which he argued that his statements to the police officers at the scene were involuntary and that he did not validly waive his Miranda rights. On July 20, 2016, the trial court held a hearing on Hall's motion to dismiss.

{¶ 11} In a decision issued on August 17, 2016, the trial court sustained in part and denied in part Hall's motions to suppress. Specifically, the trial court found that the statements made by Hall while in the back of the cruiser before the police informed him of his Miranda rights were suppressed, while the statements he made after being read his Miranda rights were admissible. Notably, the trial court found that the spontaneous statements made by Hall after being arrested but before being placed in the cruiser were admissible. Furthermore, the trial court found that the traffic stop and the subsequent search of Hall's vehicle were lawful and supported by probable cause. On the same day, the trial court also denied Hall's motion to dismiss, finding that he failed to adduce any evidence that he suffered prejudice as a result of the pre-indictment delay.

{¶ 12} Hall filed additional supplemental motions to suppress on November 3 and 30, 2016, arguing that the evidence seized from his vehicle was only discovered after an unreasonably prolonged detention because of the time it took for the K-9 unit to arrive at the scene. On December 9, 2016, a hearing was held before the trial court on Hall's supplemental suppression motions. These motions were denied on March 6, 2017.

{¶ 13} On January 23, 2017, Hall filed a motion to dismiss Count II of the indictment, possession of cocaine, based upon the Ohio Supreme Court's decision in State v. Gonzales , 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405 (hereinafter referred to as " Gonzales I ") (holding that the offense level for possession of cocaine was determined only by weight of actual cocaine, not by total weight of cocaine plus any filler). Prior to the hearing on Hall's motion to dismiss Count II, the State orally requested leave to dismiss Count II without prejudice. Nevertheless, on February 14, 2017, the trial court held a hearing on Hall's motion to dismiss Count II. The parties filed post-hearing memoranda on February 24, 2017. On March 6, 2017, the Ohio Supreme Court issued an opinion vacating its previous decision in Gonzales I , holding that the entire compound, mixture, preparation, or substance was to be considered in determining the appropriate penalty for the offense of cocaine possession. State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419 (hereinafter referred to as " Gonzales II "). On the same day, the State withdrew its oral motion to dismiss Count II.

{¶ 14} Thereafter on June 14, 2017, Hall pled no contest to all of the offenses in the indictment, and the trial court found him guilty on all counts. On June 21, 2017, Hall filed an "affidavit of indigency." At disposition on July 27, 2017, the trial court sentenced Hall to a total mandatory term of four years in prison; it also imposed a mandatory fine of $10,000.00 for his conviction of possession of cocaine.

{¶ 15} It is from this judgment that Hall now appeals.

{¶ 16} Because they are interrelated, Hall's first, third, fourth, fifth, and sixth assignments of error will be discussed together as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION(S) TO SUPPRESS.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT OFFICER LANE DILIGENTLY PROCESSED THE SUBJECT TRAFFIC TICKET COMPLAINT.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT THE SUBJECT DOG SNIFF TOOK PLACE WITHIN AN ORDINARY TIME FRAME FOR PROCESSING A ROUTINE TRAFFIC TICKET STOP.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO FIND THAT ANY OF OFFICER LANE'S ACTIONS SERVED TO PROLONG THE ROUTINE TRAFFIC STOP IN ORDER TO PROCESS THE SUBSEQUENT DOG SNIFF.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUITS OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED DEFENDANT'S CONSTITUTIONAL RIGHTS OF DUE PROCESS AND TO BE FREE FROM UNREASONABLE SEARCHES UNDER THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO STATE CONSTITUTION.

{¶ 17} In the foregoing assignments, Hall essentially contends that the trial court should have granted his motions to suppress any physical evidence and/or statements because the traffic stop was unreasonably extended for the sole purpose of a canine sniff.

{¶ 18} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." State v. Koon , 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, 2015 WL 1512790, ¶ 13, quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. The application of the law to the trial court's findings of fact is subject to a de novo standard of review. State v. Gordon , 5th Dist. Fairfield No. 14-CA-13, 2014-Ohio-5027, 2014 WL 5840178, ¶ 14, citing Ornelas v. United States , 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

{¶ 19} "When an officer detains a motorist for a traffic violation, the stop should delay the motorist only for the amount of time necessary to issue a citation or warning." State v. Hill , 2d Dist. Montgomery No. 26345, 2016-Ohio-3087, 2016 WL 2944821, ¶ 9, citing State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12. "The reasonable stop time includes the amount of time it takes to conduct a computer check on the driver's license, registration, and vehicle plates." Id. " 'In determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation.' " Id. , quoting Batchili .

{¶ 20} Nevertheless, official "conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), quoting United States v. Jacobsen , 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court held that the use of "a well-trained narcotics-detection dog" to examine unopened personal luggage "did not constitute a 'search' within the meaning of the Fourth Amendment" because "the manner in which information is obtained through this investigative technique is much less intrusive than a typical search," and because such an examination "discloses only the presence or absence of narcotics, a contraband item." See also Jacobsen , 466 U.S. at 121-123, 104 S.Ct. 1652 (finding no legitimate privacy interest in the possession of contraband). Relying on its holding in Place , the Court found in Caballes that "conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner." Caballes , 543 U.S. at 408, 125 S.Ct. 834.

Length of Detention

{¶ 21} Hall's overarching argument on appeal regarding the trial court's denial of his collective motions is that the traffic stop had been unreasonably prolonged by the time the K-9 unit performed a free-air sniff and alerted to the presence of drugs inside his vehicle.

{¶ 22} In Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), a K-9 officer stopped Rodriguez for driving on the highway shoulder, a violation of Nebraska law. After checking Rodriguez's and his passenger's identification and issuing a warning to Rodriguez, the officer asked Rodriguez for permission to walk a canine around the vehicle. When Rodriguez refused, the officer detained him until a second officer arrived, and then the officer walked a canine around the vehicle. The dog altered to the presence of drugs in the vehicle. Seven or eight minutes elapsed between the issuance of the warning and when the dog alerted.

{¶ 23} The U.S. Supreme Court held that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation." Rodriguez , 135 S.Ct. at 1612, citing Caballes , 543 U.S. at 407, 125 S.Ct. 834.

{¶ 24} Recently, in State v. Hall , 2017-Ohio-2682, 90 N.E.3d 276 (2d Dist.), we addressed whether the trial court had erred in suppressing drug-related evidence found through a canine sniff during a traffic stop. In Hall , the officer requested a K-9 unit while in the process of confirming Hall's identity. After confirming Hall's identity, the officer "did nothing to process the traffic stop for approximately eight minutes," even though he had all of the information that he needed to complete a citation. After the dog arrived, it alerted to the presence of drug-related contraband. The trial court suppressed the evidence. On appeal, the State argued that the sniff had occurred within the amount of time (12-13 minutes) deemed reasonable for a traffic stop. The State thus claimed that the drug sniff did not unlawfully extend the stop. We rejected this argument and affirmed the trial court's suppression ruling.

{¶ 25} In rejecting the State's argument in Hall , we stated that the U.S. Supreme Court "made clear in Rodriguez that an officer may not prolong a traffic stop to perform a drug sniff even if the 'overall duration of the stop remains reasonable in relation to the duration of other stops involving similar circumstances.' " Hall at ¶ 13, quoting Rodriguez , 135 S.Ct. at 1616. We explained:

Notably, the Rodriguez majority explicitly rejected the government's argument that an officer may "incrementally" prolong a stop to perform a drug sniff provided he "is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other stops involving similar circumstances." [Rodriguez ] at 1616. The Court emphasized that reasonableness "depends on what the police in fact do," and diligence is measured "by noting what the officer actually did and how he did it." Id. The "critical question" in each case is "whether conducting the sniff 'prolongs'-i.e., adds time to-'the stop.' " Id.

Hall at ¶ 10.

{¶ 26} In State v. Matheney , 2d Dist. Montgomery No. 26876, 2016-Ohio-7690, 2016 WL 6672805, we held that a canine sniff did not unreasonably extend the time for a traffic stop where the dog alerted 24 to 26 minutes after the stop. Although the officer involved testified that it normally took him 12 to 15 minutes to issue citations, the defendant's actions prolonged the stop by forcing the officer to conduct a pat down for his safety. Id. at ¶ 30. In finding the duration of the stop permissible, we reasoned:

* * * [I]n the time before the canine sniff was conducted, Officer Sanford remained busy preparing Matheney's traffic citation, which he had not yet completed when the canine unit arrived. Moreover, under the specific facts of this case, we do not find that 24 to 26 minutes is an unusual length of time for the traffic stop in question given that Matheney engaged in conduct warranting a pat-down search.
Because Sanford was not simply waiting for the canine unit to arrive, but rather running Matheney's information through his computer, patting down Matheney for weapons after his abrupt movement toward the back seat of the vehicle, and preparing Matheney's traffic citations, we find that under the circumstances, Sanford diligently conducted the investigation within a reasonable amount of time. Accordingly, under the totality of the circumstances, we do not find that Matheney's detention was extended beyond what was reasonably necessary to resolve the issues associated with the traffic stop and to issue a traffic citation.

{¶ 27} In the instant case, Officer Lane initiated the stop of Hall's vehicle at approximately 7:20 p.m. Officer Lane approached Hall's vehicle approximately one minute later and asked him for information. Officer Lane then returned to his cruiser, began entering Hall's information into his computer, and requested that a K-9 unit be dispatched to the scene to perform a free-air sniff around Hall's vehicle. The dispatcher indicated that the K-9 unit was currently in Huber Heights. Officer Lane testified that he informed dispatch that it would take too much time for the K-9 unit to arrive. The dispatcher responded that he had located another K-9 unit in west Dayton in Officer Lane's immediate vicinity. Officer Lane's exchange with the dispatcher lasted from 7:22 to 7:24 p.m. Officer Lane requested that the K-9 unit respond to his location. Officer Lane testified that he requested the K-9 unit because Hall was acting overly nervous upon being stopped. Specifically, Officer Lane observed that Hall slammed the glove box after removing his proof of insurance card, as if he did not want Officer Lane to see what was inside.

{¶ 28} After successfully requesting the K-9 unit, Officer Lane entered Hall's information into the LEADS database and the Dayton Police Department's "MIS" system. Officer Lane testified that entering Hall's information took approximately three to four minutes. Thereafter, Officer Lane testified that he began writing Hall's citation for the stop sign violation. The trial court found that Officer Lane began writing the citation at approximately 7:25 p.m. As previously stated, Five Rivers MetroParks does not provide its rangers with citations that contain template or "pre-loaded" information, thereby requiring Officer Lane to fill out all of the information in Hall's citation by hand. Furthermore, because he patrolled multiple jurisdictions, Officer Lane testified that he had to verify that Hall's citation referenced the correct court. Accordingly, Officer Lane testified that it generally takes him longer to complete a traffic citation than it does for an officer from a municipal department.

{¶ 29} At approximately 7:42 p.m., Officer Cleaver arrived with his K-9 unit, Phantom. When Officer Cleaver arrived, Officer Lane testified that he was still completing Hall's citation. Officer Lane testified that he stopped working on the traffic citation at approximately 7:43 and removed Hall from his vehicle so that Officer Cleaver could perform a free-air sniff with Phantom. At approximately 7:44 p.m., Phantom alerted to the presence of narcotics in Hall's vehicle. The trial court found that only 19 minutes had passed between the time Officer Lane began writing Hall's citation and when Phantom began the free-air sniff.

{¶ 30} Unlike the police officer in Hall , 2017-Ohio-2682, 90 N.E.3d 276, who "did nothing to process the traffic stop for approximately eight minutes" while he waited for a K-9 unit to arrive, Officer Lane acted reasonably and diligently by confirming Hall's identification and working on his citation before, during, and after the K-9 unit began its sniff around the vehicle. Officer Lane was not simply waiting for the K-9 unit to arrive nor did he stall for time; in fact, he recognized that the K-9 in Huber Heights would take too long, thereby unreasonably extending the detention. Significantly, the evidence adduced at the suppression hearings establish that Officer Lane was working on the citation for essentially the entire duration of the stop and did not unreasonably extend the duration of the stop by requesting that a K-9 unit be dispatched. See Matheney , 2d Dist. Montgomery No. 26876, 2016-Ohio-7690, at ¶ 32. Rather, the record establishes that Officer Lane did not unreasonably extend Hall's detention beyond what was reasonably necessary to resolve the issues associated with the traffic stop and to issue a traffic citation. The 19-minute time period between when Officer Lane began writing the citation and when the K-9 unit alerted on Hall's vehicle was therefore reasonable under the facts presented in the instant case.

{¶ 31} Hall's first, third, fourth, fifth, and sixth assignments of error are overruled.

{¶ 32} Hall's seventh assignment of error is as follows:

THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE SEIZED INCIDENT TO, AND SUBSEQUENT TO, HIS ARREST.

Statements Made by Hall Prior To and After His Arrest

{¶ 33} In his seventh assignment, Hall argues that the trial court erred by failing to suppress all statements that he made to police before and after being arrested. We note that the trial court ruled in its initial suppression decision issued on August 17, 2016, that any statements made by Hall while he sat in the police cruiser prior to being Mirandized would be suppressed. However, as previously stated, the trial court refused to suppress the spontaneous statements made by Hall after he was arrested but prior to being placed in the back of the cruiser. The trial court also found that statements made to police by Hall after he was Mirandized were not subject to suppression.

{¶ 34} "Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against himself. In order to ensure that this right is protected, statements resulting from custodial interrogations are admissible only after a showing that the procedural safeguards described in Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed." State v. Western , 2015-Ohio-627, 29 N.E.3d 245, ¶ 12 (2d Dist.). "[T]he State has the burden to show by a preponderance of the evidence that a defendant's confession was voluntarily given." Id. at ¶ 16.

{¶ 35} "Whether a statement was made voluntarily and whether an individual knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct issues." State v. Lovato , 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, 2014 WL 2475593, ¶ 30. Generally, statements made to police after a knowing, intelligent, and voluntary waiver of an individual's Miranda rights are presumed voluntary. Id. at ¶ 31. However, "[t]he Miranda presumption applies to the conditions inherent in custodial interrogation that compel the suspect to confess. It does not extend to any actual coercion police might engage in, and the Due Process Clause continues to require an inquiry separate from custody considerations and compliance with Miranda regarding whether a suspect's will was overborne by the circumstances surrounding his confession." State v. Porter , 178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.). Therefore, "[r]egardless of whether Miranda warnings were required and given, a defendant's statement may have been given involuntarily and thus be subject to exclusion." State v. Kelly , 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, 2005 WL 182900, ¶ 11.

{¶ 36} When making a determination regarding whether a valid waiver has occurred, we must "consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

Spontaneous Statements Made by Hall

{¶ 37} As previously stated, the trial court found that, as Hall was being placed in the cruiser, he spontaneously made the following statements, to wit: 1) "Lord, Lord, Lord, I done f*** up"; 2) "All my sh***, f***"; and 3) "I really f*** up." Hall's statements were recorded by audio equipment inside the cruiser. A suspect who volunteers information, and who is not even asked any questions, is not subject to a custodial interrogation and is not entitled to Miranda warnings. State v. McGuire , 80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997), citing State v. Roe , 41 Ohio St.3d 18, 22, 535 N.E.2d 1351 (1989). In other words, " Miranda does not affect the admissibility of '[v]olunteered statements of any kind.' " Id. , citing Miranda , 384 U.S. at 478, 86 S.Ct. 1602 ; State v. Montgomery , 2d Dist. Montgomery No. 23870, 2010-Ohio-5047, 2010 WL 4132213, ¶ 15.

{¶ 38} Upon review, we conclude that the trial court did not err in denying Hall's motion to suppress the volunteered statements that he made to Officer Lane after being arrested and prior to being placed in the cruiser. The record establishes that the statements were not elicited in response to any questions from Officer Lane; they were made spontaneously. See Montgomery at ¶ 15.

Statements Made by Hall After Being Mirandized

{¶ 39} Here, Hall argues that the record establishes that he did not validly waive his Miranda rights. Initially, we note that Officer Lane testified that he read Hall his Miranda rights directly from a printed card. Officer Lane further testified that Hall indicated that he understood each right. Officer Lane then proceed to ask Hall questions about the contraband found in the vehicle, which Hall freely answered. No evidence was adduced that Hall was subjected to intimidation, deception, or coercion. "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 177, quoting Berghuis v. Thompkins , 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).

{¶ 40} Detective Fritz testified that he provided Hall with his Miranda warnings. Hall signed the pre-interview waiver of rights form and agreed to speak with Detective Fritz. Detective Fritz testified that he questioned Hall for approximately thirty minutes, during which Hall made several admissions. At no point during the interview did Hall request an attorney, and there is no evidence that Hall was subjected to intimidation, deception, or coercion while being questioned by Detective Fritz. Accordingly, the trial court did not err when it overruled Hall's motion to suppress the spontaneous statements he made after he was arrested but prior to being placed in the back of the cruiser, as well as the admissions he made to police after being properly Mirandized .

{¶ 41} In light of the foregoing, Hall's seventh assignment of error is overruled.

{¶ 42} Hall's second assignment of error is as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION(S) TO DISMISS (DELAY IN PROSECUTION, MISTAKEN INDICTMENT, AND GONZALES CASE RECONSIDERATION).

{¶ 43} In his second assignment, Hall argues that the trial court erred when it failed to grant his motion to dismiss on the basis of preindictment delay.

{¶ 44} Delay 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. Luck , 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus. 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.

{¶ 45} 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 at ¶ 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.

{¶ 46} In the instant case, Hall argues that he has suffered "substantial prejudice to his defense" as a result of the "considerable delays in time that chronologically took place" in the prosecution of his case. Hall argues that he has suffered prejudice in the form of loss of employment, loss of income as a result of having to fund his defense, and "considerable uncertainty to the probability of the benefit and/or detriment of any issue related legal maneuvers." At the hearing on the motion to dismiss, when Hall's counsel was asked to articulate some evidence of "actual prejudice"

suffered by his client, he merely stated that the proceedings had put Hall's life on "standstill."

{¶ 47} Upon review, we conclude that Hall has failed to establish any "actual prejudice" resulting from the six-month delay between his arrest and subsequent indictment. Hall has failed to adduce any evidence to support a claim of actual prejudice such as the death of a key witness, lost evidence, or faded memories which resulted from the State's delay in indicting him. See State v. Collins , 118 Ohio App.3d 73, 691 N.E.2d 1109 (2d Dist. 1997). Rather, the examples of prejudice advanced by Hall (loss of employment, loss of income, general uncertainty) simply do not constitute the type of prejudice envisioned by the Ohio Supreme Court. Thus, Hall has failed to prove that the delay in commencing prosecution in this case resulted in any actual prejudice to him and violated his right to due process of law thereby.

{¶ 48} Finally, we note that although Hall mentioned "mistaken indictment" and "Gonzales case reconsideration" in his assignment of error, he failed to provide any support for those arguments in the body of his appellate brief. Therefore, we will not speculate as to what Hall's arguments may have been regarding those issues.

{¶ 49} Hall's second assignment of error is overruled.

{¶ 50} Hall's eighth assignment of error is as follows:

THE TRIAL ERRED BY DENYING APPELLANT'S MOTION THAT THE SUBJECT MANDATORY FINE WOULD NOT BE APPROPRIATE UNDER THE CIRCUMSTANCES.

{¶ 51} In his final assignment, Hall argues that the trial court erred when it imposed a mandatory fine of $10,000.00 as part of his sentence for Count II, possession of cocaine. We note that on June 21, 2017, Hall filed a "Financial Disclosure/Affidavit of Indigency" form. The affidavit stated that Hall was currently employed with a monthly gross income of $900.00 and monthly expenses totaling $723.62. Hall did not object to the imposition of the mandatory fine at the time of sentencing, nor did he file a motion to waive the fine with the trial court.

{¶ 52} R.C. 2929.18(B)(1) provides:

For a first, second, or third degree felony violation of any provision of Chapter 2925, 3719, or 4729 of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine * * *. If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.

{¶ 53} "For purposes of the statute, being 'indigent' and being 'unable to pay' are not the same. Indigency concerns a defendant's current financial situation, whereas an inability to pay encompasses his future financial situation as well." State v. Plemons , 2d Dist. Montgomery Nos. 26434, 26435, 26436 & 26437, 2015-Ohio-2879, 2015 WL 4387378, ¶ 7. The defendant bears the burden of proving that he or she is indigent and unable to pay the mandatory fine. Id. at ¶ 8.

{¶ 54} "[A] hearing is not required on a defendant's ability to pay a mandatory fine, and a trial court need not make specific findings on the issue. A trial court need only consider the issue, which it frequently can do by reviewing a pre-sentence investigation report that contains enough pertinent information." (Citation omitted). Id. We review the trial court's decision for an abuse of discretion. Id.

{¶ 55} In Plemons , we emphasized that the fine was mandatory unless the defendant alleged in a presentence affidavit that he was indigent and was unable to pay the mandatory fine. Id. at ¶ 9. As with Hall in the instant case, Plemons had completed a financial disclosure/affidavit of indigency form utilized for determining whether the defendant was entitled to appointment of counsel. The form did not mention Plemons's ability to pay the mandatory fine. We found the affidavit in Plemons to be insufficient, stating the following:

Merely alleging indigency and an inability to afford private counsel does not establish an inability to pay a fine. Indeed, "[a] finding of indigence for purposes of appointed counsel does not shield the defendant from paying a fine." " 'This is because the ability to pay a fine over a period of time is not equivalent to the ability to pay legal counsel a retainer fee at the onset of criminal proceedings.' " Plemons' failure to file a pre-sentence affidavit alleging that he is indigent and is unable to pay the mandatory fine is, alone, a sufficient reason to affirm the trial court's decision. Absent such an affidavit, R.C. 2929.18(B)(1) made the fine mandatory.

{¶ 56} Hall's presentence affidavit filed shortly before he was sentenced addressed his current indigence, but failed to indicate that he was unable to pay the mandatory fine. Based on this deficiency alone, we could affirm the trial court's imposition of a fine. Id. ; see also State v. Donley , 2d Dist., 2017-Ohio-562, 85 N.E.3d 324.

{¶ 57} Additionally, at Hall's sentencing hearing, the trial court made the following findings:

Trial Court: Likewise, the Court on all charges, except the F-1, will impose no fine in this matter.
The Court is very aware of the Plemons case, finds it directive in this case as far as mandatory statutory fines are concerned.
Mr. Hall, from the very beginning, you and I have had conversations about you working because and you being in my court so much you know how much working means to this Court.
Hall: Yes, sir.
Trial Court: And you've maintained that ever since you've been in and we've gone to lengths to make sure that you can work. So, to me, you have demonstrated that you do have the future ability to pay a fine and that's probably why you've elected to go forward today is because you know that you do. And there's no sense in putting up anything against that. And I respect that.
So the Court will order - the fine is anywhere from $10,000.00 to $20,000.00 mandatory fine. I'll do the minimum at $10,000.00.

(Emphasis added.) Tr. 231.

{¶ 58} Upon review, we see no abuse of discretion in the trial court's imposition of the fine. At the time of his PSI, Hall was thirty-four years old, and we find that the trial court acted within its discretion in reasoning, based in part on Hall's good physical and mental health, that he could obtain employment and make payments toward his fine upon his release from prison at age thirty-eight. Hall reported that he graduated from West Carrolton High School on May 29, 2003. Hall also reported that he obtained a certification in construction craft in 2007, and another certification as a home health aide in 2012. At the time that he was sentenced, Hall was employed at Volunteers of America in Dayton, Ohio, since March of 2017. Prior to that, Hall reported that he was employed at Choice in Community Living, Blue Green Home Health, Home Health Quality, and Walmart.

{¶ 59} "Obviously, neither this court nor the trial court can predict the future." Plemons at ¶ 10. On the record before us, however, we cannot say the trial court abused its discretion in declining to find that Hall, an able-bodied, relatively young man who was employed when he was arrested and charged in the instant case, would be unable to pay his mandatory fine in the future.

{¶ 60} Hall's eighth assignment of error is overruled.

{¶ 61} Hall's ninth and final assignment of error is as follows:

THE TRIAL COURT ERRED BY FAILING TO DETERMINE WHETHER OR NOT THERE WAS APPROPRIATE VENUE AND/OR JURISDICTION FOR THE SUBJECT STOP INVESTIGATION AND ARREST OF APPELLANT, BY VIRTUE OF OFFICER LANE'S STATUS AS OFF-SITE FIVE RIVERS METRO PARK RANGER.

{¶ 62} Initially, we note that Hall argues in his ninth assignment that "the trial court erred by failing to determine whether or not there was appropriate venue and/or jurisdiction for the subject stop * * * by virtue of Officer Lane's status as [an] off-site Five Rivers Metro Park Ranger." At the close of the second motion to suppress hearing, the following exchange occurred between the trial court and the parties:

Trial Court: * * * I can also tell you, [defense counsel], that based on what I saw in the - on the video I believe it's a good stop. Make your argument if you want to, but the video, at least from what I could see, showed the Defendant's vehicle not stopping. I could see the headlights coming and going right - making a right-hand turn at that intersection that was testified that there was a stop sign. So I think it's a good stop.
The Court is aware of the jurisdictional requirements for park rangers and property adjacent to, as I understand, Princeton and Westland, which I do know very well, having attended Colonel White High School in that jurisdiction. So that's - anything that I'm saying now, so that if I'm saying something and you're sitting there thinking I'm dead wrong, either of you, which Lord knows my better half straightens me out on that every day of my life, so I'm used to that. And I don't hold any airs about it or cares about it. Please feel free to, but I'm at least giving you the heads up as to what I am seeing as the issues so that respond accordingly.

{¶ 63} As previously stated, on August 17, 2016, the trial court issued a decision sustaining in part and denying in part Hall's separate motions to suppress statements and evidence obtained during the search respectively, which were both filed on June 21, 2016. Thereafter, Hall filed additional supplemental motions to suppress on November 3 and 30, 2016, arguing that the evidence seized from his vehicle was only discovered after an unreasonably prolonged detention because of the time it took for the K-9 unit to arrive at the scene. Significantly, Hall did not raise in any of his written suppression motions a challenge to the propriety of the initial stop based upon any jurisdictional defect stemming from Officer Lane's status as a ranger for the Five Rivers MetroParks.

{¶ 64} Even if Hall did not waive his argument regarding the jurisdiction of the park ranger to initiate a stop, his assignment still fails. Pursuant to R.C. 1545.13(B), park district law enforcement officers are authorized to "exercise all the powers of a police officer within and adjacent to the lands under the jurisdiction and control of the board" of park commissioners. State v. Tooson , 2d Dist. Montgomery No. 23290, 2009-Ohio-6269, 2009 WL 4268556, ¶ 11. Here, Officer Lane testified that he observed Hall run a stop sign located at the intersection of Wesleyan Road and Princeton Drive, an area which is adjacent to park grounds. Pursuant to R.C. 1545.13(B), Officer Lane has jurisdiction over criminal offenses committed on park grounds and on property adjacent to park grounds. In order to avoid traffic congestion, Officer Lane testified that he did not initiate a traffic stop of Hall until they reached the intersection of Cornell Drive and Otterbein Avenue, an area not "within and adjacent to" park land. Pursuant to R.C. 2935.03(D)(2), a law enforcement officer can conduct an "extraterritorial" stop of a suspect who has committed an offense if the pursuit of the suspect began within the officer's territorial jurisdiction. In fact, the trial court had previously found a stop sign violation had occurred thereby generating a traffic stop. Further, the trial court noted the vehicle "not stopping" in the video. Accordingly, Officer Lane had jurisdiction to initiate a traffic stop of Hall after observing him fail to stop at a stop sign located at an area which is adjacent to park grounds.

{¶ 65} Hall's ninth and final assignment of error is overruled.

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

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


source: Caselaw Access Project

author: SINGER, J.

license: Public Domain

text:
    Richard FELTNER, Appellant v. VILLAGE OF WHITEHOUSE, et al., Appellees
    No. L-17-1277
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: June 15, 2018
    Michael D. Portnoy, for appellant.
    Teresa L. Grigsby, Toledo, for appellees.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, Richard Feltner, appeals the October 27, 2017 judgment of the Lucas County Court of Common Pleas granting dismissal in favor of appellees, the village of Whitehouse, Deputy Chief Todd Kitzler, Chief Mark McDonough, Mayor Donald Atkinson, and Administrator Jordan Daugherty. Finding no error, we affirm.

Assignment of Error

{¶ 2} Appellant sets forth the following assignment of error:

1. The Trial Court committed prejudicial error to Plaintiff-Appellee (sic) when dismissing his amended complaint pursuant to Ohio Civil Rule 12 (b) (6) when the amended complaint satisfied the drafting requirements of Ohio Civil Rule 8 and is well grounded in fact and law.

Background

{¶ 3} On April 18, 2017, appellant filed a complaint against appellees. Appellant amended the complaint, and it was filed on June 1, 2017.

{¶ 4} In the amended complaint, appellant asserts he was wrongfully terminated in violation of public policy. Appellant attached numerous documents to his complaint to help establish his case. On June 7, 2017, appellees moved to dismiss the amended complaint for failure to state a claim on which relief can be granted.

{¶ 5} On June 21, 2017, appellant responded opposing dismissal. Additionally, appellant moved the court for summary judgment on August 7, 2017.

{¶ 6} In the response and motion, appellant argued that his at-will employment was terminated in violation of public policy because appellees defamed him, broke an implied agreement, and did not follow village of Whitehouse's procedure when terminating him.

{¶ 7} The trial court granted appellees' motion to dismiss on October 26, 2017, holding that appellant did not state a claim. The judgment was journalized on October 27, 2017, and appellant timely appeals.

Standard of Review

{¶ 8} To dismiss a complaint under Civ.R. 12(B)(6), for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts entitling the party to recovery. O'Brien v. University Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. Appellate review of a Civ.R. 12(B)(6) motion is de novo.

Perrysburg Twp. v. Rossford , 149 Ohio App.3d 645, 2002-Ohio-5498, 778 N.E.2d 619, ¶ 14 (6th Dist.).

{¶ 9} The court may not consider material outside the complaint and must view all reasonable inferences in favor of the non-movant. Pulizzi v. City of Sandusky , 6th Dist. Erie No. E-03-002, 2003-Ohio-5853, 2003 WL 22462463, ¶ 6. The court must also view the factual allegations pled as true, and if any facts set forth a viable claim it is improper to dismiss the complaint. Caston v. Bailey , 6th Dist. Erie No. E-03-008, 2003-Ohio-4727, 2003 WL 22070297, ¶ 5.

Law and Analysis

{¶ 10} In his assigned error, appellant argues his complaint stated sufficient allegations to warrant denial of appellees' motion to dismiss because appellees allegedly terminated his employment in violation of public policy. Appellees contend appellant was lawfully terminated as an at-will employee and that he failed to state a claim.

{¶ 11} In Ohio, employment relationships are governed by the common-law doctrine of employment-at-will. See Beckloff v. Amcor Rigid Plastics USA, LLC , 2017-Ohio-4467, 93 N.E.3d 329, ¶ 35 (6th Dist.), citing Dohme v. Eurand Am., Inc. , 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 11.

{¶ 12} The termination of an at-will employee usually does not give rise to an action for damages. (Citations omitted.) Dohme . However, if an employee is discharged "in contravention of the Ohio or U.S. Constitution, federal or state statutes, administrative rules and regulations, or Ohio common law, 'a cause of action for wrongful discharge in violation of public policy may exist as an exception to the general rule.' " Id. , citing Painter v. Graley , 70 Ohio St.3d 377, 639 N.E.2d 51 (1994), paragraph three of the syllabus; Greeley v. Miami Valley Maintenance Contrs., Inc. , 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus.

{¶ 13} To prevail on a claim of wrongful discharge in violation of public policy, a party must show:

1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
2. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).
3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

See Beckloff at ¶ 36.

{¶ 14} "The first and second elements are issues of law to be determined by the court; the third and fourth elements are questions of fact to be determined by the fact-finder." Id. , citing Dohme at ¶ 17.

{¶ 15} Here, appellant argues his June 1, 2017 amended complaint states facts which support appellees acted contrary to public policy relating to defamation, breach of contract, and breach of village of Whitehouse articles of governance. We will address each argument in turn.

Defamation

{¶ 16} "Defamation, which includes both libel and slander, is a false publication causing injury to a person's reputation, exposing the person to public hatred, contempt, ridicule, shame or disgrace, or affecting the person adversely in his or her trade or business."

Tackett v. Dept. of Rehab. & Corr. , Ct. of Cl. No. 2006-06604, 2005-Ohio-3410, 2005 WL 6171351, ¶ 19, citing Sweitzer v. Outlet Communications, Inc. , 133 Ohio App.3d 102, 726 N.E.2d 1084 (10th Dist.1999). "The essential elements of a defamation action are that a false statement was made, that the false statement was defamatory, that the false defamatory statement was published, that plaintiff was injured and that defendant acted with the required degree of fault." Id. , citing Celebrezze v. Dayton Newspapers, Inc. , 41 Ohio App.3d 343, 535 N.E.2d 755 (8th Dist.1988).

{¶ 17} In this case, appellant argues his amended complaint states facts from which relief could be sought for defamation, pointing to the following paragraphs:

9. On January 20, 2017, Plaintiff received a written notice of suspension from duty, without pay, pending an investigation. (See Plaintiff's Exhibit four (4). The alleged violations the Defendants accused Plaintiff of doing occurred between January 11-18, 2017.
10. The Defendants provided a written summary and recommendation report concerning the alleged violations of Plaintiff with references dating to Plaintiff's alleged behavior from January 11-13, 2017. (See Plaintiff's Exhibit five (5).
11. To support Defendants' written summary and recommendation report, Defendants attached an undated copy of statement purportedly signed by Amanda M. Crosby, another police officer for the defendant. (See Plaintiff's Exhibit six (6)[.] This statement is libelously false and was prepared for the sole intention to justify falsely a "reason" to terminate Plaintiff's employment with the Defendants. * * *
25. The statements made by the Defendants, jointly and severally, regarding Plaintiff that ultimately led to Plaintiff's job termination with the Village of Whitehouse, were defamatory.
26. Defendant's statements regarding Plaintiff injured Plaintiff's reputation, exposed him to public contempt, ridicule, shame and disgrace that adversely affected Plaintiff's business and profession. * * *
27. Defendants' statements regarding Plaintiff were (a) factually false, (b) defamatory, (c) published, (d) resulting in Plaintiff suffering injury as a proximate result of the publication and (e) the Defendants acted with the requisite degree of fault in publishing the statements. * * *
28. Considering the totality of the circumstances in which Defendants made these defamatory statements and the context in which Defendants made these statements, it would be reasonable for the readers of these statements to conclude these statements against Plaintiff are defamatory. * * *

{¶ 18} As indicated in paragraph 11 of the amended complaint, "Exhibit 6" is the statement/report on which appellant heavily relies to establish his cause of action for defamation. We note that we will consider the documents attached to the amended complaint in evaluating the face of the complaint. See , e.g. , Adlaka v. Giannini , 7th Dist. Mahoning No. 05MA105, 2006-Ohio-4611, 2006 WL 2575053, ¶ 34 ("If the plaintiff decides to attach documents to his complaint, which he claims establish his case, such documents can be used to his detriment to dismiss the case if they along with the complaint itself establish a failure to state a claim."). This exhibit No. 6 specifically states as follows:

On January 13, 2017 I came in for shift at approximately 0545, Kyle McClanahan and Josh Malone were also there at 0600 for shift change. At 0607, Rich Feltner had not arrived for shift change yet, and I asked Malone to send a text to him asking where he was. No response was received and so at 0615 I asked Malone what GPS location Feltner was last showing to be at, and he said the AW Professional building. I drove to the AW Professional building and did not see 906 nor did I see Feltner. I then checked the cemetery, and still did not find Feltner. I asked Malone where else Feltner sits at, and he suggested that I check Pamela Rose as well as the old Dollar General. I checked Shell, as well as the real estate office, and did not find 906. I then checked old Dollar General, and still did not find him. As I turned north on Providence from Toledo, and saw 906 heading south on Providence. (Sic ). I then followed 906 to the station.
When Feltner got out of his car, I asked where he was. He said he was driving around and on the phone. Feltner asked if we tried him on the radio, and I told him that we had sent him a text. He said something about only being ten minutes late, and I said that it was 6:30. He said he sees that now. He unloaded his vehicle, and left.
Amanda M. Crosby, # 11

{¶ 19} "The word 'false' has two meanings." State v. Bowers , 8 Ohio Dec. 324, 325 (C.P.1898). "Primarily it means that which is not true." Id. "Derivatively it means that which is stated to be true, intending to state it as a truth, which is not true, or of the truth of which the party stating it has not probable ground." Id.

{¶ 20} Here, we cannot say the amended complaint states facts that show or provide inference Officer Crosby's statement was false.

{¶ 21} The statement referenced in and attached to appellant's amended complaint as "Exhibit 5," to the contrary, reveals facts that indicate any defamatory statement made by Crosby was indeed true. More specifically, exhibit No. 5 is the disciplinary action "summary and recommendations" prepared by Deputy Chief Todd Kitzler. It confirms, by reporting what appellant said, that appellant was 30 minutes late for shift change, that he fell asleep during his shift and while being parked at "Industrial Park," and that he lied about being on the phone during that time.

{¶ 22} Consequently, and based on our de novo review, we find appellant stated no facts in the amended complaint from which we can infer Crosby falsely defamed him. Accordingly, we affirm disposition of appellant's claim for defamation.

Breach of Contract

{¶ 23} Generally, a breach of contract occurs when (1) "a party demonstrates the existence of a binding contract or agreement"; (2) "the non-breaching party performed its contractual obligations"; (3) "the other party failed to fulfill its contractual obligations without legal excuse"; and (4) "the non-breaching party suffered damages as a result of the breach." Ngo v. Paramount Care, Inc. , 6th Dist. Lucas No. L-05-1359, 2006-Ohio-3874, 2006 WL 2105238, ¶ 11.

{¶ 24} Here, appellant argues there was an implied employment agreement, and that appellees breached the agreement by failing to follow the stated procedure by which an employee was to be terminated. Specifically, he points to appellees' policy manual.

{¶ 25} Appellees respond arguing this court should not consider the cause of action for breach of contract because the theory was not stated in the amended complaint. Further, appellees reiterate that appellant was an at-will employee subject to being terminated with or without cause, and that the policy manual does not provide otherwise.

{¶ 26} We initially look to Civ.R. 8(A), which in pertinent part identifies the "[g]eneral rules of pleading" as follows:

(A) Claims for relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. * * *

See , e.g. , B & J Jacobs Co. v. Ohio Air, Inc. , 1st Dist. Hamilton No. C-020264, 2003-Ohio-4835, 2003 WL 22103385, ¶ 11 (exploring how if facts show the required elements, Civ.R. 8(A) is satisfied for purposes of establishing a contract despite whether an implied or express theory applies).

{¶ 27} To show the existence of a binding contract, a party's complaint must show "an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration." See Ridge Stone Builders & Developers, Ltd. v. Gribbin , 6th Dist. Wood No. WD-03-009, 2003-Ohio-5188, 2003 WL 22233562, ¶ 24, citing Kostelnik v. Helper , 96 Ohio St. 3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16.

{¶ 28} With respect to the employment agreement claimed here, appellant's amended complaint states as follows:

4. On September 2, 2011, Defendant Village of Whitehouse (hereinafter Village), through Defendant Daughtery (hereinafter Daughtery) mailed a letter to Plaintiff offering him the position of Police Officer for the Village of Whitehouse. (See copy of September 2, 2011 letter attached as Plaintiff's Exhibit one (1). Plaintiff accepted this position and was required to pass a Village of Whitehouse physical examination, psychological examination, alcohol and drug tests as well as a background check.
5. Plaintiff successfully passed these examinations and the background check and was hired by the Village of Whitehouse as a full time police officer.
6. As part of the employment agreement among the parties, Plaintiff was provided a detailed personnel policy procedure handbook, that explained the rights and obligations of the parties, including all disciplinary procedures. (See Plaintiff's Exhibit two (2)[.]
7. As a result of the Defendants providing this detailed policy procedure handbook to Plaintiff, the employment "at-will" agreement among the parties was an implied contract among the parties. * * *

{¶ 29} Based on these stated facts and review of the attached documents, we cannot say appellant failed to show that an employment agreement existed. See , e.g. , Armstrong v. Feldhaus , 87 Ohio App. 75, 93 N.E.2d 776 (1st Dist.1950), paragraph two of the syllabus (stating "[A] plaintiff is required to plead only the facts constituting a cause of action. He is not required to plead any theory or classification of the cause of action set forth."). In viewing reasonable inferences favorably toward appellant, we find it is reasonable to infer that based on facts pled a contract existed in which appellant received compensation for being a police officer. Our determination is despite the legal theory not being expressly stated in the amended complaint. Id.

{¶ 30} Nevertheless, even accepting there was an employment agreement among the parties, we cannot say facts show appellees breached that agreement. This is because appellant was susceptible to being terminated as an at-will employee, and nothing stated in the amended complaint changes that status or the resulting outcome.

{¶ 31} The policy manual explicitly details appellant's at-will status. Attached as the fifth page of "Exhibit 2" is a document which is signed by appellant and which is entitled "Employee Agreement and Handbook Acknowledgement." It reads as follows:

This Personnel Policy Manual highlights the Village of Whitehouse's policies, procedures, and benefits. In all instances the official benefit plan texts, trust agreements and master contracts are the governing documents. Your Personnel Policy is not to be interpreted as a legal document or an employment contract. Employment with the Village of Whitehouse is at the sole discretion of the Village of Whitehouse and may be terminated with or without cause at any time and for any reason. Nothing in the Personnel Policy Manual constitutes as express or implied contract or assurance of continued employment or implies that just cause is required for termination.

{¶ 32} Consequently, our de novo review reveals appellant was subject to being terminated with or without cause. Nothing in the policy manual provides otherwise, and thus appellant fails to state a cause of action for breach of contract.

Charter of the village of Whitehouse

{¶ 33} Section 4.08(C), entitled "Executive Powers," of the charter of the village of Whitehouse, Ohio states as follows:

Except as otherwise provided by this Charter, the Mayor shall have the power to appoint, promote, transfer, suspend, reduce or remove any officer or employee of the Municipality except those required by this Charter to be elected or appointed; provided, however that such appointment, promotion, reduction or removal of officers provided for by this Charter and the heads of departments of divisions established pursuant thereto shall not take effect without the concurrence of a majority of the members of Council.

{¶ 34} Here, appellant asserts that an exception to the general rule governing termination of at-will employees exists where an at-will employee is terminated in contravention of a procedure set out in the charter of the village of Whitehouse.

{¶ 35} Nevertheless, we note that this procedure is not imposed by the Ohio or U.S. Constitution, federal or state statutes, administrative rules and regulations, or Ohio common law. See Beckloff , 2017-Ohio-4467, 93 N.E.3d 329, at ¶ 35. Further, appellant has not pointed to persuasive legal authority to support that such local law provides exception to the general rule that termination of an at-will employee does not give rise to an action for damages. See , e.g. , Giannini-Baur v. Schwab Retirement Plan Servs. , 9th Dist. Summit No. 25172, 2010-Ohio-6453, 2010 WL 5548784, ¶ 28 (holding that the clarity element cannot be established by local law).

{¶ 36} Accordingly, appellant's arguments are not well-taken, and his sole assignment of error is denied.

Conclusion

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

Judgment affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.


author: PER CURIAM.

text:
    In re: Miguel ESTRADA, Petitioner, v. Christopher LAROSE, Warden, Respondent.
    No. 18 MA 0002
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    DATED: June 15, 2018
    Miguel Estrada, # 77368408, Core Civic, fka Northeast Ohio Correctional Center, 2240, Hubbard Road in Youngstown, Ohio 44505, Pro se and
    Christopher Larose, Warden, Core Civic, fka Northeast Ohio Correctional Center, 2240, Hubbard Road in Youngstown, Ohio 44505, Pro se.
    BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
    OPINION AND JUDGMENT ENTRY
   PER CURIAM.

{¶ 1} Petitioner Miguel Estrada, proceeding on his own behalf, has filed a petition for a writ of habeas corpus. The petition alleges that he is being imprisoned and restrained of his liberty at the Northeast Ohio Correctional Center (NEOCC), operated by Core Civic, located at 2240 Hubbard Road in Youngstown, Mahoning County, Ohio.

{¶ 2} The writ of habeas corpus is an extraordinary writ and will only be issued in certain circumstances of unlawful restraint of a person's liberty where there is no adequate legal remedy of law. In re Pianowski , 7th Dist. No. 03 MA 16, 2003-Ohio-3881, 2003 WL 21689326 ; State ex rel. Pirman v. Money , 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). The burden is on the Petitioner to establish a right to release. Halleck v. Koloski , 4 Ohio St.2d 76, 212 N.E.2d 601 (1965).

{¶ 3} The habeas petition is deficient on several grounds. First, the petition does not allege an unlawful restraint. R.C. 2725.01 provides: "Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which custody such person is unlawfully deprived, may prosecute a writ of habeas corpus * * *." (Emphasis added.) The petition states that he is "imprisoned and restrained of his liberty." Petitioner does not claim that he is being restrained unlawfully, and therefore, he has failed to allege the first and primary element of a habeas action.

{¶ 4} Second, Petitioner did not attach his commitment papers to the petition. R.C. 2725.04 requires the following:

Application for the writ of habeas corpus shall be by petition, signed and verified either by the party for whose relief it is intended, or by some person for him, and shall specify:
* * *
(D) A copy of the commitment or cause of detention of such person shall be exhibited, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear.

{¶ 5} The Ohio Supreme Court has explained, "[t]hese commitment papers are necessary for a complete understanding of the petition. Without them, the petition is fatally defective. When a petition is presented to a court that does not comply with R.C. 2725.04(D), there is no showing of how the commitment was procured and there is nothing before the court on which to make a determined judgment except, of course, the bare allegations of petitioner's application." Bloss v. Rogers , 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). The papers must be included with the petition and failure to file them cannot be cured by filing them at some later point in the habeas proceedings. Boyd v. Money , 82 Ohio St.3d 388, 389, 696 N.E.2d 568 (1998) ; Davis v. Banks , 7th Dist. No. 12 NO 397, 2013-Ohio-1852, 2013 WL 1896821, ¶ 8.

{¶ 6} Third, it does not contain an affidavit of prior civil actions. When an inmate files a civil action against a governmental entity or employee, R.C. 2969.25(A) requires the petitioner to file an affidavit with the petition describing all civil actions and appeals that petitioner has filed in state or federal court within the past five years. The Ohio Supreme Court has held that the "requirements of R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an inmate's complaint." State ex rel. Hall v. Mohr , 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4.

{¶ 7} Fourth, Petitioner has alleged facts that defeat our jurisdiction over the petition. Petitioner alleges he is being restrained at NEOCC by Core Civic. This Court has recognized and takes judicial notice of the fact that NEOCC is a facility housing, at least in part, federal inmates awaiting action in federal court. Perotti v. Warden , 7th Dist. No. 05-MA-102, 2005-Ohio-3780, 2005 WL 1719961. See also Brown v. Ohio , N.D.Ohio No. 1:15 CV 380, 2015 WL 5165480 (Aug. 28, 2015) ; Core Civic, Northeast Ohio Correctional Center, http://www.corecivic.com/facilities/northeast-ohio-correctional-center#jc-details (accessed Apr. 3, 2018). The Ohio Supreme Court has held that:

State courts lack jurisdiction to determine a habeas corpus petition filed by an inmate of a federal prison. See, e.g., Ex Parte Bushnell (1858), 8 Ohio St. 599, 601 ; Perotti v. Northeast Ohio Correctional Corp. Warden, Mahoning App. No. 05-MA-102, 2005-Ohio-3780[2005 WL 1719961], ¶ 4 ("this state court lacks jurisdiction to determine a habeas petition filed by an inmate of a facility housing federal prisoners"); State v. Goist, Trumbull App. No. 2002-T-0136, 2003-Ohio-3549[2003 WL 21517983], ¶ 25 (state common pleas court lacked jurisdiction over federal inmate housed in another state); R.C. 2725.03.

Perotti v. Stine , 113 Ohio St.3d 312, 2007-Ohio-1957, 865 N.E.2d 50, ¶ 5 (2007).

{¶ 8} Because this Court is a state court, it is legally incompetent to determine a habeas corpus petition filed by an inmate in federal custody, and petitioner has given us no indication that he is other than a federal inmate in a federal facility.

{¶ 9} Accordingly, we sua sponte dismiss the petition for a writ of habeas corpus for lack of jurisdiction and for the aforementioned procedural faults.

{¶ 10} Final order. Clerk to serve notice as provided by the Rules of Civil Procedure. Costs taxed to Petitioner.

{¶ 11} Copy to counsel or unrepresented party, as well as the U.S. Attorney's Office, 100 Federal Plaza East, Youngstown, Ohio 44503 and Ohio Attorney General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215.

JUDGE GENE DONOFRIO

JUDGE CHERYL L. WAITE

JUDGE CAROL ANN ROBB


author: TYACK, J.

text:
    ABC HOME CARE AND NURSING SERVICES, INC., Plaintiff-Appellant, v. MOLINA HEALTHCARE OF OHIO, INC., Defendant-Appellee.
    No. 17AP-582
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on June 19, 2018
    On brief: Torres Law LLC, and Dustin G. Torres, Columbus, for appellant. Argued: Dustin G. Torres.
    On brief: Perez & Morris LLC, Juan Jose Perez, Columbus, and Kevin L. Murch, for appellee. Argued: Kevin L. Murch.
    DECISION
   TYACK, J.

{¶ 1} Plaintiff-appellant, ABC Home Care and Nursing Services, Inc. ("ABC Home Care") appeals from the July 24, 2018 entry of the trial court finding that ABC Home Care's claims are subject to mandatory arbitration, and staying this lawsuit pending the arbitration. For the reasons that follow, we affirm in part and reverse in part the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} According to the complaint, ABC Home Care is a home care agency providing nursing care, physical therapy, occupational therapy, speech pathology, and home health aide services to patients in Ohio. Defendant-appellee, Molina Healthcare of Ohio, Inc. ("Molina") is a provider of health insurance plans in Ohio, and is a part of the Molina network of health plan providers serving approximately one million members in California, Michigan, New Mexico, Ohio, Texas, Utah, and Washington.

{¶ 3} Molina and ABC Home Care entered into an Ancillary Services Agreement ("ASA") in 2008 that made ABC Home Care a participating provider for Molina's members in the categories of "Covered Families and Children, Aged, Blind and Disabled, and Medicare."

{¶ 4} The ASA contained the following arbitration provision:

Arbitration. Any claim or controversy arising out of or in connection with this Agreement shall be resolved, to the extent possible, within forty-five (45) days through informal meetings and discussions between appropriate representatives of the parties. Any remaining claim or controversy shall be resolved through binding arbitration conducted in accordance with the American Arbitration Association (hereinafter "AAA") Commercial Arbitration Rules, then in effect, in Columbus, OH; provided, however, matters that primarily involve Provider's professional competence or conduct shall not be eligible for arbitration. If possible, the arbitrator shall be an attorney with at least fifteen (15) years' experience, including at least five (5) in managed health care. The parties shall conduct a mandatory settlement conference at the initiation of arbitration, to be administered by AAA. The arbitrator shall have no authority to award damages or provide a remedy that would not be available to such prevailing party in a court of law or award punitive damages. Each party shall bear its own costs and expenses, including its own attorneys' fees, and shall bear an equal share of the arbitrator's and administrative fees. The parties agree to accept any decision by the arbitrator as a final determination of the matter in dispute, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Arbitration must be initiated within one year of the earlier of the date the claim or controversy arose, was discovered, or should have been discovered with reasonable diligence; otherwise it shall be deemed waived. The use of binding arbitration shall not preclude a request for equitable and injunctive relief made to a court of appropriate jurisdiction.

(Compl., Ex. A at ¶ 5.8.) A dispute arose between the parties in 2015 over Molina's denial of a request for a large hospital bed and twice daily nursing care for a patient who weighed approximately 600 lbs. Eventually, ABC Home Care contacted the Ohio Department of Insurance and the Ohio Department of Medicaid regarding the situation, and Molina was ultimately reprimanded.

{¶ 5} Shortly thereafter, Molina exercised Section 4.5(g) of the ASA and sent ABC Home Care a written notice of termination of ABC Home Care's participation in the Molina healthcare network for the stated reason that ABC Home Care "has provided poor quality of care and service to Molina members." (Compl., Ex. B at ¶ 23.)

{¶ 6} ABC Home Care alleged that following the termination of the ASA, Molina made false statements and disparaged ABC Home Care's name, reputation, and goodwill to ABC Home Care's active clients and third parties in retaliation for ABC Home Care being a whistleblower.

{¶ 7} ABC Home Care claimed that Molina "essentially blacklist[ed]" ABC Home Care from being able to provide care to any patient affiliated with Molina and refused to allow ABC Home Care to be a non-participating provider because Molina terminated the ASA under the allegedly false reason that ABC Home Care provided poor quality of care.

{¶ 8} On February 13, 2017, ABC Home Care filed a complaint in the common pleas court setting forth claims for defamation, tortious interference with a contract and/or business relationship, and breach of contract. The defamation claim was based on allegations that Molina made false and defamatory statements to ABC Home Care clients and third parties after the termination of the ASA. The tortious interference claim had to do with Molina allegedly making those disparaging and false statements to clients of ABC Home Care to induce the clients to terminate their business relationships with ABC Home Care. The breach of contract claim involved underpayment for care that ABC Home Care provided as a non-participating provider after the termination of the ASA. ABC Home Care also included a claim for punitive damages.

{¶ 9} On March 30, 2017, Molina filed a motion to stay the action pending arbitration on the grounds that all of ABC Home Care's claims relate to and arise out of the ASA which contains an arbitration provision. After briefing by the parties, the trial court granted the motion to stay the action pending arbitration on July 24, 2017.

{¶ 10} This appeal followed with ABC Home Care setting forth seven assignments of error.

II. ASSIGNMENTS OF ERROR

[I.] THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CLAIMS ARE SUBJECT TO MANDATORY ARBITRATION, AND THAT THE MATTER IS PROPERLY STAYED PENDING ARBITRATION PURSUANT TO R.C. § 2711.02.
[II.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IGNORING THAT APPELLEE PROPERLY TERMINATED ITS ENTIRE PRIOR AGREEMENT WITH APPELLANT, INCLUDING THE ARBITRATION CLAUSE IN QUESTION.
[III.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IGNORING THAT FOLLOWING TERMINATION OF THE ARBITRATION CLAUSE, THE PARTIES NEVER ENTERED INTO A NEW WRITTEN AGREEMENT TO ARBITRATE.
[IV.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IGNORING THAT APPELLANT'S CLAIMS DID NOT ARISE OUT OF THE AGREEMENT, THAT APPELLANT'S CLAIMS AROSE AFTER TERMINATION OF THE AGREEMENT, AND THAT APPELLANT'S CLAIMS AROSE FROM ACTS OF THE APPELLEE.
[V.] THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CLAIMS ARE SUBJECT TO MANDATORY ARBITRATION, BECAUSE SUCH A BROAD ARBITRATION CLAUSE WOULD MAKE IT UNCONSCIONABLE.
[VI.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO FIND THE ARBITRATION CLAUSE TO BE SUBSTANTIVELY AND PROCEDURALLY UNCONSCIONABLE TO APPELLANT.
[VII.] THE TRIAL COURT ERRED IN FINDING THE APPELLANT'S CLAIMS SUBJECT TO ARBITRATION, WHEN SUCH A BROAD INTERPRETATION OF THE ARBITRATION CLAUSE WOULD BE AGAINST PUBLIC POLICY.

III. STANDARD OF REVIEW

{¶ 11} The trial court stayed the action pursuant to R.C. 2711.02(B), which provides, in relevant part, as follows:

If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.

{¶ 12} In general, appellate courts review a trial court's decision to stay proceedings pending arbitration under an abuse of discretion standard. White v. Equity, Inc. , 178 Ohio App.3d 604, 2008-Ohio-5226, 899 N.E.2d 205, ¶ 7 (10th Dist.) For issues of law, however, a de novo standard of review is proper. Id.

IV. ANALYSIS

{¶ 13} For ease of discussion, we elect to address the assignments of error out of order.

A. Did the Arbitration Clause Survive the Termination of the ASA?

{¶ 14} In its second and third assignments of error, ABC Home Care contends that the arbitration clause terminated at the same time Molina terminated the ASA on February 26, 2016, and the clause did not survive the termination of the agreement. In addition, ABC Home Care argues that, even though the parties entered into a new agreement to provide non-participating services, they never entered into a new, written agreement to arbitrate.

{¶ 15} In Colegrove v. Handler , 34 Ohio App.3d 142, 145, 517 N.E.2d 979 (10th Dist.1986), the defendant terminated the contract before attempting to enforce the arbitration provision. The plaintiff argued that the termination of the contract before seeking to invoke the arbitration provision waived the right to demand arbitration. The court disagreed, stating: "There is no reason, absent a specific contractual provision, to restrict arbitrability to disputes that arise under the contract to situations where the demand for arbitration precedes the termination of the contract." Id. Similarly, in K.M.P., Inc. v. Ohio Historical Society , 4th Dist. No. 03CA2, 2003-Ohio-4443, 2003 WL 21995291, ¶ 19, the court found that a party who terminated the contract before seeking to enforce the arbitration provision did not waive the right to arbitrate in light of the strong public policy favoring arbitration.

{¶ 16} Based on this precedent, we find that the law favors arbitration and we cannot infer a waiver of the right to arbitrate based solely on the fact that Molina terminated the ASA before it filed its motion to stay pending arbitration.

{¶ 17} The second and third assignments of error are overruled.

B. Do the Claims Arise Out of the ASA?

{¶ 18} Having determined that the arbitration provision survived the termination of the ASA, we now turn to the overarching issue in this case. In the first and fourth assignments of error, we must consider whether the contract claim and the tort claims arise from the ASA and are therefore subject to arbitration.

{¶ 19} ABC Home Care asserts that all of its claims arose after the termination of the ASA, and that the provisions of the ASA do not afford any reasonable expectation that after the agreement was terminated, Molina could proceed to commit unrelated torts against ABC Home Care and that those torts would somehow still be subject to arbitration.

{¶ 20} Molina argues that the breach of contract claim arises out of the ASA and that the tort claims center around Molina's termination of the ASA. Therefore, Molina contends that all of the alleged conduct related to its termination of the ASA.

{¶ 21} To determine whether the claims asserted in a complaint fall within the scope of the arbitration clause, the court must classify the particular clause as either broad or narrow. Acad. Of Med. v. Aetna Health, Inc. , 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶ 18. "An arbitration clause that contains the phrase 'any claim or controversy arising out of or relating to the agreement' is considered 'the paradigm of a broad clause.' " Id. , quoting Collins & Aikman Prods. Co. v. Bldg. Sys., Inc. , 58 F.3d 16, 20 (2d Cir.1995).

{¶ 22} In this case, the arbitration clause in the ASA broadly subjects "[a]ny claim or controversy arising out of or in connection with this Agreement" to resolution "through binding arbitration." (Compl., Ex. A at 11.)

{¶ 23} "A presumption favoring arbitration arises when the claim in dispute falls within the scope of the arbitration provision." Williams v. Aetna Fin. Co. , 83 Ohio St.3d 464, 471, 700 N.E.2d 859 (1998). In Ohio, four principles guide determinations of arbitrability. Acad. of Med. at ¶ 10. First, arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Second, arbitrability is an issue for judicial determination. Third, in deciding whether the parties have agreed to submit a particular grievance to arbitration, the court is not to rule on the potential merits of the underlying claims. Fourth, where a contract contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

{¶ 24} When a contract contains an arbitration clause, alleged torts that arise from the contract are also subject to arbitration "if the allegations underlying the claims 'touch matters' covered by the [agreement]." Fazio v. Lehman Bros., Inc. , 340 F.3d 386, 395 (6th Cir.2003), quoting Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir.1987). In determining whether a particular claim falls within the scope of the parties' arbitration agreement, the court is to focus on the factual allegations in the complaint rather than the legal causes of action asserted. Id. "A proper method of analysis here is to ask if an action could be maintained without reference to the contract or relationship at issue. If it could, it is likely outside the scope of the arbitration agreement." Id. , citing Ford v. NYLCare Health Plans , 141 F.3d 243, 250-51 (5th Cir.1998).

{¶ 25} With respect to the breach of contract claim, ABC Home Care alleges that following the termination of the ASA, ABC Home Care was authorized to continue to provide care and services as a non-participating provider for a limited time to three patients. ABC Home Care billed Molina for those services at its normal rate as a non-contracted, non-participating provider. According to the complaint, Molina paid a portion of the amount owed, but it failed to pay the total amount invoiced for services and care.

{¶ 26} Molina argues this was not a new contract, but a continuation of the ASA for a limited period of time even though Molina had terminated the ASA.

{¶ 27} The breach of contract claim does not appear to implicate the ASA. Rather, it arises as a result of a billing dispute over non-participating services for the months of March, April, and May 2016, a period after the termination of the ASA. This claim does not appear to be so interwoven with the ASA that it could not stand alone. The claim appears to be one that can be resolved without reference to the ASA. Accordingly, we conclude that the breach of contract claim is not subject to arbitration.

{¶ 28} The tort claims also allegedly arose after the termination of the ASA, but those claims cannot be maintained without reference to the ASA. The tortious interference claim is based on the allegation that Molina essentially blacklisted ABC Home Care from being able to provide care to any patient affiliated with Molina because Molina terminated the ASA under the allegedly false reason that ABC Home Care provided poor quality of care. ABC Home Care has alleged that Molina's refusal to allow ABC Home Care to be a non-participating provider was in retaliation for a whistleblower complaint filed by ABC Home Care with the Ohio Department of Medicaid and the Ohio Department of Insurance.

{¶ 29} The allegedly false and pretextual reasons for terminating the ASA also underlie the defamation claim. ABC Home Care alleged that Molina terminated the ASA and made false statements to third parties in retaliation for ABC Home Care being a whistleblower and filing the complaint about a patient. The punitive damages claim is also based on the allegedly malicious false statements in retaliation for ABC Home Care filing the complaint against Molina. The tort claims cannot be resolved without reference to the ASA and the allegedly false reason for the termination of the ASA. These claims therefore arise from the ASA and are subject to arbitration.

{¶ 30} When an action has claims that are both arbitrable and non-arbitrable, it is appropriate to stay the entire action until the issues subject to arbitration are resolved. Morris v. Morris , 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d 928, ¶ 14 (10th Dist.) ; Cheney v. Sears, Roebuck & Co. , 10th Dist. No. 04AP-1354, 2005-Ohio-3283, 2005 WL 1515388, ¶ 12.

{¶ 31} The first and fourth assignments of error are therefore sustained in part with respect to the breach of contract claim, but overruled with respect to the tortious interference and defamation claims.

C. Unconscionability and Public Policy

{¶ 32} In its fifth, sixth, and seventh assignments of error, ABC Home Care argues that to enforce the arbitration clause is so unjust and one-sided as to make it unconscionable and against public policy. ABC Home Care argues the arbitration provision unconscionably reduces the time period within which one can initiate arbitration proceedings, unreasonably restricts the type and amount of damages, and excludes matters that involve a provider's professional competence or conduct from arbitration. In addition, ABC Home Care argues the provision is against public policy as it subjects parties to arbitration of claims that arise after the termination of the ASA.

{¶ 33} We have already addressed the issue of the survivability of the arbitration clause after the termination of the ASA in connection with assignments of error two and three. With respect to the allegedly unconscionable provisions such as a one-year statute of limitations, no punitive damages, and exclusion of some claims from arbitration, ABC Home Care failed to raise any of these arguments before the trial court. A party who fails to raise an argument in the trial court if that issue was in existence at the time waives the right to raise it on appeal. Greenberg v. Heyman-Silbiger , 10th Dist., 2017-Ohio-515, 78 N.E.3d 912, ¶ 50.

{¶ 34} In order to establish that the arbitration provision is unconscionable, ABC Home Care must prove an absence of meaningful choice (procedural unconscionability) together with terms that are unreasonably favorable to the other party (substantive unconscionability). Hayes v. Oakridge Home , 122 Ohio St.3d 63, 2009-Ohio-2054, ¶ 20, 908 N.E.2d 408. Moreover, the party challenging the enforceability of the arbitration agreement bears the burden to come forward with evidence to support the challenge.

{¶ 35} Here, there is no evidence in the record demonstrating unequal bargaining power between the home care agency and the health plan provider, two commercial entities. In Hayes , the Supreme Court of Ohio held that an arbitration agreement voluntarily executed by a 95-year-old nursing home resident with a nursing home upon her admission was not procedurally unconscionable by virtue of her age and was not substantively unconscionable because it waived the right to trial and the right to seek punitive damages and attorney fees.

{¶ 36} The fifth, sixth, and seventh assignments of error are overruled.

V. CONCLUSION

{¶ 37} Based on the foregoing, we sustain in part and overrule in part assignments of error one and four to the extent that the contract claim is non-arbitrable, and we overrule assignments of error two, three, five, six, and seven. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and we remand the matter with instructions for the trial court to stay further proceedings pending the disposition of the arbitrable claims.

Judgment affirmed in part and reversed in part; case remanded for further proceedings.

BRUNNER and HORTON, JJ., concur.

      The complaint states the agreement was entered into in 2008, but ABC Home Care's brief states it was in 2012. (Appellant's Brief at 10.) Molina states the agreement was entered into in 2012.

      The notice of termination is dated February 26, 2015, but this appears to be a typographical error.