source: Caselaw Access Project

license: Public Domain

text:
    BASISTA HOLDINGS, LLC, Appellant v. ELLSWORTH TOWNSHIP, Appellee
    NO. 16 MA 0181
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: December 22, 2017
    Atty. Frank Bodor, 157 Porter Street NE, Warren, Ohio 44501, for Appellant.
    Atty. James F. Mathews, Atty. Tonya J. Rogers, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, Ohio 44720, for Appellee.
   JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb

OPINION

WAITE, J.

{¶ 1} Appellant Basista Holdings, LLC appeals the decision of the Mahoning County Court of Common Pleas affirming the Ellsworth Township Board of Zoning Appeals ("BZA") decision in favor of Appellee, Ellsworth Township. Based on the following, we find Appellant's assignments of error in this administrative appeal are without merit and the judgment of the common pleas court is affirmed.

Factual and Procedural History

{¶ 2} The parties have a long and tortuous history of litigation in this dispute regarding an 18-acre property located on State Route 45 in Ellsworth Township, Mahoning County, Ohio ("the property"). Appellant is a limited liability company. The owner and sole member of this limited liability company is David J. Lewis. Appellant purchased the property on May 20, 2003. At the time of the purchase the property consisted of two parcels which were consolidated into a single parcel in 2007.

{¶ 3} On July 24, 2007, Appellant submitted an application for a zoning certificate to then zoning inspector, Diane Dudek ("Dudek"), to allow for industrial use of the entire property, which had a frontage of 900 feet and a depth of 871 feet. Dudek approved the application in a letter dated September 14, 2007. The approval was taken before the Ellsworth Township Trustees at a meeting on October 8, 2007. These actions triggered a great deal of litigation, a synopsis of which follows.

The Lyden Lawsuit

{¶ 4} A neighboring property owner ("the Lydens") contacted Dudek to inform her that the industrial classification of the property was in error and contrary to the existing 1969 zoning ordinance. The Lydens subsequently filed a lawsuit against Appellant, David Lewis, the Ellsworth Township Zoning Inspector and the Ellsworth Township Trustees, as well as the Ohio Department of Natural Resources. The complaint alleged that the property's prior owner was East Fairfield Coal Company, which had operated the site as a coal tipple until 1970. This use left the property polluted and subject to reclamation under state and federal laws. The property was zoned agricultural, but a nonconforming use by East Fairfield Coal Company had been allowed. The complaint alleged that allowing any industrial use of the property would create additional pollution and damage to neighboring properties and a stream shared by these neighbors and Appellant. Important to all the litigation that followed, Dudek was deposed during the course of this lawsuit. She testified that she had believed the property was zoned industrial at the time she approved Appellant's application, but realized after the Lydens' suit was filed that she was incorrect. She stated that she had never revoked the permit issued to Appellant, however. The lawsuit was subsequently dismissed by the Lydens, but they lodged numerous complaints with the township alleging that Appellant was in violation of the township zoning ordinance.

The Kurilla Lawsuit-Enforcement Action

{¶ 5} Laura Lewis, the wife of David Lewis, was an authorized representative for Appellant and also served on the Ellsworth Township Board of Trustees in 2011. At the suggestion of legal counsel, the township retained Michael Kurilla ("Kurilla") as a deputy zoning inspector to investigate all complaints against Appellant to avoid any conflict of interest while Laura Lewis served as a trustee.

{¶ 6} On September 1, 2011, Kurilla issued two notices of zoning violations to Appellant regarding both the subject property and another, separate property owned by Appellant in the township. The other property was subsequently transferred to Laura Lewis and is not involved in this appeal. Appellant appealed Kurilla's notice of zoning violation as to the subject property. In 2012 Appellant submitted a revised site plan for the property, which was denied on October 10, 2012. This denial was also appealed, however, Appellant later dismissed both of these appeals.

{¶ 7} As Appellant had failed to remedy the issues regarding the zoning violation, Kurilla, in his capacity as zoning inspector, filed a complaint against Appellant in the Mahoning County Court of Common Pleas. Appellant filed a counterclaim, seeking declaratory judgment regarding the zoning classification of the property. Appellant also sought injunctive relief and monetary damages. While the counterclaim also alleged a violation of the Ohio Open Meetings Act, this claim was later dismissed. Appellant's remaining counterclaims were bifurcated for trial purposes. Trial was held before a magistrate on March 23, 2015. In a decision dated April 8, 2015, the magistrate found that the 1969 Ellsworth Township Zoning Map was unambiguous and that the parties' rights were determined by the Ellsworth Township Zoning Resolution which incorporated this zoning map. Based on this, the magistrate determined that the property was zoned industrial only to a depth of 500 feet. Appellant filed objections, and a hearing was held before the trial court, which adopted the magistrate's decision and dismissed the objections. An appeal of that decision is currently pending in this Court (Case No. 16 MA 0101).

Federal Lawsuit

{¶ 8} On August 27, 2014, Appellant filed a lawsuit in the Mahoning County Court of Common Pleas, alleging the same claims raised in its counterclaims in the Kurilla lawsuit: declaratory judgment, injunctive relief, money damages for a 42 U.S.C. 1983 unconstitutional deprivation of Appellant's use of its property, and a violation of Ohio's Open Meetings Act. The named defendants in that action-Ellsworth Township, Kurilla, Dudek, and other township officials in their official capacity, had the action removed to federal court based on the 1983 claim.

{¶ 9} In federal court, the defendants filed a motion for summary judgment alleging Appellant's claim was untimely, which was granted by the district court. The court held that Appellant knew or should have known of its injury in May of 2009 following Dudek's deposition. As the complaint was not filed until August 27, 2014, it was filed after the statute of limitations had run. Ultimately, the district court granted judgment to defendants on the first three claims based on the statute of limitations, and granted judgment to defendants on the allegations regarding the Open Meetings Act, because Appellant failed to produce any evidence of violation. While Appellant did not further appeal the Open Meetings Act claim, Appellant did appeal the other three counts to the Sixth Circuit Court of Appeals.

{¶ 10} In an opinion dated October 11, 2017, the Sixth Circuit Court of Appeals held that the statute of limitations on the 42 U.S.C. 1983 claim began to run when Appellant attended Dudek's deposition in May of 2009. Basista Holdings, LLC v. Ellsworth Twp. , 710 Fed.Appx. 688 (6th Cir. 2017). In her deposition testimony, Dudek admitted that her decision to approve Appellant's permit was not valid, and she was mistaken that the property was located within an industrial zone. At that point, Appellant was put on notice that its legal rights were at risk. Therefore, the Sixth Circuit affirmed the district court's dismissal of the 42 U.S.C. 1983 claim. Id. at 693-94. The Sixth Circuit also affirmed the district court's dismissal of Appellant's state law claims based on res judicata. Appellant had argued that the federal district court lacked jurisdiction over state claims once it concluded the federal claim was barred by the statute of limitations. The Sixth Circuit held, "Once the § 1983 claim was dismissed, however, the district court had the discretion to decline to exercise its supplemental jurisdiction over the state-law claims." Id. at 694. However, the Sixth Circuit concluded that, as the district court had spent nearly two years on this matter, the court was "very invested in this case, and was undoubtedly familiar with the parties, the facts, and the claims." Id. at 695. Because the state law claims filed by Appellant and removed to federal court were virtually identical to those claims already decided in the Kurilla enforcement action in Mahoning County Common Pleas Court, the federal district court was correct in dismissing them based on res judicata. The Sixth Circuit acknowledged that the claims decided by the common pleas court and those pending in federal court involved the same parties, same facts, same legal basis and same requests for relief. The Sixth Circuit determined that, although an appeal of the state claims was pending in the state court system, this did not preclude the doctrine of res judicata from taking effect. Id. Therefore, the Sixth Circuit held the remaining Ohio law claims were barred by this doctrine. Id. at 696.

Current Lawsuit

{¶ 11} As reflected in the sheer volume of litigation and evidenced by Appellant's lengthy recitation of facts in its brief on appeal, this matter has a long and tortured history that has been greatly abbreviated, here. However, as discussed, Appellant's issues have been raised in some form not once, but in four separate suits: the Lyden lawsuit, the Kurilla action, the federal lawsuit, and the instant case. Appellant's arguments relate to alleged defects in the 1969 Ellsworth Township Zoning Ordinance and in Ellsworth's determination that most of Appellant's property is zoned for agricultural use rather than industrial.

{¶ 12} Following the March 23, 2015 trial in the Kurilla enforcement action, the Ellsworth Township Trustees introduced and passed a zoning amendment that did not change the depth of the industrial district as it applied to Appellant, but did include uniform setbacks and buffering requirements for all industrial districts. The amendment was introduced at a meeting on April 15, 2015 and became effective August 1, 2015.

{¶ 13} On March 26, 2015, Appellant submitted yet another permit application and site plan to the township zoning inspector. The application proposed utilizing a portion of the property for self storage buildings, and the remainder for a cement batch plant, where materials would be mixed to prepare ready-mix concrete. (10/12/15 Ellsworth Twp. Zoning Commission Public Hearing, Tr., p. 54.)

{¶ 14} In a letter dated June 16, 2015, Appellant's permit application was denied by the township zoning inspector for, among other things, failure to comply with an enclosure requirement set forth in the new zoning ordinance. As Appellant's plan did not provide that the entire cement batch operation would take place in an enclosed space, it failed to meet the specifications of the zoning ordinance.

{¶ 15} Appellant appealed the zoning inspector's decision to the BZA. Along with the appeal, Appellant filed two requests for variances: a use variance for the rear portion of the property seeking to use that portion for industrial, rather than agricultural, purposes and an area variance regarding setbacks which were enacted in the 2015 amendment.

{¶ 16} A public hearing was held on October 12, 2015. At its conclusion, the BZA went into executive session. After returning from executive session and reopening the regular meeting, the BZA voted unanimously to uphold the decision of the zoning inspector regarding the permit application and to deny both variance requests. Appellant filed an administrative appeal to the Mahoning County Court of Common Pleas. In a judgment entry dated November 1, 2016, the trial court upheld the decision of the BZA, concluding it properly interpreted the zoning ordinance to deny the permit request as well as in denying the two requests for variances.

{¶ 17} Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN REFUSING TO RULE ON THE ISSUE OF THE VALIDITY AND CONSTITUTIONALITY OF THE ELLSWORTH TOWNSHIP ZONING ORDINANCE AND MAP.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN APPLYING THE PRINCIPAL OF "RES JUDICATA" WHERE THE JUDGMENTS RELIED UPON WERE INCONSISTENT AND INCORRECT ON THEIR FACE AND WERE PENDING ON APPEAL INVOLVING THE SAME ISSUES.

{¶ 18} In its first and second assignments of error, Appellant sets forth a recitation of most of the same arguments raised during the earlier state and federal lawsuits regarding the zoning ordinance, whether it qualifies as a comprehensive plan, and whether Appellant's claims are barred by res judicata.

{¶ 19} In this administrative appeal from the BZA decision, the common pleas court is charged with considering the entire record to determine whether the administrative decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of reliable evidence. R.C. 2506.04. That administrative decision is presumed to be valid, and the burden of proving its invalidity is on the party contesting the decision. Solid Rock Ministries, Intl. v. Monroe Bd. of Zoning Appeals , 138 Ohio App.3d 46, 50, 740 N.E.2d 320 (7th Dist.2000).

{¶ 20} An appellate court's review is even more limited in scope. We are to review the decision of the trial court on questions of law, and not as to the weight of the evidence. Henley v. Youngstown Bd. of Zoning Appeals , 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). Appellate courts are not to substitute their judgment for those of an administrative body or common pleas court absent the appropriate criteria. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. , 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988). Thus, absent an error as a matter of law, we will not disturb the decision of the common pleas court.

{¶ 21} We must first determine whether in this administrative appeal Appellant's facial challenge to the constitutionality of the zoning ordinance is properly before us.

The constitutionality of a zoning ordinance may be attacked in two ways. An appeal from an administrative zoning decision can be taken pursuant to R.C. Chapter 2506. In addition, or in the alternative, a declaratory judgment action pursuant to R.C. Chapter 2721 can be pursued.

Karches v. Cincinnati , 38 Ohio St.3d 12, 526 N.E.2d 1350 (1988), paragraph one of the syllabus.

{¶ 22} While a common pleas court is to look at whether an administrative board's decision was constitutional, not all attacks based on alleged unconstitutional action may be brought in an administrative appeal. In Karches , the Ohio Supreme Court discussed the difference between the types of constitutional claims that can be asserted in an administrative appeal versus those which can only be advanced in a declaratory judgment action:

The R.C. Chapter 2506 appeal is a judicial review of a final administrative decision denying a variance to a property owner. The challenge is that a prohibition against a specific proposed use is unconstitutional; and the task of the trial court is to determine whether the prohibition against the specific proposed use has any reasonable relationship to the legitimate exercise of police power by the municipality. Thus, the determination turns on the specific proposed use of the property.
In contrast, a declaratory judgment action challenges the constitutionality of an existing zoning ordinance. The action does not call into issue the denial of a variance, even though, as discussed subsequently, exhaustion of the administrative variance procedure is usually required prior to initiating a declaratory judgment action. The overall constitutionality of a zoning ordinance as applied to a particular parcel of property is the central question. It may, but need not, involve a question as to the constitutionality of a prohibition against a specific proposed use. The declaratory judgment action is independent from the administrative proceedings and it is not a review of a final administrative order. (Citations omitted.)

Id. at 16, 526 N.E.2d 1350.

{¶ 23} Here, Appellant broadly challenges the constitutionality of the 1969 zoning ordinance as a whole, even though maintaining that it is challenging the ordinance "as applied" to Appellant's property. While an "as applied" constitutional challenge is properly reviewed in an administrative appeal, when Appellant's challenge is read in its entirety, Appellant is clearly making an attack on the constitutionality of the 1969 zoning ordinance as a whole on its face, citing errors in drafting the ordinance, such as the failure to designate specific property lines so that any purchaser of property would be able to ascertain the zoning designation for a particular property. Appellant's challenge, then, is an attack on the overall constitutionality of the zoning ordinance instead of an attack on the manner in which an otherwise valid ordinance applies to Appellant's property and may not be raised in an administrative appeal.

{¶ 24} In addition, the entirety of Appellant's argument is based on events and issues that transpired prior to the trial held on March 23, 2015 in the Kurilla enforcement action. The identical issues Appellant seeks to address in this administrative appeal were addressed in the Kurilla trial. To the extent Appellant seeks to raise additional claims or add additional evidence regarding these issues, the claims and evidence currently offered were not before the Kurilla court, but should have been raised in that lawsuit.

{¶ 25} The doctrine of res judicata is defined as: "A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. , 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus.

{¶ 26} Res judicata operates to bar subsequent actions by the same parties based on any claim arising (1) out of the same transaction, and (2) that was the subject matter of the previous action. Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. , 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998). Thus, "the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." Grava at 382, 653 N.E.2d 226. A transaction is defined as a "common nucleus of operative facts." Id. Moreover, pursuant to Section 25 of the Restatement of Judgments, claim preclusion operates to "extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action." (Emphasis deleted.) Id. at 383, 653 N.E.2d 226. Thus, any attempt to approach the same claim using a new theory, grounds, evidence or form of relief does not operate to circumvent the res judicata effect.

{¶ 27} With this in mind, we must first determine if, in another case, another court has already litigated the validity of this zoning ordinance. It is clear that the basis on which Appellant presented his case at the administrative appeal below and in this appeal is the same as presented in Appellant's counterclaim in the Kurilla enforcement action and in the federal suit. All of Appellant's claims clearly arise from the identical nucleus of facts and were the subject matter of both other actions. Appellant is making the same assertions on appeal now that were made in both of the other matters regarding the alleged ambiguity of the 1969 zoning map and zoning ordinance. Appellant rests these claims on the identical set of facts introduced in the previous actions and attacks the identical parties. To the extent Appellant raises identical claims, Appellant's claims in this matter are barred by claim preclusion under the doctrine of res judicata. Appellant has had a full and fair opportunity to assert and litigate these claims previously in both the Kurilla enforcement action and in the federal court case.

{¶ 28} Through the counterclaims asserted by Appellant in the Kurilla enforcement action, Appellant had the opportunity to contest the validity and constitutionality of the 1969 zoning ordinance as a whole. Appellant failed to persuade the Kurilla court and the court ruled against Appellant. Since then, Appellant has made numerous attempts to raise these issues, using numerous legal theories, in various forums, including in this administrative appeal. However, res judicata operates to preclude a litigant from multiple bites at the apple and attempting to bring the same claims repeatedly. The trial court did not err in determining that Appellant's claims regarding the constitutionality of the zoning ordinance were barred by res judicata. Again, to the extent Appellant seeks to attack the constitutionality of the zoning ordinance on its face, an administrative appeal is not the proper forum.

{¶ 29} As such, Appellant's first and second assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN DETERMINING, THAT PURSUANT TO ELLSWORTH TOWNSHIP ZONING ORDINANCE, A CEMENT BATCH PLANT THAT IS IN ITSELF AN ENCLOSED STRUCTURE WAS REQUIRED TO BE ENCLOSED IN ANOTHER ENCLOSED STRUCTURE IS ARBITRARY, CAPRICIOUS, UNREASONABLE
AND UNSUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE BASED ON THE WHOLE RECORD AND DOES NOT BEAR A REASONABLE RELATIONSHIP TO PUBLIC, HEALTH, SAFETY, MORALS OR GENERAL WELFARE.

{¶ 30} In Appellant's third assignment of error, it contends the trial court erred in upholding the decision of the BZA denying Appellant's permit to build a cement batch plant. Appellant argues that its plan did not violate the township zoning ordinance.

{¶ 31} "An administrative agency's reasonable interpretation of local zoning codes is recognized as an area of administrative expertise and is to be presumed valid." Glass City Academy, Inc. v. Toledo , 179 Ohio App.3d 796, 2008-Ohio-6391, 903 N.E.2d 1236, ¶ 18 (6th Dist.), citing Lamar Outdoor Advertising, Inc. v. Dayton Bd. of Zoning Appeals , 2d Dist. No. 20158, 2004-Ohio-4796, 2004 WL 2009311, ¶ 6.

{¶ 32} A review of the Ellsworth Township Zoning Ordinance, Section XII, Paragraph E reads:

A use allowed in this district shall operate entirely within an enclosed structure, emitting no dust, noxious odor or fumes outside this structure, and no greater noise than the average noise level occurring on the street. Any area used for storage of equipment and supplies, service and loading docks shall be screened by walls or fences at least six (6) feet, but not more than eight (8) feet in height. These walls or fences shall have an opaqueness as to effectively conceal service, storage and loading operations from adjoining streets, and from a residential zoning district.

(Appellee's Brf., Exh. E.)

{¶ 33} Appellant contends that portions of the planned cement batch plant are enclosed: a silo and tubing. However, according to the site plan submitted by Appellant, the entire cement plant itself was not to be enclosed in a structure. The ordinance defines "structure." but not "enclosed structure." The BZA concluded, and the trial court affirmed, that a plain reading of the term "structure," relying in part on the language contained in paragraph E of the ordinance showing that the ordinance provision was intended to prohibit dust, noxious odors or fumes outside the structure, should be interpreted to require that the operation of the plant is to be contained within an enclosure. Appellant's enclosed silo and the tubing leading away from the silo for truck loading do not satisfy that requirement.

{¶ 34} We will not substitute our judgment for that of the BZA regarding interpretation of its ordinance. Due deference should be given to the BZA's reasonable interpretation of its own language. As such, the common pleas court did not err in determining that the BZA correctly interpreted its ordinance and denied Appellant's site plan for failure to comply with the township zoning ordinance. Appellant's third assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN DETERMINING THAT THE BZA'S DECISION TO DENY THE AREA VARIANCE AND USE VARIANCE WERE NOT "UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRCIOUS, [SIC] UNREASONABLE, OR UNSUPPORTED
BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE [SIC].

{¶ 35} In its fourth assignment of error, Appellant asserts the common pleas court erred in affirming the BZA's denial of Appellant's two requested variances. In its appeal to the BZA, Appellant included two requests for variances: a use variance and an area variance.

{¶ 36} A use variance permits the use of land for purposes other than those that are permitted in the zoning regulation. Area variances do not involve the particular use of the land, but relate to structural or lot restrictions placed on property by zoning restrictions such as setbacks or height limitations. See Schomaeker v. First Natl. Bank of Ottawa , 66 Ohio St.2d 304, 306, 421 N.E.2d 530 (1981).

{¶ 37} The township's zoning ordinance makes no distinction between use or area variances, but defines "variance" as:

An adjustment, where, due to some peculiar conditions or circumstances applying to a particular lot, piece or parcel of land or a building or structure located or proposed to be located thereon, where the literal application of the provisions of this would result in undue hardship.

{¶ 38} Unnecessary hardship occurs when a particular parcel of land is left without any economically feasible permitted use because of specific qualities of the property. Hulligan v. Bd. of Zoning Appeals , 59 Ohio App.2d 105, 109, 392 N.E.2d 1272 (1978). A claim that a parcel would be more valuable with the variance than without it is not sufficient to justify a variance. Id. The burden is on the party seeking the variance to demonstrate that an undue hardship exists. Cole v. Bd. of Zoning Appeals , 39 Ohio App.2d 177, 183-84, 317 N.E.2d 65 (1973). A BZA is limited in its ability to grant variances. It cannot grant variances that would effectively rezone an area. Rezoning is a function requiring legislative action. Schomaeker , at 309, 421 N.E.2d 530.

{¶ 39} Appellant sought a use variance for the back portion of the property, the portion that is currently zoned agricultural, requesting that it be used for industrial purposes. Appellant's variance relates to his single parcel of land. Pursuant to the zoning ordinance, the property is zoned industrial only to a depth of 500 feet from the centerline of State Route 45. Appellant presents no evidence that it is economically unfeasible to use any portion of the property for its current permitted use. Appellant is merely attempting to circumvent the current zoning classification of the property. The BZA determined that Appellant had not established an undue hardship under the zoning ordinance to support his use variance request. The common pleas court concluded, based on a review of the evidence, that the BZA's decision regarding Appellant's use variance request was supported "by substantial and reliable evidence." (11/1/16 J.E., p. 8.) We agree. The evidence presented by Appellant did not address the economic feasibility of using the property for its permitted purpose. The property is currently zoned industrial except for a portion at the back of the property that is zoned for agricultural use. Appellant's argument is that the entire property must be used for industrial purposes in order to be economically feasible, but Appellant does not support that argument with any evidence that without a use variance Appellant has lost all economic use of the property. As such, the common pleas court was correct in affirming BZA's denial of Appellant's use variance request.

{¶ 40} Appellant also requested an area variance for the property when filing its appeal with the BZA. In order to accommodate the cement batch plant, Appellant sought to vary the 50 foot setbacks required, as well as the screening provisions imposed by the zoning amendment. These provisions were not in place when the zoning inspector issued his decision denying the permit to build the plant.

{¶ 41} In order to obtain an area variance, the applicant need only show practical difficulties rather than undue hardship. Boice v. Ottawa Hills , 137 Ohio St.3d 412, 2013-Ohio-4769, 999 N.E.2d 649, ¶ 13. That is, if practical difficulties exist which deprive an applicant of a permitted use of his property, the area variance should be granted. But the area variance sought by Appellant is moot, because the BZA concluded that the site plan for the cement plant submitted by Appellant did not otherwise comply with the zoning ordinance. No issue of interference with a permitted use exists here; the use was denied. Hence, Appellant has not been harmed by the denial of the requested area variance.

{¶ 42} Based on a review of the record, we conclude that the decision of the common pleas court affirming the denial of the two variance requests submitted by Appellant in this administrative appeal also was not error. Appellant's fourth assignment of error is without merit and is overruled.

{¶ 43} In conclusion, Appellant's first and second assignments of error relating to the constitutionality of the zoning ordinance and the trial court's determination to dismiss the appeal on the basis of res judicata are without merit. Appellant has had ample opportunity to raise these claims and issues in previous lawsuits, as has already been determined by more than one court of competent jurisdiction. Moreover, Appellant has failed to demonstrate that the trial court erred in affirming the BZA's decision regarding the denial of Appellant's site plan and two requested variances. Therefore, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.


author: TUCKER, J.

text:
    Shawn M. GEISEL, Plaintiff-Appellant v. CITY OF DAYTON, Ohio, et al., Defendant-Appellee
    No. 27645
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on February 9, 2018
    TERRY W. POSEY, Atty. Reg. No. 0039666, 10 North Ludlow Street, Suite 950, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
    NORMA M. DICKENS, Atty. Reg. No. 0062337, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45401, Attorney for Defendant-Appellee
   TUCKER, J.

{¶ 1} Plaintiff-appellant, Shawn M. Geisel, appeals from the trial court's decision of June 6, 2017, in which the court upheld an order of the Civil Service Board of the City of Dayton, Ohio (the "Board") affirming his involuntary demotion from Firefighter Recruit to Emergency Medical Technician-Basic. In a single assignment of error, Geisel argues that his demotion violates state and federal law; that his demotion did not comply with the Rules and Regulations of the Civil Service Board for the City of Dayton, Ohio; that the order issued by the Board is unreasonable; and that the Board could grant the relief he seeks, regardless of the Board's determination to the contrary. Although our analysis differs, we concur with the trial court's conclusion that Geisel's demotion was permissible, and we therefore affirm.

I. Facts and Procedural History

{¶ 2} In 2012, Geisel sat for an open competitive examination to become a firefighter with the Dayton Fire Department. Appellee's Br. 2. He received a passing score, and his name was placed on the list of candidates eligible for the position of Firefighter Recruit. See id.

{¶ 3} Pursuant to the Rules and Regulations of the Civil Service Board for the City of Dayton, Ohio (the "Rules"), the names of candidates for a given position within the "competitive class" of the "classified service" are entered onto an eligibility list "in order of rank," which is determined largely by the candidates' examination scores. See Rule 3, Section 2(A); Rule 8, Sections 1(A) and 3. The eligibility list thus determines the sequence in which candidates may be hired to fill vacancies in the position. See Rule 8, Section 3. Firefighter Recruit is a competitive position in the classified service. R. at 14.

{¶ 4} Eligibility lists generally remain valid for one year, subject to a number of exceptions; with respect to "competitive examinations for safety forces positions," the Board "may extend the period of [a list's validity] on a year [by] year basis, provided [that] the total period of [validity does] not exceed four * * * years." Rule 8, Section 7(C). The relevant list in this case seems to have expired on September 30, 2015. R. at 132-133.

{¶ 5} In 2013, while Geisel waited for Firefighter Recruit positions to become available, the City hired him as an Emergency Medical Technician-Basic. See Appellant's Br. 4; Appellee's Br. 2. The City subsequently promoted him to Firefighter Recruit for the training program that began on January 11, 2016. Id. ; see also R. at 108 (describing the program).

{¶ 6} Geisel suffered a knee injury during physical training on March 18, 2016, rendering him unable to complete the program, which was slated to end on June 24, 2016. See Appellant's Br. 4-5; Appellee's Br. 2-3. As a result, the chief of the Dayton Fire Department recommended in a memorandum dated April 18, 2016, that Geisel be involuntarily demoted to his previous position. R. at 3. On May 5, 2016, the Board's Secretary and Chief Examiner formally "certif[ied] [that Geisel's demotion was] approved as procedurally correct by the * * * Board pursuant to * * * Rule 10, Section 5 [and] Rule 13, Sections 1[-]2." R. at 2.

{¶ 7} Geisel appealed to the Board under Rule 14, and in its order of September 2, 2016, the Board affirmed. On October 3, 2016, Geisel initiated an administrative appeal under R.C. 124.34 in the trial court, which likewise held that his "demotion was effective under [the] [R]ules." Decision Affirming Order of the Civil Service Bd. 4, June 6, 2017. Geisel timely appealed to this court on June 30, 2017.

II. Analysis

{¶ 8} In an appeal under R.C. 124.34, an appellate court reviews the decision of a common pleas court "under [the] abuse of discretion standard." Baron v. Civil Service Bd. of the City of Dayton , 2d Dist. Montgomery No. 25273, 2012-Ohio-6179, 2012 WL 6737833, ¶ 19, citing City of Sandusky v. Nuesse , 11th Dist. Erie No. E-10-039, 2011-Ohio-6497, 2011 WL 6322977, ¶ 47. The term " 'abuse of discretion' [is] defined as an attitude that is unreasonable, arbitrary, or unconscionable." Feldmiller v. Feldmiller , 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, 2012 WL 4762029, ¶ 7, citing Huffman v. Hair Surgeon, Inc. , 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).

{¶ 9} The sole assignment of error presented for our review is the following:

MR. GEISEL'S DEMOTION, AS AFFIRMED BY THE CIVIL SERVICE BOARD'S DECISION AND THE TRIAL COURT'S DECISION, WAS ILLEGAL, UNREASONABLE, AND UNSUPPORTED BY THE EVIDENCE. ACCORDINGLY, THE TRIAL COURT ERRED IN UPHOLDING THE DEMOTION.

Appellant's Br. 6.

{¶ 10} Geisel offers a series of arguments in favor of this premise. First, he faults the Board for applying the Rules "in a manner which violates state and federal employment law" and which is contrary to the "public policy of the State of Ohio." Id. Second, he suggests that his demotion never became effective because a majority of the Board did not issue an approval. See id. at 7. Third, he contends that the Board concluded incorrectly that Rule 12, Section 3 permitted his demotion. Id. at 8-9. Fourth, he characterizes the Board's order as "unreasonable" because it has resulted in a "permanent * * * demotion" for a "temporary" medical condition. Id. at 10. Finally, he insists that if the Board lacks authority to add his name to the next eligibility list for the position of Firefighter Recruit, then his appeal to the Board under Rule 14 was "illusory and meaningless." See id.

{¶ 11} Regarding Geisel's first argument, his reliance on the Family and Medical Leave Act ("FMLA") is misplaced because he did not actually take or request medical leave; instead, he continued to report for work on restricted duty. See 29 U.S.C. 2613 and 2614 ; see also R. at 92-97; Appellant's Br. 4-5. The Board, then, cannot have "denied [him] FMLA benefits to which [he] was entitled" because he never sought to exercise his rights under the act. See , e.g. , 29 U.S.C. 2601(b)(1)-(2) (stating that the "purpose[s]" of the act are, among other things, "balanc[ing] the demands of the workplace with the needs of families"; promoting the "stability and economic security of families"; and entitling "employees to take reasonable leave for medical reasons," including the care of children, parents and spouses); Walton v. Ford Motor Co. , 424 F.3d 481, 485 (6th Cir.2005) (listing elements of an FMLA claim).

{¶ 12} Geisel similarly overstates the significance of the Ohio Supreme Court's decision in Coolidge v. Riverdale Local Sch. Dist. , 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61. In that case, the issue before the Court was "whether discharges for absenteeism caused by allowed workers' compensation injuries are violative of public policy in the absence of retaliatory motive[s]." (Emphasis added.) Id. at ¶ 25. After reviewing selected precedent, the Court held that an "employee who is receiving temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, [if] the absence or inability to work is directly related to an allowed condition." Id. at syllabus.

{¶ 13} The holding in Coolidge is nearly irrelevant here, however, because Geisel was not totally disabled, was not receiving temporary total disability compensation at the time of his demotion, and was not discharged from employment. For that matter, Geisel has not alleged that the Board had a retaliatory motive for approving his demotion, nor has he alleged that the Board took this action to punish him for "fil[ing] a claim or institut[ing], pursu[ing] or testif[ying] in any proceeding[ ] under the workers' compensation act." R.C. 4123.90.

{¶ 14} Regarding Geisel's second argument, Rule 10, Section 5 states that an "employee who has served an initial probationary period," i.e., a current employee with a position "in the competitive or noncompetitive class," must complete "an additional six[-]month probationary period upon promotion or appointment to a new classification." Further, if the employee's performance is deemed "unsatisfactory," the "department director may submit to the Board a recommendation for [the employee's] removal from the position" pursuant to Rule 10, Section 5(A)-(B). Under Rule 10, Section 5(A), an "employee who fails to qualify [for a position] during [a] probationary period following promotion has the right to return to [his] last previous classification, or to an equal or lower position for which [he is] qualified," so long as the employee's return to his previous position does "not cause the displacement or reduction" of another employee.

{¶ 15} Geisel contends that a demotion under Rule 10, Section 5(A) cannot take effect without a majority vote by the Board pursuant to Rule 10, Section 2. Rule 10, Section 1 mandates that all "persons initially appointed in the competitive or noncompetitive class shall [complete] a probationary period." Under Rule 10, Section 2, the "initial probationary period shall be for six * * * months," and a "probationary employee may be discharged at any time within said period of six * * * months upon the recommendation of the director of the [probationary employee's] department or agency * * *, with the approval of the City Manager and the majority of the Board." Yet, Geisel was not a person "initially appointed in the competitive or noncompetitive class"; rather, at the time of his promotion to Firefighter Recruit, he was an "employee who [had already] served an initial probationary period," making him "subject to an additional six[-]month probationary period," not an "initial probationary period." (Emphasis added.) Rule 10, Sections 1, 2 and 5; Appellant's Br. 4. In other words, Rule 10, Section 2 did not apply to Geisel.

{¶ 16} Although Rule 10, Section 5, which certainly did apply to Geisel, refers to the department director's submission of a "recommendation" to the Board, it fails to specify how the Board should respond. The trial court found that the rule "did not require the approval of the majority of the Board," but it not provide a rationale for its finding. Decision Affirming Order of the Civil Service Bd. 4. According to the Board itself, Geisel's demotion did not require "full Board approval" because Rule 12 "require[d] [only] that [it] be notified of the demotion." R. at 132.

{¶ 17} We agree that Rule 10, Section 5 did not require the Board's approval of Geisel's demotion by majority vote. Even so, the rule's provision allowing a department director to "submit to the Board a recommendation" for an employee's demotion would be essentially meaningless were the Board's approval (or disapproval) not required in some form. For instance, were the "recommendation" simply a matter of record-keeping, the rule presumably would require only that the Board "be notified," as is the case for involuntary demotions because of physical incapacity pursuant to Rule 12, Section 3. In any event, the Board did issue an approval of the recommendation to demote Geisel through its Secretary and Chief Examiner, who certified that the "action [was] approved as procedurally correct" by the Board. R. at 2. Absent explicit instructions on how the Board should respond to a recommendation to demote, the rule required little else.

{¶ 18} In its decision, the trial court found that "Rule[s] 12 and 13 also permitted [Geisel's] demotion." Decision Affirming Order of the Civil Service Bd. 4. We find that the trial court was mistaken to this extent. Notwithstanding that both of these rules refer to the possibility of employees being demoted for physical incapacity, neither of them makes any reference to employees in probationary periods-initial or otherwise. Because Rule 10, Section 5 relates specifically to the demotion of an employee serving an additional probationary period subsequent to his initial hire, we conclude that Rule 10, Section 5 controls over the comparatively general provisions of Rules 12 and 13. See , e.g. , Green v. Bock Laundry Mach. Co. , 490 U.S. 504, 524, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) ; Quality Ready Mix, Inc. v. Mamone , 35 Ohio St.3d 224, 226-227, 520 N.E.2d 193 (1988) ; Cyphers v. Balzer , 2d Dist. Montgomery No. 22182, 2007-Ohio-6133, 2007 WL 3409303, ¶ 55-58.

{¶ 19} Regarding Geisel's third argument, he criticizes the Board's citation to Rule 12, Section 3 in its order affirming his demotion. Appellant's Br. 8. Rule 12, Section 3 states that an employee who "becomes temporarily or permanently incapacitated" may be demoted "to a position in a lower grade for which [he] is qualified, and which is within [his] physical capabilities." By Geisel's reckoning, he could not have been demoted validly under this rule because, at the time of the demotion, he lacked the physical capability to resume his duties as an Emergency Medical Technician-Basic. Appellant's Br. 8. Irrespective of the Board's reference to Rule 12 in its order, the certification that effected Geisel's demotion appropriately cited the authority of "Rule 10, Section 5," as well as Rule 13, Sections 1-2, and we have already determined that the demotion was proper on that basis.

{¶ 20} Regarding Geisel's fourth argument, he describes his demotion as "unreasonable" because it resolved a temporary problem with a permanent solution. See Appellant's Br. 10. He worries that he might not have a second opportunity to become a Firefighter Recruit because he is approaching the age limit established by Rule 9, Section 1(H)-(I), and because a candidate may have to wait years for appointment to a position after taking a competitive examination and being placed on an eligibility list. See id. Geisel's problem, however, was not "temporary," even though his injuries did not produce permanent impairments.

{¶ 21} Pursuant to Rule 10, Section 5, Geisel had six months from the date of his appointment to Firefighter Recruit in which to "qualify," or in other words, to complete his recruit training. The rule does not invest an employee who fails to qualify during this six-month period with the right to make subsequent attempts without interruption, meaning that Geisel's appointment to Firefighter Recruit was, in plain language, a one-shot opportunity. Moreover, despite the age limitation stated in Rule 9, Section 1(H)-(I), the official "City of Dayton Position Description" for the position of "Firefighter Recruit" declares that "[r]ecruit candidates who have previously been appointed as a [f]irefighter in the State of Ohio may be over the age of 41." R. at 108-111.

{¶ 22} Regarding Geisel's final argument, the trial court observed that, "[s]adly, according to the [R]ules, [he] did not have the right to participate in the January 2017 recruit class." Decision Affirming Order of the Civil Service Bd. 5. Geisel posits that appeals to the Board under Rule 14 would be "useless" if the Board lacked the authority to place him in another class of recruits.

{¶ 23} We concur with the trial court's observation that the Board did not have the authority to contravene the Rules' provisions on eligibility and the sequence in which candidates are appointed from eligibility lists. Nevertheless, by "special resolution approved by the City Commission, the Board may suspend any specific provision of [the] Rules." Rule 1, Section 2. Thus, we conclude that the relief Geisel seeks is theoretically available to him, and by extension, that his appeal to the Board under Rule 14 was not futile.

III. Conclusion

{¶ 24} Although we do not concur fully with the trial court's analysis, we concur with the decision to uphold the Board's demotion of Geisel. Therefore, Geisel's sole assignment of error is overruled, and the decision of the trial court is affirmed.

HALL, J., concurs.

FROELICH, J., concurring in judgment only.

      Candidates who have either "been honorably discharged from service with any branch of the United States military" or "satisfactorily completed six * * * or more months of full-time employment with the City" are "entitled to have five * * * preference points" added to their examination scores under Rule 6, Section 11. No candidate may receive more than five preference points. Id.

      The Board filed the Transcript of Record with the trial court on November 17, 2016, but it did not include a formal certification or indicate the date on which the transcript was prepared.

      The Rules do not define the term "safety forces."

      The record does not establish the date on which the list's validity began to run, nor does it include documentation corroborating the date on which the list's validity ended.

      Geisel did not expressly designate an assignment of error in his brief.

      We do not mean to imply that Geisel could not reapply for the position, but only that his appointment to Firefighter Recruit was a self-contained opportunity that did not entail a right to be reappointed or to continue as a recruit until he could complete the training program.

      Geisel served in the past as a volunteer firefighter for the Bethel Fire Department in Miami County. Appellant's Br. 4. We take no position on whether Geisel's volunteer service is the equivalent of being "appointed as a [f]irefighter" for purposes of the above-cited position description.


author: PRESTON, J.

text:
    George FETTERS, Plaintiff-Appellant, v. Cathy DUFF, Defendant-Appellee.
    NO. 10-17-14
    Court of Appeals of Ohio, Third District, Mercer County.
    Date of Decision: February 12, 2018
    William E. Huber, Auglaize, for Appellant.
    James A. Tesno, Celina, for Appellee.
   PRESTON, J.

{¶ 1} Plaintiff-appellant, George Fetters ("Fetters"), appeals the October 2, 2017 judgment entry of the Mercer County Common Pleas Court, Probate Division dismissing his action against defendant-appellee, Cathy Duff ("Duff"), for an accounting under R.C. 1337.36. For the reasons that follow, we affirm.

{¶ 2} Fetters and Duff are brother and sister, and the underlying dispute concerns Fetters's allegations that Duff abused her position as attorney-in-fact for their mother, Phyllis Lauth ("Lauth"). Fetters was originally designated as Lauth's attorney-in-fact through a written power of attorney executed by Lauth in May 2015. (Doc. Nos. 4, 12). However, after serving as his mother's attorney-in-fact for three months, Fetters was removed by Lauth in August 2015. (Doc. No. 12). Lauth appointed Duff to serve as her attorney-in-fact in Fetters's place, a role Duff occupied until Lauth's death on April 18, 2016. (Id. ).

{¶ 3} On July 13, 2016, Fetters, by letter, requested that Duff render an accounting of her time as Lauth's attorney-in-fact. (Doc. Nos. 1, 12). Duff did not produce an accounting in response to Fetters's demand. (Doc. No. 1).

{¶ 4} On January 24, 2017, Fetters filed, in the Probate Court, a complaint under R.C. 1337.36 requesting an accounting of Duff's tenure as Lauth's attorney-in-fact. (Doc. No. 1).

{¶ 5} Duff filed her answer on March 2, 2017. (Doc No. 4). Duff's March 2, 2017 pleading also set forth a counterclaim against Fetters under R.C. 1337.36 requesting that Fetters be ordered to render an accounting for the brief period of time during which he served as Lauth's attorney-in-fact. (Id. ).

{¶ 6} In the following months, Fetters and Duff exchanged position memoranda and reply briefs. (See Doc. Nos. 9, 12, 13, 14, 15). Fetters filed his "Memorandum of Plaintiff" on May 17, 2017. (Doc. No. 9). Duff submitted her "Defendant's Memorandum" on May 22, 2017. (Doc. No. 12). Fetters submitted his "Response to Memorandum of Defendant" on May 25, 2017. (Doc. No. 13). Duff filed her "Defendant's Response Memorandum" on June 5, 2017. (Doc. No. 14). On June 12, 2017, Fetters filed his "Response to Defendant's Response Memorandum." (Doc. No. 15).

{¶ 7} A final hearing on Fetters's complaint and Duff's counterclaim was held on August 24, 2017. (See Doc. Nos. 17, 22).

{¶ 8} On October 2, 2017, the trial court dismissed Fetters's complaint and Duff's counterclaim. (Doc. No. 22). In its entry, the trial court noted that "[n]o challenges to the inventory or accounting, or other actions were filed in the estate case while it was opened." (Id. ). The trial court concluded: "The Court finds that the purpose of the law in the ORC is to provide for finality in estates." (Id. ).

{¶ 9} On October 25, 2017, Fetters filed a notice of appeal. (Doc. No. 23). Fetters raises one assignment of error.

Assignment of Error

The trial court erred in dismissing Plaintiff-Appellant's request for an account in accordance with Ohio Revised Code § 1337.36.

{¶ 10} In his sole assignment of error, Fetters argues that the trial court erred by dismissing his complaint requesting an order compelling Duff to render an accounting of her time as Lauth's attorney-in-fact under R.C. 1337.36. In particular, Fetters argues that R.C. 1337.36 does not impose a requirement that a beneficiary of the estate of a deceased principal file an action requesting an accounting of the deceased principal's attorney-in-fact during the pendency of the principal's estate. Because Fetters's complaint was filed while Lauth's estate was still pending, we decline to rule on this specific issue. However, for the following reasons, we affirm the judgment of the trial court.

{¶ 11} Fetters appeals from the trial court's judgment entry dismissing his complaint requesting an order directing Duff to render an accounting of her tenure as Lauth's attorney-in-fact. " 'Accounting issues and the award of damages that may appear to be necessary fall within the sound discretion of the trial court.' " Cartwright v. Batner , 2014-Ohio-2995, 15 N.E.3d 401, ¶ 20, quoting Schafer v. RMS Realty , 138 Ohio App.3d 244, 300, 741 N.E.2d 155 (2d Dist. 2000), citing Sandusky Properties v. Aveni , 15 Ohio St.3d 273, 274-275, 473 N.E.2d 798 (1984). Thus, we will not overturn a trial court's decision to grant or deny a request for an accounting unless the trial court abused its discretion. Id. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

R.C. 1337.36 provides, in relevant part:

(A) Any of the following persons may petition a court to construe a power of attorney or review the agent's conduct and grant appropriate relief:
* * *
(4) The principal's spouse, parent, or descendant;
(5) An individual who would qualify as a presumptive heir of the principal;
(6) A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate.

R.C. 1337.36(A)(4), (5), (6).

{¶ 12} As a preliminary matter, we must address Duff's contention that Fetters did not have standing under R.C. 1337.36 to file his complaint with the trial court. Fetters is Lauth's son. (Doc. No. 12). Thus, as Lauth's descendant, Fetters has standing under R.C. 1337.36(A)(4) to pursue the action.

{¶ 13} Having found that Fetters has standing to file his petition for an accounting, we turn now to the question of whether the trial court abused its discretion in denying Fetters's request for an accounting and dismissing the action.

{¶ 14} An action requesting an accounting of an attorney-in-fact's tenure is a matter based in equity. See Sandusky Properties v. Aveni , 15 Ohio St.3d 273, 274-75, 473 N.E.2d 798 (1984) ; Bonnell v. B. & T. Metals Co. , 52 Ohio Law Abs. 1, 4, 81 N.E.2d 730 (2d Dist. 1948) ("[A]ccounting * * * is of equitable cognizance."), citing Nordin v. Coulton , 142 Ohio St. 277, 51 N.E.2d 717 (1943). "Equity 'cannot be determined by any [fixed] rule, but depends upon the peculiar facts and equitable considerations of each case.' " Pennsylvania Gen. Ins. Co. v. Park-Ohio Industries, Inc. , 179 Ohio App.3d 385, 2008-Ohio-5991, 902 N.E.2d 53, ¶ 21 (8th Dist.), citing Tiffin v. Shawhan , 43 Ohio St. 178, 183, 1 N.E. 581 (1885). Given the particular circumstances of this case, we cannot say that the trial court abused its discretion in dismissing Fetters's complaint requesting an accounting from Duff.

{¶ 15} Fetters filed his complaint on January 24, 2017-just before Lauth's estate was closed on February 3, 2017 but well after the estate was opened on May 10, 2016. (See Doc. Nos. 1, 12, 22). From the time that Lauth's estate was opened until Fetters filed his complaint, Fetters took no formal steps through the trial court or otherwise to challenge Duff's conduct as Lauth's attorney-in-fact. Fetters did not submit exceptions to the inventory submitted by Duff. (See Doc. No. 22). Moreover, he neglected to challenge any account rendered by Duff, including the final account submitted less than three weeks before he filed his complaint. (See id. ). Prior to filing his complaint, Fetters's only apparent indication that he had objections to Duff's handling of their mother's power of attorney and that he believed Duff may have misused funds belonging to Lauth's estate was through a letter sent in July 2016 demanding an accounting from Duff. (See Doc. Nos. 1, 12). Duff did not produce an accounting in response to this informal request. (Doc. No. 1). After this futile effort to elicit an accounting from Duff, Fetters made no further attempt to address his concerns about Duff's use of Lauth's power of attorney until he filed his complaint over six months later. (See Doc. Nos. 1, 12, 22).

{¶ 16} It is not the case that dismissing Fetters's complaint requesting an accounting was tantamount to denying Fetters any remedy at all. During the estate proceedings, Fetters had access to numerous mechanisms through which he could have sought to hold Duff accountable for alleged exploitations of the power of attorney executed by Lauth. However, he failed to use any of them. (See Doc. Nos. 12, 22).

{¶ 17} Duff was the executor of Lauth's estate as well as her attorney-in-fact. (Doc. No. 12). Accordingly, she was required to render an account of the estate's administration and compile an inventory under R.C. 2109.301 and 2115.02, respectively. In response to the account and inventory, Fetters, as a beneficiary and person indisputably interested in Lauth's estate, could have filed exceptions to Duff's account and inventory under R.C. 2109.33 and 2115.16, respectively. While exceptions brought under R.C. 2109.33 and 2115.16 typically go to the conduct of the executor or administrator in their capacity as executor or administrator, given the expansive power that probate courts have over executors and administrators, Duff could have been called to account for funds allegedly missing from the estate due to any financial misconduct as Lauth's attorney-in-fact. See R.C. 2101.24(A)(1)(c) ("[T]he probate court has exclusive jurisdiction * * * [t]o direct and control the conduct and settle the accounts of executors and administrators * * *"). Despite ample opportunity to do so, Fetters did not challenge Duff's financial conduct as Lauth's attorney-in-fact using any of the customary methods used to account for a decedent's assets.

{¶ 18} Finally, Fetters produced no competent evidence which the trial court could have relied on to credit his claim that Duff abused her position as Lauth's attorney-in-fact. Fetters's first and only specific objection to Duff's handling of Lauth's power-of-attorney was a conclusory statement contained in his final brief to the trial court submitted in June 2016. (Doc. No. 15) ("The problem here is it is clear from the records we have that there has been misspending by Cathy Duff during her term as POA which could not have been discovered through an estate inquiry. She needs to answer why there were multiple expenditures on Ebay and other internet accounts and for dining out and doing other things when the decedent, in her last month, was essentially an invalid."). However, the trial court record does not contain any document which would naturally comprise part of the "record" Fetters allegedly relied on to substantiate his claim that Duff misused her position as Lauth's attorney-in-fact. There are no bank or credit card statements, no receipts, no confirmations of internet shopping orders, and no other documents from which the trial judge could have reasonably concluded that Fetters's allegations were plausible and that an accounting from Duff was necessary to clarify the matter.

{¶ 19} In light of the foregoing, we find that the judgment of the trial court was not unreasonable, arbitrary, or unconscionable and that it therefore did not abuse its discretion is dismissing Fetters's request for an accounting.

{¶ 20} Fetters's assignment of error is, therefore, overruled.

{¶ 21} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

      Lauth's will was probated on May 10, 2016 in another case. (See Doc. Nos. 1, 12, 22). As executor of Lauth's estate, Duff filed a final account on January 4, 2017 which was approved on February 3, 2017. (See Doc. Nos. 12, 22). No challenges to the inventory or the account or other actions were filed during the pendency of the estate. (Doc Nos. 12, 22).

      Although Duff's counterclaim was dismissed along with Fetters's complaint, Fetters apparently produced an accounting voluntarily in response to Duff's counterclaim. (See Doc. No. 15) ("It should be noted that apparently Defendant believed that she had a right to file for an accounting and did so and received an accounting subsequent to Plaintiff's filing.").

      Fetters filed his request for an accounting on January 24, 2017, more than a week before the estate was officially closed on February 3, 2017. (Doc. Nos. 1, 12, 22). There is some ambiguity as to whether Fetters's request was filed in Lauth's estate itself or as a parallel action in the trial court. (See Doc. No. 22) ("This matter for the accounting was filed January 24, 2017 as a separate action in this case."). Regardless, as the question concerns whether Fetters's petition was required to be filed during the pendency of Lauth's estate and because there is no question that Lauth's estate was still open when this request was filed, it is unnecessary to rule on Fetters's specific objection.

      We also note that this matter is within the subject-matter jurisdiction of the trial court. R.C. 2101.24(B)(1)(b) vests probate courts with concurrent jurisdiction with the general division of the court of common pleas over any action that involves a power of attorney. An action brought under R.C. 1337.36 requesting an accounting from a deceased principal's attorney-in-fact clearly involves a power of attorney such that the trial court has concurrent subject-matter jurisdiction over the action with the general division of the court of common pleas. See Cartwright , 2014-Ohio-2995, 15 N.E.3d 401, at ¶ 45-54.