text:
    WFG NATIONAL TITLE INSURANCE COMPANY, Plaintiff-Appellee v. Michael P. MEEHAN, et al., Defendants-Appellants
    No. 105677
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 8, 2018
   Michael P. Meehan, 3416 West 159th Street, Suite 100, Cleveland, Ohio 44111, ATTORNEY FOR APPELLANT

Donald P. McFadden, Freedburg Law Firm, 615 Clinton Lane, Highland Heights, Ohio 44143, Monica E. Russell, Critchfield Critchfield & Johnston, L.L.C., 4996 Foote Road, Medina, Ohio 44256, FOR WFG NATIONAL TITLE INSURANCE COMPANY

Maia E. Jerin, Alan M. Petrov, Monica A. Sansalone, Gallagher Sharp L.L.P., 1501 Euclid Avenue, Sixth Floor, Bulkley Building, Cleveland, Ohio 44115, FOR DONALD P. MCFADDEN AND MCFADDEN & FREEBURG CO., L.P.A.

David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, Maia E. Jerin, 1501 Euclid Avenue, 6th Floor, Cleveland, Ohio 44115, Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, Donald McFadden, 615 Clinton Lane, Highland Heights, Ohio 441143, FOR JANELL DOWNING,

Donald P. McFadden, 615 Clinton Lane, Highland Heights, Ohio 44143, Monica E. Russell, 4996 Foote Road, Medina, Ohio 44143, David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, Maia E. Jerin, 1501 Euclid Avenue, 6th Floor, Cleveland, Ohio 44115, FOR 2711 MIDDLEBURG DRIVE, SUITE 113 COLUMBIA, SC 29204

Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, FOR CHARLES CAIN

Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, FOR JASON MAPP

Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, FOR JOE DRUM

Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, David A. Freeburg, 6690 Beta Drive, Suite 320, Mayfield Village, Ohio 44143, FOR GENE REBADOW

Monica E. Russell, 4996 Foote Road, Medina, Ohio 44256, FOR STEVE WINKLER

Maia E. Jerin, 1501 Euclid Avenue, 6th Floor, Cleveland, Ohio 44115, Anthony J. Amato, 9861 Applewood Drive, North Royalton, Ohio 44133, FOR EVERGREEN TITLE SERVICES L.T.D C/O MICHAEL P. MEEHAN

Eric M. Allain, 28906 Lorain Road, Suite 101, North Olmsted, Ohio 44070, FOR GENMONCHA L.L.C.

Michael P. Meehan, 3416 West 159th Street, Suite 100, Cleveland, Ohio 44111, FOR MICHAEL PATRICK MEEHAN

BEFORE: E.A. Gallagher, A.J., Keough, J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant Michael Meehan appeals the judgment of the Cuyahoga County Court of Common Pleas in this civil dispute between a title agent, his title agency, the insurance company with whom they had a contractual relationship, various employees of the insurance company and the insurance company's attorney. For the following reasons, we affirm.

Facts and Procedural History

{¶ 2} In February 2012, Meehan, an Ohio attorney and his title agency, Evergreen Title Services, L.L.C. ("Evergreen") entered into an agency agreement with WFG National Title Insurance Company ("WFG") whereby Evergreen was authorized to sell insurance products underwritten by WFG.

{¶ 3} Disputes between Evergreen and WFG over an audit and the remittance of premiums resulted in a meeting on August 13, 2013, during which WFG asked Meehan to sign a mutual termination agreement. Meehan refused to sign the agreement and WFG employees averred that Meehan was informed during the meeting that WFG was terminating the agency agreement effective September 30, 2013. An email from Meehan to WFG dated August 21, 2013 acknowledged Meehan's understanding that he had until September 30, 2013 to issue closing protection letters ("CPLs") and policies. Meehan, however, continued to issue CPLs and policies after that date until he received a summary termination notice from WFG on October 14, 2014. During this time Meehan collected insurance premiums related to said CPLs and policies but did not remit them to WFG. Instead Meehan maintained the premiums in escrow in an IOTA account. WFG alleged that it learned in October 2014 that Meehan and Evergreen had continued to sell WFG policies and CPLs without its knowledge after September 30, 2013.

{¶ 4} WFG filed a complaint against Meehan and Evergreen on November 24, 2014 alleging breach of contract, breach of fiduciary duty, theft, civil conspiracy, a pattern of corrupt activity in violation of R.C. 2923.32, negligence, fraud and a claim for accounting. WFG also sought to pierce the corporate veil of Evergreen alleging that Meehan exercised complete control over Evergreen to commit the alleged acts.

{¶ 5} Meehan filed an answer along with counterclaims against WFG and third-party complaints against various WFG employees, WFG's attorney, Donald McFadden and the law firm of McFadden & Freeburg Co., L.P.A. Meehan raised claims of defamation, falsification, obstruction of official business, tortious interference with business relations, breach of contract, civil conspiracy, engaging in a pattern of corrupt activity, respondeat superior and an action for declaratory judgment. Evergreen failed to respond to the complaint and default judgment on WFG's claims against it was granted on August 4, 2015.

{¶ 6} WFG filed a motion to dismiss Meehan's counterclaims and third-party complaint that the trial court granted, in part, and denied, in part. The trial court construed Meehan's third-party complaint as a counterclaim against new parties pursuant to Civ.R. 13(H). Meehan's defamation counterclaim was dismissed as to all parties regarding statements made to the Ohio Department of Insurance ("ODI") and the Supreme Court of Ohio's Office of Disciplinary Counsel ("ODC"). Meehan's falsification and obstruction of official business counterclaims were dismissed in their entirety and his civil conspiracy counterclaim was dismissed in part.

{¶ 7} WFG's claims for negligence and fraud/forgery were stricken from the complaint on WFG's motion. All remaining claims were resolved on summary judgment. The trial court granted summary judgment in favor of WFG on its claims for theft, civil conspiracy, pattern of corrupt activity and piercing the corporate veil against Meehan. The trial court granted summary judgment in favor of WFG and the WFG employees named as counterclaim defendants on Meehan's counterclaims for defamation, tortious interference with business relations, breach of contract, civil conspiracy, engaging in a pattern of corrupt activity, respondeat superior and declaratory judgment. Finally, the trial court granted summary judgment in favor of McFadden and McFadden & Freeburg Co., L.P.A. on Meehan's remaining counterclaims against them.

I. The Motion to Dismiss

{¶ 8} In his first assignment of error, Meehan argues that the trial court erred in granting, in part, the motion to dismiss a number of his claims against appellees.

{¶ 9} We begin by noting that Meehan's argument for reversal under this assignment of error addresses only his dismissed defamation claims. Meehan has failed to support his broad assertion that the trial court erred in granting the motion to dismiss as to any of his other claims with cognizable arguments pertaining to the legal issues raised in the motion to dismiss or appropriate citations to authority and the record as required by App.R. 16(A)(7). Therefore, we decline to address the dismissed claims for which Meehan has failed to offer an argument in support of reversal.

{¶ 10} A review of the pleadings reveals that Meehan's defamation claim is very limited. The only alleged defamatory statement made by WFG and McFadden to ODI and ODC is that "Meehan stole escrowed funds that belonged to [WG]." Meehan further explained that the basis for the counterclaim was an admission made to him by McFadden that McFadden had called state investigators on Meehan.

{¶ 11} The parties agree that, in the absence of actual malice, a qualified immunity exists under R.C. 3905.211 for statements required to be made by insurers or their agents to the ODI pertaining to the termination of an insurance agent under R.C. 3905.21(A) and information relating to such terminations. See R.C. 3905.21 ; R.C. 3905.14(B)(4). The parties also agree that the provisions of R.C. 3905.211 as to qualified immunity is applicable to appellees in the present instance. The sole dispute is whether Meehan complied with the mandates of R.C. 3905.211(B) to defeat the qualified privilege at the pleading stage.

{¶ 12} Pursuant to R.C. 3905.211(B) in an action where qualified immunity under section (A) may apply, "the party bringing the action shall plead specifically in any allegation that division (A) of this section does not apply because the person making the statement or providing the information did so with malice." Based on this clear language it is insufficient to defeat the immunity provided under R.C. 3905.211(A) with a mere claim of malice. Instead, the complaint must specifically address R.C. 3905.211(A) and assert that it is inapplicable due to such malice.

{¶ 13} In this instance, Meehan did not use the term malice in his defamation complaint. This could be excused, however, due to the fact that Meehan specifically plead language mirroring the definition of malice within the context of qualified privilege as set forth by the Ohio Supreme Court in Jacobs v. Frank , 60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the syllabus. See, e.g., Mangelluzzi v. Morley , 2015-Ohio-3143, 40 N.E.3d 588. However, Meehan failed to comply with the plain language of R.C. 3905.211(B) by failing to specifically address R.C. 3905.211(A) in the pleadings and aver that it did not apply in this case. Due to Meehan's failure to conform to the strict requirements of R.C. 3905.211(B) we find no error in the trial court's dismissal of his defamation claim pertaining to statements made to the ODI.

{¶ 14} We similarly find no error in the trial court's dismissal of Meehan's defamation claim pertaining to statements made to ODC alleging the theft of escrow funds by Meehan. The Ohio Supreme Court established in Hecht v. Levin , 66 Ohio St.3d 458, 613 N.E.2d 585 (1993), that a statement made in a "judicial proceeding enjoys an absolute privilege against a defamation action as long as the allegedly defamatory statement is reasonably related to the proceeding in which it appears." Id. at 460, 613 N.E.2d 585. The court further explained that all matters relating to the discipline of attorneys are inherently judicial in nature and established the absolute privilege for reporting attorney misconduct after a careful examination of the relevant competing concerns. Id. at 461-462, 613 N.E.2d 585. The absolute privilege or "immunity" for statements made in a judicial proceeding extends to every step in the proceeding, from beginning to end. M.J. DiCorpo, Inc. v. Sweeney , 69 Ohio St.3d 497, 506, 634 N.E.2d 203 (1994).

{¶ 15} Meehan's first assignment of error is overruled.

II. Motions to Compel

{¶ 16} In his second assignment of error, Meehan argues that the trial court erred in denying two motions to compel that he filed well after the close of discovery.

{¶ 17} The record reflects that the trial court set a fact discovery deadline of October 30, 2015. Two extensions to the deadline were granted extending the discovery cut off to January 31, 2016. The trial court also set a dispositive motion deadline of March 18, 2016. 43 days after the discovery deadline had passed and three days prior to the dispositive motion deadline Meehan filed a motion for extension of discovery. The trial court denied Meehan's motion, the appellees and third-party defendants filed motions for summary judgment and Meehan filed a brief in opposition to summary judgment. On April 27, 2016, more than 40 days after the summary judgment motions had been filed and 87 days after the close of discovery, Meehan filed his first motion to compel discovery. The trial court denied the motion on May 2, 2016 in the same entry that it granted summary judgment in favor of appellees and the third-party defendants on many of the outstanding claims. Meehan filed a second motion to compel along with a motion for relief from judgment on June 21, 2016. The trial court denied Meehan's motion on July 7, 2016.

{¶ 18} It is well established that a trial court enjoys considerable discretion in the regulation of discovery proceedings. State ex rel. Daggett v. Gessaman , 34 Ohio St.2d 55, 295 N.E.2d 659 (1973) ; Clark Cty. Solid Waste Mgt. Dist. v. Danis Clark Co. Landfill Co. , 109 Ohio App.3d 19, 38, 671 N.E.2d 1034 (2d Dist. 1996). Furthermore, a judgment preventing the requesting party from pursuing discovery will not be reversed unless the ruling causes substantial prejudice. Shaver v. Standard Oil Co. , 68 Ohio App. 3d 783, 800, 589 N.E.2d 1348 (1990).

{¶ 19} We note that Meehan failed to seek discovery relief pursuant to Civ.R. 56(F) in his brief in opposition to the outstanding motions for summary judgment. If an opposing party requires additional time to produce facts essential to the opposition motion, the party may seek a continuance under Civ.R. 56(F). Roush v. Butera , 8th Dist. Cuyahoga No. 97463, 2012-Ohio-2506, 2012 WL 2047677, ¶ 36. A party who fails to seek relief under Civ.R. 56(F) in the trial court fails to preserve the issue on appeal. Id. , citing Jackson v. Walker , 9th Dist. Summit County No. 22996, 2006-Ohio-4351, 2006 WL 2422561, ¶ 17.

{¶ 20} Civ.R. 37 motions "filed after a discovery deadline are tardy." Huntington Natl. Bank v. Dixon , 8th Dist. Cuyahoga No. 101273, 2015-Ohio-1735, 2015 WL 2165451, ¶ 24 quoting State ex rel. Rhodes v. Chillicothe , 4th Dist. Ross No. 12CA3333, 2013-Ohio-1858, 2013 WL 1907504, ¶ 22 ; Steele v. Mara Ents., Inc. , 10th Dist. Franklin No. 09AP-102, 2009-Ohio-5716, 2009 WL 3494847, ¶ 33. Meehan completely failed to address his noncompliance with the trial court's discovery deadlines in his arguments to this court. We cannot say the trial court's refusal to allow additional discovery constituted an abuse of discretion and substantially prejudiced Meehan when he had ample time to file his motions to compel within the time frame the trial court set for discovery.

{¶ 21} Meehan's second assignment of error is overruled.

III. Disqualification of Counsel

{¶ 22} In his third assignment of error, Meehan argues that the trial court erred in denying his motion to disqualify attorneys from the law firm of McFadden & Freeburg Co., L.P.A. from representing WFG and attorneys from the law firm of Gallagher Sharp from representing McFadden.

{¶ 23} A trial court has wide discretion in the consideration of a motion to disqualify counsel. Quiros v. Morales , 8th Dist. Cuyahoga No. 894274, 2007-Ohio-5442, 2007 WL 2949472, ¶ 14, citing Spivey v. Bender , 77 Ohio App.3d 17, 601 N.E.2d 56 (6th Dist.1991). When reviewing a decision of the trial court to disqualify counsel, we apply an abuse of discretion standard. Id. , citing Mentor Lagoons, Inc. v. Teague , 71 Ohio App.3d 719, 724, 595 N.E.2d 392 (11th Dist.1991). An abuse of discretion implies the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 24} Disqualification of an attorney is a drastic measure, which should not be imposed unless absolutely necessary. It is the burden of the party moving for disqualification of an attorney to demonstrate that the proposed testimony may be prejudicial to that attorney's client and that disqualification is necessary. Mentor Lagoons at 724, 595 N.E.2d 392. "While motions to disqualify may be legitimate and necessary under certain circumstances, they ' "should be viewed with extreme caution for they can be misused as techniques of harassment.' " Lytle v. Mathew , 2017-Ohio-1447, 89 N.E.3d 199, ¶ 13, quoting SST Castings, Inc. v. Amana Appliances, Inc. , 250 F.Supp.2d 863, 865-866 (S.D.Ohio 2002).

{¶ 25} Meehan first argues that McFadden and the attorneys from his law firm should have been disqualified due to a conflict of interest. Ohio has adopted the three-part test for disqualification of counsel due to a conflict of interest set forth in Dana Corp. v. Blue Cross & Blue Shield Mut. , 900 F.2d 882 (6th Cir.1990). The test is as follows: (1) a past attorney-client relationship must have existed between the party seeking disqualification and the attorney he or she wishes to disqualify; (2) the subject matter of the past relationship must have been substantially related to the present case; and (3) the attorney must have acquired confidential information from the party seeking disqualification. Wynveen v. Corsaro , 2017-Ohio-9170, 106 N.E.3d 130, ¶ 18, citing Stanley v. Bobeck , 8th Dist. Cuyahoga No. 92630, 2009-Ohio-5696, 2009 WL 3490668, ¶ 13. If a party moving to disqualify an attorney cannot meet the first prong of the Dana test, that party lacks standing to seek the disqualification. Bobeck at ¶ 13.

{¶ 26} Here, Meehan's conflict of interest argument fails because he does not satisfy the first prong of the Dana test and, therefore, lacked standing to move for McFadden's disqualification on such grounds.

{¶ 27} Meehan next argues that attorneys from McFadden & Freeburg Co., L.P.A. should have been disqualified as necessary witnesses under Prof.Cond.R. 3.7 that provides:

A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
(3) the disqualification of the lawyer would work substantial hardship on the client.

{¶ 28} The official comments to the rule states, in relevant part, that:

[4] (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client.

{¶ 29} In Gonzalez-Estrada v. Glancy , 2017-Ohio-538, 85 N.E.3d 273, ¶ 12, we defined a necessary witness under Prof.Cond.R. 3.7 as one whose testimony must be admissible and unobtainable through other trial witnesses.

Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence. * * * A party's mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony.

Id. , quoting Akron v. Carter , 190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶ 19 (9th Dist.).

{¶ 30} The basis for Meehan's argument that the attorneys for McFadden & Freeburg should be disqualified under Prof.Cond.R. 3.7 is that his claims for civil conspiracy, engaging in a pattern of corrupt activity and respondeat superior against McFadden survived a motion to dismiss and, therefore, are "prima facie" evidence of wrongdoing. However, Meehan's motion completely fails to offer the trial court the opportunity to examine the relevant testimony of the McFadden & Freeburg attorneys because he failed to fully explore the matter during the relevant discovery time period. Meehan complains that the attorneys for McFadden & Freeburg invoked the attorney-client privilege and the work-product doctrine during discovery. However, Meehan failed to properly challenge these responses with a timely motion to compel. In fact, Meehan had still not filed a motion to compel at the time that he moved for the disqualification of McFadden & Freeburg. Meehan also stated in his motion that he sought the deposition of McFadden and that McFadden agreed to appear. However, Meehan failed to pursue the deposition because it would be a "colossal waste of time" in light of his anticipation that McFadden would invoke the attorney-client privilege and the work-product doctrine. Again, Meehan failed to properly seek a judicial resolution of this discovery dispute prior to the close of discovery as set forth by the trial court. No explanation for this failure is provided.

{¶ 31} Because Meehan has offered little more than unsupported allegations, his intent to seek untimely discovery and his intent to call the attorneys for McFadden & Freeburg at trial, we cannot say that he met his burden before the trial court. We find no abuse of discretion in this instance.

{¶ 32} We also note that the trial court was not obligated to hold a hearing on Meehan's motion to disqualify or provide findings of fact. Meehan relies upon Kala v. Aluminum Smelting & Refining Co., Inc. , 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), for his argument. However, in Majestic Steel Serv. v. DiSabato , 8th Dist. Cuyahoga No. 76540, 1999 WL 961465 (Oct. 21, 1999), we rejected the expansion Meehan seeks of the hearing requirement in Kala to instances other than the "side-switching" specifically addressed in that case.

There is nothing in Kala to suggest that an evidentiary hearing is required on all motions to disqualify counsel[;] [t]he only instance in which the Supreme Court of Ohio has held that an evidentiary hearing is required is when ruling on a motion for disqualification of either an individual * * * or the entire firm * * * when an attorney has left a law firm and joined a firm representing the opposing party.

Fletcher v. Greater Cleveland Regional Transit Auth. , 8th Dist. Cuyahoga No. 89279, 2007-Ohio-5338, 2007 WL 2875147, ¶ 16, quoting Luce v. Alcox , 10th Dist. Franklin No. 04AP-1250, 2005-Ohio-3373, 2005 WL 1532396, ¶ 6.

{¶ 33} Meehan's third assignment of error is overruled.

IV. Withdrawal of Admissions

{¶ 34} In his fourth assignment of error, Meehan argues that the trial court abused its discretion in refusing the withdrawal of admissions deemed admitted pursuant to Civ.R. 36(A)(1).

{¶ 35} The record reflects that WFG served requests for admissions upon both Meehan and Evergreen on December 22, 2014. The requests provided a response time of 28 days in conformance with Civ.R. 36(A)(1). Meehan does not dispute that he failed to respond to the admissions within the relevant time period. In fact, Meehan admits he did not respond until 112 days later, on April 13, 2015. Meehan offers no explanation for his untimely responses.

{¶ 36} It is well settled in Ohio that in accordance with Civ.R. 36(A), "the matter set forth in the requests for admissions is deemed admitted if they are not answered within rule." Bank of N.Y. v. Jordan , 8th Dist. Cuyahoga No. 88619, 2007-Ohio-4293, 2007 WL 2391082, ¶ 34, quoting Beechwoods, Inc. v. Hosfelt , 10th Dist. Franklin No. 79AP-117, 1979 WL 209370 (Oct. 9, 1979). Thus, where a party fails to timely respond to the request for admissions, those admissions become fact. Smallwood v. Shiflet , 8th Dist. Cuyahoga No. 103853, 2016-Ohio-7887, 2016 WL 6906241, ¶ 18. It is equally settled law that a motion for summary judgment may be based upon the admitted matter. Jordan . "[W]here a party files a written request for admission, a failure of the opposing party to timely answer the request constitutes a conclusive admission pursuant to Civ.R. 56(C) in case of a summary judgment." Klesch v. Reid , 95 Ohio App.3d 664, 674, 643 N.E.2d 571 (8th Dist.1994).

{¶ 37} A trial court may permit withdrawal or amendment of admissions under certain circumstances:

Subject to the provisions of Rule 16 governing modification of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits.

Civ.R. 36(B) ; Jade Sterling Steel Co. v. Stacey , 8th Dist. Cuyahoga No. 88283, 2007-Ohio-532, 2007 WL 416697, ¶ 11.

{¶ 38} Civ.R. 36(B) does not require a written motion be filed, nor does it provide a time when a motion must be filed; rather, such matter is left to the discretion of the trial court. Jade Sterling Steel Co. , citing Balson v. Dodds , 62 Ohio St.2d 287, 291, 405 N.E.2d 293 (1980). Contesting the admissions in a motion for summary judgment satisfies the requirements of the rule. Id. It is within the trial court's discretion whether it will permit or deny the withdrawal or amendment of admissions. Jade Sterling Steel Co. at ¶ 12. Likewise, it is within the court's discretion whether to accept the filing of late responses to a request for admissions. Bayview Loan Servicing, L.L.C. v. St. Cyr , 2017-Ohio-2758, 90 N.E.3d 321, ¶ 12. The clear language of the rule does not require the trial court to withdraw or amend the admission even if the test for allowing withdrawal or amendment is shown. Summers v. E. Cleveland , 8th Dist. Cuyahoga No. 98277, 2013-Ohio-1339, 2013 WL 1384892, ¶ 13.

{¶ 39} Here, there is no dispute that Meehan blatantly ignored the relevant response time for the request for admissions, failed to move to withdraw the admissions and has offered no explanation for his noncompliance with Civ.R. 36. Under these facts we cannot say that the trial court abused its discretion by failing to sua sponte construe the arguments in his brief in opposition to summary judgment as a motion to withdraw admissions and failing to grant the same. See, e.g., U.S. Bank, N.A. v. Koodrich , 2017-Ohio-956, 86 N.E.3d 687, ¶ 20-21 (finding no abuse of discretion where a trial court refused to grant a motion to withdraw admissions where the moving party offered no explanation for its failure to comply with discovery deadlines.).

V. Default Judgment Against Evergreen

{¶ 40} In his fifth assignment of error, Meehan argues that the trial court erred in granting default judgment against Evergreen. However, the record reflects that Evergreen did not file a notice of appeal in this instance and is a not a party to the present appeal. Meehan has cited no authority to establish standing on his part to challenge the default judgment against Evergreen. Furthermore, even if Evergreen had properly appealed the default judgment order, the record supports the trial court's conclusion that Evergreen failed to file a responsive pleading to the complaint. We find no merit in Meehan's argument that he assigned Evergreen's liability in this dispute to himself and, therefore, his answer should be construed as an answer on behalf of Evergreen. First, Meehan fails to cite any authority to support his ability to effectuate such an assignment and secondly, Meehan's purported assignment device addresses only Evergreen's potential causes of action against third parties and completely omits any mention of liability.

{¶ 41} Meehan further argues that the trial court erred in holding him personally liable for the judgment against Evergreen under the piercing the corporate veil doctrine. Because this issue was resolved by the trial court on summary judgment we address it with Meehan's other summary judgment related arguments below.

{¶ 42} Meehan's fifth assignment of error is overruled.

VI. Summary Judgment

{¶ 43} In his sixth assignment of error, Meehan argues that the trial court erred in granting summary judgment in favor of appellees.

{¶ 44} Our review of a trial court's grant of summary judgment is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 696 N.E.2d 201 (1998). The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

{¶ 45} Rather than addressing the propriety of granting summary judgment on any of the outstanding claims in particular, Meehan argues that five specific questions of material fact are outstanding and preclude summary judgment in this case. The five claimed factual disputes are (1) the date the agency agreement between WFG and Meehan was terminated, (2) whether Meehan breached the agency agreement by failing to notify WFG of an ODI investigation, (3) whether Meehan stole insurance premiums from WFG, (4) whether Meehan committed forgery and (5) which party breached the agency agreement. However, Meehan's effort to establish the existence of a genuine issue of material fact is again hamstrung by his failure to comply with the discovery process below.

{¶ 46} Civ.R. 36(B) provides:

(B) Effect of admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

{¶ 47} In this instance, each of the purported genuine issues of material fact proffered by Meehan were conclusively resolved in favor of the appellees by the admissions addressed in the fourth assignment of error. An admission that is not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the trial court simply because it finds the evidence presented by the party against whom the admission operates more credible. Smallwood v. Shiflet , 8th Dist. Cuyahoga No. 103853, 2016-Ohio-7887, 2016 WL 6906241, ¶ 22, citing Am. Auto. Assn. v. AAA Legal Clinic of Jefferson Crooke, P.C. , 930 F.2d 1117, 1120 (5th Cir.1991). Each of the claimed genuine issues of material fact were precluded by admissions made as a result of Meehan's failure to comply with Civ.R. 36(A) and conclusively established in favor of appellees.

{¶ 48} Finally, Meehan argues that the trial court erred in granting summary judgment on WFG's piercing the corporate veil claim. The current test for piercing the corporate veil in Ohio provides that the corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when:

(1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own,
(2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud, an illegal act, or a similarly unlawful conduct or an illegal act against the person seeking to disregard the corporate entity, and
(3) injury or unjust loss resulted to the plaintiff from such control and wrong.

Meinert Plumbing v. Warner Indus. , 2017-Ohio-8863, 90 N.E.3d 966, ¶ 43, citing Dombroski v. WellPoint, Inc. , 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538.

{¶ 49} Again, Meehan's arguments that summary judgment was improper are defeated by his admissions that included that (1) he "exercised control over Evergreen in a manner which was so complete that Evergreen did not have a separate mind, will or existence of its own" and (2) he "used control over Evergreen in order to commit theft, forgery, fraud and other illegal acts against WFG."

{¶ 50} Finding no merit to Meehan's argument that genuine issues of material fact precluded summary judgment, we overrule his sixth assignment of error.

VII. Civ.R. 60(B) Motion

{¶ 51} In his final assignment of error, Meehan argues that the trial court erred in denying his Civ.R. 60(B) motion for relief from judgment without holding an evidentiary hearing. We review a trial court's decision to grant or deny a Civ.R. 60(B) motion for an abuse of discretion. Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

{¶ 52} In order to prevail on a Civ.R. 60(B) motion to vacate judgment, the moving party must demonstrate the following: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B) that include, inter alia, "mistake, inadvertence, surprise or excusable neglect," and "any other reason justifying relief from the judgment"; and (3) the motion is made within a reasonable time and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec. v. ARC Industries , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

{¶ 53} The moving party "has the burden of proof, [and] must present sufficient factual information to warrant a hearing on the motion." Adomeit v. Baltimore , 39 Ohio App.2d 97, 103, 316 N.E.2d 469 (8th Dist.1974). The evidentiary materials must present operative facts and not mere general allegations to justify relief. Hornyak v. Brooks , 16 Ohio App.3d 105, 106, 474 N.E.2d 676 (8th Dist.1984). If the movant has a meritorious defense, then doubt, if any, should be resolved in favor of the motion to set aside the judgment so that the case may be decided on its merits. GTE , at paragraph three of the syllabus.

{¶ 54} Meehan filed his motion for relief from judgment on June 21, 2016 following the trial court's grant of summary judgment against him on May 2, 2016. However, the trial court's May 2, 2016 journal entry was not a final order under Civ.R. 54(B) because, by its own terms, it did not dispose of all claims against all parties. Additionally, the journal entry did not contain "no just reason for delay" language pursuant to Civ.R. 54(B). In fact, this court dismissed a prior appeal in this case on February 1, 2017 due to the lack of a final appealable order. The trial court had no authority to grant relief from a nonfinal judgment or order because Civ.R. 60(B), by its own terms, applies only to a "final judgment, order, or proceeding[.]" See, e.g., Harper v. Metrohealth Med. Ctr. , 8th Dist. Cuyahoga No. 81048, 2002-Ohio-5861, 2002 WL 31402001, ¶ 5 (finding that a trial court could not grant relief pursuant to Civ.R. 60(B) where summary judgment did not dispose of all claims and Civ.R. 54(B) language was not used).

{¶ 55} Meehan offers no argument addressing the above defect in his Civ.R. 60(B) motion. We find no abuse of discretion in the trial court's decision to deny the motion.

{¶ 56} Meehan's seventh assignment of error is overruled.

{¶ 57} The judgment of the trial court is affirmed.

KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR

      The claims for breach of contract, breach of fiduciary duty and accounting pertained only to Evergreen.

      There is no specific claim that McFadden made any defamatory statements to ODI or ODC relating to the date of Meehan and Evergreen's termination.


source: Caselaw Access Project

author: TUCKER, J. FROELICH, J., concurring in part and dissenting in part:

license: Public Domain

text:
    Ourania A. KARRAS, Plaintiff-Appellant v. Anastasios KARRAS, Defendant-Appellee
    No. 27606
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on February 9, 2018
    GREGORY E. HULL, Atty. Reg. No. 0023520 and JAMES PAPAKIRK, Atty. Reg. No. 0063862, 50 E. Business Way, Suite 410, Cincinnati, Ohio 45241, Attorneys for Plaintiff-Appellant.
    LAURENCE LASKY, Atty. Reg. No. 002959, 130 W. Second Street, Suite 830, Dayton, Ohio 45402, Attorney for Defendant-Appellee.
   TUCKER, J.

{¶ 1} Plaintiff-appellant, Ourania A. Karras, appeals from the trial court's decision of April 27, 2017, in which the court entered judgment on her claim for unpaid rent in favor of Defendant-appellee, Anastasios Karras. Raising two assignments of error, Appellant argues that: (1) the court interpreted her complaint too narrowly when it found that she had neither established her right to recover rent from Appellee, nor stated a claim for damages based upon Appellee's alleged interference with her life estate; and (2) the court should have found that Appellee admitted liability because his answer to the complaint did not satisfy the requirements of Civ.R. 8(B). We find that the trial court did not err, and we therefore affirm.

I. Facts and Procedural History

{¶ 2} Pursuant to the terms of a trust, Appellant holds a life estate in the marital residence that she shared with her late husband, Andreas Karras. Decision Sustaining Def.'s Mot. for Summ. J. and Overruling Pl.'s Mot. for Summ. J. 2, Apr. 27, 2017. Appellee, one of Andreas Karas's three adult children from a previous marriage, resided with his father and Appellant before his father died in May, 2013, and he continued to reside there after his father's death. See id. at 2-3. Disputes among Appellant, Appellee and Appellee's siblings over the implementation of the trust and the disposition of the trust's assets led to litigation in the Montgomery County Probate Court, beginning in May, 2014. Id. at 2.

{¶ 3} On July 28, 2015, the probate court issued an entry resolving the parties' various claims. Id. In relevant part, the probate court held that the trust entitled Appellant to exclusive possession of her marital residence and that Appellee had no right to remain there. Id. Appellee did not vacate the residence, however, so Appellant filed her "Complaint for Forcible Detention [sic], Rent and Damages" in the Montgomery County Court of Common Pleas on October 16, 2015. See id. at 3. The complaint comprised two claims for relief-a claim for forcible entry and detainer, and a claim for "rent in an amount no less than $1,000 for every month" Appellee lived in the residence "without permission," plus statutory interest. See Compl. ¶ 18 and 23.

{¶ 4} On March 31, 2016, the trial court adopted the magistrate's decision holding that Appellant was entitled to judgment on the pleadings on her first claim for relief. Decision Sustaining Def.'s Mot. for Summ. J. and Overruling Pl.'s Mot. for Summ. J. 3. The court resolved the remaining claim, Appellant's claim for unpaid rent, in favor of Appellee in its decision of April 27, 2017. Appellant's timely appeal followed on May 27, 2017.

II. Analysis

{¶ 5} Both of Appellant's assignments of error concern the trial court's ruling on a motion for summary judgment. Under Civ.R. 56(C), summary judgment "shall be rendered forthwith" when: (1) "there is no genuine issue as to any material fact"; (2) "the moving party is entitled to judgment as a matter of law"; and (3) construing the evidence most strongly in favor of the non-moving party, "reasonable minds" could not conclude otherwise. See also Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 ; Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The movant initially bears the burden of demonstrating the absence of any genuine issue of material fact. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).

{¶ 6} To meet this burden, the movant may rely only on those portions of the record properly before the court under Civ.R. 56(C). Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears the reciprocal burden, as stated in Civ.R. 56(E), to establish specific facts showing genuine issues to be tried. Id. at 293, 662 N.E.2d 264. To satisfy its reciprocal burden, the non-moving party "may not rest upon the mere allegations or denials of [the] pleading[s], but must set forth specific facts showing there is [at least one] genuine issue for trial."

Chaney v. Clark County Agric. Soc. , 90 Ohio App. 3d 421, 424, 629 N.E.2d 513 (2d Dist.1993), citing Civ.R. 56(E), and Jackson v. Alert Fire & Safety Equip. , 58 Ohio St.3d 48, 51, 567 N.E.2d 1027 (1991). Whether a fact is "material" depends on the substantive law of the claim being litigated. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Turner v. Turner , 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993). On appeal "an appellate court reviews a trial court's decision on a motion for summary judgment de novo." Herres v. Millwood Homeowners Ass'n, Inc. , 2d Dist. Montgomery No. 23552, 2010-Ohio-3533, 2010 WL 2990731, ¶ 17, citing Bonacorsi , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24.

{¶ 7} For her first assignment of error, Appellant contends that:

THE TRIAL COURT IMPROPERLY GRANTED TOM'S MOTION FOR SUMMARY JUDGMENT WHEN IT MISCONSTRUED THE WORD "RENT[.]"

{¶ 8} In its decision of April 27, 2017, the trial court found that Appellant directed her second claim for relief "specifically [to] damages based upon [Appellee]'s failure to pay rent"; that Appellant "failed to articulate a colorable basis under which she can recover rent" from Appellee; and that Appellant "failed to plead any other damages related to [Appellee]'s alleged interference with her exclusive life estate." Decision Sustaining Def.'s Mot. for Summ. J. and Overruling Pl.'s Mot. for Summ. J. 10-12 [hereinafter Decision ]. Appellant argues that the trial court thus interpreted her complaint too narrowly. See Appellant's Br. 6.

{¶ 9} Implicitly, Appellant's argument relies on the presumption that Ohio law recognizes a discrete cause of action for "intentional interference with a life estate." See Appellant's Br. 7. Appellant disavows any intention of recovering rent in the sense of "compensation * * * paid, usually periodically, for the use of * * * property," and maintains that the use of the word " 'rent' " in her second claim for relief was "understood by all" to mean "damages as measured by the diminution of the rental value" of her residence, rather than the more customary meaning. Black's Law Dictionary 1166 (5th ed. 1979); Appellant's Br. 6. Acknowledging that Appellee "never signed a lease with [her]" and did "not entirely bar[ ] her from [her] home," she posits that "Ohio courts have held that the life tenant is owed some amount of damages" in cases similar to hers, where Appellee "simply refused to leave [even] after losing in the [p]robate [c]ourt" and "being served with both a thirty-day and [a] three-day" notice to vacate the premises. Appellant's Br. 7. Appellant's citations notwithstanding, the case law is ambiguous.

{¶ 10} In support of her position, Appellant cites a case in which the Eleventh District Court of Appeals held that "the trial court's * * * award [of] damages to [the] [plaintiff-]appellee for interference with [his] life estate is in accordance with the law." Karako v. Lindberg , 11th Dist. Lake No. 97-L-022, 1998 WL 257043, *8 (Apr. 10, 1998). The plaintiff-appellee in Karako , however, sought relief for the breach of a contract "in which [he] was granted a life estate in property formerly owned by [his] wife," as opposed to relief for "intentional interference with a life estate," and the Eleventh District's holding referred to the method by which the trial court had calculated the amount of the plaintiff-appellee's contract damages, not to the legal theory on which he had predicated his complaint. Id. at *1 and *6-8. Of note, the trial court calculated the plaintiff-appellee's damages by establishing the value of the consideration he delivered to the defendant-appellant pursuant to their contract. See id. at *5-7.

{¶ 11} Appellant also cites Miller v. Miller , 8th Dist. Cuyahoga No. 81287, 2003-Ohio-1342, 2003 WL 1356804. In Miller , the plaintiff-appellee was denied access to a residence in which she claimed a life estate and "filed a complaint for declaratory judgment in the Cuyahoga County Court of Common Pleas, Probate Division, seeking," in relevant part, "a determination of her right to possession." Id. at ¶ 3, 5, 10, 17 and 19. The trial court agreed that the plaintiff-appellee had a life estate and awarded her compensation in the "amount of the [property's] fair-market rental value" for the interval during "which she was ousted from the property." Id. at ¶ 27 and 47. While the plaintiff-appellee was denied access, one of the defendants-appellants "took up residence there." Id. at ¶ 24.

{¶ 12} Observing that by virtue of her life estate, the plaintiff-appellee "received an inherent power to rent the property in which she was granted [the] estate," the Eighth District concluded that "the trial court did not err." Id. Otherwise, its decision does not elaborate on the trial court's rationale for using rental value as the measure of the plaintiff-appellee's damages, or specify the legal theory on which the plaintiff-appellee based her request for relief. See id. at ¶ 19-24 and 43-48.

{¶ 13} Assuming for sake of analysis that intentional interference with a life estate is a cognizable cause of action, the decision of the Ninth District Court of Appeals in Weaver v. Fenwick , 9th Dist. Summit No. 17995, 1997 WL 416323, *1 and 3-4 (July 2, 1997), suggests that the claim would sound in tort. Extrapolating from the elements of two other "intentional interference" torts-intentional interference with contract and intentional interference with inheritance-the elements of a claim for intentional interference with a life estate would likely include: the existence of a life estate held by the claimant; the defendant's intentional interference with the exercise of the claimant's property rights; the defendant's lack of justification or privilege; and damages. See Berridge v. McNamee , 2016-Ohio-4716, 66 N.E.3d 1266, ¶ 39 (2d Dist.) (listing elements of intentional interference with contract); Baillis v. Ross , 8th Dist. Cuyahoga No. 97259, 2012-Ohio-705, 2012 WL 589557, ¶ 27 (listing elements of intentional interference with inheritance), citing Firestone v. Galbreath , 67 Ohio St.3d 87, 88, 616 N.E.2d 202 (1993).

{¶ 14} Appellant alleges that she holds a life estate in her residence, that Appellee has no right to share the residence, and that Appellee refused to vacate the premises in the absence of any right to remain, and Appellee effectively concedes the validity of these allegations in his answer. Compl. ¶ 2-5 and 10; Answer & Countercl. ¶ 4-7 and 16-17, Nov. 6, 2015. Unlike the plaintiffs in Miller and Weaver , however, Appellant was not entirely deprived of the enjoyment of her life estate. Instead, Appellee "interfered with [Appellant's] peaceful and quiet enjoyment of the premises" by "refus[ing] to leave" and "continu[ing] to improperly reside" there. Compl. ¶ 10-11. Although Miller and Weaver offer some support for the proposition that an aggrieved holder of a life estate who is completely dispossessed may recover the fair market rental value of the estate property, Appellant alleges only a partial disposition.

{¶ 15} The Miller and Weaver decisions offer no express insight into whether a plaintiff in Appellant's position could recover damages based upon diminution of fair market rental value, though this is not an unreasonable premise. Nevertheless, the complaint includes no allegations establishing the fair market rental value of Appellant's residence or the amount by which the rental value of the residence was diminished as a result of Appellee's unauthorized presence; in other words, Appellant's allegation that Appellee interfered with the quiet enjoyment of her residence did not necessarily provide Appellee with notice that Appellant would seek to recover damages on a claim based upon tortious interference with a life estate. See State ex rel. Rogers v. Republic Environmental Sys., Inc. , 2d Dist. Montgomery No. 23513, 2010-Ohio-5523, 2010 WL 4615835, ¶ 27 (holding that to "constitute fair notice to [an] opposing party," a "complaint must still allege sufficient underlying facts that relate to and support the * * * claim" for relief).

{¶ 16} For that matter, Appellant insists in her reply brief that "if [she had used] the word 'damages' [in her complaint] instead of the word 'rent,' this case would [have been] decided at trial." Appellant's Reply Br. 2. Had the trial court dismissed her complaint under Civ.R. 12(B)(6), Appellant's argument might have some merit, but the trial court issued its decision under Civ.R. 56. Therefore, even if Appellant's complaint could be interpreted to set forth a cause of action for intentional interference with a life estate, and a corresponding claim for damages based upon diminution of fair market rental value, Appellant provided no summary judgment evidence in relation to either of these issues. In the absence of such evidence, the trial court could properly have concluded that Appellant failed to demonstrate her "entitle[ment] to judgment as a matter of law." Civ.R. 56(C). Construed in the context of the whole complaint, we find that the allegations in Appellant's second claim for relief did not give Appellee notice that Appellant sought to recover damages other than unpaid rent as contemplated in R.C. 1923.02 and 5321.06.

{¶ 17} Moreover, even apart from its caption, Appellant's complaint closely mimics the language typical of an action under R.C. Chapters 1923 and 5321. Given that "Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity." City of Cincinnati v. Beretta U.S.A. Corp. , 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. Instead, under Civ.R. 8(A), "a complaint need only contain 'a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.' " Id. , quoting Civ.R. 8(A)(1). The "purpose of Civ.R. 8(A) is to give the defendant fair notice of the [plaintiff's] claim and an opportunity to respond." (Citation omitted.) Leichliter v. Nat'l City Bank of Columbus , 134 Ohio App.3d 26, 31, 729 N.E.2d 1285 (10th Dist.1999). Though a plaintiff need not advance a specific legal theory to obtain recovery, "the complaint must contain either direct allegations on every material point necessary to sustain a recovery or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial." (Citation omitted.) Strahler v. Vessels , 4th Dist. Washington No. 11 CA 24, 2012-Ohio-4170, 2012 WL 4021113, ¶ 10. Pleadings in general should be construed "liberally" for purposes of Civ.R. 8. Crosby v. Beam , 47 Ohio St.3d 105, 110, 548 N.E.2d 217 (1989).

{¶ 18} In her first claim for relief, Appellant alleges that she "gave [Appellee] written notice of the termination of his tenancy, giving him thirty * * * days to vacate the premises." Compl. ¶ 15. R.C. 5321.17 states that a "landlord or [a] tenant may terminate or fail to renew a month-to-month tenancy by notice given the other at least thirty days prior to the periodic rental date," and the thirty-day notice delivered by Appellant lists "grounds" of "[t]ermination of tenancy" and "[o]ccupying property without color of title when the undersigned [i.e. Appellant] has possessory rights." Compl. ¶ 15 and Ex. B; compare with R.C. 1923.02(A)(5). Appellant also alleges that she "served [Appellee] with a [t]hree-[d]ay [n]otice to vacate"; the three-day notice refers to the thirty-day notice, incorporates the same grounds and includes the "conspicuous" warning required by R.C. 1923.04(A). Compl. ¶ 17 and Ex. C. The allegations that Appellee lacks any right to live on the premises, furthermore, relate only to the terms of the trust. That is, even construing the allegations liberally, Appellant never disclaims having had a rental agreement with Appellee. See Id. at ¶ 5, 8-10, 14 and 21.

{¶ 19} In her second claim for relief, Appellant alleges that Appellee "has not paid any rent in the time he has lived in the house since May 24, 2013," and she avers that she "has been damaged" as a result of his "refusal to pay rent." Id. at ¶22-23. Appellant calculates her damages-Appellee's liability-to be "rent in an amount no less than $1,000 for every month [Appellee] lived in [Appellant's residence] without permission." Id. at ¶23. Like the first claim for relief, the second claim for relief is most readily construed as a standard claim pursuant to R.C. Chapter 1923, specifically a claim under R.C. 1923.02 for unpaid rent, not least because Appellant emphasizes that Appellee's liability should accrue monthly. Id.

{¶ 20} As a whole, the allegations Appellant presents in her complaint closely parallel a number of distinctive provisions of R.C. Chapters 1923 and 5321. The consistent, specific references to these provisions certainly constitute notice of statutory claims for forcible entry and recovery of unpaid rent. Were the complaint intended to assert a tort claim for recovery of damages for interference with a life estate, however, the close parallels to R.C. Chapters 1923 and 5321 would be misleading, and irrespective of Appellant's prayer for "such other and equitable relief to which [she] may be entitled" on "all of her claims," similar boilerplate language appears in countless civil complaints. Moreover, the request for any other relief to which Appellant may be entitled "o[n] all of her claims" links the "other relief" to the claims actually set forth in the complaint, as opposed to "other relief" to which Appellant would have been entitled on additional claims.

{¶ 21} We concur with the trial court's conclusion that Appellant failed to plead any damages other than unpaid rent. Decision 11-12. Appellant's first assignment of error is overruled.

{¶ 22} For her second assignment of error, Appellant contends that:

THE TRIAL COURT IMPROPERLY OVERRULED MRS. KARRAS' MOTION FOR SUMMARY JUDGMENT.

{¶ 23} Appellant argues that the trial court should have granted summary judgment on Appellee's liability in her favor because Appellee's answer to her complaint did not satisfy the requirements of Civ.R. 8(B), meaning that her allegations should have been deemed admitted under Civ.R. 8(D), and independently, because the trial court's dismissal of Appellee's counterclaim resulted in the dismissal of his answer. Appellant's argument lacks merit.

{¶ 24} In his "Answer and Counterclaim," Appellee "states he owes no money to [Appellant] for rent or damages" and characterizes Appellant's suit as "retaliatory." Answer & Countercl. ¶ 12 and 22.

Although Appellee does not deny that the probate court and the trial court alike determined that he had no right to live in Appellant's residence, he insists that these determinations are incorrect. See Id. at ¶16. Construed in this context, we concur with the trial court that Appellee's denial of owing Appellant any "rent and damages" constitutes a denial of the allegations in Appellant's second claim for relief. Decision 10. As well, we find that the dismissal of Appellee's counterclaim did not result in the dismissal of his answer, despite the fact that the answer and the counterclaim were presented in a single filing without separate headings. Appellant's second assignment of error is overruled.

III. Conclusion

{¶ 25} Even construed liberally, we find that Appellant's second claim for relief does not constitute fair notice of a claim for damages other than unpaid rent, and we hold that Appellee did not fail to deny the allegations against him such that they were admitted under Civ.R. 8(D). Therefore, Appellant's assignments of error are overruled, and the trial court's decision of April 27, 2017 is affirmed. Finally, the July 14, 2017 motion of Defendant-Appellee for sanctions against Plaintiff-Appellant for having filed an allegedly frivolous appeal is overruled.

HALL, J., concurs.

FROELICH, J., concurring in part and dissenting in part:

{¶ 26} I agree that the trial court did not err in overruling Appellant Ourania's motion for summary judgment based on Appellee Tom's alleged failure to deny any of the averments in her complaint; I also agree with the resolution of the motion for sanctions. However, I disagree that Ourania failed to plead any damages other than unpaid rent.

{¶ 27} Ourania's complaint for forcible entry, "rent and damages" (emphasis added) alleged that Tom had "failed and refused to leave the marital home, and continue[d] to improperly reside" there, thereby interfering with her "peaceful and quiet enjoyment of the property." The complaint alleged that Tom had been living in the house "without right" since his father's death, had refused to pay rent, and should be ordered to "pay rent" in the amount of $1,000 "for every month [Tom] has lived in the marital home without permission." Tom's answer states he "owes no money to [Ourania] for rent or damages." (Emphasis added.)

{¶ 28} Ourania filed a motion for summary judgment on the question of liability, arguing that the only remaining issue to be resolved was the "fair market rental value of the house" for which she should be compensated. Tom filed a memorandum in opposition to Ourania's motion for summary judgment and his own motion for summary judgment. In both filings, Tom's arguments related only to whether rent was owed; he did not specifically assert that Ourania's complaint failed to seek any damages other than rent. Nor did he file a Civ.R. 12 motion that such a claim was not made.

{¶ 29} Generally, the Ohio Civil Rules require "notice pleading" rather than "fact pleading." Lisboa v. Tramer, 8th Dist. Cuyahoga No. 97526, 2012-Ohio-1549, 2012 WL 1142920, ¶ 27, citing Salamon v. Taft Broadcasting Co., 16 Ohio App.3d 336, 338, 475 N.E.2d 1292 (1st Dist.1984). Civ.R. 8(F) states that "[a]ll pleadings shall be so construed as to do substantial justice," and the rule " * * * emphasizes the fact that pleadings shall be construed liberally * * *." Crosby v. Beam , 47 Ohio St.3d 105, 110, 548 N.E.2d 217 (1989), citing Staff Notes to Civ.R. 8(F).

{¶ 30} Notice pleadings merely require that a claim concisely set forth those operative facts sufficient to give "fair notice of the nature of the action." Oxford Sys. Integration, Inc. v. Smith-Boughan Mechanical Servs., 159 Ohio App.3d 533, 2005-Ohio-210, 824 N.E.2d 586, ¶ 9 (2d Dist.), citing DeVore v. Mutual of Omaha Ins. Co., 32 Ohio App.2d 36, 38, 288 N.E.2d 202 (7th Dist.1972) ; Civ.R. 8(A) and 8(E) ; Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 18. "[P]ursuant to the liberal pleading requirements of Civil Rule 8, the pleadings of the parties to an action need only be in general terms." Thompson Thrift Construction v. Lynn , 5th Dist., 2017-Ohio-1530, 89 N.E.3d 249, ¶ 87. Few complaints fail to meet the liberal pleading standards of Civ.R. 8. Smiley v. Cleveland , 8th Dist. Cuyahoga No. 103987, 2016-Ohio-7711, 2016 WL 6673178, ¶ 6.

{¶ 31} Although Ourania used the term "rent" at paragraphs 22 and 23 of her complaint (out of a total of 23 paragraphs), her complaint never alleged that there was a rental agreement or lease which she sought to enforce. Rather, she used to the term "rent" as a substitute for or interchangeably with "damages," and presented her claim for damages in terms of monthly compensation to which she claimed she was entitled for each month that Tom had remained in the residence. Construing these pleadings liberally, as we are required to do, I would hold that 1) Tom was on notice that Ourania wanted to be compensated for his continued presence in the home, and that Ourania pled a claim for damages for Tom's unlawful occupancy of her home and his interference with her right to exclusive occupancy of her home, and 2) because Tom did not present any evidence on the issue of such damages, the trial court erred in granting summary judgment to Tom on Ourania's claim for damages.

      Tom appears to be Appellee's nickname.


author: SINGER, J.

text:
    IN RE H.W.
    Nos. S-17-043 S-17-046
    Court of Appeals of Ohio, Sixth District, Sandusky County.
    Decided: February 9, 2018
    Brett A. Klimkowsky, Martin, for appellant, C.C.
    Sarah A. Nation, for appellant, K.W.
    Nancy E. Haley, for appellee.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} This is an appeal from the September 13, 2017 judgment of the Sandusky County Court of Common Pleas, Juvenile Division, which terminated the parental rights of appellant, C.C., mother of H.W. ("mother"), and appellant, K.W., father of H.W. ("father"), and granted permanent custody of the child to appellee, Sandusky County Department of Job and Family Services. For the reasons that follow, we affirm the judgment.

{¶ 2} Mother and father filed separate appeals; the appeals were consolidated. Mother's appointed counsel filed a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and did not set forth any potential assignments of error. Father set forth three assignments of error in his brief:

I. The trial court erred in denying appellant's request for continuance.
II. Appellant was not afforded effective assistance of counsel.
III. The trial court erred in granting permanent custody of H.W. to the Sandusky County Department of Job and Family Services as it was against the manifest weight of the evidence.

Background

{¶ 3} Mother and father, who are not married, are the parents of H.W., who was born in June 2015. Mother has given birth to a total of four children, although only H.W., the youngest child, was the subject of the permanent custody proceeding in the Sandusky County Court of Common Pleas, Juvenile Division. None of mother's three older children reside with her, as one child was placed in his dad's legal custody, another child was placed with mother's relatives and appellee was granted permanent custody of the other child.

{¶ 4} When H.W. was born, he tested positive for cocaine, opiates and marijuana. Mother was addicted to drugs, as was father. Appellee received a referral regarding H.W. due to the drugs in his system. H.W. was hospitalized for approximately one month after he was born and underwent methadone treatment to ease his withdrawal symptoms.

{¶ 5} On July 15, 2015, appellee requested and was granted temporary custody of H.W. since there was no suitable placement options for H.W. After H.W. was released from the hospital, he was placed in a foster home. Meanwhile, mother and father sought inpatient drug treatment, but by the end of July 2015, both had left the treatment facility.

{¶ 6} Mother and father visited with H.W. on August 3, 2015. Mother and father were scheduled to visit with H.W. on August 10, 2015, but had to visit the baby separately due to the couple's arguing during previous visits. Neither parent appeared for the August 10, 2015 visit, although H.W. had been transported to the agency in anticipation of the visit.

{¶ 7} On August 21, 2015 mother was arrested and jailed for nonsupport. On August 24, 2015, the adjudicatory hearing was held. Mother was transported from the jail and attended the hearing. Father did not attend the hearing. H.W. was adjudicated a neglected and dependent child. H.W. remained in appellee's temporary custody.

{¶ 8} On September 23, 2015, the dispositional hearing was held. Temporary custody of H.W. was granted to appellee and a case plan for mother and father was approved.

{¶ 9} On March 31, 2017, appellee filed its motion requesting modification of temporary custody of H.W. to permanent custody.

{¶ 10} On July 12, 2017, father requested the permanent custody hearing be continued; the request was denied.

{¶ 11} On July 13, 2017, the court held the permanent custody hearing.

{¶ 12} On September 13, 2017, the trial court issued its findings of fact, conclusions of law and judgment entry in which it granted permanent custody of H.W. to appellee.

July 13, 2017 Permanent Custody Hearing

{¶ 13} Mother and father appeared almost two hours late for the hearing. Mother left shortly after she arrived because she was under the influence of some substance. Mother's appointed counsel remained at the hearing.

{¶ 14} Father, via counsel, indicated that he desired to consent to appellee's motion for permanent custody of H.W. Father was sworn and was thoroughly advised of his rights and the consequences of consenting to the granting of appellee's motion for permanent custody of H.W. Father was questioned about his educational background, his sobriety and his ability to understand the purpose of the court hearing; father answered appropriately. Father acknowledged, among other things, that he had had been represented by counsel, he was happy with counsel, he had a chance to review the paperwork from the case with counsel and counsel satisfactorily answered all of father's questions. Father recognized he was consenting to H.W. being placed in appellee's permanent custody, and that his relationship with H.W. would end. Father indicated he was waiving his parental rights without any threats or promises by anyone. Father understood he was waiving his right to a trial where appellee would be required to prove its case. Father agreed that permanent custody was in H.W.'s best interest. Thereafter, father knowingly, intelligently and voluntarily consented to H.W.'s placement in appellee's permanent custody. The court also explained to father that appellee's plan for H.W. would be to place H.W. for adoption. Father acknowledged adoption was in H.W.'s best interest. Father and his counsel left the hearing, as father indicated to the court that father preferred for his counsel to leave.

{¶ 15} Appellee then called three witnesses to testify at the permanent custody hearing. The relevant testimony is summarized below.

Child Support Worker

{¶ 16} Cassandra Walter, who worked for Sandusky County Child Support, testified that on September 24, 2015, a child support order was issued requiring mother to pay $50 a month for H.W.'s support. On February 1, 2016, the child support order was increased to $203.60 a month. Walter stated mother never made any payments for H.W.'s support.

Caseworker Angela Wheeler

{¶ 17} Angela Wheeler, an on-going caseworker for appellee, testified to the following. She learned during a previous case where mother lost custody of another child that mother was schizophrenic. Wheeler was assigned to H.W.'s case in May of 2016, although Shelbi Meyer was the original caseworker assigned to H.W.'s case in June 2015. Wheeler received and reviewed Meyer's case file. The case file indicated mother voluntarily started inpatient drug treatment on June 18, 2015, but unsuccessfully left on July 30, 2015. Appellee took custody of H.W. on July 15, 2015. A case plan was completed for mother in August 2015, for services including alcohol and drug treatment. Mother's last visit with H.W. was on August 3, 2015. After August 2015, the only contact appellee had with mother was when mother was incarcerated. Mother completed no case plan services and was removed from case plan services in March 2016.

{¶ 18} When H.W. was born, he was addicted to three different drugs and was extremely ill. H.W. was in the hospital for a month before he could go to a foster home. H.W. had tremors until he was about a year old. In October 2016, H.W. changed foster homes.

{¶ 19} Wheeler stated appellee would not consider mother to be a safe placement for H.W. Wheeler noted mother does not have any of her children in her care. Wheeler opined H.W. would not know his mother since he had not seen her since August 2015.

CASA/GAL

{¶ 20} Miranda Magers testified she is a volunteer for Court Appointed Special Advocate ("CASA") and the guardian ad litem ("GAL") appointed to represent H.W. in July 2015. Magers undertook an investigation and prepared a report, filed June 30, 2017. Magers testified she spoke with mother in July 2015, at the first hearing, and thereafter spoke with mother at court. Magers noted mother is actively involved in drug use and has no intention of stopping as mother likes using drugs. Magers was concerned that mother could not take care of H.W. while using drugs. At the time of the permanent custody hearing, mother had not seen H.W. for 673 days.

{¶ 21} Magers observed H.W. and stated he is doing very well, and it appears he has overcome the issues he had with being born drug-addicted. Magers recommended that appellee receive permanent custody of H.W., as that would be in H.W.'s best interest.

Trial Court's Decision

{¶ 22} On September 13, 2017, the trial court issued its findings of fact, conclusions of law and judgment entry in which it ordered permanent custody of H.W. to appellee. The court made the following findings, by clear and convincing evidence: mother and father legally abandoned H.W.; H.W. could not be placed with either parent within a reasonable period of time and should not be placed with either parent; father knowingly, voluntarily and intelligently waived his parental rights to H.W. and consented to H.W.'s placement in appellee's permanent custody, as it was in H.W.'s best interest; both parents failed to make H.W. a priority; and, appellee made reasonable efforts to reunify the family.

{¶ 23} The trial court concluded H.W. has been in the temporary custody of appellee for more than 12 months of 22 consecutive months. The court further concluded H.W. cannot be placed with either parent within a reasonable period of time, and should not be placed with either parent. The court concluded father knowingly, voluntarily and intelligently waived his rights and consented to H.W.'s placement in appellee's permanent custody. The court also concluded the permanent placement of H.W. in appellee's custody is clearly in H.W.'s best interest. In addition, the court concluded appellee made reasonable efforts for H.W. to return home, which efforts were unsuccessful. Lastly, the court concluded appellee made reasonable efforts to establish a permanency plan for H.W. for the child's placement in appellee's permanent custody with the goal of finding an appropriate adoptive family for H.W.

Mother's Appeal

{¶ 24} On December 4, 2017, mother's appointed counsel filed a request to withdraw pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Counsel asserted that after reviewing the court file, including the transcript of proceedings, no error prejudicial to mother could be argued.

{¶ 25} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders , as well as State v. Duncan , 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders , the United States Supreme Court found if counsel, after a conscientious examination of the case, determines it to be wholly frivolous, counsel should so advise the court and request permission to withdraw. Anders at 744, 87 S.Ct. 1396. This request must be accompanied by a brief. Id. In addition, counsel must furnish the client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters the client so chooses. Id. Once these requirements have been fulfilled, the appellate court must conduct a full examination of the proceedings held below to decide if the appeal is indeed frivolous. Id. If the appellate court determines the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or it may proceed to a decision on the merits if required by state law. Id.

{¶ 26} Here, mother's appointed counsel satisfied the requirements set forth in Anders . We observe mother has not filed a pro se brief or otherwise responded to counsel's request to withdraw. Accordingly, we shall proceed with an examination of the entire record below to determine if this appeal lacks merit and is, therefore, wholly frivolous.

{¶ 27} Our review of the record does not disclose any errors by the trial court which would justify a reversal of the judgment. The record is replete with evidence concerning mother's drug addiction, her lack of commitment to and concern for H.W., her unwillingness to make H.W. a priority and her failure to participate in case plan services. We therefore find mother's appeal to be wholly frivolous, and counsel's request to withdraw is found well-taken and is granted.

Father's Appeal

First Assignment of Error

{¶ 28} Father argues the trial court erred in denying his request for a continuance of the July 13, 2017 hearing. Father contends he sought a continuance for the following reasons: H.W.'s former foster parents filed a petition for adoption in probate court on July 11, 2017; one of father's witnesses was unavailable to appear at the hearing; and father had a court date for a felony charge on July 13, 2017.

{¶ 29} "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 30} Here, the record shows father's request for continuance was filed on July 12, 2017, the day before the permanent custody hearing. On that same day, the trial court denied father's request. The court noted that the July 13, 2017 hearing had been scheduled since May 23, 2017, after the court had consulted with five attorneys' schedules. The court observed notice of the hearing had been served on all parties and a court reporter was ordered. The court further noted father's felony court date was scheduled a week earlier, but at the review hearing held on July 10, 2017, which father's counsel attended, no mention was made regarding a scheduling conflict. In addition, the court found the filing of a petition for adoption does not divest the juvenile court of jurisdiction.

{¶ 31} Upon review of the record, we find no basis for concluding that the trial court's denial of father's request for a continuance was improper or an abuse of discretion. Accordingly, father's first assignment of error is not well-taken.

Second Assignment of Error

{¶ 32} Father asserts he was not afforded effective assistance of counsel because counsel advised father that one of father's witnesses was not available to attend the permanent custody hearing. In addition, father claims the trial court docket shows his counsel failed to subpoena witnesses for the permanent custody hearing. As a result, father consented to granting appellee's motion for permanent custody.

{¶ 33} In order to prevail on a claim for ineffective assistance of counsel, appellant must show trial counsel's performance fell below an objective standard of reasonable representation and prejudice resulted from counsel's deficient performance. State v. Bradley , 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the syllabus, following Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 688, 104 S.Ct. 2052.

{¶ 34} Here, father argues his trial counsel was ineffective because one of father's witnesses was not available to attend the permanent custody hearing, and counsel failed to subpoena witnesses for the hearing. Father, however, did not articulate any reasons why or how his case was thereby prejudiced. Father did not offer what testimony the unavailable witness would have presented at the hearing, nor did father submit a list of witnesses who should have been subpoenaed to testify at the hearing, or the substance of their testimony.

{¶ 35} In light of the foregoing, there is no evidence in the record that the performance of father's trial counsel was in any way professionally unreasonable. Nor is there evidence to support a finding that there is a reasonable probability that, but for trial counsel's alleged errors, the result of the hearing would have been different. Accordingly, father's second assignment of error is not well-taken.

Third Assignment of Error

{¶ 36} Father argues the trial court erred in granting permanent custody of H.W. to appellee, as it was against the manifest weight of the evidence because father's trial counsel left the courtroom during the hearing and counsel was ineffective.

{¶ 37} A trial court's decision in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence. In re A.H. , 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, 2011 WL 4420783, ¶ 11, citing In re Andy Jones , 10th Dist. Franklin Nos. 03AP-1167 and 03AP-1231, 2004-Ohio-3312, 2004 WL 1405319, ¶ 28. The factual findings of a trial court are presumed to be correct since, as the trier of fact, the court is in the best position to weigh the evidence and evaluate the testimony of the witnesses. In re Brown , 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Therefore, a judgment supported by some competent, credible evidence going to all essential elements of the case is not against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 38} The juvenile court may grant permanent custody of a child to a children services agency if the court finds, by clear and convincing evidence: (1) the existence of at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the child's best interest is served by granting permanent custody to the agency. In re M.B. , 10th Dist. Franklin No. 04AP755, 2005-Ohio-986, 2005 WL 534904, ¶ 6. Clear and convincing evidence requires proof which "produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In making a best interest determination, R.C. 2151.414(D)(1) provides that the court shall consider all relevant factors, including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999;
(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶ 39} The factors set forth in R.C. 2151.414(E)(7) through (11) include: whether the parents have been convicted of or pled guilty to various crimes; whether medical treatment or food has been withheld from the child; whether the parents have placed the child at a substantial risk of harm due to alcohol or drug abuse, and have rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring treatment of the parents was journalized as part of a dispositional order issued with respect to the child or an order was issued by any other court requiring treatment of the parents; whether the parents have abandoned the child; and whether the parents have had parental rights terminated with respect to a sibling of the child.

{¶ 40} Here, addressing father's claims regarding his counsel, we previously found that father's trial counsel was not ineffective. Moreover, the record shows after father consented to the granting of appellee's motion for permanent custody of H.W., father was asked by the court if father wanted counsel to leave the hearing or stay for the remainder of the hearing, and father decided that counsel should leave the courtroom. We find neither of these claims advanced by father is a basis upon which to find that the trial court erred in granting permanent custody of H.W. to appellee.

{¶ 41} With regards to father's contention that the trial court's granting of permanent custody of H.W. to appellee was against the manifest weight of the evidence, we find the court's decision was supported by clear and convincing evidence. The record fully supports the court's determination that H.W. has been in appellee's temporary custody for more than 12 months of a consecutive 22-month period, as it undisputed that H.W. has been in appellee's custody without interruption since July 15, 2015. See R.C. 2151.414(B)(1)(d). The record also supports the court's finding that mother and father abandoned H.W., as mother last visited H.W. on August 3, 2015, and father visited last with H.W. on February 23, 2017. See R.C. 2151.414(B)(1)(b).

{¶ 42} Turning to the second prong of the permanent custody analysis, we find there was clear and convincing evidence in the record to support the trial court's determination that awarding permanent custody of H.W. to appellee was in H.W.'s best interest.

{¶ 43} The record shows mother is addicted to drugs, father has a substance abuse history, neither parent has stable housing or the means to financially support H.W., mother lost custody of another child and does not have any of her children living with her, both parents failed to consistently visit H.W., mother and father failed to make H.W. a priority in their lives and both parents failed to take advantage of the many case plan services made available to them. In addition, father voluntarily and knowingly consented to granting appellee's motion for permanent custody of H.W.

{¶ 44} The record further reveals H.W. was thriving in his foster home and has responded well medically, physically and socially. Despite H.W. being born extremely ill and addicted to drugs, at the time of the permanent custody hearing, H.W. was on target for a two-year-old. Given H.W.'s young age, he was not able to express his wishes. However, the GAL recommended that permanent custody of H.W. be granted to appellee. The record shows if permanent custody was granted to appellee, appellee would place H.W. for adoption.

{¶ 45} Based on the foregoing, the trial court did not err in granting permanent custody of H.W. to appellee. The trial court's judgment is supported by clear and convincing evidence, and therefore, is not against the manifest weight of the evidence. Accordingly, father's third assignment of error is not well-taken.

{¶ 46} The judgment of the Sandusky County Court of Common Pleas, Juvenile Division, is hereby affirmed. Appellants are ordered to split the costs of this appeal pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

Christine E. Mayle, P.J.

James D. Jensen, J.

CONCUR.