source: Caselaw Access Project

author: WILLAMOWSKI, P.J.,

license: Public Domain

text:
    Eric A. FABER, et al., Plaintiffs-Appellants, v. SENECA COUNTY SHERIFF'S DEPT., et al., Defendants-Appellees.
    NO. 13-17-29
    Court of Appeals of Ohio, Third District, Seneca County.
    Date of Decision: March 5, 2018
    Gene P. Murray, Fostoria, for Appellants
    Teresa L. Grigsby, Toledo, for Appellees
   WILLAMOWSKI, P.J.,

{¶ 1} Plaintiffs-appellants Eric A. Faber ("Eric"), Robert E. Faber, and Martha J. Faber appeal the judgment of the Seneca County Court of Common Pleas (1) for granting appellees' 12(B)(6) motion to dismiss; and (2) for finding the appellants' claim for injunctive relief to be moot. For the reasons set forth below, the judgment of the lower court is affirmed.

Facts and Procedural History

{¶ 2} On January 10, 2017, the appellants filed a complaint that named the Seneca County Sheriff's Department and Sheriff William E. Eckelberry ("Sheriff Eckelberry") as defendants. Doc. 2. The complaint alleged that Eric, while he was an inmate in the Seneca County Jail, was assaulted on January 13, 2015, by another inmate Jose Garcia ("Garcia"). Id. Garcia was allegedly an illegal immigrant who was in the appellees' custody and was awaiting deportation. Id. The complaint claims that Garcia was motivated to assault Eric by a desire "to obtain a new criminal offense, and thereby avoid or otherwise delay his deportation * * *." Id.

The complaint stated that the appellees were "responsible for the operation of the Seneca County Jail" and "fail[ed] to safeguard and protect their ward." Id.

{¶ 3} The appellants also requested an order from the trial court that would require the appellees to keep detainees who are awaiting deportation in a separate area from the other inmates in the local jail. Id. If the appellees were not able to keep the ICE detainees separately from the other inmates, the appellants alternatively requested "the [trial court] to Order that the Defendants cease and desist from any further participation in the ICE-related detaining and deportation process." Id.

{¶ 4} On June 1, 2017, the appellees filed a motion for judgment on the pleadings. Doc. 14. In this motion, the appellees argued that Sheriff Eckelberry was only sued in his official capacity and, therefore, had immunity under R.C. 2744.02. Id. The trial court granted the appellees' motion on September 6, 2017. Doc. 17. The appellants filed notice of appeal on October 6, 2017. Doc. 18. On appeal, the appellants raise the following two assignments of error:

First Assignment of Error
The trial court abused its discretion by erroneously deciding that no allegations of liability were made in the complaint against Defendant William E. Eckelberry, individually, ...As the plaintiffs did indeed claim damages jointly and "severally" against each defendant, thereby individualizing the actions and the claims against each defendant, with allegations of recklessness, and accordingly stating a valid actionable claim against the named individual, William E. Eckelberry, in the complaint, which should survive a motion to dismiss on the pleadings.
Second Assignment of Error
The trial court abused its discretion by dismissing the plaintiffs' claim against the defendants for injunctive relief on the sole grounds of mootness, as the trial court erroneously claimed there were no allegations in the complaint that the Seneca County Jail presently houses ICE detainees, when indeed, the plaintiffs' complaint indicated that Federal Immigration and Customs Enforcement (known by the acronym "ICE") detainees are being held by the defendants in the Seneca County Jail. Wherefore, the fact that the trial court conceded that only "after the alleged assault" that Plaintiff Eric Faber was housed separately from the person, to wit, the ICE detainee who assaulted him, accordingly so indicates without equivocation, there is no protective separation of ICE detainees and the local inmate population, which is not a moot point to the safety of the local inmate population, with regard to the practical effects upon the existing controversy, which so exists in the Seneca County Jail, and which commingles ICE detainees with the local inmate population, and with the ICE detainees' incentives to commit crimes against the local inmate population in order to remain in the United States because of new crimes, or because of the charges received, therefrom, delaying deportation.

We will consider these assignments of error in the order in which they were presented in the appellants' brief.

First Assignment of Error

{¶ 5} In their first assignment of error, the appellants argue that the trial court erred by granting appellees' Civ.R. 12(B)(6) motion to dismiss, alleging that their complaint contains a prima facie tort claim against the sheriff.

Legal Standard

{¶ 6} "A [ Civ.R. 12(B)(6) ] motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests whether the complaint is sufficient." Pearsall v. Guernsey , 2017-Ohio-681, 86 N.E.3d 69, ¶ 8 (3d Dist.), quoting Bd. of Health of Defiance Cty. v. McCalla , 3d Dist. Defiance No. 4-12-07, 2012-Ohio-4107, 2012 WL 3893579, ¶ 33. For a Civ.R. 12(B)(6) dismissal to be proper, "it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Arnett v. Precision Strip, Inc. , 2012-Ohio-2693, 972 N.E.2d 168, ¶ 5 (3d Dist.), quoting LeRoy v. Allen, Yurasek, & Merklin , 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.

{¶ 7} On review, "[t]he allegations of the complaint must be taken as true, and those allegations and any reasonable inferences drawn from them must be construed in the nonmoving party's favor." Ohio Bur. of Workers' Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. An appellate court reviews a trial court's decision to grant a Civ.R. 12(B)(6) motion de novo. Ballreich Bros., Inc. v. Criblez , 3d Dist. Hancock No. 5-09-36, 2010-Ohio-3263, 2010 WL 2735733, ¶ 9.

Because affirmative defenses typically rely on matters outside the complaint, they normally cannot be raised in a Civ.R. 12(B)(6) motion. If, however, the existence of an affirmative defense is obvious from the face of the complaint, a court may grant a Civ.R. 12(B)(6) motion on the basis of the affirmative defense. In so ruling, a court must exercise caution because 'complaints need not anticipate and attempt to plead around defenses.' Thus, unless the face of the complaint obviously or conclusively establishes the affirmative defense, a court may not dismiss the complaint for failure to state a claim.

(Citations omitted). Cristino v. Bur. of Workers' Comp. , 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (10th Dist.). Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities , 3d Dist. Van Wert No. 15-08-11, 2009-Ohio-5082, 2009 WL 3068807, ¶ 19.

{¶ 8} Revised Code Chapter 2744 provides general immunity to political subdivisions subject to several statutory exceptions. O'Toole v. Denihan , 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 47. This immunity is extended to elected officeholders who hold positions within political subdivisions. Lambert v. Clancy , 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 14, 22.

A complainant may sue an elected official in either his or her official capacity or in his or her individual capacity. When the complainant sues an elected official in his or her individual capacity, R.C. 2744.03(A)(6) applies and the official will be immune from suit unless the complainant can show that one of the exceptions set forth in that subdivision applies.

Field v. Summit Cty. Child Support Agency , 2016-Ohio-7026, 72 N.E.3d 165, ¶ 15. However, "if the allegations are directed against the holder of an office in his official capacity, it is the equivalent of suing the political subdivision itself." Thompson v. Buckeye Joint Vocational Sch. Dist. , 2016-Ohio-2804, 55 N.E.3d 1, ¶ 39 (5th Dist.).

{¶ 9} Thus, R.C. 2744.02 and the exceptions contained therein apply to claims filed against an elected official who is sued in his or her official capacity. Lambert at ¶ 14, 22. The process of determining civil liability for a political subdivision under R.C. 2744.02 involves a three-tier analysis. Wentworth v. Coldwater , 3d Dist. Mercer No. 10-14-18, 2015-Ohio-1424, 2015 WL 1618923, ¶ 21.

The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B).
The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. At this tier, the court may also need to determine whether specific defenses to liability for negligent operation of a motor vehicle listed in R.C. 2744.02(B)(1)(a) through (c) apply.
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.

Riffle v. Physicians & Surgeons Ambulance Serv., Inc. , 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.

{¶ 10} The five exceptions to immunity listed under R.C. 2744.02(B) read as follow:

(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. * * *
* * *
(2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads * * *.
(4) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term "shall" in a provision pertaining to a political subdivision.

R.C. 2744.02(B). Courts proceed to the third tier of the analysis only if one of the exceptions in R.C. 2744.02(B) applies. Wentworth at ¶ 23.

Legal Analysis

{¶ 11} In this case, we must first determine whether Sheriff Eckelberry was sued in his official capacity or as an individual. The wording of the appellants' complaint addresses Sheriff Eckelberry in his official capacity. Doc. 2. "The complaint does not add the words 'personally,' 'individually,' 'an employee of the [Seneca County Sheriff's Office],' " or other language that would indicate that Sheriff Eckelberry is being sued in an individual capacity as a county employee. Lambert at ¶ 15. Further, the complaint challenges the policies and practices of the Seneca County Sheriff's Office. Id. at ¶ 16. The complaint does not allege any facts in which Sheriff Eckelberry was acting personally in an individual capacity. Id.

{¶ 12} The appellants argue that the complaint does address Sheriff Eckelberry as an individual because damages were sought "jointly and severally" from the appellees. Doc. 2. We do not find this argument to be persuasive. In Lambert v. Clancy, supra , a complaint was filed against a County Clerk of Courts that "ask[ed] for relief solely from [the clerk] and not any public body or office." Lambert at ¶ 16. Yet the Supreme Court of Ohio still found that this complaint initiated a suit against the clerk in his official capacity and that the immunity provisions of R.C. 2744.02 applied. Id. Thus, we find that Sheriff Eckelberry was sued in his official capacity. We turn now to determine whether any of the exceptions listed in R.C. 2744.02(B) apply in this case.

{¶ 13} The appellants' complaint does not allege any facts related to (1) the negligent operation of a motor vehicle; (2) negligence with regard to a proprietary function; (3) a failure to maintain a public road; (4) a physical defect in a building used in connection with a governmental purpose; or (5) a provision in the Revised Code that expressly imposes civil liability. R.C. 2744.02(B). Since this complaint does not implicate any of the five exceptions listed in R.C. 2744.02(B), the general sovereign immunity provision of R.C. 2744.02(A)(1) applies. Thus, this complaint does not present a claim upon which relief can be granted. For these reasons, the appellants' first assignment of error is overruled.

Second Assignment of Error

{¶ 14} In their second assignment of error, appellants argue that the trial court abused its discretion by dismissing their claim for injunctive relief on the grounds that this claim was moot.

Legal Standard

{¶ 15} Mootness is a "doctrine of standing in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Siferd v. Siferd , 2017-Ohio-8624, 100 N.E.3d 915, ¶ 12, quoting U.S. Parole Commission v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). "The duty of a judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot effect the matter in issue in the case before it." State v. City of Lima , 3d Dist. Allen No. 1-76-62, 1977 WL 199279, *2 (June 24, 1977). "Consequently, a case is moot where a judgment is sought on a matter that when rendered does not have any practical effect upon the issues raised by the pleadings." RLJ Management Co., Inc. v. Larry Baldwin , 3d Dist. Crawford No. 3-01-16, 2001 WL 1613014 (Dec. 18, 2001).

Legal Analysis

{¶ 16} In this case, the complaint was filed on January 10, 2017, and alleged that a tort occurred on January 13, 2015. Doc. 1, 2. The appellants did not allege that Eric remains detained in the Seneca County Jail. Doc. 2. From the complaint, Eric does not appear to be subject to the practice that the appellants are challenging. Id. Thus, the complaint has not alleged an existing controversy or established that an injunction from the trial court could grant Eric any measure of relief. Further, the appellants have not even alleged that the Seneca County Jail has continued the practice about which they complain. Id. Rather, the appellants only requested that the trial court order the Seneca County Jail to cease a practice that had been in place in 2015. Id. For these reasons, we find that the trial court did not err in finding that the appellants' request for injunctive relief was moot. Thus, the appellants' second assignment of error is overruled.

Conclusion

{¶ 17} Having found no error prejudicial to the appellants in the particulars assigned and argued, the judgment of the Seneca County Court of Common Pleas is affirmed.

Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

      In their assignment of error, the appellants do not challenge the decision of the trial court to grant the appellees' 12(B)(6) motion as to the Seneca County Sheriff's Department. Thus, we will limit our analysis to whether the 12(B)(6) motion was properly granted as to Sheriff Eckelberry.


author: KLATT, J.

text:
    James MIRACLE, Plaintiff-Appellant, v. The OHIO DEPARTMENT OF VETERANS SERVICES et al., Defendants-Appellees.
    No. 16AP-885
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 6, 2018
    On brief: Adams & Liming LLC, and Sharon Cason-Adams, for appellant. Argued: Sharon Cason-Adams.
    On brief: Michael DeWine, Attorney General, Lee Ann Rabe and Emily Simmons Tapocsi, for appellees. Argued: Lee Ann Rabe.
    DECISION
   KLATT, J.

{¶ 1} Plaintiff-appellant, James Miracle, appeals a judgment of the Court of Claims of Ohio that dismissed his action against defendants-appellees, the Ohio Department of Veterans Services ("ODVS") and the Office of the Governor. For the following reasons, we reverse that judgment and remand this case to the trial court for further proceedings.

{¶ 2} On July 14, 2016, Miracle filed suit against defendants, asserting claims for wrongful discharge in violation of public policy. Miracle's claims arose out of the termination of his employment as the administrative officer 2/facilities maintenance supervisor at the Sandusky Domiciliary, an ODVS facility. In his complaint, Miracle alleged that, prior to his hiring, he had advised Michel Oppy, the then superintendent of the Ohio Veterans Home at Sandusky, and John Cook, a deputy director of ODVS, of a prior adverse incident in his job history. Miracle explained that the Ohio Department of Rehabilitation and Correction had fired him from his position as building construction superintendent at the Mansfield Correctional Institution after an investigation into the escape of a prisoner. Oppy and Cook both assured Miracle that the termination would not pose a problem.

{¶ 3} Miracle began his employment with ODVS on February 23, 2015. In a job review Miracle received on June 9, 2015, Miracle attained "meets expectations" or "exceeds expectations" ratings in each category. However, six days later, ODVS' human resource director informed Miracle that ODVS was terminating his employment. When Miracle asked the human resource director to explain the reason for his discharge, she told him that ODVS "was moving in a different direction" and ODVS was "not obligated to give [him] a reason" because he was only a probationary employee. (Compl. at ¶ 36.)

{¶ 4} Miracle later learned that Jai Chabria, then a senior advisor for the governor, had ordered ODVS to fire him. Apparently, Chabria wanted Miracle discharged to end the negative press his hiring had garnered from the Sandusky media.

{¶ 5} Miracle's complaint asserted three claims for wrongful discharge in violation of public policy: (1) defendants violated the clear public policy, derived from R.C. 124.27(B), in favor of retaining probationary employees who have satisfactorily performed their duties; (2) defendants violated the clear public policy, derived from R.C. 124.56, prohibiting the abuse of the power to remove a civil service employee; and (3) defendants violated the clear public policy, derived from R.C. 124.34 and the Fourteenth Amendment of the United States Constitution, favoring public employees' exercise of their constitutional and statutory rights. In addition to pleading these three claims, Miracle also asked the trial court to determine whether Chabria was entitled to immunity under R.C. 9.86.

{¶ 6} Rather than filing an answer to the complaint, defendants moved for dismissal under Civ.R. 12(B)(6). The trial court granted that motion in a judgment dated November 22, 2016.

{¶ 7} Miracle now appeals the November 22, 2016 judgment, and he assigns the following errors:

1. The trial court erred when it dismissed Appellant's Complaint for Failure to State a Claim upon Which Relief May be granted, pursuant to Civ. R. 12(B)(6).
2. The trial court erred in determining that no clear public policy emanates from Ohio Revised Code § 124.27.
3. The trial court erred in determining that Appellant could not establish the jeopardy element of a wrongful discharge claim arising out of the public policy articulated in Ohio Revised Code § 124.56.
4. The lower court erred when it held that it did not have authority to make an immunity determination regarding Jai Chabria. Appellant did not fail to state a claim for relief arising under State law and if permitted to proceed against Chabria personally, in a Court of Common Pleas, would have additional claims to pursue against him.

{¶ 8} We will address Miracle's first three assignments of error together. By these assignments of error, Miracle argues that the trial court erred in dismissing his claims pursuant to Civ.R. 12(B)(6). A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc. , 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiff's favor. Id. at ¶ 12 ; LeRoy v. Allen, Yurasek & Merklin , 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. " '[A]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss.' " Cincinnati v. Beretta U.S.A. Corp. , 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 5, quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). Appellate court review of a trial court's decision to dismiss a claim pursuant to Civ.R. 12(B)(6) is de novo. Ohio Bur. of Workers' Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12.

{¶ 9} Under the employment-at-will doctrine, an employer may terminate at-will employment at any time, for any reason. Collins v. Rizkana , 73 Ohio St.3d 65, 67-68, 652 N.E.2d 653 (1995). However, the Supreme Court of Ohio has recognized an exception to this doctrine: an employer who discharges an employee for reasons that contravene clear public policy is subject to an action for damages. Id. at 68-69, 652 N.E.2d 653 ; Greeley v. Miami Valley Maintenance Contrs. , 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraphs one and two of the syllabus. To prevail on a claim for wrongful discharge in violation of public policy, a plaintiff must prove: (1) a clear public policy exists and is manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the clarity element), (2) dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element), (3) the plaintiff's dismissal was motivated by conduct related to the public policy (the causation element), and (4) the employer lacked an overriding business justification for the dismissal (the overriding-justification element). Collins at 69-70, 652 N.E.2d 653. The clarity and jeopardy elements, which involve relatively pure legal and policy questions, present questions of law. Id. at 70, 652 N.E.2d 653. The causation and overriding-justification elements present questions of fact. Id.

{¶ 10} Here, defendants argue that Miracle's first claim for wrongful discharge fails because Miracle did not establish the existence of a clear public policy to support the claim. To satisfy the clarity element of a claim for wrongful discharge, "a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law." Dohme v. Eurand Am., Inc. , 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 24. Relying on R.C. 124.27(B), Miracle stated in his complaint that "there exists a clear public policy in favor of retaining probationary employees who are satisfactorily performing their duties and against arbitrary termination of such employees." (Compl. at ¶ 48.) In other words, Miracle derived from R.C. 124.27 a clear public policy against the discharge of civil service employees who provide satisfactory service during the probationary period.

{¶ 11} In moving for dismissal of the first claim, defendants ignored the public policy Miracle stated in his complaint. Defendants, instead, argued that Miracle claimed that R.C. 124.27 established a clear public policy against any discharge of probationary employees in the service of the state. The trial court accepted defendants' mischaracterization of Miracle's claim, and it analyzed whether R.C. 124.27 manifested a clear public policy precluding the discharge of any probationary employee. In doing so, the trial court erred. The trial court was required to determine whether the clear public policy as articulated in the complaint, not in defendants' motion, was apparent in R.C. 124.27. See White v. Sears, Roebuck & Co. , 163 Ohio App.3d 416, 2005-Ohio-5086, 837 N.E.2d 1275, ¶ 14 (10th Dist.). Accordingly, we sustain Miracle's second assignment of error.

{¶ 12} With regard to Miracle's second claim for wrongful discharge, defendants conceded for purposes of their motion to dismiss that Miracle stated a clear public policy. Thus, defendants admitted that R.C. 124.56 expressed a clear public policy "prohibiting the abuse of power by 'any officer, board, commission, head of a department, or person' who possesses the power to remove a civil service employee." (Compl. at ¶ 57, quoting R.C. 124.56.) Assuming arguendo that such a clear public policy exists, defendants argued that Miracle failed to allege in his complaint that ODVS violated that policy.

{¶ 13} The trial court interpreted defendants' argument as an attack on the jeopardy element. We disagree. To satisfy the jeopardy element, a plaintiff must show that the clear public policy at issue is at risk if the employer is permitted to discharge employees in circumstances like those underlying the plaintiff's discharge. Collins , 73 Ohio St.3d at 70, 652 N.E.2d 653. Because defendants moved for a dismissal under Civ.R. 12(B)(6), the facts alleged in the complaint determine the circumstances of discharge. See Orders v. State Teachers Retirement Sys. , 10th Dist. No. 15AP-907, 2016-Ohio-3345, 2016 WL 3216399, ¶ 16 (holding that a court must confine its consideration to the allegations contained in the complaint when determining a Civ.R. 12(B)(6) motion). Thus, in this case, the operative question is whether the discharge of probationary civil service employees who provide satisfactory service would jeopardize the clear public policy against the abuse of the power to remove employees. Rather than addressing that issue, defendants instead argued two different points.

{¶ 14} First, defendants contended that, because R.C. 124.56 does not provide a private right of action, Miracle cannot assert a claim for wrongful discharge based on the public policy underlying the statute. Second, defendants argued that Miracle failed to aver in his complaint that his direct employer-ODVS-violated the clear public policy. Defendants maintained that, in order to assert a wrongful discharge claim, Miracle had to direct his claim at ODVS, not the Office of the Governor.

{¶ 15} We find both of defendants' arguments unavailing. Defendants' first argument fails to recognize that, if Miracle can prove the elements of a claim for wrongful discharge, he can recover damages on that claim despite the lack of a private remedy in the statute itself. See Greeley , 49 Ohio St.3d at 231-32, 551 N.E.2d 981 (rejecting the argument that the lack of remedial provisions in a statute precludes a plaintiff from asserting a common-law claim for wrongful discharge in violation of public policy based on the statute); accord Leininger v. Pioneer Natl. Latex , 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 23 ("In Greeley , the statute involved did not provide any private remedies to the employee, and so a claim at common law was recognized."). Indeed, "[r]ecognizing a common-law claim for wrongful discharge is more likely appropriate if the statute or policy does not itself provide a remedy or private cause of action." Kirk v. Shaw Environmental, Inc. , N.D.Ohio No. 1:09-cv-1405, 2010 WL 1387887 (Mar. 31, 2010).

{¶ 16} Defendants' second argument misconstrues the text of the complaint. In pleading his second claim, Miracle alleged:

59. Jai Chabria, in his capacity as Senior Advisor to the Governor of the State of Ohio, and those persons acting at his direction, abused their authority, when they terminated Plaintiff despite the fact that he was satisfactorily performing the duties of his position.
60. Defendants abused their authority, when they terminated Plaintiff despite the fact that Plaintiff was satisfactorily performing the duties of his position.
61. Political optics are not sufficient grounds for termination.
62. If this decision is allowed to stand, the clear public policy prohibiting abuse of power will be jeopardized.

(Compl. at ¶ 59-62.) Given these allegations, we conclude that Miracle sufficiently stated wrongful action on the part of both defendants. Miracle alleged that both defendants' actions-not just Chabria's actions-resulted in the termination of his employment.

{¶ 17} In its determination of defendants' challenge to the second claim, the trial court reasoned that Miracle could not establish the jeopardy element because he conceded that the governor had the authority to order the termination of his employment. However, as we stated above, the jeopardy element turns on whether the discharge of probationary civil service employees who provide satisfactory service would compromise the clear public policy against the abuse of the power to remove employees. The fact that the governor has the authority to discharge probationary civil service employees, including Miracle, does not resolve that issue. Accordingly, we sustain Miracle's third assignment of error.

{¶ 18} Although Miracle asserted three claims for wrongful discharge in violation of public policy, on appeal, he only argues error regarding two of those claims. Miracle, thus, has tacitly abandoned his third claim for wrongful discharge (based on R.C. 124.34 and the Fourteenth Amendment to the United States Constitution). Accordingly, we sustain Miracle's first assignment of error to the extent that it asserts error in the dismissal of his first and second claims, but overrule it to the extent that it asserts error in the dismissal of his third claim.

{¶ 19} By Miracle's fourth assignment of error, he argues that the trial court erred in refusing to determine Chabria's immunity. The refusal resulted from the trial court's conclusion that Miracle failed to state any claim in his complaint. As we have found that the trial court erred in dismissing two of Miracle's claims, we also find that the trial court erred in its denial of the immunity determination. Accordingly, we sustain Miracle's fourth assignment of error.

{¶ 20} For the foregoing reasons, we sustain in part and overrule in part Miracle's first assignment of error, and we sustain Miracle's second, third, and fourth assignments of error. We remand this case to the Court of Claims of Ohio for further proceedings consistent with law and this decision.

Judgment reversed; case remanded.

BROWN, P.J., and BRUNNER, J., concur.

      As this appeal arises from the grant of a Civ.R. 12(B)(6) motion to dismiss, we draw the foregoing facts from the complaint.


author: BROWN, P.J.

text:
    Heather CROSIER, Appellant-Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Appellee-Appellee.
    No. 17AP-4
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 6, 2018
    On brief: Daniel H. Klos, for appellant. Argued: Daniel H. Klos.
    On brief: Michael DeWine, Attorney General, and Joseph N. Rosenthal, Columbus, for appellee. Argued: Joseph N. Rosenthal, Columbus.
    DECISION
   BROWN, P.J.

{¶ 1} Appellant, Heather Crosier, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the State Personnel Board of Review ("SPBR"), which affirmed an order from appellee, Ohio Department of Rehabilitation and Correction ("ODRC"), terminating appellant's employment with ODRC. For the reasons that follow, we affirm.

{¶ 2} Appellant was employed by ODRC as a program administrator 2 in ODRC's Corrections Training Academy (the "Academy"). Pursuant to her employment, appellant was a member of the classified civil service. Dr. Tracy Reveal was the superintendent of the Academy, and the highest level official in appellant's chain of command.

{¶ 3} The Academy, located in Orient, Ohio, is the "centralized point within which all of the new [ODRC] employees" come for their "basic training." (Tr. at 39.) The Academy also provides in-service training programs for current ODRC employees. As a program administrator 2, appellant was responsible for scheduling, administering, and coordinating courses offered at the Academy. Appellant also arranged for volunteer training officers to come to the Academy from the various ODRC institutions to teach classes as needed. When an Academy employee requested a volunteer training officer from an ODRC institution, the employee would typically "send a request to the training officer of the institution where the person works, the actual instructor [being requested] and the warden of the institution where the volunteer instructor is employed." (Tr. at 229.)

{¶ 4} During her employment with ODRC, appellant was disciplined for various violations of the performance track of ODRC standards of employee conduct. On August 8, 2012, appellant received a written reprimand for violating Rule 17 of the standards of employee conduct. On July 10, 2013, appellant received a 2-day working suspension for violating Rules 8 and 12(B). On March 11, 2014, appellant received an order of removal from her employment. The order stated that, on December 4, 2013, appellant "failed to remove a box of ammunition from [her] personally owned vehicle before leaving it at the Marion Correctional Institution to be cleaned by ODRC inmates." (Appellee's Ex. 1.) The order stated appellant had violated Rule 30(B) of the standards of employee conduct, which prohibits the unauthorized conveyance or possession, while on state owned property, of weapons or ammunition.

{¶ 5} However, also on March 11, 2014, appellant, Dr. Reveal, and the Director of ODRC, Gary Mohr, entered into a Last Chance Agreement ("LCA"). The LCA provided ODRC would hold the order of removal in abeyance, and that in exchange:

The Employee agrees to:
1). To refrain from any further performance-related misconduct.
All parties hereto agree that if the employee violates this Last Chance Agreement, or commits any violations of the Performance Track of the ODRC Standards of Employee Conduct, the appropriate discipline shall be termination from her position. The Employer/Agency need only prove that the employee violated this agreement and/or the Standards of Employee Conduct.
This Last Chance Agreement is in force and effect for a period of two (2) years from the date * * * of the employee's signature on this agreement. This two-year period may be extended by a period equal to the employee's absence of fourteen days or longer.

(Appellee's Ex. 1, "LCA".)

{¶ 6} In spring 2014, Warden Norman Robinson of the Chillicothe Correctional Institution ("CCI") contacted Dr. Reveal to express concerns he had "about the amount of hours that some of the instructors at CCI were being requested" to volunteer at the Academy. (Tr. at 50.) Warden Robinson informed Dr. Reveal there "were about three or four individuals" from CCI who were requesting off frequently to instruct at the Academy, and stated that "Charity Adkins was one of those individuals." (Tr. at 162.) Warden Robinson explained the amount of employees requesting off was "cut[ting] into [his] overtime budget." (Tr. at 149.)

{¶ 7} Thus, in an attempt to "ensure that the overtime was going to * * * be curtailed," Warden Robinson and Dr. Reveal decided that all requests from the Academy for instructors from CCI "would go through [the warden's] administrative assistant," Amy Hamilton. (Tr. at 160.) Dr. Reveal informed Hamilton about the new "system." (Tr. at 176.) In June 2014, Charlotte Jenkins became the warden of CCI.

{¶ 8} On May 12, 2014, Dr. Reveal sent an e-mail to Academy staff members, including appellant. The e-mail stated as follows: "Hello. Please send any instructor requests for a CCI volunteer instructor to Amy Hamilton, the Warden's Admin. Asst. Thank you. Tracy L. Reveal, Ph.D." (Appellee's Ex. 8.) Dr. Reveal considered the e-mail to be a written directive, and expected that her staff "would follow it." (Tr. at 53.) Appellant admitted she received the May 12, 2014 e-mail.

{¶ 9} Additionally, prior to May 12, 2014, appellant admitted she "did receive verbal instructions not to request Charity specifically," but asserted the communication "was 'broken' with no 'finality.' " (Appellee's Ex. 11, Attachment B.) Dr. Reveal also stated that, prior to the May 12, 2014 e-mail, she had discussed with appellant "the concerns around requesting [Adkins] from CCI." (Tr. at 113.)

{¶ 10} On June 30, 2014, appellant sent out a combined request to Warden Jenkins of CCI and Warden Bennie Kelly of Grafton Correctional Institution ("GCI"). The request asked that Charity Adkins from CCI and David Robinson from GCI be permitted to instruct courses at the Academy scheduled for July 21-23 and August 25-29, 2014. Appellant admitted that her June 30, 2014 request, sent to Warden Jenkins rather than Hamilton, did not comport with Dr. Reveal's May 12, 2014 e-mail. (See Tr. at 27.) Appellant stated the June 30, 2014 request was "merely an oversight." (Tr. at 248.)

{¶ 11} On July 5, 2014, Adkins submitted her request for leave to be permitted to teach at the Academy on the July 21-23 and August 25-29 dates. Warden Jenkins reviewed the request, and noted the request was for "64 hours," which was "a lot of time for an employee to be gone from the institution." (Tr. at 137.) Warden Jenkins took the request for leave to Hamilton. Hamilton explained to Warden Jenkins that she had not received the initial request for Adkins to instruct at the Academy, and "there was a directive that came out and it wasn't followed correctly." (Tr. at 138.) Warden Jenkins denied Adkins' request for leave.

{¶ 12} On July 7, 2014, Hamilton filed an incident report regarding the situation. The ODRC chief inspector's office conducted an investigation into the incident report.

{¶ 13} On August 27, 2014, the chief inspector's office issued a report, concluding appellant "did violate the directive issued by Dr. Reveal regarding requesting instructors from CCI." (Appellee's Ex. 11.) On September 15, 2014, appellant received a pre-disciplinary conference notice, which informed appellant she had allegedly violated Rules 7 and 50 of the performance track of ODRC's standards of employee conduct. Rule 7 prohibits the "[f]ailure to follow post orders, administrative regulations, policies, or written or verbal directives." (Appellee's Ex. 3.) Rule 50 prohibits any violation of R.C. 124.34. Following the pre-disciplinary conference, ODRC concluded appellant had violated Rules 7 and 50 of the performance track of ODRC's standards of employee conduct.

{¶ 14} On October 2, 2014, ODRC issued an order of removal to appellant. The order noted the March 11, 2014 LCA, wherein appellant agreed that if she "committed any violation of the performance track of the ODRC [standards of employee conduct] while the LCA was in effect, the appropriate discipline would be termination from employment." (Appellee's Ex. 1.) The order stated appellant had "violated a directive issued by Dr. Tracy Reveal," and that appellant's "failure to follow the directive" amounted to a violation of Rules 7 and 50 of the performance track of the standards of employee conduct. (Appellee's Ex. 1.) Appellant appealed the order of removal to the SPBR.

{¶ 15} Following a May 6, 2015 hearing, an administrative law judge ("ALJ") issued a report and recommendation on February 19, 2016. The ALJ noted appellant "acknowledged that she had received Dr. Reveal's May 12, 2014, email directing staff to send requests for CCI employees to serve as volunteer instructors to Amy Hamilton," and that appellant "further acknowledged that she failed to comply with Dr. Reveal's instructions when she requested CCI employee Charity Adkins as a volunteer instructor in June 2014." (Report & Recommendation at 3-4.) The ALJ noted appellant's contention that "her failure to comply with Dr. Reveal's instructions was a mistake, rather than an intentional or willful act," but concluded that appellant's "conduct constituted a violation of" Rules 7 and 50 of "the performance track of Appellee's [standards of employee conduct], and a violation of the LCA executed by the parties on March 11, 2014." (Report & Recommendation at 4.) The ALJ recommended that SPBR affirm the October 2, 2014 order of removal.

{¶ 16} Appellant filed objections to the ALJ's report and recommendation on March 22, 2016, arguing that ODRC failed to offer "proof that the email of May 12, 2014 was a 'directive.' " (Objs. to Report & Recommendation at 9.) The SPBR set the matter for a hearing before the full board on June 22, 2014.

{¶ 17} On July 19, 2016, SPBR issued an order affirming the October 2, 2014 order of removal. Appellant appealed SPBR's order to the Franklin County Court of Common Pleas.

{¶ 18} On October 27, 2016, appellant filed her brief in the trial court. Appellant argued that a directive was "not a one line, one time, email to selected staff asking them to please send certain requests to some other staff person not normally notified." (Appellant's Trial Brief at 8.) ODRC filed its brief in the trial court on November 28, 2016, arguing that the May 12, 2014 e-mail was a directive.

{¶ 19} On December 12, 2016, the trial court issued a decision and entry affirming the July 19, 2016 order of SPBR. The court noted that appellant and ODRC had agreed in the LCA that, if appellant committed any violation of the performance track of ODRC's standards of employee conduct, the appropriate discipline would be termination. The court observed that appellant had been given "an order/directive" on May 12, 2014 regarding "how to handle a request for instructors," and that "[a]ppellant failed to follow the new method when she requested instructors in June of 2014." (Decision at 7.) As such, the court concluded SPBR's July 19, 2016 order was supported by reliable, probative, and substantial evidence and was in accordance with law. The trial court affirmed SPBR's July 19, 2016 order.

{¶ 20} Appellant appeals, assigning the following errors for our review:

I. The Trial Court erred in finding there was reliable probative and substantial evidence to support the administrative agency decision.
II. The Trial Court failed to apply the proper standard of review required for statutory construction and interpretation of R.C. 124.
III. The decision of the Trial Court that Appellant was no longer covered by the civil service rules due to the existence of the LCA is unreasonable and repugnant to the purpose of R.C. 124.
IV. The decision of the Trial Court that Appellant was no longer covered by the civil service rules due to the existence of the LCA is unreasonable and repugnant to the purpose of R.C. 124.
V. The Trial Court's decision failed as a matter of law when finding the conduct of the Appellant was misconduct, not a mere mistake, failing to apply the Civil Service Law and the LCA referenced documents in their entirety.
VI. The Trial Court's decision failed as a matter of law to construe the terms of the LCA against the maker, the Ohio Department Of Rehabilitation and Correction, when it found Appellant's clerical mistake to be misconduct.
VII. The Trial Court erred finding the LCA was violated and enforceable against the Appellant because its interpretation and decision by the Trial Court that any work error of any kind would result in a violation is inconsistent with the common use of the word misconduct; that enforcement of that interpretation is against public policy as incorporated in R.C. 124 because the LCA evidences no meeting of the minds that "mistake" or "error" means misconduct; and that provision is unconscionable as interpreted by the Trial Court.

{¶ 21} SPBR shall "[h]ear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities * * * relative to * * * discharge." R.C. 124.03(A)(1). SPBR has the power to "affirm, disaffirm, or modify" an appointing authority's removal order. R.C. 124.03(A)(1). In cases of removal, the employee may appeal the decision of SPBR to the court of common pleas as provided in R.C. 119.12. R.C. 124.34(B).

{¶ 22} Under R.C. 119.12, a common pleas court, in reviewing an order of an administrative agency, must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and whether the order is in accordance with law.

Univ. of Cincinnati v. Conrad , 63 Ohio St.2d 108, 110-11, 407 N.E.2d 1265 (1980). The Supreme Court of Ohio has defined reliable, probative, and substantial evidence as follows:

(1) "Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) "Probative" evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) "Substantial" evidence is evidence with some weight; it must have importance and value.

Our Place, Inc. v. Ohio Liquor Control Comm. , 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992).

{¶ 23} The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court 'must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.' " Lies v. Veterinary Med. Bd. , 2 Ohio App.3d 204, 207, 441 N.E.2d 584 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control , 164 Ohio St. 275, 280, 131 N.E.2d 390 (1955). The common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but "the findings of the agency are by no means conclusive." Conrad at 111, 407 N.E.2d 1265. See also Ohio Dept. of Rehab. & Corr. v. Price , 10th Dist. No. 10AP-260, 2010-Ohio-5629, 2010 WL 4683571, ¶ 20. The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is "in accordance with law." Ohio Historical Soc. v. State Emp. Relations Bd. , 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993).

{¶ 24} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id. Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Id. An appellate court, however, has plenary review of purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.).

{¶ 25} Appellant's first assignment of error asserts the trial court erred in finding reliable, probative, and substantial evidence to support the agency's decision. Appellant asserts that, while the evidence was "probative to the extent that it tended to prove the existence of the conduct alleged," the evidence was "not probative as to whether that conduct was misconduct as such word was used in the LCA." (Appellant's Brief at 9-10.)

{¶ 26} A " 'last chance agreement' means an agreement signed by both an appointing authority and an officer or employee of the appointing authority that describes the type of behavior or circumstances that, if it occurs, will automatically lead to removal of the officer or employee." R.C. 124.34(F). See also Saadey v. Mahoning Cty. Engineers , 7th Dist. No. 01 CA 82, 2002-Ohio-3464, 2002 WL 1483900, ¶ 32. A last chance agreement is a contract, and thus subject to the rules of contract construction. See Fouty v. Ohio Dept. of Youth Servs. , 167 Ohio App.3d 508, 2006-Ohio-2957, 855 N.E.2d 909, ¶ 63-64 (10th Dist.).

{¶ 27} "The construction of written contracts * * * is a matter of law." Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus. " 'Unlike determinations of fact which are given great deference, questions of law are reviewed by a court de novo.' " Graham v. Drydock Coal Co. , 76 Ohio St.3d 311, 313, 667 N.E.2d 949 (1996), quoting Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm , 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). Contracts that are, by their terms, clear and unambiguous require no real interpretation or construction, and courts will enforce such contracts as written. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. , 78 Ohio St.3d 353, 361, 678 N.E.2d 519 (1997). However, when contracts contain ambiguous or conflicting terms, it is proper for a court to consider "extrinsic evidence," i.e., evidence outside the four corners of the contracts, in order to determine the parties' intent. Shifrin v. Forest City Ents., Inc. , 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992).

{¶ 28} Indeed, "[t]he cardinal purpose for judicial examination of any written instrument is to ascertain and give effect to the intent of the parties." Foster Wheeler at 361, 678 N.E.2d 519. "In determining the intent of the parties, the court must read the contract as a whole and give effect to every part of the contract, if possible." Drs. Kristal & Forche, D.D.S., Inc. v. Erkis , 10th Dist. No. 09AP-06, 2009-Ohio-5671, 2009 WL 3465916, ¶ 23. Common words are presumed to hold their ordinary meaning unless manifest absurdity results, or some other meaning is clearly evidenced from the instrument. Plaza Dev. Co. v. W. Cooper Ents., LLC , 10th Dist. No. 13AP-234, 2014-Ohio-2418, 12 N.E.3d 506, ¶ 25. "Where one instrument incorporates another by reference, both must be read together." Columbus City School Dist. Bd. of Edn. v. Zaino , 90 Ohio St.3d 496, 501, 739 N.E.2d 783 (2001).

{¶ 29} Appellant contends she only agreed in the LCA to refrain from any "further performance related misconduct." Appellant asserts that "[b]ecause there is nothing else enumerated in the LCA as a promise by the employee," the "language 'All parties hereto agree that if the employee violates this last chance agreement, or' * * * is mere surplusage." (Appellant's Brief at 15.) We disagree.

{¶ 30} While appellant agreed to refrain from performance related misconduct, she also agreed that if she "violate[d] this [LCA], or commit[ted] any violations of the Performance Track of the ODRC Standards of Employee Conduct, the appropriate discipline [would] be termination from her position." (Appellee's Ex. 1.) Pursuant to the disjunctive "or," the LCA presented two events which would result in appellant's termination: (1) if appellant engaged in performance related misconduct, or (2) if appellant committed any violation of the performance track of ODRC's standards of employee conduct.

{¶ 31} Appellant argues that neither SPBR nor the trial court "opined what it was about the Appellant's admitted 'mistake' that took it to the level of misconduct." (Appellant's Brief at 10.) However, because appellant's "mistake" violated the performance track of ODRC's standards of employee conduct, the LCA provided for appellant's termination. ODRC did not need to additionally establish that appellant's conduct was misconduct.

{¶ 32} Rule 7 of the performance track of ODRC's standards of employee conduct prohibits the "[f]ailure to follow * * * written or verbal directives." (Appellee's Ex. 3.) Rule 50 prohibits "[a]ny violation of ORC 124.34." (Appellee's Ex. 3.) R.C. 124.34(A) provides that "[n]o officer or employee shall be * * * removed * * * except * * * for," among other things, "violation of any policy or work rule of the officer's or employee's appointing authority." Because a violation of Rule 7 of the standards of employee conduct violated an ODRC work rule, the Rule 7 violation was also a violation of R.C. 124.34(A). Thus, the Rule 7 violation amounted to a Rule 50 violation.

{¶ 33} ODRC's standards of employee conduct do not define the word "directive." A directive is generally defined as "something that serves to direct, guide, and usu. impel toward an action or goal; esp : an authoritative instrument issued by a high-level body or official." Merriam-Webster's Collegiate Dictionary 354 (11th Ed.2014). The May 12, 2014 e-mail came from the highest level official at the Academy, Superintendent Dr. Reveal. Appellant admitted she received the e-mail, and admitted that "the intention" of the e-mail "was for [her] to follow it." (Tr. at 22.) Appellant's job involved requesting volunteer instructors from ODRC institutions, and the May 12, 2014 e-mail instructed appellant regarding how she was to perform that aspect of her job with respect to requests sent to CCI.

{¶ 34} Accordingly, the May 12, 2014 e-mail was a written directive. The e-mail was an authoritative instrument issued from the highest level official at the Academy, which directed Academy employees to send requests for volunteer instructors from CCI to Hamilton. The evidence of appellant's June 30, 2014 request, sent to Warden Jenkins rather than Hamilton, was reliable, probative, and substantial evidence demonstrating appellant failed to follow Dr. Reveal's May 12, 2014 directive.

{¶ 35} Appellant argues that, because she "contact[s] institutions to request instructors" as part of her job, she "did not violate any rule by contacting GCI or CCI for an instructor." (Appellant's Brief at 12.) To the contrary, it is precisely because appellant failed to perform her job in accordance with the May 12, 2014 directive that she violated Rule 7 of the standards of employee conduct. Compare Mayer v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 11AP-380, 2012-Ohio-948, 2012 WL 760826, ¶ 22 (where "appellant's supervisor, told appellant to have no further involvement with Griffeth's case," but the "[a]ppellant disobeyed his [supervisor's] order" and continued to work on the case, the appellant's "later rationalizations" regarding why he needed to remain involved were "immaterial"); Wiebusch v. Cleveland Civ. Serv. Comm. , 8th Dist. No. 97714, 2012-Ohio-3953, 2012 WL 3765030, ¶ 26-27.

{¶ 36} Appellant also argues her conduct must have been "willful" to violate the standards of conduct. (Appellant's Brief at 16.) However, there is nothing in Rule 7 stating that the employee must willfully fail to follow a written or verbal directive. An employee's failure to follow a written or verbal directive, regardless of intent, amounts to a violation of the rule.

{¶ 37} Reliable, probative, and substantial evidence demonstrates appellant violated Rule 7, and accordingly Rule 50, of the performance track of ODRC's standards of employee conduct. Because appellant's violation of these rules occurred within the two-year time frame specified in the LCA, the appropriate discipline was appellant's termination from her position as a program administrator 2.

{¶ 38} Based on the foregoing, appellant's first assignment of error is overruled.

{¶ 39} Appellant's second, third, fourth, and fifth assignments of error all concern the following passage from the trial court's decision:

The issue of intent is asserted by the Appellant to show that her mistake cannot be viewed as a breach of the LCA. However, the lack of a wrongful intent might go to the theory of mitigation but not to the breach of the LCA. * * * As the SPBR noted in its meeting minutes, the violation cannot be justified by using a subjective review of the employee's intent. Most if not all of the Appellant's substantive arguments went to the issue of the size of the error and the fairness of a state employer terminating someone for such a small error. However, the Appellant was no longer covered by the civil service rules due to the existence of the LCA. Under normal situations, the Appellant would never have faced a sanction such as termination-but that all changed with the LCA.

(Decision at 7.)

{¶ 40} Appellant asserts the "LCA did not override the application of R.C. 124.34," and that the trial court erred in stating that "an LCA supersedes R.C. 124.34 in all respects regarding the application of civil service law to the Appellant." (Appellant's Brief at 18-19.)

{¶ 41} The trial court, however, also stated that "[a]ppellant was covered by a valid LCA. Hence, the review conducted by the SPBR was limited as noted in R.C. 124.34(B)." (Decision at 6.) R.C. 124.34(B) provides that "in an appeal of a removal order based upon a violation of a [LCA], [SPBR] may only determine if the employee violated the agreement and thus affirm or disaffirm the judgment of the appointing authority."

{¶ 42} Generally, SPBR has the authority to "review an appointing authority's decision and to disaffirm an employee's discharge not only where the appointing authority acted arbitrarily, unreasonably, or unlawfully, but also where [SPBR] finds in an independent review that the decision regarding discharge is improper or unnecessary." Maurer v. Franklin Cty. Treasurer , 10th Dist. No. 07AP-1027, 2008-Ohio-3468, 2008 WL 2699433, ¶ 13. See also Ohio State Univ. v. Kyle , 10th Dist. No. 06AP-168, 2006-Ohio-5517, 2006 WL 3008463, ¶ 23. Pursuant to R.C. 124.34(B), however, SPBR's review of the present removal order was limited to determining whether appellant violated the LCA. The trial court's statement, that appellant was no longer covered by the civil service rules due to the existence of the LCA, was merely an acknowledgment of the restriction contained in R.C. 124.34(B).

{¶ 43} Appellant asserts the "employment environment of the Appellant and all public employees is not stable and is subject to the whimsy of a spoils system if any mistake can overcome fairness based upon merit and fitness for service." (Appellant's Brief at 25.) See Hungler v. Cincinnati , 25 Ohio St.3d 338, 344, 496 N.E.2d 912 (1986), quoting McCarter v. Cincinnati , 3 Ohio App.3d 244, 248, 444 N.E.2d 1053 (1st Dist.1981). Appellant, however, did not lose her job due to the whimsy of a spoils system. Appellant had prior instances of discipline, and entered into the LCA on March 11, 2014 rather than being terminated at that time. Appellant was not terminated for making "any mistake," as she asserts. Appellant violated Rules 7 and 50 of the performance track of ODRC's standards of employee conduct, violations which she agreed in the LCA would result in her termination.

{¶ 44} Based on the foregoing, appellant's second, third, fourth, and fifth assignments of error are overruled.

{¶ 45} Appellant's sixth assignment of error asserts the trial court failed to construe the terms of the LCA against ODRC. Appellant's seventh assignment of error asserts the trial court erred in finding she violated the LCA. "[C]ontracts should be construed against the drafting party." Fouty at ¶ 64. However, we find nothing in the trial court's decision indicating the court did not construe the LCA against ODRC. Rather, the terms of the LCA were straightforward and unambiguous. Because appellant violated Rules 7 and 50 "of the Performance Track of the ODRC Standards of Employee Conduct, the appropriate discipline [was] termination from her position." Appellant's sixth and seventh assignments of error are overruled. (Appellee's Ex. 1.)

{¶ 46} The SPBR's July 19, 2016 order upholding ODRC's October 2, 2014 order removing appellant from her position as a program administrator 2 was supported by reliable, probative, and substantial evidence and was in accordance with law. Accordingly, we find no abuse of discretion in the trial court's decision upholding SPBR's order.

{¶ 47} Having overruled appellant's seven assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

LUPER SCHUSTER and BRUNNER, JJ., concur.

      In contrast, other rules of the performance track of ODRC's standards of employee conduct do contain mens rea elements. Rule 5 prohibits "[p]urposeful or careless act(s) which result in" either "[d]amage, loss or misuse of Property of the State"; and Rule 34 prohibits "[k]nowingly, punching/swiping or electronically recording the time record of another employee." (Appellee's Ex. 3.)


text:
    John J. GALLICK, Appellant-Appellant, v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees-Appellees.
    15AP-182 15AP-190 15AP-233 15AP-419 15AP-564 15AP-837 16AP-392 16AP-393
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 6, 2018
    On brief: John J. Gallick, pro se. Argued: John J. Gallick.
    On brief: Rich & Gillis Law Group, Mark H. Gillis, Dublin, and Richelle L. Thoburn, for appellee Board of Education of the Columbus City Schools. Argued: Richelle L. Thoburn.
    DECISION
   KLATT, J.

{¶ 1} Appellant, John J. Gallick, appeals judgments of the Franklin County Court of Common Pleas that affirmed decisions of the Franklin County Board of Revision ("BOR") and denied Gallick's motions for new trial. For the following reasons, we reverse some judgments and dismiss the appeals of other judgments.

{¶ 2} In July 2012, Gallick purchased two adjacent, identical apartment buildings located at 1688 and 1704 East Livingston Avenue in Columbus, Ohio (hereinafter collectively referred to as "the Livingston properties"). Gallick bought the two buildings in a single sale and paid a total of $120,000. Each building contained 15 units, and each unit was assigned its own tax parcel number.

{¶ 3} For tax years 2012 and 2013, the Franklin County Auditor ("Auditor") appraised the units at the following true values:

1688 East Livingston Avenue

?

1704 East Livingston Avenue ?

{¶ 4} On March 22, 2013, Gallick filed multiple complaints with the BOR seeking a decrease in the valuation of each unit. Each complaint challenged the valuation of three units, resulting in 10 complaints (covering all 30 units). In response to each complaint, appellee, the Board of Education of the Columbus City School District ("Board of Education"), filed counter-complaints seeking no change in the Auditor's valuations. The BOR combined the complaints and counter-complaints, and it held a single hearing on them.

{¶ 5} At the April 10, 2014 hearing, Gallick testified and presented documentary evidence. Gallick explained that he had purchased the Livingston properties after a realtor informed him that the properties were on the market. Without asking the offering price, Gallick placed a bid of $120,000 for both buildings. The previous owner accepted the bid, and the closing occurred in July 2012. Gallick presented the BOR with copies of the conveyance fee statement and deed to prove the occurrence of the sale and the sale price.

{¶ 6} According to Gallick, the true value of each unit was $4,000, which he arrived at by dividing the $120,000 purchase price equally between the two buildings, and then dividing $60,000 by 15, the number of units in each building. Gallick, who "own[s] that whole block," also testified that $4,000 was "the going price" for apartment units in the area. (Tr. at 8, 14.) The Board of Education presented no evidence or argument regarding the Livingston properties at the hearing.

{¶ 7} In decisions issued June 13, 2014, the BOR accepted $4,000 as the true value of each unit for the 2012 tax year. However, the BOR retained the Auditor's valuation of each unit for the 2013 tax year. Gallick appealed the BOR's decisions as to the valuations for the 2013 tax year to the trial court pursuant to R.C. 5717.05.

{¶ 8} Although the trial court did not consolidate all the appeals into one case, the majority of the appeals proceeded similarly. Gallick and the Board of Education filed virtually identical briefs in each appeal. In the appeals involving the units listed above, the trial court affirmed the decisions of the BOR. In some of the appeals, Gallick moved for a new trial pursuant to Civ.R. 59. With one exception, the trial court denied those motions.

{¶ 9} We have eight appeals involving the Livingston properties before this court: (1) appeal No. 15AP-233, which involves units A, B, and C of 1688 East Livingston Avenue; (2) appeal No. 16AP-392, which involves units D, E, and F of 1688 East Livingston Avenue; (3) appeal No. 15AP-837, which involves units G, H, and J of 1688 East Livingston Avenue; (4) appeal No. 15AP-182, which involves units K, L, and M of 1688 East Livingston Avenue; (5) appeal No. 15AP-190, which involves units N, P, and Q of 1688 East Livingston Avenue; (6) appeal No. 15AP-564, which involves units A, B, and C of 1704 East Livingston Avenue; (7) appeal No. 15AP-419, which involves units K, L, and M of 1704 East Livingston Avenue; and (8) appeal No. 16AP-393, which involves units N, P, and Q of 1704 East Livingston Avenue.

{¶ 10} We consolidated the eight appeals. In his appellant's brief, Gallick assigns the following errors:

[1.] The Board of Revision and the lower courts erred as a matter of law by failing to base their property tax valuations upon the recent arm's-length sale prices of Appellant's several properties when the arm's-length nature of the sales were not rebutted by the BOR or the Appellees, no new appraisal was conducted by the auditor, no significant improvements were made to the properties, and no other factors existed for the Auditor or the BOR to dramatically increase the property valuations notwithstanding the recency of the arm's-length sales, thus requiring a remand to the Board of Revision and an order for the BOR to revert back to the arm's-length sales prices for tax valuation purposes.
[2.] The BOR and the lower courts erred by failing to take into account that the valuations by the auditor and decisions upholding same by the Board of Revision are not entitled to a presumption of validity when monumental increases in property valuations for all properties subject to this appeal were unsustainable as a matter of fact and law when the auditor failed to conduct a formal up-to-date appraisal, failed to provide any comparable sales data, and failed to substantiate that any significant improvements had been made to the several properties, warranting reversal to the BOR and Franklin County Auditor and a decrease in property valuations commensurate with the original purchase prices.
[3.] The BOR and the lower courts erred as a matter of fact and law by applying the incorrect legal standard to Appellant's testimony and evidence presented to the BOR despite it being reliable, substantial and probative, by failing to shift the burden of proof to the BOR based upon Appellant's testimony, and by failing to render an independent judgment to determine the taxable value of the subject properties when there was no evidence and no new appraisal supporting the auditor's valuations.
[4.] The lower courts abused their discretion by failing to allow Appellant's offer of additional evidence or at the very least ordering a hearing on the evidence, and a hearing on the merits of Appellant's claims.
[5.] The lower courts erred by denying, failing to conduct merit reviews, and failing to hold hearings on Appellant's motion for relief from judgment and motions for new trial.
[6.] The current property taxation scheme violates due process because it fails to give meaningful notice to the taxpayer why property valuations are increased, fails to provide for reasons in decisions rendered by the BOR, and leaves courts on appeal to guess at why valuations occurred causing insufficient judicial review, leaving the taxpayer and public guessing why and how valuations are rendered making it impossible to defend against the valuation thus placing an improper burden of proof against the taxpayer and an improper presumption that the auditor's valuation is correct.

{¶ 11} Before we begin our review of the merits of Gallick's assignments of error, we must determine which of his eight appeals are properly before this court. To do that, we must consider whether Gallick filed all of his appeals in a timely manner.

{¶ 12} "An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4." App.R. 3(A). If an appellant fails to meet the timing requirements of App.R. 4, the court of appeals lacks jurisdiction to hear the appeal. In re H.F. , 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17. A court of appeals without jurisdiction must dismiss the appeal, since the court does not have the power or authority to review the issues involved. Fougere v. Estate of Fougere , 10th Dist. No. 17AP-72, 2017-Ohio-7905, 2017 WL 4317438, ¶ 10.

{¶ 13} Pursuant to App.R. 4(A)(1), "a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry." The timing requirement of App.R. 4(A)(1) is subject to App.R. 4(A)(3), which provides that, "[i]n a civil case, if the clerk has not completed service of the order within the three-day period prescribed in Civ.R. 58(B), the 30 -day period[ ] * * * begin[s] to run on the date when the clerk actually completes service." Thus, the clerk's failure to complete service within three days of a final order's entry tolls the 30-day appeal period until service is accomplished. On the other hand, if the clerk timely complies with Civ.R. 58(B), then the 30-day appeal period begins to run on the date of the final order's entry.

{¶ 14} App.R. 4(B) sets forth some exceptions to the timing requirements of App.R. 4(A). Of relevance to this appeal, under App.R. 4(B)(2)(b), if a party files a "timely and appropriate" motion for a new trial under Civ.R. 59, "then the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving" the motion. Importantly, in order for a party to benefit from the tolling effect of App.R. 4(B)(2)(b), the motion for a new trial cannot be untimely filed or inappropriate under the circumstances. See Besman v. Leventhal , 8th Dist. No. 104414, 2017-Ohio-464, 2017 WL 526288, ¶ 13 (refusing to apply the App.R. 4(B)(2)(b) exception because the appellant's motion for a new trial was inapplicable to the type of proceeding pending before the trial court); Citibank (S.D.) N.A. v. Abu-Niaaj , 2d Dist. No. 2011 CA 45, 2012-Ohio-2099, 2012 WL 1657585, ¶ 9 (holding that an untimely motion for a new trial did not extend the 30-day period for appealing a final order).

{¶ 15} Here, Gallick seeks to rely on the App.R. 4(B)(2)(b) exception in three cases: 15AP-233, 15AP-419, and 15AP-837. In each of these cases, the trial court entered a final order affirming the BOR's decision. On same day as the entry of each final order, the clerk served notice of that order on the parties and noted service on the docket as required by Civ.R. 58(B). Thus, under App.R. 4(A), Gallick had 30 days from the date of each final order's entry to file his notice of appeal. Gallick, however, failed to file notices of appeal within the 30-day period. Instead, in each case, he moved for a new trial. In all three cases, Gallick only filed a notice of appeal after the trial court denied him a new trial. To the extent that Gallick seeks to appeal the judgments affirming the BOR's decisions, these notices of appeal are only timely if the App.R. 4(B)(2)(b) exception extends the filing deadlines.

{¶ 16} Whether or not Gallick may claim an extension based on App.R. 4(B)(2)(b) depends on whether his motions for new trial were appropriate under the circumstances. This determination, in turn, requires this court to consider two issues: (1) whether Civ.R. 59, which governs motions for new trial, applies to appeals initiated under R.C. 5717.05, the statutory basis for Gallick's appeals of the BOR's decisions to the trial court, and (2) whether Gallick filed his motions after trials had occurred in the trial court.

{¶ 17} With few exceptions, the Ohio Rules of Civil Procedure "prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity." Civ.R. 1(A). However, "to the extent that [the rules] would by their nature be clearly inapplicable," they do not apply to procedure in "special statutory proceedings." Civ.R. 1(C)(8). Because Civ.R. 1(C)(8) only exempts the application of a procedural rule if it is "clearly inapplicable," the Ohio Rules of Civil Procedure apply in special statutory proceedings adversary in nature unless a good and sufficient reason exists not to apply to the rules. Hambuechen v. 221 Mkt. N., Inc. , 143 Ohio St.3d 161, 2015-Ohio-756, 35 N.E.3d 502, ¶ 7 ; Ramsdell v. Ohio Civil Rights Comm. , 56 Ohio St.3d 24, 27, 563 N.E.2d 285 (1990).

{¶ 18} An administrative appeal filed pursuant to a statute, such as an appeal initiated under R.C. 5717.05, is a special statutory proceeding. Middlebrook v. United Collection Bur., Inc. , 10th Dist. No. 17AP-280, 2017-Ohio-8587, 2017 WL 5499290, ¶ 8. Thus, Civ.R. 59 applies in such appeals unless R.C. 5717.05 renders that rule clearly inapplicable. This court has found that Civ.R. 59 is not clearly inapplicable to administrative appeals where the trial court reviews de novo questions of law and fact. In re Appeal of Neff , 10th Dist. No. 85AP-289, 1986 WL 2928 (Mar. 4, 1986) ; Quick v. Wolfe , 10th Dist. No. 81AP-561, 1981 WL 3422 (Aug. 20, 1981). In an R.C. 5717.05 appeal, a trial court reaches a decision de novo. Black v. Bd. of Revision , 16 Ohio St.3d 11, 14, 475 N.E.2d 1264 (1985). Consequently, we conclude that Civ.R. 59 applies to the appeals at issue here.

{¶ 19} Our conclusion, however, does not end our analysis. Although the administrative nature of a case may not preclude a motion for a new trial, such a motion is only appropriate in cases where a trial has occurred. Wolf-Sabatino v. Sabatino , 10th Dist. No. 12AP-307, 2012-Ohio-6232, 2012 WL 6738535, ¶ 13 (holding that "a motion for a new trial properly lies only after a trial"). Absent a trial, a motion for a new trial is a nullity. State ex rel. Batten v. Reece , 70 Ohio St.2d 246, 248, 436 N.E.2d 1027 (1982).

{¶ 20} A proceeding is a trial for Civ.R. 59 purposes when the indicia of trial substantially predominate in the proceeding. First Bank v. Mascrete, Inc. , 79 Ohio St.3d 503, 507, 684 N.E.2d 38 (1997). Those indicia include: (1) whether pleadings initiated the proceeding, (2) whether the proceeding took place in court, (3) whether a judge or magistrate was present and presided over the proceeding, (4) whether the parties or their counsel were present, (5) whether the parties or counsel introduced evidence, (6) whether the parties or counsel presented arguments in court, (7) whether a judge or magistrate decided issues of fact, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, and (9) whether a judgment was rendered on the evidence. Id.

{¶ 21} After considering the above indicia, courts have found motions for new trials appropriate where there has been an in-court hearing succeeded by a judgment ruling on the issues argued and evidence heard at the hearing. Fougere , 10th Dist. No. 17AP-72, 2017-Ohio-7905, at ¶ 15. Here, no such hearings happened. In each of the three cases at issue, no proceedings occurred where the parties or counsel presented evidence and argument in court to a trial judge or magistrate. Because there were no trials in the three cases at issue, Gallick's motions for new trial were inappropriate and their filing did not toll the 30-day period for appealing the judgments affirming the BOR's decisions. Gallick, therefore, did not timely initiate appeals of the judgments affirming the BOR's decisions in appeal Nos. 15AP-233, 15AP-419, and 15AP-837. Thus, we lack jurisdiction over those judgments.

{¶ 22} Next, we must decide whether we may review the judgments in appeal Nos. 15AP-233, 15AP-419, and 15-837 that denied Gallick new trials. Although Gallick timely appealed those judgments, another problem stands in the way of our review. As we explained above, a motion for a new trial is a nullity unless it is filed after a trial has occurred. Batten , 70 Ohio St.2d at 248, 436 N.E.2d 1027. In the absence of a preceding trial, a judgment entered on a motion for a new trial is also a nullity and a party cannot appeal from such a judgment. See Johnson v. Geico Homesite, Inc. , 6th Dist. No. OT-17-003, 2017-Ohio-7273, 2017 WL 3575608, ¶ 8 ("[A]n appellate court cannot consider an appeal from a nullity."); Levy v. Ivie , 195 Ohio App.3d 251, 2011-Ohio-4055, 959 N.E.2d 588, ¶ 15 (10th Dist.) (holding that a judgment deciding a null motion is also a nullity and cannot be appealed). Here, because no trials occurred in the three cases at issue, Gallick's motions for new trial and the judgments deciding those motions constituted nullities. Gallick, therefore, cannot appeal those judgments to this court. Accordingly, we dismiss appeal Nos. 15AP-233, 15AP-419, and 15AP-837 in their entirety.

{¶ 23} Having determined that only appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393 are properly before this court, we turn to reviewing Gallick's assignments of error. By his first assignment of error, Gallick argues that the trial court erred in ignoring the arm's-length sale that occurred five and one-half months prior to the tax lien date. Gallick contends that the sale price constitutes the best evidence of the true value of each unit, and consequently, the trial court erred in refusing to decrease the valuations of each unit based on the $4,000 per unit sale price. We agree.

{¶ 24} In an R.C. 5717.05 appeal, the party appealing the board of revision's decision bears the burden of proving its right to a reduction or increase in the board of revision's determination of value. CABOT III-OH1M02, LLC v. Bd. of Revision , 10th Dist. No. 13AP-232, 2013-Ohio-5301, 2013 WL 6271653, ¶ 26. The trial court must consider the evidence heard by the board of revision and any additional evidence admitted by the trial court, and apply its independent judgment to determine the taxable value of the subject property. Black , 16 Ohio St.3d at 14, 475 N.E.2d 1264 ; CABOT III-OH1M02, LLC at ¶ 16. On an appeal of the trial court's judgment, an appellate court must decide whether the trial court abused its discretion in its valuation determination. Black at paragraph one of the syllabus; CABOT III-OH1M02, LLC at ¶ 16.

{¶ 25} The Ohio Constitution provides that "[l]and and improvements thereon shall be taxed by uniform rule according to value." Ohio Constitution, Article XII, Section 2. Consistent with that constitutional mandate, R.C. 5713.01(B) requires county auditors to appraise real property "at its true value in money."

{¶ 26} R.C. 5713.03 governs how the true value of real property is determined. From 1976 to 2012, R.C. 5713.03 stated that, if any tract, lot, or parcel of real estate "ha[d] been the subject of an arm's length sale between a willing seller and willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price of such tract, lot, or parcel to be the true value for taxation purposes." (Emphasis added.) Am.Sub.H.B. No. 920, 136 Ohio Laws, Part II, 3182, 3247. Interpreting this provision, the Supreme Court of Ohio held that former R.C. 5713.03 required the sale price of a recent, arm's-length transaction to be the true value of the property. Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision , 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782, ¶ 13, superseded by statute as stated in Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 26. The court later explained that former R.C. 5713.03"reject[ed] * * * appraisal evidence of the value of the property whenever a recent, arm's-length sale price has been offered as evidence of value." Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision , 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 13, superseded by statute as stated in Terraza 8, L.C.C. at ¶ 26.

{¶ 27} In 2012, the General Assembly significantly changed the language of R.C. 5713.03. In relevant part, the General Assembly replaced "shall" with "may," so the statute now reads, "the auditor may consider the sale price * * * to be the true value for taxation purposes." (Emphasis added.) 2012 Am.Sub.H.B. No. 487. House Bill 487 went into effect on September 10, 2012. Consequently, the amended statute governs all valuations for tax year 2013, which are determined as of January 1, 2013. Terraza 8, L.L.C. at ¶ 18. Here, because Gallick challenges the valuations for tax year 2013, amended R.C. 5713.03 applies to these appeals.

{¶ 28} Although amended R.C. 5713.03 overrode the holding of Berea , it did not invalidate two rebuttable presumptions applied in valuation cases. Terraza 8, L.L.C. at ¶ 31-33. First, the presumption that "a submitted sales price 'has met all the requirements that characterize true value' " remains. Terraza 8, L.L.C. at ¶ 32, quoting Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision , 78 Ohio St.3d 325, 327, 677 N.E.2d 1197 (1997). Likewise, under amended R.C. 5713.03, the presumption that " '[t]he best evidence of the "true value of money" of real property is an actual, recent sale of the property in an arm's-length transaction' " survives. Id. at ¶ 33, quoting Conalco, Inc. v. Monroe Cty. Bd. of Revision , 50 Ohio St.2d 129, 363 N.E.2d 722 (1977), paragraph one of the syllabus; accord Mann v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 197, 2017-Ohio-8820, 94 N.E.3d 529, ¶ 12 ("Under the version of R.C. 5713.03 that applies to tax year 2013, * * * a price from a recent arm's-length sale is not conclusive evidence of a property's value but it nevertheless 'constitute[s] the best evidence of the property's value.' ").

{¶ 29} To employ these presumptions, a proponent of a sale need not affirmatively demonstrate with extrinsic evidence that a sale price reflects the value of the property. Terraza 8, L.L.C. at ¶ 32. Instead, the proponent of the sale must only present basic documentation of the sale, such as the conveyance fee statement and deed. Id. ; Buckeye Terminals, L.L.C. v. Franklin Cty. Bd. of Revision , 152 Ohio St.3d 86, 2017-Ohio-7664, 93 N.E.3d 914, ¶ 20 ("The conveyance fee [statement] and deed create a rebuttable presumption that the sale met the requirements that characterize true value."). If this initial burden is met, the opposing party then has the burden of going forward with rebuttal evidence showing that the sale price does not, in fact, reflect the property's true value. Terraza 8, L.L.C. at ¶ 32. To satisfy its burden, the opposing party may present evidence showing that the sale was not at arm's length or not recent to the tax lien date. Huber Heights City Schools Bd. of Edn. v. Montgomery Cty. Bd. of Revision , 152 Ohio St.3d 182, 2017-Ohio-8819, 94 N.E.3d 515, ¶ 11. Where the opposing party fails to demonstrate a reason to disregard the sale price as an indicator of value, then the sale price is the best evidence of the property's true value. Lunn v. Lorain Cty. Bd. of Revision , 149 Ohio St.3d 137, 2016-Ohio-8075, 73 N.E.3d 486, ¶ 18.

{¶ 30} Here, Gallick provided the BOR with copies of the conveyance fee statement and deed showing the transfer of the Livingston Avenue properties to him. The conveyance fee statement is dated July 16, 2012 and reflects a sale price of $120,000 for both Livingston properties. With the presentation of this evidence, rebuttable presumptions arose that the sale price met all the requirements of true value and constituted the best evidence of the true value of the Livingston properties. Thus, the Board of Education had the burden to present evidence to the contrary. The Board of Education argues that it met its burden by eliciting testimony from Gallick that established that the sale of the Livingston properties was not recent to the tax lien date of January 1, 2013.

{¶ 31} A sale is recent if it is made within a reasonable length of time of the tax lien date. Health Care REIT, Inc. v. Cuyahoga Cty. Bd. of Revision , 140 Ohio St.3d 30, 2014-Ohio-2574, 14 N.E.3d 1009, ¶ 22. Consequently, one component of recency is the period of time that has elapsed between the sale date and the tax lien date. Id. Temporal proximity, however, is not the sole factor affecting recency. Emerson v. Erie Cty. Bd. of Revision , 149 Ohio St.3d 148, 2017-Ohio-865, 73 N.E.3d 496, ¶ 19 ; Worthington City School Bd. of Edn. v. Franklin Cty. Bd. of Revision , 124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d 972, ¶ 32. The determination of whether a sale is recent requires consideration of all factors that would, by changing with the passage of time, affect the value of the property. Emerson at ¶ 19 ; Cummins Property Servs., L.L.C. , 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, at ¶ 35. General developments in the marketplace, along with conditions more specific to the property, are relevant in determining recency. Cummins Property Servs., L.L.C. at ¶ 35. With regard to changes in market conditions, the speed of the changes is an important consideration. "If the market is changing rapidly, then the selling price will not be the best evidence of true value for as long a period of time as when the market is not changing or changing very slowly." New Winchester Gardens v. Franklin Cty. Bd. of Revision , 80 Ohio St.3d 36, 44, 684 N.E.2d 312 (1997), overruled in part on other grounds , Cummins Property Servs. , L.L.C. at ¶ 25.

{¶ 32} Here, the Board of Education contends that market conditions between the sale date (July 16, 2012) and the tax lien date (January 1, 2013) changed to such a degree as to invalidate the sale price as a measure of the Livingston properties' true value. The Board of Education points to Gallick's testimony before the BOR as evidence of its contention. During the April 10, 2014 BOR hearing, Gallick testified about the sale prices of properties located near the subject properties that he purchased in arm's-length transactions dating from April 2008 to the hearing date. Gallick stated, "You can see-Actually, the value of the properties went down. I mean, the most-the newer-the most recent properties I'm buying, I'm buying cheaper than the ones I bought in '08 and '09.? (Tr. at 5.) Later in the hearing, Gallick represented, "And I'm telling you right now the value of properties have gone down in '11 and '12 and '13 from where they were in '10. * * * The market's down. I may contract for properties now that are even lower than 4,000 a unit." (Tr. at 20.)

{¶ 33} Thus, Gallick testified to a general downward trend in market prices from 2008 and 2014, and a drop in the market between 2010 and 2011/2012/2013. However, for our purposes, the relevant period is between July 16, 2012 and January 1, 2013. Gallick did not state that market conditions changed during that specific span of time, much less that the market changed so rapidly that a sale that occurred only five and one-half months prior to the tax lien date could no longer evince true value. Testimony of a downward trend in the market over seven years is not evidence that the market rapidly dropped between July 16, 2012 and January 1, 2013. Consequently, Gallick's testimony regarding the condition of the marketplace does not rebut the presumptions that the sale price met all the requirements of true value and best reflected the true value of the Livingston properties.

{¶ 34} Next, the Board of Education reverses course and eschews its contention that the Livingston properties' value dropped. It, instead, argues that rising tenancy levels and a "clean up" of the properties raised the value of the properties such that the July 16, 2012 sale cannot be considered recent to the January 1, 2013 tax lien date. However, again, the evidence the Board of Education relies on does not support its argument.

{¶ 35} At the BOR hearing, the Board of Education's attorney asked Gallick, "And how's your occupancy been since your purchase?

Did it increase any?" (Tr. at 9.) Gallick answered, "It's increased a little." Id. Thus, Gallick testified that the number of tenants at the Livingston properties rose between the July 16, 2012 sale and the April 10, 2014 hearing, and not that the number of tenants rose between the July 16, 2012 sale and the January 1, 2013 tax lien date. Moreover, Gallick did not quantify the increase by stating how many more tenants he now has. Assuming that an increase in tenancy occurred between July 16, 2012 and January 1, 2013, the evidence regarding that increase is too meager to prove that the tenancy level affected the value of the properties between the two relevant dates. Consequently, evidence regarding the tenancy level does not rebut the presumptions regarding true value that arose when Gallick adduced evidence of the July 2012 sale.

{¶ 36} With regard to the physical condition of the Livingston properties, the Board of Education's attorney asked Gallick, "Can you tell us a little about what condition [the properties] were in and whether any of them needed any improvements or repairs after your purchase[?]" (Tr. at 5.) Gallick responded that, "[b]y and large, they just needed cleaning up." Id. The attorney then asked, "So none of them required any kind of capital or structural updates or improvements?" (Tr. at 6.) Gallick replied, "No." Id.

{¶ 37} Pursuant to R.C. 5713.03(B), the sale price in an arm's-length transaction cannot be the true value of the property if, subsequent to the sale, "[a]n improvement is added to the property." With respect to buildings or structures, an "improvement" is "a permanent addition, enlargement, or alteration that, had it been constructed at the same time as the building or structure, would have been considered a part of the building or structure." R.C. 5701.02(D) (setting forth definitions of certain terms used in R.C. Chapter 57). Consequently, ameliorative measures such as replacing carpet and repainting do not constitute improvements that preclude a sale price from reflecting the true value of property. Cattell v. Lake Cty. Bd. of Revision , 11th Dist. No. 2009-L-161, 2010-Ohio-4426, 2010 WL 3666974, ¶ 28-29.

{¶ 38} Here, nothing in Gallick's testimony or the other evidence explicates exactly what Gallick did to "clean up" the Livingston properties. It is clear, however, that Gallick did not go so far as to perform the type of improvements contemplated in R.C. 5713.03(B). Thus, that provision does not bar the use of the sale price to set the true value of the Livingston properties.

{¶ 39} Nevertheless, even if post-sale enhancements do not qualify as improvements, they could conceivably change a property sufficiently to affect the recency of a sale. Here, however, the Board of Education fails to direct us to any evidence that Gallick performed any "clean up" between July 16, 2012 and January 1, 2013 or, assuming a "clean up" occurred, the degree to which the properties were "cleaned up." Without more detail regarding the "clean up," the record lacks proof that the "clean up" was so significant that it altered the value of the properties. Thus, evidence related to the "clean up" does not rebut the presumptions regarding true value that arose when Gallick presented evidence of the July 2012 sale.

{¶ 40} The Board of Education has only ever argued the lack of recency to rebut the presumptions at issue. Nevertheless, in appeal Nos. 16AP-392 and 16AP-393, the trial court determined that the July 2012 sale did not qualify as an arm's-length transaction. We, therefore, must consider whether the record contains evidence of the nature of the transaction that negates the presumptions regarding true value.

{¶ 41} Three factors are relevant in deciding whether a transaction occurred at arm's length: (1) whether the sale was voluntary, i.e., without compulsion or duress; (2) whether the sale took place in an open market; and (3) whether the buyer and seller acted in their own self-interest. Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision , 141 Ohio St.3d 243, 2014-Ohio-4723, 23 N.E.3d 1086, ¶ 47 ; Walters v. Knox Cty. Bd. of Revision , 47 Ohio St.3d 23, 546 N.E.2d 932 (1989), syllabus. Here, the trial court concluded that the July 2012 sale was not an arm's-length transaction because Gallick neither knew nor asked the seller's listing price before Gallick offered to buy the properties for $120,000. We do not see how Gallick's failure to find out the list price prior to placing an offer results in the conclusion that the sale was not at arm's length. Gallick's decision to place an offer without knowing the asking price is neither evidence of compulsion or duress, nor evidence that Gallick betrayed his own self-interest. Gallick testified that the prior owner placed the Livingston properties on the market, a realtor informed him that the properties were available for sale, he viewed the properties and decided to make an offer of $120,000, and the seller accepted his offer. These facts establish that the July 2012 sale was an arm's-length transaction. Consequently, evidence regarding the circumstances of the July 2012 sale do not rebut the presumptions regarding true value that arose when Gallick presented evidence of the sale.

{¶ 42} Where a rebuttable presumption exists, the party challenging the presumption must produce evidence that counterbalances the presumption or leaves the case in equipoise. Bd. of Edn. of the Cleveland Mun. School Dist. v. Cuyahoga Cty. Bd. of Revision , 107 Ohio St.3d 250, 2005-Ohio-6434, 838 N.E.2d 647, ¶ 15. Here, the Board of Education failed to produce such evidence. Consequently, the presumptions prevail, and thus, the July 2012 sale price constitutes the best evidence of the true value of the Livingston Avenue properties. Because Gallick established $4,000 as the true value of each unit for the purposes of tax year 2013, the trial court erred in affirming the BOR's decisions. Accordingly, we sustain Gallick's first assignment of error.

{¶ 43} By the remaining assignments of error, Gallick either advances alternative bases for finding error in the affirmance of the BOR's decisions or seeks a hearing before the trial court to present evidence regarding the true value of the Livingston properties. Given our ruling on Gallick's first assignment of error, his other assignments of error are moot, and consequently, we do not rule upon them.

{¶ 44} For the foregoing reasons, we dismiss appeal Nos. 15AP-233, 15AP-419, and 15AP-837. We sustain the first assignment of error in appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393, which renders moot the second through sixth assignments of error. We reverse the judgments of the Franklin County Court of Common Pleas in appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393. We remand those five cases to the trial court so that it may certify to the Auditor the true value of $4,000 per tax parcel for units D, E, F, K, L, M, N, P, and Q of 1688 East Livingston Avenue and units A, B, C, N, P, and Q of 1704 East Livingston Avenue for tax year 2013.

Appeal Nos. 15AP-233, 15AP-419, and 15AP-837 dismissed; appeal Nos. 15AP-182, 15AP-190, 15AP-564, 16AP-392, and 16AP-393 reversed and remanded with instructions.

SADLER and BRUNNER, JJ., concur.

      The valuations of units D, E, F, G, H, and J of 1704 East Livingston Avenue are not at issue in this appeal. Consequently, those units do not appear in this list.

      In appeal No. 15AP-190, rather than denying Gallick's motion for a new trial, the trial court deemed the motion inactive.

      " '[T]he first day of January of the tax year in question is the crucial valuation date for tax assessment purposes.' " HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 124 Ohio St.3d 481, 2010-Ohio-687, 923 N.E.2d 1144, ¶ 16, quoting Freshwater v. Belmont Cty. Bd. of Revision , 80 Ohio St.3d 26, 29-30, 684 N.E.2d 304 (1997).

      The party against whom a presumption is directed has the burden to present evidence to rebut the presumption. Cincinnati School Dist. Bd. of Edn. at 328, 677 N.E.2d 1197. However, the burden of proof remains on the party on whom it was originally cast. Id. ; accord Dauch v. Erie Cty. Bd. of Revision , 149 Ohio St.3d 691, 2017-Ohio-1412, 77 N.E.3d 943, ¶ 20 ("The ultimate burden of proof d[oes] not shift.").

      Gallick purchased the Livingston properties in a bulk sale, i.e., " 'a sale of numerous real estate parcels at an aggregate price as part of a single deal.' " Buckeye Terminals, L.L.C. at ¶ 17, quoting St. Bernard Self-Storage, L.L.C. v. Hamilton Cty. Bd. of Revision , 115 Ohio St.3d 365, 2007-Ohio-5249, 875 N.E.2d 85, ¶ 15. Ordinarily, "a bulk sale raises the additional question 'whether the proffered allocation of [the] bulk sale price to the particular parcel[s] of real property is "proper." ' " Id. at ¶ 18, quoting St. Bernard Self-Storage, L.L.C. at ¶ 15. In this case, however, the Board of Education has never challenged the propriety of Gallick's allocation of the sale price. Consequently, the Board of Education has waived any argument concerning the propriety of the allocation. Emerson v. Erie Cty. Bd. of Revision , 149 Ohio St.3d 148, 2017-Ohio-865, 73 N.E.3d 496, ¶ 20 ; RNG Properties, Ltd. v. Summit Cty. Bd. of Revision , 140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, ¶ 33.