text:
    ADMINISTRATIVE ACTIONS
    Supreme Court of Ohio.
    January 24, 2019
    This list is being published pursuant to Gov.Bar R. I(15). The following persons have applied to take the February 2019 Ohio Bar Examination.
       Allen         Debra Jean Berg-Simon   Delphos       Chima Raphael Ekeh   Lima       Taylor Gene Vance   Lima      Ashtabula         Joseph Nicholas Spano   Ashtabula      Butler         Perry Davis III   West Chester       Maximilian Ephraim DeLeon   West Chester       Steven Patrick Harding   West Chester       Danielle Elizabeth List   West Chester       Suryakeerthi Mohan   Liberty Township       Arianna Louise Saiedy Nami   West Chester       Richard Joseph Sarcone   West Chester       Anita Britney-Sue Smalley   Liberty Township       Jordan Michael Starks   West Chester       Cora Abao Wray   Hamilton      Carroll         Brittany Marie Pellerin   Minerva      Clark         Jacob Edward Dillon   Springfield       Tracy Michele Lockhart   Springfield      Clermont         Heather Lee Biddle   Cincinnati       Ellen Elizabeth Bruns   Cincinnati       Cody James Dalton   Cincinnati       Fernando Luis Diaz Jr.   Cincinnati       Amberly Michelle Newberry   Amelia       Vivian Lee Poe   Batavia       Joseph Michael Sgro   Loveland       Joseph Gregory Tekulve   Cincinnati       John David Tynes   New Richmond      Clinton         Beth Naomi Bishop Hackmann   Sabina      Columbiana         Abbey Marie Minamyer   Abbey Marie Minamyer       Abbey Marie Minamyer   East Liverpool      Crawford         Neil James Huggins   Bucyrus      Cuyahoga         Reema Yousef Abusalah   North Royalton       Lukman Ismail Ahmed   Westlake       David Eric Anderson   Cleveland       Kyle Michael Asher   Cleveland       Brian Douglas Bardwell   Lakewood       Joseph David Barr   Fairview Park       Melissa M. 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  Gallia         Stephen David Fondriest   Thurman      Geauga         Timothy Jon Nalepka   Chagrin Falls      Greene         Brittany Mae Gorsuch   Bellbrook       Dana Jalanbo   Dayton       Timothy Raymond Saunders   Beavercreek       Joseph Charles Sbarra   Xenia       Kadawni Akil Scott   Fairborn       John Alan Williams II   Beavercreek      Hamilton         Kyle Frank Arendsen   Cincinnati       Marci Ann Bartkoski   Cincinnati       Caleb Richard Baum   Cincinnati       Courtney Shavon Booker   Cincinnati       Kathryn Taylor Buffington   Cincinnati       Brock Eldon Caley   Cincinnati       Brandon Thomas Charles   Cincinnati       Rachel Rose Citak   Cincinnati       Jermaine Nehemian Conner   Cincinnati       Mary Lynn Creighton   Cincinnati       Zachary Thomas Cuni   Cincinnati       Sarah Louise Dvorachek   Cincinnati       Emily Yevell Feliz   Cincinnati       Patrick James Gray   Cincinnati       Nerissa Mae Harvey   Blue Ash       Lauren Amanda Hawkins   Cincinnati   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Walker   Cincinnati       Kee'Vona Starr Walker   Cincinnati       Joseph Timothy Wambaugh   Cincinnati       Brison Deverick Wammes   Cincinnati       Paige Elizabeth Weinstein   Cincinnati       Stephen Scott Wick   Cincinnati       Alexander Brian Widolff   Cincinnati      Hancock         Andrew Joseph Egan   Findlay      Hardin         Chelsea Raye Brown   Ada       Morgan Storm Hamacher   Ada      Harrison         Daniel Jordan Watson   St. Clairsville      Huron         Bernadette Frances Delgado   Willard      Jackson         Tyler Jay Pierpont   Jackson      Knox         Michael Shawn Dennis   Mount Vernon       Kayla Nichole Riley   Mount Vernon      Lake         Matthew Paul Baca   Mentor       Rodger Aaron Bramley   Painesville       Barbara Martincic   Mentor       Siti Hasnur Binti Sheikh Hussain   Willoughby Hills      Licking         Michelle Susan Meier   Granville       Ashtin N. 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Rock   Youngstown      Marion         Bailey Michelle Higgins   Caledonia       Alexander Robert Loper   Marion      Medina         John Henry Flis   Medina       Joseph Robert Hennell   Wadsworth       Joshua Lee Holland-Gresock   Medina       James Roger Manning   Hinckley       Tiffany Raquel Ross Neumann   Wadsworth       Joshua Benjamin Smith   Valley City       Caitlyn Marie Thurman   Wadsworth       Jessica Marie Trease   Medina      Mercer         Brian Joseph Homan   Celina      Miami         Matthew William Gioiello   Tipp City      Monroe         Karena J Reusser   Woodsfield      Montgomery         Scott Matthew Bobbitt   Dayton       Nicole Rae Breezley   Kettering       Christina Sue Clemmer   Centerville       Colin Patrick Cochran   Kettering       Erin Rebecca Deupree   Dayton       George Benjamin Giles   Oakwood       Maya Cheri Jones   Oakwood       Rachel Amanda Lemaster   Dayton       Erica Dione Lunderman   Dayton       Sean Howard McCray   Dayton       Kristopher William Nealeigh   Dayton       Jason Paul Nye   Centerville       Jack Alan Pook   Dayton       Sabre Mone Price   Huber Heights       Jacqueline Raema Radebaugh   Dayton       Michael David Richardson   Dayton       Chelsea Rhea Shekmer Hintzen   Dayton       Alia Elizabeth Sisson   Dayton       Daniel Leonard Wells   Dayton       Patricia Ann Wilkinson   Dayton       Olivia Kirsten Wrencher   Dayton       Louis Anthony Zambelli III   Dayton      Morrow         Richard Michael Benson   Mount Gilead      Noble         Chloe Ann Spencer   Sarahsville      Ottawa         Sarah Kay Boldt   Graytown      Pickaway         Bailey Meghan Fillmore   Orient      Portage         Julia Brianne Adkins   Ravenna       Nicole Suzanne Carey   Garrettsville       Bryne Anne Coffee   Aurora       Arielle Justine Lester   Ravenna       Dada Netfa London   Aurora       Dominic David Saturday   Ravenna      Putnam         Andrew Edward Warnecke   Cloverdale      Richland         Lucas Adrian Fykes   Mansfield       Nichole Yvonne Johnson   Ontario       Jared Thomas Mayer   Mansfield      Ross         Brice Keith Clymer   Chillicothe       Chase Colin Rutherford   Chillicothe      Sandusky         Sandra Sue Johnson   Fremont       Thomas Brindley Renz   Fremont      Stark         Firas Nazal Awadallah   North Canton       Kevin David Burwell   North Canton       Natalie Kathleen Hillman   North Canton       Kayla June Hrindak   Louisville       Paul Richard Jusseaume   East Sparta       Julie Jakmides Mack   Canton       Nichole Marie Nabors   Canton       Anthony James Palumbo   Canton       Christopher William Peshek   Massillon       Jeffrey Kirk Rhodes   Massillon       Danielle Marie Sams   Alliance       Lori Ann Schoenfelder   Canton       Neda Marie Shaheen   Canton      Summit         Antoine Lamar Cato   Akron       Benjamin Joseph Comston   Cuyahoga Falls       Anthony Michael D'Attoma   Akron       Petra Domenighini   Akron       Jonathan David Engelke   Copley       Shantell Marie George   Stow       Michael Gregory Gurgul   Sagamore Hills       Lindsey Marie Harrison Madgar   Cuyahoga Falls       Connor Kaylin Hollis   Twinsburg       Heather Danielle Holt   Sagamore Hills       Sean Tucker Hoover   Hudson       Daniel Jacob Husted   Copley       Jason Mark Jordan   Akron       Amanda Ruth Koren   Cuyahoga Falls       Olivia Anne Myers   Akron       Christopher Arthur Perkins   Cuyahoga Falls       Christopher Cole Riggi   Cuyahoga Falls       Timothy James Scott   Stow       Lucille Anne Shane   Akron       Hector Roy Smith   Akron       Timothy David Smith   Akron       Justin Dean Tjaden   Copley       John Robert Watters II   Akron      Trumbull         Ebenezer Appiagyei        Michael James Fredericka        Kristina Nicole Klecha        Lindsay Nicole Molnar        Rachel Joanna Pico        Sarah Grace Smith       Tuscarawas         Rachel Lynn DiGenova   Strasburg      Warren         Michael Patrick McQueary   Maineville       Felicia Otisi Omoji   Mason       Jeffrey James Wren   Springboro      Wayne         Francis Anthony Grande   Wooster      Williams         Kylee M. Towne   Bryan      Wood         Yadi A. Aliakbar   Perrysburg       Kristen Marie Angelo   Walbridge       Jessica Nicole Borsani   North Baltimore       Tiffany Renee Murray   Perrysburg       Karen Lynn Schaeffer   Perrysburg      Wyandot         Akmal Makram Anwar Yacoub   Harpster      Out-of-State Applicants         Matthew Michael Allen   Covington   KY      Samerra N. Allooh   Meadville   PA      Olivia Flora Amlung   Covington   KY      Brandon Paul Atwood   Covington   KY      John Henry Bieber   Newport   KY      Rachel Elizabeth Blakeman   Fort Wayne   IN      Catherine Helen Breault   Moundsville   WV      Stephanie Lyn Brockman   Dayton   KY      Devin Patrick Buckley   Crescent Springs   KY      Zachary Ryan Burkart   Chicago   IL      Alexandra Rae Cardosi   Edgewood   KY      Claire Danielle Chevrier   Washington   DC      Erica Ashley Conti   Bridgeville   PA      Allyson True Cook   Covington   KY      Daniella Samantha D'souza   Webster   NY      Jalila Marie Dado   Davison   MI      Megan Elizabeth Day   Lexington   KY      Lindsay Nikole Foltz   Florence   KY      Ashton Nicole France   Bellevue   KY      Katelyn Renee Gaines   Park Hills   KY      Lisa Dawn Hampton   Covington   KY      Dallas Mitchel Hartman   Sharpsville   PA      Andrew Geoffrey Hogue   Leesburg   VA      Chandelic Marie Jackson   Pensacola   FL      Arben K. Kola   Alexandria   VA      Anna Alexandrovna Korneeva   Edgewood   KY      Julia Lynn Krishnan Aromatorio   Ann Arbor   MI      Alexandra Taylor Kubala   Crestview Hills   KY      Olivia Abigail Lawson   Taylor Mill   KY      Puspa L. Luitel   Charlotte   VT      Allyshea Menoski   Canonsburg   PA      Marchesa Marie Minium   Highland Heights   KY      Emily Dawn Niles   New Castle   PA      David James Schumacher   Taylor Mill   KY      Ngozi Nnenda Shaba   Winder   GA      Dylan Dean Smith   Albion   IL      Kyle Jordan Spencer   Arlington   VA      William Peter Thurman   Covington   KY      Trey-Robert Tuttle Trujillo   Greenup   KY      Melissa Marie Wasser   Washington   DC      Jessica Nadine Wimsatt   Independence   KY


source: Caselaw Access Project

license: Public Domain

text:
    STATE v. SMITH
    2018-1681
    Supreme Court of Ohio.
    January 23, 2019
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer and DeWine, JJ., not participating.


text:
    STATE v. TUBBS
    2018-1687
    Supreme Court of Ohio.
    January 23, 2019
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Stewart, J., not participating.

text:
    STATE v. WHITE
    2018-1693
    Supreme Court of Ohio.
    January 23, 2019
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Stewart, J., not participating.


author: LARRY A. JONES, SR., J.:

text:
    IN RE: J.Y., A Minor Child
    No. 106761
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 21, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Frank Romeo Zeleznikar, Megan A. Helton, Assistant Prosecuting Attorneys, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    William Livingston, J. Michael Murray, Berkman, Gordon, Murray & Devan, 55 Public Square, Suite 2200, Cleveland, Ohio 44113, Rachel A. Kopec, 1360 East 9th Street, Suite 910, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE
    T.Y., pro se, 6715 Daisy Avenue, Independence, Ohio 44131
    BEFORE: Jones, J., McCormack, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals the trial court's decision to dismiss its complaint against defendant-appellee, J.Y. For the reasons that follow, we affirm.

{¶ 2} In 2017, the state filed a complaint against J.Y. alleging him to be a delinquent child in Cuyahoga J.C. No. DL-17-117673. A duplicate complaint was filed under Cuyahoga J.C. No. DL-17-117646. Each complaint charged 15 counts of illegal use of a minor in nudity-oriented material or performance, one count of possessing criminal tools, and included a forfeiture specification.

{¶ 3} At the arraignment, the prosecutor advised the court that there were two complaints filed against J.Y. and asked for Case No. DL-17-117646 to be dismissed without prejudice. The prosecutor informed the court that the state's position was that it was necessary to dismiss Case No. DL-17-117646 without prejudice so that the state could proceed on the other case. The court disagreed and dismissed Case No. DL-17-117646 with prejudice.

{¶ 4} The state now appeals, filing one assignment of error for our review:

I. Absent the finding of a statutory or constitutional violation, the juvenile court was without authority to dismiss the instant complaint with prejudice.

{¶ 5} As an initial matter, the state and J.Y. disagree about whether the state has a right to appeal the dismissal of its complaint.

{¶ 6} R.C. 2945.67 governs appeals by the state and provides:

(A) A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case.

{¶ 7} When a juvenile court dismisses a complaint, or part of a complaint, on its own motion, such a dismissal is the equivalent of a decision granting a motion to dismiss under R.C. 2945.67(A). In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 13. Such an order is final, because it affects a substantial right and prevents a judgment on the underlying charges. Id. at ¶ 13.

{¶ 8} J.Y. contends that the state may not appeal the trial court's decision to dismiss the case with prejudice as a matter of right and was required to ask this court for leave to appeal. We disagree.

{¶ 9} The interpretation of a statute is an issue of law, which we review de novo. See, e.g., State v. Vanzandt , 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6. Where, as here, a statute is unambiguous and definite, we must apply the plain meaning of the statute as written. Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 20 (" 'An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language * * *.' "), quoting State ex rel. Burrows v. Indus. Comm. , 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997).

{¶ 10} Based on the plain meaning of R.C. 2945.67 and the authority of In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 12, the state could appeal the trial court's dismissal of its complaint as a matter of right.

{¶ 11} In its sole assignment of error, the state claims that the trial court erred and abused its discretion when it dismissed Case No. DL-17-117646 with prejudice.

{¶ 12} Generally, the decision to dismiss a complaint is within the sound discretion of the trial court. In re J.S. , 8th Dist. Cuyahoga No. 94410, 2010-Ohio-6162, 2010 WL 5238598, ¶ 19. A court abuses its discretion by taking action that lacks reason, justification, or conscience. In re D.S. , 152 Ohio St.3d 109, 2017-Ohio-8289, 93 N.E.3d 937, ¶ 8, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). The court's discretion is more limited, however, when a complaint or indictment is dismissed with prejudice. Crim.R. 48 governs the procedure for the dismissal of a criminal case by either the state or the court. Crim.R. 48(B) does not provide for a dismissal with prejudice. That said, trial courts have the inherent power to dismiss with prejudice "where it is apparent that a defendant has been denied a constitutional or statutory right, the violation of which would, in itself, bar prosecution." State v. Walton , 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, 2006 WL 2627542, ¶ 5, citing Fairview Park v. Fleming , 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000 WL 1807010 (Dec. 7, 2000).

{¶ 13} In this case, the state claims that the trial court abused its discretion by dismissing the duplicate complaint against J.Y. with prejudice because the court did not first find that J.Y. was denied a constitutional or statutory right. The state contends that had it proceeded under both complaints, the findings of delinquency, if any, would have merged for the purposes of adjudication; therefore, there would not have been any prejudice to J.Y.

{¶ 14} This court has held that a juvenile court's authority to dismiss a complaint with prejudice is implicit in the rules since the rules otherwise provide for dismissals without prejudice. In re Szymczak , 8th Dist. Cuyahoga No. 73097, 1998 WL 414924, 2 (July 23, 1998). In In re Szymczak , this court reasoned:

If the General Assembly thought it necessary to make specific provision that a dismissal should be without prejudice, it stands to reason that it did so in order to delineate such a dismissal from a dismissal with prejudice. This action certainly implies that the General Assembly believed the juvenile courts had authority to dismiss a complaint with prejudice.

Id. at 2.

{¶ 15} There is no provision in the juvenile rules that guide what a court or the state should do if two identical complaints are pending against the same juvenile. The criminal rules, however, do provide guidance. R.C. 2941.32 states that if "two or more indictments or informations are pending against the same defendant for the same criminal act, the prosecuting attorney must elect upon which he [or she] will proceed, and upon trial being had upon one of them, the remaining indictments or information shall be quashed."

{¶ 16} We find no error in the trial court's decision to dismiss Case No. DL-17-117646 with prejudice. Contrary to the state's claims, we fail to see how the dismissal of Case No. DL-17-117646 could bar the state's prosecution of Case No. DL-17-117673. The state cites Tipp City v. Brooks , 2d Dist. Miami No. 2004-CA-7, 2005-Ohio-3174, 2005 WL 1490133, where the court stated that "[a] dismissal with prejudice is a complete bar to prosecution on the original citation." Id. at ¶ 18. Brooks and the other cases the state cites are distinguishable.

{¶ 17} In Brooks , the defendant was cited with driving left of center. That case was dismissed, and a new case was later refiled with an additional citation for a failure to maintain proper lanes. The court found him guilty on both charges at a bench trial. On appeal, the court found that the defendant's initial case had been dismissed with prejudice; therefore, the state was barred from refiling a new case with an identical charge for driving left of center. Id. at ¶ 19.

{¶ 18} In this case, two identical complaints were filed against J.Y. on the same day. When the state requested that Case No. DL-17-117646 be dismissed, the state was not looking to have that one complaint dismissed and then refile a second complaint against J.Y. Case No. DL-17-117673 remained pending after the court dismissed Case No. DL-17-117646.

{¶ 19} Therefore, we find that the trial court did not abuse its discretion in dismissing Case No. DL-17-117646 with prejudice.

{¶ 20} The state's assignment of error is overruled.

{¶ 21} Judgment affirmed.

TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR

      The court also found that the city was barred from citing the defendant with a failure to maintain proper lanes because there was no basis in fact for an additional separate violation. Brooks at ¶ 21.


author: PRESTON, J.

text:
    Kyra V. SMITH, Administrator of the Estate of Shawn Smith, Deceased, Plaintiff-Appellant, v. WYANDOT MEMORIAL HOSPITAL, et al., Defendants-Appellees.
    NO. 16-17-07
    Court of Appeals of Ohio, Third District, Wyandot County.
    Date of Decision: June 25, 2018
    William P. Campbell, Mayfield Heights, for Appellant
    Douglas G. Leak for Appellee, Wyandot Memorial Hospital
    Jeanne M. Mullin, Sandusky, for Appellee, Peter J. Schuler, M.D.
    Frederick A. Sewards, Columbus, for Appellees, Smith Clinic, et al.
    Taylor C. Knight, Toledo, for Appellees, Findlay Radiology Assoc., Inc., et al.
   PRESTON, J.

{¶ 1} Plaintiff-appellant, Kyra V. Smith ("Kyra"), Administrator of the Estate of Shawn A. Smith ("Shawn") (collectively "Shawn's estate"), appeals the December 5, 2017 judgment of the Wyandot County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Wyandot Memorial Hospital ("Wyandot Hospital"), Findlay Radiology Associates, Inc. ("Findlay Radiology"), Young C. Choy, M.D. ("Dr. Choy"), and Peter J. Schuler, M.D. ("Dr. Schuler"), dismissing under Civ.R. 12(B)(6) Shawn's estate's complaint against defendants-appellees, Frederick C. Smith Clinic, Smith Clinic, and Roberto S. Concepcion, M.D. ("Dr. Concepcion"), and dismissing its complaint against Wyandot Specialty Healthcare (collectively "defendants"). We affirm.

{¶ 2} In a previous appeal, this court recited much of the factual and procedural background relevant to this case, and we will not duplicate those efforts here. Smith v. Wyandot Mem. Hosp. , 3d Dist. Wyandot No. 16-14-07, 2015-Ohio-1080, 2015 WL 1289500. In sum, in that case, after Shawn was diagnosed with terminal cancer, Shawn, Kyra, and Shawn and Kyra's three children alleged medical negligence and loss of consortium claims against a number of the same parties named as defendants in this case. Id. at ¶ 3. After the claims against the other named defendants were dismissed, the trial court granted summary judgment in favor of Findlay Radiology and Dr. Choy after concluding that there was no genuine issue of material fact that Shawn, Kyra, and Shawn and Kyra's three children filed their claims beyond Ohio's statute of repose under R.C. 2305.113(C). Id. at ¶ 6. See also id. at ¶ 1, fn. 1. This court affirmed the trial court's decision granting summary judgment in favor of Findlay Radiology and Dr. Choy. Id. at ¶ 19.

{¶ 3} Following that appeal, Shawn succumbed to his cancer on July 22, 2015. (Doc. No. 1). Kyra, Shawn's spouse, was appointed the administrator of Shawn's estate on September 24, 2015. (Id. ).

{¶ 4} On July 21, 2017, Shawn's estate filed a wrongful-death action asserting a medical claim against Wyandot Hospital, Findlay Radiology, Dr. Choy, Dr. Schuler, Dr. Concepcion, OhioHealth Marion Area Physicians ("OhioHealth"), Wyandot Specialty Healthcare, Frederick C. Smith Clinic, and Smith Clinic. (Doc. No. 1).

{¶ 5} Dr. Choy and Findlay Radiology filed their answer on August 7, 2017. (Doc. No. 19). Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic filed their answer on August 17, 2017. (Doc. No. 22). Wyandot Hospital filed its answer that same day. (Doc. No. 26). On August 21, 2017, OhioHealth filed its answer. (Doc. No. 29). After he was granted an extension of time to file his answer, Dr. Schuler filed his answer on September 7, 2017. (Doc. No. 36). (See Doc. Nos. 18, 30). Wyandot Specialty Healthcare failed to answer the complaint. (See Doc. No. 49).

{¶ 6} Also on August 17, 2017, Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic filed a motion to dismiss Shawn's estate's complaint under Civ.R. 12(B)(6). (Doc. No. 24). On August 30, 2017, Shawn's estate filed a memorandum in opposition to Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic's motion to dismiss. (Doc. No. 32). Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic filed its reply to Shawn's estate's memorandum in opposition to their motion to dismiss. (Doc. No. 35).

{¶ 7} Wyandot Hospital filed a motion for summary judgment on September 14, 2017. (Doc. No. 37). Dr. Choy and Findlay Radiology filed a motion for summary judgment on October 5, 2017. (Doc. No. 40). On October 10, 2017, Dr. Schuler filed a motion for summary judgment. (Doc. No. 42). OhioHealth filed a motion for summary judgment on October 12, 2017. (Doc. No. 44).

{¶ 8} On October 19, 2017, Shawn's estate voluntarily dismissed its complaint against OhioHealth under Civ.R. 41(A)(1)(a). (Doc. No. 47).

{¶ 9} On October 23, 2017, Shawn's estate filed a memorandum in opposition to Dr. Choy and Findlay Radiology's, Dr. Schuler's, and Wyandot Hospital's motions for summary judgment. (Doc. No. 48).

{¶ 10} On December 5, 2017, the trial court granted Dr. Choy and Findlay Radiology's, Dr. Schuler's, and Wyandot Hospital's motions for summary judgment and Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic's motion to dismiss, and dismissed Shawn's estate's complaint against defendants. (Doc. No. 49). In its entry, the trial court also dismissed Shawn's estate's complaint against Wyandot Specialty Healthcare. (See id. at 3, fn. 1). In dismissing Shawn's estate's complaint, the trial court concluded that Shawn's estate's wrongful-death action asserted a medical claim and was barred by Ohio's medical-malpractice statute of repose.

{¶ 11} Shawn's estate filed its notice of appeal on December 20, 2017. (Doc. No. 50). It raises two assignments of error for our review.

Assignment of Error No. I
The Trial Court Erred in Holding Plaintiff-Appellant's Wrongful Death Claim Was Barred by the Statute of Repose Set Forth in Ohio Revised Code § 2305.113

{¶ 12} In its first assignment of error, Shawn's estate argues that the trial court erred by dismissing its wrongful-death claim against Wyandot Hospital, Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C. Smith Clinic, Smith Clinic, and Dr. Concepcion after concluding that Ohio's medical-malpractice statute of repose bars Shawn's estate's wrongful-death action. Specifically, Shawn's estate argues that the trial court erred by applying Ohio's medical-malpractice statute of repose under R.C. 2305.113(C) to bar a wrongful-death action under R.C. 2125.01.

{¶ 13} Because the trial court dismissed Shawn's estate's wrongful-death action using two procedural vehicles-summary judgment and Civ.R. 12(B)(6) -we must apply different standards to review the methods of dismissal. We review a decision to grant summary judgment and a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000) ; Bd. of Health of Defiance Cty. v. McCalla , 3d Dist. Defiance No. 4-12-07, 2012-Ohio-4107, 2012 WL 3893579, ¶ 33, citing Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. "Under de novo analysis, we are required to 'accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.' " McBroom v. Safford , 10th Dist. Franklin No. 11AP-885, 2012-Ohio-1919, 2012 WL 1530981, ¶ 9, quoting Grey v. Walgreen Co. , 8th Dist. Cuyahoga, 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3, citing Byrd. v. Faber , 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

{¶ 14} Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 56(C) ; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 15} "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." McCalla at ¶ 33, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). "In order for a trial court to grant a motion to dismiss for failure to state a claim upon which relief can be granted, it must appear 'beyond doubt from the complaint that the plaintiff can prove no set of facts entitling her to relief.' " McBroom at ¶ 7, quoting Grey at ¶ 3, citing LeRoy v. Allen, Yurasek & Merklin , 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.

{¶ 16} The trial court dismissed Shawn's estate's wrongful-death action against Wyandot Hospital, Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C. Smith Clinic, Smith Clinic, and Dr. Concepcion after concluding that its claim is barred by Ohio's medical-claim statute of repose. Accordingly, we must determine whether Ohio's medical-claim statute of repose applies to wrongful-death actions under R.C. Chapter 2125.

{¶ 17} Under the rules of statutory interpretation, " '[t]he paramount goal in the interpretation or construction of a statute is to ascertain and give effect to the legislature's intent in enacting the statute.' " Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 20, quoting Brooks v. Ohio State Univ. , 111 Ohio App.3d 342, 349, 676 N.E.2d 162 (10th Dist.1996). "To determine legislative intent, we must first examine the plain language of the statute." Id. , citing State ex rel. Burrows v. Indus. Comm. , 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). " '[W]e must apply a statute as it is written when its meaning is unambiguous and definite.' " Id. , quoting Portage Cty. Bd. of Commrs. v. Akron , 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). " 'An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language * * *.' " Id. , quoting Burrows at 81, 676 N.E.2d 519.

{¶ 18} Applying the rules of statutory interpretation, the Supreme Court of Ohio has concluded that Ohio's medical-claim statute of repose "applies to a cause of action that ha[s] vested for an act or omission allegedly constituting medical malpractice that took place more than four years earlier." Id. at ¶ 1. The court further concluded that "the plain language of the statute is clear, unambiguous, and means what it says." Id. at ¶ 23. That is, "[i]f a lawsuit bringing a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred." (Emphasis added.) Id.

{¶ 19} Application of the rules of statutory interpretation to the issue presented by this case produces the same result. R.C. 2305.113(C), Ohio's medical-claim statute of repose, provides:

(C) Except * * * as provided in division (D) of this section, both of the following apply:
(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.

{¶ 20} Addressing the constitutionality of Ohio's medical-claim statute of repose, the Supreme Court of Ohio concluded that R.C. 2305.113(C) is "a true statute of repose." Ruther v. Kaiser , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 19. Unlike a statute of limitations which "establishes 'a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered),' " "[a] statute of repose bars 'any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury." Antoon at ¶ 11, quoting Black's Law Dictionary 1636 and 1637 (10th Ed.2014). Generally, statutes of limitations and repose have been favorably received by "courts and legislatures sharing the common beliefs that plaintiffs should litigate their claims as swiftly as possible and that defendants should not face potential liability indefinitely." Id. at ¶ 12. Indeed, the Supreme Court of Ohio historically has enforced such statutes. See id. at ¶ 17, quoting Kerper v. Wood , 48 Ohio St. 613, 620, 29 N.E. 501 (1891) ; Id. at ¶ 17 ("It is not the province of the courts to make exceptions to meet cases not provided for by the legislature. It is no longer the habit of courts to view with disfavor the plea of the statutes of limitations. Being statutes of repose, designed to secure the peace of society, and protect the individual from being prosecuted upon stale claims, they are to be construed in the spirit of their enactment."), quoting Townsend v. Eichelberger , 51 Ohio St. 213, 216, 38 N.E. 207 (1894). Moreover, the court,

like the United States Supreme Court, [has] respected the public policy choices embodied in statutes of repose:
Many policy reasons support this legislation. Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. The statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation.
Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns, including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential that technology may have changed to create a different and more stringent standard of care not applicable to the earlier time, the risk that the medical providers' financial circumstances may have changed-i.e., that practitioners have retired and no longer carry liability insurance, the possibility that a practitioner's insurer has become insolvent, and the risk that the institutional medical provider may have closed.
Responding to these concerns, the General Assembly made a policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period.

Id. , quoting Ruther , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at ¶ 19-21.

{¶ 21} Re-codifying R.C. 2305.113, the General Assembly explained the purpose of the legislation. In its statement of findings and intent, the General Assembly discussed the distress posed to Ohio's health-care industry caused by growing medical-malpractice litigation. See S.B. 281, 2002 Ohio Laws File 250, Section 3(A)(1)-(3). Based on that concern, the General Assembly addressed the specific rationale behind the statute of repose:

(6)(a) That a statute of repose on medical, dental, optometric, and chiropractic claims strikes a rational balance between the rights of prospective claimants and the rights of hospitals and health care practitioners;
(b) Over time, the availability of relevant evidence pertaining to an incident and the availability of witnesses knowledgeable with respect to the diagnosis, care, or treatment of a prospective claimant becomes problematic.
(c) The maintenance of records and other documentation related to the delivery of medical services, for a period of time in excess of the time period presented in the statute of repose, presents an unacceptable burden to hospitals and health care practitioners.
(d) Over time, the standards of care pertaining to various health care services may change dramatically due to advances being made in health care, science, and technology, thereby making it difficult for expert witnesses and triers of fact to discern the standard of care relevant to the point in time when the relevant health care services were delivered.
(e) This legislation precludes unfair and unconstitutional aspects of state litigation but does not affect timely medical malpractice actions brought to redress legitimate grievances.
(f) This legislation addresses the aspects of current division (B) of section 2305.11 of the Revised Code, the application of which was found by the Ohio Supreme Court to be unconstitutional in Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54[ 514 N.E.2d 709]. In Dunn v. St. Francis Hospital, Inc. (Del. 1982), 401 A.2d 77, the Delaware Supreme Court found the Delaware three-year statute of repose constitutional as not violative of the Delaware Constitution's open courts provision.
(B) In consideration of these findings, the General Assembly declares its intent to accomplish all of the following by the enactment of this act:
(1) To stem the exodus of medical malpractice insurers from the Ohio market;
(2) To increase the availability of medical malpractice insurance to Ohio's hospitals, physicians, and other health care practitioners, thus ensuring the availability of quality health care for the citizens of this state;
(3) To continue to hold negligent health care providers accountable for their actions;
(4) To preserve the right of patients to seek legal recourse for medical malpractice.

Id. at Section 3(A)(6), (B).

{¶ 22} Based on those principles, the Supreme Court of Ohio "and the United States Supreme Court agree that statutes of repose are to be read as enacted and not with an intent to circumvent legislatively imposed time limitations." Antoon at ¶ 19. For those reasons, we conclude that wrongful-death actions based on medical claims are barred by Ohio's medical-claim statute of repose for an act or omission allegedly constituting medical malpractice that took place more than four years earlier. The Supreme Court of Ohio stated that Ohio's medical-claim statute of repose clearly and unambiguously bars "any action" bringing a medical claim commenced more than four years after the occurrence of the act or omission constituting the basis for the claim. (Emphasis sic.) Id. at ¶ 23. Because any action bringing a medical claim is barred by Ohio's medical-claim statute of repose if it is not timely commenced, we conclude that wrongful-death actions fall within the scope of "any action" and are subject to the time restraints of the statute of repose.

{¶ 23} However, similar to the issue presented in Daniel v. United States , Shawn's estate argues that Ohio's medical-claim statute of repose does not apply to wrongful-death actions because a wrongful-death action is subject to its own statute of limitations under R.C. 2125.02(D)(1). 977 F.Supp.2d 777, 780 (N.D.Ohio 2013). R.C. 2125.02(D)(1)"requires wrongful death claims to be commenced within two years of the date of decedent's death." Id. , citing R.C. 2125.02(D)(1).

{¶ 24} In Daniel , the federal district court concluded that Ohio's statute of repose does not apply to wrongful-death actions. Id. at 781. The court, disagreeing with the Eighth District Court of Appeals' decision in Fletcher v. Univ. Hosps. of Cleveland , reasoned that Ohio's statute of repose does not apply to wrongful-death actions based on the Supreme Court of Ohio's "discussion of the relation of medical malpractice and wrongful death statutes of limitations." Id. , citing 172 Ohio App.3d 153, 2007-Ohio-2778, 873 N.E.2d 365, ¶ 8, rev'd on other grounds , 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147.

{¶ 25} We disagree with the court's reasoning. It is well-settled that "[s]tatutes of repose and statutes of limitation have distinct applications." Antoon , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 11, citing CTS Corp. v. Waldburger , 573 U.S. 1, 134 S.Ct. 2175, 2182, 189 L.Ed.2d 62 (2014). See also York v. Hutchins , 12th Dist. Butler No. CA2013-09-173, 2014-Ohio-988, 2014 WL 1356699, ¶ 10 (discussing the applicability of Ohio's statute of repose to medical claims "regardless of the applicable statute of limitations"). Indeed, as we noted above, a statute of limitations relates to a plaintiff's ability to pursue a claim, while a statute of repose affords defendants certainty of "a time after which they may be free from the fear of litigation." Ruther , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at ¶ 19.

{¶ 26} Moreover, based on the different motivations of a statute of limitations and a statute of repose, any argument asserting that Ohio's medical-claim statute of repose does not apply to wrongful-death actions because wrongful-death actions and medical-malpractice actions are separate causes of action is erroneous. Stated another way, a statute of limitations governs the time in which a plaintiff may assert a cause of action. A cause of action is based on a plaintiff's injury. Conversely, a statute of repose focuses on a defendant's alleged acts and governs the time in which a defendant may be held accountable for his or her alleged negligent acts. Based on that distinction, any separate-causes-of-action argument necessarily fails. Accordingly, because statutes of repose and limitation are fundamentally different, any reasoning based on the interplay of two statute of limitations is not persuasive. Thus, we decline to follow Daniel .

{¶ 27} Although it is not directly on point, our sister appellate district's decision in Fletcher is instructive to our analysis. In that case, the court concluded that Fletcher was required to file an affidavit of merit with respect to her wrongful-death action because it was based on a medical claim. Fletcher , 172 Ohio App.3d 153, 2007-Ohio-2778, 873 N.E.2d 365, at ¶ 8. Applying the court's rationale that an affidavit of merit is required to support a wrongful-death action based on a medical claim, it reasons that the other statutory provisions applicable to medical claims, including Ohio's medical-claim statute of repose, also apply to wrongful-death actions. For the above reasons, we hold that Ohio's medical-claim statute of repose applies to wrongful death actions under R.C. Chapter 2125, which assert medical claims.

{¶ 28} Turning to Shawn's estate's wrongful-death action, we must determine whether it is based on a medical claim to determine whether Ohio's medical-claim statute of repose applies. A medical claim under R.C. 2305.113 is defined as

any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. "Medical claim" includes the following:
(a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.
(c) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and that are brought under section 3721.17 of the Revised Code ;
(d) Claims that arise out of skilled nursing care or personal care services provided in a home pursuant to the plan of care, medical diagnosis, or treatment.

R.C. 2305.113(E)(3).

{¶ 29} Shawn's estate's complaint alleges that defendants "provided medical treatment and/or were responsible for supervising the medical treatment of Shawn Smith." (Doc. No. 1). It further alleges that Wyandot Hospital, Findlay Radiology, Frederick C. Smith Clinic, and Smith Clinic are businesses that "held themselves out to the public * * * as competent and qualified to provide safe and adequate medical care and treatment," and that Dr. Choy, Dr. Schuler, and Dr. Concepcion are "practicing as medical doctors and held themselves out to the public * * * as competent and qualified to provide safe and adequate medical care and treatment." (Id. ). Shawn's estate specifically alleged that "Defendants were negligent [by] failing to properly diagnose and treat Shawn A. Smith and failed to provide appropriate follow-up care to Shawn"; "Defendants took on the responsibility of caring and treating for [sic] Shawn Smith, but failed to make appropriate and differential decisions and failed to administer proper care and treatment to Shawn"; "[t]he care and treatment provided to Shawn A. Smith, by the Defendants, fell below acceptable standards of medical care and treatment and said Defendants were negligent"; and "Defendants negligently failed to use that degree of care, skill and diligence in providing Shawn A. Smith with proper and/or appropriate medical care and treatment ordinarily used by hospitals, physicians, and other medical personal in like and similar circumstances which ultimately caused the death of Shawn A. Smith." (Id. ). Based on those allegations, Shawn's estate's wrongful-death action is based on a medical claim within the meaning of R.C. 2305.113(E)(3). Compare Fletcher , 172 Ohio App.3d 153, 2007-Ohio-2778, 873 N.E.2d 365, at ¶ 8 ("The wrongful-death claim asserted by appellant was a medical claim as defined by R.C. 2305.113. It was a claim against a physician and a hospital that arose out of the medical diagnosis, care, or treatment of the decedent, and the claim resulted from alleged acts or omissions in providing medical care.").

{¶ 30} Moreover, as further evidence that Shawn's estate's wrongful-death action is based on a medical claim, Shawn's estate included with its complaint affidavits of merit as required by Civ.R. 10(D)(2). (Doc. No. 1, Exs. A, B). See, e.g. , Fletcher at ¶ 8. Therefore, Shawn's estate's wrongful-death action asserts a medical claim. As such, based on our conclusion above, it is subject to Ohio's medical-claim statute of repose.

{¶ 31} Under Ohio's medical-malpractice statute of repose, " ' "a person must file a medical claim no later than four years after the alleged act of malpractice occurs or the claim will be barred." ' " Smith , 2015-Ohio-1080, at ¶ 9, quoting York , 2014-Ohio-988, at ¶ 10, quoting Ruther , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at ¶ 2 ("The statute establishes a period beyond which medical claims may not be brought even if the injury giving rise to the claim does not accrue because it is undiscovered until after the period has ended."). There is no dispute that defendants' alleged acts of medical malpractice occurred in 2004. Because Shawn's estate filed its wrongful death action in 2017, it is well outside the four-year statute of repose. Compare York at ¶ 11 (concluding that the trial court did not err by dismissing the Yorks' medical claims filed "nearly a decade" after the alleged medical negligence "regardless of when the Yorks' claims actually accrued").

{¶ 32} For the foregoing reasons, there is no genuine issue of material fact that Shawn's estate filed its wrongful-death action well outside Ohio's medical-claim statute of repose. As such, the trial court did not err in granting summary judgment in favor of Dr. Choy, Findlay Radiology, Wyandot Hospital, and Dr. Shuler. Moreover, the trial court did not err by dismissing Shawn's estate's wrongful-death action against Frederick C. Smith Clinic, Smith Clinic, and Dr. Concepcion for failing to state a claim for which relief can be granted since the wrongful-death action was filed well outside the four-year statute of repose.

{¶ 33} Shawn's estate's first assignment of error is overruled.

Assignment of Error No. II
The Trial Court Erred by Dismissing, Sua Sponte, a Non-Moving Defendant Where Appellant Was Provided No Notice or No Opportunity to Oppose the Dismissal

{¶ 34} In its second assignment of error, Shawn's estate argues that the trial court erred by dismissing its complaint against Wyandot Specialty Healthcare without providing Shawn's estate notice and an opportunity to respond.

{¶ 35} Civ.R. 41(B) governs involuntary dismissals of civil actions. Under Civ.R. 41(B)(1), "Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court * * * on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim." "A dismissal under division (B) of this rule and any dismissal not provided for in this rule * * * operates as an adjudication upon the merits * * *." Civ.R. 41(B)(3).

{¶ 36} We review an involuntary dismissal with prejudice for an abuse of discretion. See Cecil & Geiser, L.L.P. v. Plymale , 196 Ohio App.3d 322, 2011-Ohio-5468, 963 N.E.2d 233, ¶ 25 (10th Dist.) (noting that a dismissal under Civ.R. 41(B)(3) is discretionary). See also Clay v. Lakeview Farms, Inc. , 3d Dist. Allen No. 1-09-55, 2010-Ohio-603, 2010 WL 597373, ¶ 19. An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 37} Although Wyandot Specialty Healthcare did not appear or move for dismissal, the trial court dismissed Shawn's estate's wrongful-death action against Wyandot Specialty Healthcare. The trial court dismissed Shawn's estate's wrongful-death action without notifying Shawn's estate that it intended to dismiss its complaint against Wyandot Specialty Healthcare and providing Shawn's estate an opportunity to respond.

{¶ 38} The Supreme Court of Ohio has concluded "that the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice." (Emphasis sic.) Ohio Furniture Co. v. Mindala , 22 Ohio St.3d 99, 101, 488 N.E.2d 881 (1986). See also Cecil & Geiser, L.L.P. at ¶ 24 (noting that "when a party has been informed that dismissal is a possibility, it must be given a reasonable opportunity to defend against dismissal"), citing Quonset Hut, Inc. v. Ford Motor Co. , 80 Ohio St.3d 46, 49, 684 N.E.2d 319 (1997). "This requirement stems from and reflects a basic tenet of Ohio jurisprudence that cases should be decided on their merits." Cecil & Geiser, L.L.P at ¶ 23. "What constitutes notice and an opportunity to respond must be examined on a case-by-case basis." Id. at ¶ 24. "Notice needs to be formal but can be implied." Id. , citing Sazima v. Chalko , 86 Ohio St.3d 151, 155-156, 712 N.E.2d 729 (1999).

{¶ 39} Unlike involuntary dismissals that are fundamentally unfair to litigants, the trial court did not abuse its discretion by involuntarily dismissing Shawn's estate's wrongful-death action against Wyandot Specialty Healthcare. Based on the specific facts and circumstances of this case, Shawn's estate was not prejudiced by the dismissal of its wrongful-death action. See id. at ¶ 33 (discussing whether Cecil & Geiser was prejudiced by the involuntary dismissal without notice of its claims). In involuntarily dismissing Shawn's estate's complaint against Wyandot Specialty Healthcare, the trial court stated,

According to Plaintiff's Complaint, this entity had either an agency relationship with one of the named physicians or was the employer of one of the named physicians. Because the named physicians have all been dismissed by virtue of this order, the claims against this entity will be similarly dismissed.

(Doc. No. 49). Shawn's estate's wrongful-death action against Wyandot Hospital, Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C. Smith Clinic, Smith Clinic, and Dr. Concepcion were dismissed for the same reason-the claims were barred by Ohio's medical-claim statute of repose. Shawn's estate's wrongful-death action against Wyandot Specialty Healthcare would have likewise been dismissed as being barred by Ohio's medical-claim statute of repose had Wyandot Specialty Healthcare appeared and moved for dismissal. Stated differently, this is not a case in which Shawn's estate was prevented from having its complaint against Wyandot Specialty Healthcare decided on its merits. For that reason, the trial court did not abuse its discretion by dismissing Shawn's estate's wrongful-death action against Wyandot Specialty Healthcare.

{¶ 40} Shawn's estate's second assignment of error is overruled.

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

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

      It is undisputed that Shawn's estate filed its wrongful-death action within the time parameters established by R.C. 2125.02(D)(1).

      Reversing the Eighth District Court of Appeals' decision for other reasons, the Supreme Court of Ohio specifically noted that the Eighth District's "ruling that [Fletcher's] wrongful-death claim requires an affidavit" of merit was not before the court because "Fletcher did not cross-appeal" that determination. Fletcher v. Univ. Hosps. of Cleveland , 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 9, fn. 2.

      Based on our conclusion that summary judgment was proper in favor of Dr. Choy and Findlay Radiology, we need not and do not express an opinion as to whether Shawn's estate was precluded from pursuing any part of its wrongful-death action against Dr. Choy and Findlay Radiology based on this court's conclusion in Smith v. Wyandot Mem. Hosp. 3d Dist. Wyandot No. 16-14-07, 2015-Ohio-1080, 2015 WL 1289500.

      Wyandot Specialty Healthcare failed to file an appellee's brief in this appeal. Under those circumstances, App.R. 18(C) provides that we "may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." Heilman v. Heilman , 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, 2012 WL 5397596, ¶ 16.


author: ROBB, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jay H. HOUSTON, Defendant-Appellant.
    No. 17 NO 0455
    Court of Appeals of Ohio, Seventh District, Noble County.
    Dated: June 25, 2018
    Atty. Kelly Riddle, Prosecutor, Atty. Jamie Riley, Asst. Prosecutor, 150 Courthouse, Caldwell Ohio 43724, for Plaintiff-Appellee.
    Atty. Michael J. Kinlin, Atty. Stephen Hanudel, 124 Middle Ave., Suite 900, Elyria, Ohio 44035, for Defendant-Appellant.
    BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
    OPINION AND JUDGMENT ENTRY
   ROBB, P.J.

{¶ 1} Defendant-Appellant Jay H. Houston appeals the decision of the Noble County Court finding him guilty of failure to control in violation of R.C. 4511.202. Appellant contests the sufficiency and the weight of the evidence. He also contends the trial court erred in finding a deer running into the road is foreseeable and thus cannot constitute a sudden emergency for purposes of an affirmative defense. This court concludes a deer may constitute a sudden emergency; therefore, the trial court erred in ruling, as a matter of law, that a deer in the road cannot be a sudden emergency. As such, the judgment is reversed, and the case is remanded for further proceedings.

STATEMENT OF THE CASE

{¶ 2} Appellant was issued a citation for failure to control in violation of R.C. 4511.202. A bench trial was conducted by the Noble County Court on September 5, 2017. The trooper testified he was called to the scene of a single-vehicle accident on May 21, 2017 at 4:25 a.m. on Interstate 77 North in Noble County. He observed a large, yellow, Penske-rental, box truck leaning sideways in the grass median. (Tr. 4-5, 21). He concluded the truck drove off the left side of the freeway and into the grass median where it turned sideways, overturned, rolled, and landed upright with a twisted frame. (Tr. 4-5, 10-11, 21). The road was dry. The trooper observed minor cuts on the passenger and on Appellant, who identified himself as the driver. (Tr. 8-9).

{¶ 3} The trooper found no skid marks on the pavement where the truck left the roadway. (Tr. 6, 20). He saw tire tracks with tread marks in the grass at the point the truck left the berm, which demonstrated to him that the truck's tires were still freely rolling, as opposed to skidding, when the truck entered the grass. (Tr. 6). He concluded the driver did not brake while on the road or when first leaving it. (Tr. 12, 17). Photographs were admitted showing what the officer concluded were the truck's tire tracks in the grass after the truck started travelling sideways. (Tr. 7, 14, 17). A photograph showed the truck with a crushed cab roof, a broken windshield, and the metal sheared off the top and passenger side of the box compartment. Household belongings from inside the truck's box compartment were scattered in the median. The back end of the truck was protruding into the roadway on the other side of the freeway.

{¶ 4} The trooper testified he found no blood or fur on the front of the truck when checking to see if it made contact with an animal. (Tr. 8). When asked on cross-examination if he checked under the vehicle or the side of the vehicle for evidence of a deer, he said he did not because Appellant did not think he struck the deer. (Tr. 19). He acknowledged there are many deer-car collisions in this rural area and agreed a deer strike could cause death to someone inside a vehicle. (Tr. 18-19).

{¶ 5} Appellant testified in his own defense. He explained he rented the 26-foot box truck to move from North Carolina to northern Ohio. He planned to make multiple trips in a short period of time and left North Carolina at 8:00 p.m. (Tr. 26). Appellant testified he was driving north in the left lane when he saw a deer enter the road at a run from the right side of the roadway. (Tr. 27). He swerved off the road to the left, and the truck went into a slide. He said, "as soon as I hit the grass, that was it." (Tr. 28,31). He could not remember if he applied the brakes. (Tr. 28). He confirmed the truck rolled over and landed on its tires. (Tr. 27). He believed he was traveling at a speed between 60 and 70 miles per hour, stating the truck had a governor limiting the maximum speed to 70 mph, which he said was the speed limit. (Tr. 28, 30).

{¶ 6} When his attorney asked why he did not just go forward and hit the deer, he said his friend had a deer go through the car and maim him and "So I decided, that uh, natural instinct would be to swerve and miss instead of hitting him. That was just a natural instinct." (Tr. 28). When asked if he could have done anything differently, Appellant answered in the negative and explained, "something runs out in front of you, you're natural instinct is to swerve and to avoid it." (Tr. 30).

{¶ 7} Defense counsel renewed a motion for acquittal, which the court overruled, explaining reasonable minds could find Appellant guilty when the evidence was viewed in the light most favorable to the state. Closing arguments were presented. Defense counsel outlined the sudden emergency defense. The court then discussed the defense and concluded a wild animal crossing the road in a rural area of Ohio was foreseeable and therefore would not constitute a sudden emergency, finding the defense of sudden emergency does not exist for an animal in the roadway.

{¶ 8} The court found Appellant guilty as charged and imposed a fine of $50 plus $89 in court costs. (Tr. 35-36; J.E. 9/5/17). Appellant paid $139 that same day. Appellant filed an untimely notice of appeal from the September 5, 2017 judgment entry on Friday, October 6, 2017, which was one day late. This court granted leave for a delayed appeal under App.R. 5(A). (J.E. 12/6/17).

ASSIGNMENT OF ERROR ONE: SUFFICIENCY

{¶ 9} Appellant sets forth three assignments of error, the first of which alleges:

"THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIMINAL RULE 29 UPON THE COMPLETION OF APPELLANT'S CASE."

{¶ 10} Initially, the state responds by asserting a motion for acquittal has no application in a bench trial. Pursuant to Crim.R. 29(A) : "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Crim.R. 29(A). We note the holding: "The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence." City of Dayton v. Rogers , 60 Ohio St.2d 162, 163, 398 N.E.2d 781 (1979).

{¶ 11} A defendant does not waive a sufficiency argument by failing to renew a motion for acquittal. Likewise, a defendant is not required to move for acquittal in order to raise sufficiency of the evidence on appeal. In re J.M. , 7th Dist. No. 12 JE 3, 2012-Ohio-5283, 2012 WL 5542870, ¶ 34 (a defendant does not waive a sufficiency argument by failing to file a motion for acquittal as a not guilty plea preserves sufficiency arguments for purposes of appeal), citing State v. Jones , 91 Ohio St.3d 335, 346, 744 N.E.2d 1163 (2001), citing State v. Carter , 64 Ohio St.3d 218, 594 N.E.2d 595 (1992). Still, the law does not prohibit a defendant from asking the court at the close of the state's case for an acquittal to be entered prior to the defense calling witnesses in a bench trial. A renewed motion at the close of all evidence is not required, and the renewed motion in a bench trial is akin to a closing argument to emphasize the defendant's position. The defendant can argue insufficiency of the evidence to a trial court at a bench trial regardless of the form the argument takes.

{¶ 12} In any event, the review of a denial of a Crim.R. 29 motion for acquittal involves the application of the standards for reviewing the sufficiency of the evidence. See, e.g. , Crim.R. 29(A) (referring to insufficient evidence); State v. Williams , 74 Ohio St.3d 569, 660 N.E.2d 724 (1996) ; State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995). Accordingly, when a defendant challenges a court's denial of a motion for acquittal, he is challenging the sufficiency of the evidence. Whether the evidence is legally sufficient to sustain a conviction is a question of law evaluating the adequacy of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In evaluating the sufficiency of the evidence, the court views the evidence and all rational inferences in the light most favorable to the state. See State v. Filiaggi , 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999) ; State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). An evaluation of credibility is not involved in a sufficiency review. State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82. See also Thompkins , 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring) (sufficiency involves the state's burden of production rather than its burden of persuasion).

{¶ 13} As the state's brief points out, a conviction cannot be reversed on the grounds of insufficient evidence unless the reviewing court determines that no rational fact-finder could have found the essential elements of the offense proven beyond a reasonable doubt. Goff , 82 Ohio St.3d at 138, 694 N.E.2d 916. The question is merely whether any rational mind could find the elements were established by the direct and circumstantial evidence. See State v. Getsy , 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998). Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh , 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).

{¶ 14} The elements of the failure to control offense are contained in R.C. 4511.202(A), which provides: "No person shall operate a motor vehicle * * * on any street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle * * *." See also R.C. 4511.202(B) ("Whoever violates this section is guilty of operating a motor vehicle * * * without being in control of it, a minor misdemeanor"). The statute does not require the prosecution to establish the precise reason the driver lost reasonable control of the vehicle. State v. Tyler , 4th Dist. No. 02CA2644, 2002-Ohio-4509, 2002 WL 2005772, ¶ 13 (a violation of the statute could result from various factual scenarios, including driver inattention or error). Foreseeability of a loss of control is not an element of this offense for the state to prove. See State v. Mc Caw , 2d Dist. No. 16202, 1997 WL 451359 (Aug. 1, 1997). The statute merely requires the prosecution to show the driver failed to reasonably control the vehicle (on a street or property open to the public for vehicular traffic).

{¶ 15} Here, the officer testified to his observations and conclusions, and photographs were admitted showing the scene. The large truck had a twisted frame and was sitting sideways in the grass median with the back end protruding into one side of the freeway. The tire tracks showed it came from the other side of the freeway without braking as it left the road and then turned sideways. The trooper could ascertain the truck rolled after turning sideways. The top and side of the box truck were sheared away, exposing the contents which were strewn in the median. Viewing the evidence and reasonable inferences in the light most favorable to the state, a rational trier of fact could conclude Appellant was not in reasonable control of the vehicle immediately prior to the accident.

There was sufficient evidence to support a conviction of operating a motor vehicle without being in control of it in violation of R.C. 4511.202.

{¶ 16} Although Appellant's assignment of error discusses a motion for acquittal (and a motion for acquittal involves the sufficiency of the evidence presented against the defendant), Appellant frames the issue as being whether the court erred by failing to grant his motion for acquittal "where he successfully presented the defense of a sudden emergency to justify failing to control his vehicle." He then sets forth law on the sudden emergency defense and states he met his burden of proving the elements of this affirmative defense by a preponderance of the evidence. The due process concept involving the sufficiency of the state's evidence does not deal with the strength of the defense's evidence for an affirmative defense. State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 35-38. Rather, the strength of the defendant's evidence as to his affirmative defense can be addressed under the principles relating to the weight of the evidence. See id. at ¶ 39-42. Additionally, the legal existence of an affirmative defense, discussed further infra, is a different question than a motion for acquittal or sufficiency of the state's evidence. Accordingly, the first assignment of error lacks merit.

ASSIGNMENT OF ERROR TWO: MANIFEST WEIGHT

{¶ 17} Appellant's second assignment of error contends:

"THE TRIAL COURT ERRED BY FINDING THE APPELLANT GUILTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶ 18} Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other." Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. It depends on the effect of the evidence in inducing belief but is not a question of mathematics. Id. A weight of the evidence review involves the state's burden of persuasion, whereas a sufficiency review involves the state's burden of production. See id. at 390, 678 N.E.2d 541 (Cook, J., concurring). When a defendant claims the conviction is contrary to the manifest weight of the evidence, the appellate court is to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541.

{¶ 19} This discretionary power of the appellate court is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position from which to weigh the evidence and judge the witnesses' credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally proceed under the premise that when there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we do not choose which one we believe is more credible. State v. Gore , 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶ 20} The trooper's testimony was believable. He testified about a lack of skid marks on the pavement or in the grass where the truck first left the road. His conclusions as to the tire tracks, sideways motion, and overturning were persuasive. The trial court did not lose its way or create a manifest miscarriage of justice in finding Appellant failed to reasonably control the vehicle.

{¶ 21} In any event, the arguments under this assignment of error rely on arguments as to the Appellant's affirmative defense of sudden emergency. An affirmative defense is either: (a) a defense expressly designated as affirmative; or (b) a defense involving an excuse or justification peculiarly within the knowledge of the accused, which the accused can fairly be required to adduce supporting evidence. R.C. 2901.05(D)(1). "The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused." R.C. 2901.05(A).

{¶ 22} Appellant testified a deer ran into the road from the right and his instinct was to swerve off the left side of the freeway into the grass while going between 60 and 70 mph in a 26 foot long box truck. As the state responds, Appellant's credibility was a matter for the trial judge, who watched him testify. Appellant urges the statements on the record suggest the judge believed his testimony that a deer ran into the road. Nevertheless, the trial court's statements suggest the decision to convict Appellant was based on a legal conclusion. This leads to Appellant's next argument, which must be considered before the weight of the evidence as to the affirmative defense can be fully reviewed. But first, we review the trial court's statements on the defense.

{¶ 23} After counsel presented a closing argument concerning the sudden emergency defense, the court asked if the law on sudden emergency provides "it has to be something that is unforeseeable." (Tr. 33). The court then asked if "anybody that drives on the roads in a rural part of the State of Ohio is gonna find that it's unforeseeable that a wild animal could cross the road?" (Tr. 33-34). Defense counsel replied, "No. That, that is entirely foreseeable. However, - - -." At that point, the court opined, "So consequently, the defense of [a] sudden emergency is really not available, under those circumstances." The court noted it had never read a case saying a wild animal crossing a road is a sudden emergency and asked if defense counsel knew of a case on the subject. Counsel said he was unable "to find one where it was - - -" at which point the court suggested it considered the issue in the past. Some "inaudible" comments were made by defense counsel and the court. The court then concluded: "No. Living in the rural area we do. Uh, but consequently, I've never been able to find one either. And so, consequently, uh, I don't find that the defense exists." (Tr. 34).

{¶ 24} In the Second District's Mc Caw case, the defendant testified his failure to control the vehicle was the result of a blackout and said his doctor's office failed to warn him of this possibility. The trial court made a comment: "Is it your understanding or do you believe that because you blacked out and they failed to properly advise you that that excuses you from the accident?" On appeal, the defendant argued the trial court erred by indicating a blackout was not a legal excuse. The Second District held the defendant was entitled to offer evidence to prove his affirmative defense that his failure to control was due to fainting or a momentary loss of consciousness and any rejection of this theory as an affirmative defense would have constituted a legal error. The court pointed out: "If the trial court disbelieved McCaw's bare assertions it was not required to credit his defense, notwithstanding the fact that the State had offered no evidence contradicting McCaw's claims." Mc Caw , 2d Dist. No. 16202.

{¶ 25} However, the Second District was "unable to determine whether the trial court found that McCaw had failed to bear his burden of proof or whether it rejected the theory of his affirmative defense." Id. The court therefore concluded: "Because we cannot determine which of those alternatives the trial court followed, we must reverse McCaw's conviction and remand for further proceedings" with a special mandate instructing the trial court "to review the record herein and to either (1) enter a judgment of acquittal if the court finds that Defendant-Appellant McCaw proved his affirmative defense by a preponderance of the evidence or (2) enter a judgment of conviction if the court finds that McCaw failed to bear the burden of proof." Id.

{¶ 26} We now consider the propriety of the trial court's statements regarding whether Appellant was entitled to a decision on his sudden emergency defense.

ASSIGNMENT OF ERROR THREE: SUDDEN EMERGENCY

{¶ 27} Appellant's third assignment of error provides:

"THE TRIAL COURT ERRED IN FINDING THAT AN ANIMAL ENTERING THE ROADWAY WAS A REASONABLY FORESEEABLE EVENT THAT NEGATED THE SUDDEN EMERGENCY DEFENSE."

{¶ 28} The Ohio Supreme Court has addressed many civil cases involving drivers who were sued for negligence after the failure to comply with a specific safety statute and who presented the sudden emergency doctrine as a legal excuse. See Oechsle v. Hart , 12 Ohio St.2d 29, 31-34, 231 N.E.2d 306 (1967) (reviewing various cases). In addition to Oechsle , Appellant cites the Supreme Court's Bush case. In Bush , the Court held: "A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it impossible to comply with the statute, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the statute itself." Bush v. Harvey Transfer Co. , 146 Ohio St. 657, 664-65, 67 N.E.2d 851 (1946) (and stating the defendant cannot excuse himself from statutory compliance by showing "he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances").

{¶ 29} In discussing the sudden emergency defense, the Oechsle Court reiterated: "An emergency which will relieve a motorist of his duty to comply with a safety statute regulating vehicular traffic must arise as the result of something over which he has no control." See Oechsle , 12 Ohio St.2d at 34, 231 N.E.2d 306. Therefore, "[a] self-created emergency, one arising from the driver's own conduct or from circumstances under his control, cannot serve as an excuse." Id. "[T]he operator of a motor vehicle is responsible for keeping his vehicle under control and on his side of the road. This is true irrespective of the condition of the road." Id.

{¶ 30} The Oechsle Court therefore ruled that skidding upon a wet or icy road is a circumstance within the power of the driver to prevent. Id. (bad road conditions alone will not excuse a driver from the statutes requiring him to stay on his half of the road), overruling Kohn v. B. F. Goodrich Co. , 139 Ohio St. 141, 38 N.E.2d 592 (1941) and distinguishing Francis v. Bieber , 10 Ohio St.2d 65, 69, 225 N.E.2d 251 (1967) (allowing the sudden emergency defense where cars were parked without lights on the side of a road just after a crest of a hill, someone stepped across the center line into the defendant's lane while waving a flashlight, and the defendant braked causing her car to skid on an icy road into one of the parked cars). "Where a motorist unexpectedly comes upon a patch of ice on a dry and otherwise clear roadway which causes him to lose control of his car which skids left across the center line of the highway striking plaintiff's car, the defense of sudden emergency is not available to such motorist and it is error for the trial court to charge the jury with respect thereto." Id. at paragraph three of syllabus.

{¶ 31} The parties agree a criminal defendant can present a sudden emergency defense as a legal excuse to a violation of a traffic safety statute. "[U]nder Ohio law, a driver may, under circumstances, avoid a violation of a traffic statute that regulates the operation of motor vehicles if the motorist can show that something over which she had no control, or an emergency not of her own making, made it impossible to comply with the statute's requirements." See, e.g. , State v. Davis , 4th Dist. No. 04CA1, 2004-Ohio-5680, 2004 WL 2390013, ¶ 15 (but finding the trial court could disbelieve the testimony that an oncoming vehicle forced the bus to swerve).

{¶ 32} The state cites a Twelfth District case where a defendant put on the affirmative defense of sudden emergency due to a deer. The court found: the only evidence was the trooper's testimony that the driver claimed there was a deer; the defendant put on no evidence; the trooper testified there was no evidence of braking or evasive action; and the trooper suggested the evidence showed the driver merely drove off the road. The court affirmed the conviction finding the state did not put on evidence that a deer actually jumped in front of appellant's vehicle. Rather, the trooper merely mentioned the driver's claim at the scene. The court ruled this evidence could be viewed as a bare, self-serving assertion which the trial court was not required to believe. State v. Cecil , 12th Dist. No. CA99-06-020, 2000 WL 127076 (Jan. 31, 2000).

{¶ 33} The state notes the trial court could have disbelieved Appellant about the presence of or emergency presented by the deer. As aforementioned, Appellant claims it was implied the court believed him about the deer. However, a finding that a deer cannot be a sudden emergency per se does not suggest the court believed or disbelieved Appellant's story. There is no indication the court issued an alternative ruling based on an evaluation of the weight of the facts and circumstances.

{¶ 34} Alternatively, the state relies on the Fifth District's language on unforeseeability in discussing the defense. For instance, the Fifth District has stated: "An operator of a motor vehicle is excused from complying with a safety statute if without fault on his part, and because of circumstances over which he had no control, he was confronted by a sudden unfor[e]seeable emergency which made compliance with the statute impossible." State v. Hitchings , 5th Dist. No. 95CA00379, 1996 WL 575992 (Sep. 23, 1996).

{¶ 35} As Appellant points out, the Ninth District proceeded under the principle that a deer in the road could constitute sudden emergency without any regard for the foreseeability of a deer. State v. Gabriel , 9th Dist. No. 14CA0005-M, 2014-Ohio-5387, 2014 WL 6865665. In that case, as in the Twelfth District's Cecil case, the court concluded the defendant failed to put on a persuasive defense as there was no evidence a deer was actually in the roadway besides the trooper's mention of the defendant's excuse. Id. at ¶¶ 3, 18. See also Cecil , 12th Dist. No. CA99-06-020.

{¶ 36} This court concludes a deer entering a roadway can be a sudden emergency. It was error for the trial court to conclude as a matter of law that an animal entering the roadway can never be a sudden emergency. The mere fact that it is foreseeable a deer may cross a freeway at some point in time in rural Ohio does not mean a deer running across the road at a certain time or place is foreseeable and can never be a sudden emergency. (By comparison, the deer at that place and time may be no more foreseeable than a vehicle exiting a driveway into a defendant's path.) In other words, the bare fact a deer runs into a driver's path is not a "self-created emergency" and may qualify as a situation "over which [the driver] has no control." See Oechsle , 12 Ohio St.2d at 34, 231 N.E.2d 306.

{¶ 37} A defendant may fail to prove his defense if, for instance, part of the situation involving a deer arises from the driver's own conduct or from circumstances under his control, such as where there is evidence of speeding, driving too fast for the conditions, driving while being distracted (such as using a device or eating food), driving in the dark without headlights, and driving without prescribed eyeglasses. Whether there actually was a deer, whether the deer posed an actual emergency in a given case, and whether the driver had no control over the situation are factual questions before the trier of fact.

{¶ 38} Because the trial court held a deer running into the freeway can never be a sudden emergency in rural Ohio, the case must be remanded for consideration of this affirmative defense on its merits. This assignment of error is sustained in part. We cannot review the weight of the evidence on Appellant's affirmative defense since the trial court did not engage in an evaluation of whether Appellant proved his defense by a preponderance of the evidence.

{¶ 39} For the foregoing reasons, the judgment of conviction is reversed, and the case is remanded to the trial court with instructions to consider Appellant's sudden emergency defense.

Donofrio, J., concurs.

Waite, J., concurs.

      We note there is precedent for dismissing a misdemeanor appeal as moot where the defendant pays the fine and court costs without seeking a stay and where he does not offer evidence from which the appellate court can infer a collateral legal disability. State v. Wilson , 41 Ohio St.2d 236, 325 N.E.2d 236 (1975). See also Akron v. Belford , 9th Dist. No. 22906, 2006-Ohio-1033, 2006 WL 551549, (dismissing appeal in a minor misdemeanor failure to control case, even though defendant issues with his conviction raised on appeal, including the affirmative defense of sudden emergency or blackout). However, this court only considers the issue moot if, for example, the defendant raises solely an issue with his sentence on appeal and the sentence has already been served. See State v. Collins , 7th Dist. No. 12 MA 157, 2013-Ohio-5642, 2013 WL 6797396, ¶ 14-17 (noting the appeal would not be moot if he raised an issue with the conviction). One collateral legal disability from a traffic offense such as this is points on a driver's license, and Appellant raises an issue with his conviction.

      Overruled on other grounds by State v. Lazzaro , 76 Ohio St.3d 261, 266, 667 N.E.2d 384 (1996).