author: PIPER, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Kelly L. HARDING, Defendant-Appellant.
    NO. CA2016-11-029
    Court of Appeals of Ohio, Twelfth District, Madison County.
    December 11, 2017
    Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main Street, London, Ohio 43140, for plaintiff-appellee
    Brehm & Associates, LPA, Robert J. Beck, Jr., 14 South High Street, New Albany, Ohio 43054, for defendant-appellant
   PIPER, J.

{¶ 1} Defendant-appellant, Kelly Harding, appeals his convictions and sentence in the Madison County Court of Common Pleas for possession of marijuana and criminal tools.

{¶ 2} Craig Voight asked Harding to drive him to New York and Harding agreed. Harding met Voight at his house in a car Harding borrowed from his mother. After leaving the car parked overnight at Voight's house, the two men began the trip to New York and eventually drove on Interstate 70.

{¶ 3} Several canine units with the Ohio State Highway Patrol were patrolling the area along Interstate 70 where Harding was driving. A trooper began to follow Harding, and observed Harding following a semi-truck too closely. The trooper initiated a traffic stop and identified Harding as the driver of the car and Voight as the passenger.

{¶ 4} During the traffic stop, troopers walked a canine around the car, and the canine indicated at the rear passenger door of the car. Troopers then discovered 123 pounds of marijuana in the vehicle. Harding was indicted for possession of marijuana and criminal tools, and pled not guilty. Harding filed a motion to suppress, claiming that the search of the car was unconstitutional. The trial court overruled Harding's motion, and the matter proceeded to a jury trial. The jury returned guilty verdicts on both counts, and the trial court sentenced Harding to an aggregate prison sentence of eight years. Harding now appeals his convictions and sentence, raising the following assignments of error.

{¶ 5} Assignment of Error No. 1:

{¶ 6} THE TRIAL COURT DID ERR BY OVERRULING DEFENDANT'S MOTION TO SUPPRESS.

{¶ 7} Harding argues in his first assignment of error that the trial court erred in overruling his motion to suppress.

{¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis , 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, 2005 WL 3031883. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

{¶ 9} Ohio recognizes two types of lawful traffic stops, noninvestigatory and investigatory. State v. Campbell , 12th Dist. Butler Nos. CA2014-02-048 and CA2014-02-051, 2014-Ohio-5315, 2014 WL 6725967, ¶ 25. A noninvestigatory stop is one where an officer has probable cause to stop a vehicle because the officer observed a traffic violation. State v. Moore , 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, 2011 WL 4436647, ¶ 31. The establishment of probable cause necessary to effectuate the noninvestigatory stop "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." City of Wilmington v. Lubbers , 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, 2014 WL 3420799, ¶ 12. "The focus, therefore, is not on whether an officer could have stopped the suspect because a traffic violation had in fact occurred, but on whether the arresting officer had probable cause to believe that a traffic violation had occurred." State v. Pfeiffer , 12th Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, 2004 WL 2182644, ¶ 23.

{¶ 10} According to R.C. 4511.34(A), the operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and must maintain a sufficient space between vehicles while driving on the road.

{¶ 11} We first note that Harding failed to ensure that a transcript of the motion to suppress hearing held in this case was made a part of the record. The Ohio Supreme Court has stated that "upon appeal of an adverse judgment, it is the duty of the appellant to ensure that the record, or whatever portions thereof are necessary for the determination of the appeal, are filed with the court in which he seeks review." Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988). In the absence of a transcript of the suppression hearing in this case, we must presume the regularity of the proceedings and accept the trial court's factual determinations as correct. See State v. Fields , 12th Dist. Brown No. CA2009-05-018, 2009-Ohio-6921, 2009 WL 5154264.

{¶ 12} The trial court determined that the trooper who pulled Harding over had probable cause to initiate a valid traffic stop. The trial court specifically stated in its entry that the trooper's testimony regarding the traffic stop was "credible." According to the trial court, the trooper testified that when Harding passed his location on Interstate 70, the vehicle Harding was driving was following too closely behind a semi-truck and that Harding failed to maintain a safe, clear distance between himself and the truck. As such, and with no transcript to prove otherwise, we find that the trial court's findings and conclusions support the conclusion that the trooper had probable cause to initiate the traffic stop. As such, Harding's first assignment of error is overruled.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT DID ERR WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 15} Harding argues in his second assignment of error that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.

{¶ 16} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 17} A manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, 2009 WL 1659049, ¶ 66.

{¶ 18} In reviewing the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in the best position to judge the credibility of witnesses and determine the weight to be given to the evidence. State v. Blankenburg , 197 Ohio App.3d 201, 2012-Ohio-1289, 966 N.E.2d 958, ¶ 114 (12th Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." Id. Although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19.

{¶ 19} Harding was convicted of possessing marijuana in violation of R.C. 2925.11(A), which provides, "no person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog." Harding was also convicted of possession criminal tools in violation of R.C. 2923.24(A), which provides, "no person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally."

{¶ 20} After reviewing the record, we find that Harding's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. The state presented testimony from the trooper who pulled Harding over. The trooper testified that when he was patrolling Interstate 70, he observed the vehicle Harding was driving pass him. The trooper testified that he noticed what appeared to be a "continuous blanket" pulled from the back of the driver's seat to the back window, which was covering items in the back-seat area. The trooper testified that the vehicle and its driver exhibited "numerous indicators" that led him to pull over Harding. When the trooper made contact with Harding, Harding was "extremely nervous" to the point that his hand shook as if Harding was having a seizure when he handed the trooper his driver's license. Harding also refused to make eye contact with the trooper.

{¶ 21} The trooper observed clothes on hangers draped over larger items in the back seat, and Harding explained to the trooper that the vehicle belonged to his mother. While the trooper checked Harding's license, another trooper arrived on the scene and deployed his canine. The canine indicated to the presence of drugs by scratching on the doors. The trooper opened the back of the vehicle and saw clothes draped over rubber totes. Once opened, the trooper observed vacuum-sealed bundles of marijuana in the totes and in a suitcase on the back seat near the totes. The trooper also observed a vacuum sealer on the right rear floorboard, and discovered that the spare tire wheel well was filled with packaged marijuana. In all, troopers seized approximately 123 pounds of marijuana from the vehicle.

{¶ 22} The trooper also testified that he spoke with Harding after the marijuana was discovered and that Harding told him that he grew marijuana and used it in the past, but that he had stopped both practices. Harding also admitted to helping Voight load the totes into the vehicle, but claimed that he believed the totes were filled with dishes and clothing. The trooper searched Harding, and found keys in his right front pocket. The keys opened locks located on the large bags of sealed marijuana discovered in the vehicle.

{¶ 23} The state also presented testimony from another trooper who assisted once Harding had been pulled over. The second trooper testified that he deployed his canine partner around the vehicle Harding was driving, and that the canine indicated the presence of drugs by scratching on the doors. After putting the canine back into the cruiser, the trooper then observed large amounts of marijuana in the totes and the spare tire wheel well. The trooper also observed the first trooper's search of Harding's person, and testified that he saw the first trooper remove the keys from Harding's pocket.

{¶ 24} The state then presented testimony from a criminalist who works for the state crime laboratory. The criminalist testified that the leafy substance seized from the vehicle tested positive as marijuana.

{¶ 25} Harding and his girlfriend testified in his defense. Both testified that the vehicle was empty when he drove it to Voight's house, and that when he left for New York with Voight, the car was full of items. Harding denied knowing that the car had marijuana in it. He also claimed that he never grew marijuana in the past, and that he had only helped someone else grow it. Harding also denied that troopers removed any keys from this pocket on the day of the incident.

{¶ 26} Based on the verdict, the jury believed the testimony of the state's witnesses, rather than that of Harding and his girlfriend. The jury is in the best position to judge the credibility of the witnesses, and we will not disturb its finding that Harding was not credible when testifying that he did not have knowledge of the marijuana in the vehicle.

{¶ 27} After reviewing the record, we find the evidence sufficient to support both of Harding's convictions, and that such convictions were not against the manifest weight of the evidence. As such, Harding's second assignment of error is overruled.

{¶ 28} Assignment of Error No. 3:

{¶ 29} THE TRIAL COURT DID ERR BY IMPOSING A PRISON SENTENCE ON A FIFTH-DEGREE FELONY WITHOUT MAKING ANY FINDINGS.

{¶ 30} Harding argues in his third assignment of error that he was erroneously sentenced.

{¶ 31} We review the imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 ; State v. Crawford , 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, 2013 WL 3946242, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1.

{¶ 32} A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Ahlers , 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, 2016 WL 2621510, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg , 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217, ¶ 1.

{¶ 33} Harding does not challenge the eight-year sentence he received for possession of marijuana, as that sentence was mandatory. However, Harding challenges the 11-month sentence for possession of criminal tools, which was ordered to be served concurrently to the eight-year mandatory sentence.

{¶ 34} The possession of criminal tools charge was a felony of the fifth degree. According to R.C. 2929.14, "for a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months." The trial court ordered the 11-month sentence after considering the purposes and principles of sentencing according to R.C. 2929.11 and R.C. 2929.12, as noted in the trial court's sentencing entry. As such, the trial court properly sentenced Harding within the appropriate range, and after considering the statutory factors.

{¶ 35} The trial court's sentence is also supported by the record. The trial court specifically noted that it had considered the facts of the case in relation to the sentencing factors before imposing sentence. Those facts include that Harding possessed and transported over 120 pounds of marijuana and tools to package the marijuana. Moreover, the trial court ordered the sentence for possessing criminal tools concurrent to the sentence for possessing marijuana. Therefore, any amount of sentence imposed would have been served during the eight years Harding was ordered to serve for the possession charge.

{¶ 36} According to R.C. 2929.13(B)(1)(a), an offender who is convicted of a nonviolent fifth-degree felony is entitled to a presumption of community control. However, R.C. 2929.13(B)(1)(a)(ii) provides that the offender is not entitled to such a presumption if the offender is facing a charge more serious than a fifth or fourth degree felony at the time of sentencing. The record is clear that at the time of sentencing, Harding also faced the charge for possession of marijuana, which is a felony of the second degree. As such, he was not entitled to a presumption of community control for the fifth-degree felony charge, and the trial court was not required to make any findings before sentencing Harding to 11 months on that count. Thus, we find no error in the trial court's sentence, and Harding's third assignment of error is overruled.

{¶ 37} Assignment of Error No. 4:

{¶ 38} DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 39} Harding argues in his fourth assignment of error that he did not receive effective assistance of counsel during his trial.

{¶ 40} To prevail on an ineffective assistance of counsel claim, appellant must show his trial counsel's performance was deficient, and that he was prejudiced as a result. State v. Clarke , 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, 2016 WL 5874478, ¶ 49 ; Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel's performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688, 104 S.Ct. 2052. To show prejudice, appellant must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694, 104 S.Ct. 2052.

{¶ 41} The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, 2014 WL 5316515, ¶ 7.

{¶ 42} Harding asserts that his trial counsel was ineffective for not filing a request to preserve all evidence in the case. Specifically, Harding argues that he should have received video camera footage from the other highway patrol cruisers that participated in the stop, in addition to the video he received from the first trooper's cruiser showing the actual traffic stop, pat down, and discovery of marijuana. However, the only reason Harding asserts for filing a motion to preserve the video is that if the state then destroyed the evidence after defense counsel moved to preserve, the evidence would have become preemptively exculpatory.

{¶ 43} Even if the evidence would have been destroyed, the proper rule of law is "where the defendant requests evidence and the state fails to respond in good faith to the defendant's request, the burden shifts to the state to show that the evidence was not exculpatory." State v. McDade , 12th Dist. Warren Nos. CA2003-09-096 and CA2003-09-097, 2004-Ohio-3672, 2004 WL 1543190, ¶ 14. Likewise, the same burden shifts to the state where the defendant moves to have the evidence preserved and the state destroys the evidence. Id. Harding, however, does not argue that the state would not have been able to fulfill its burden to overcome the presumption. Nor does Harding even assert that the additional police camera video was or could have been exculpatory for him.

{¶ 44} Moreover, Harding has not demonstrated that with extra footage, the results of his trial would have been different. The jury was asked to determine if Harding knew about the marijuana and criminal tools in the vehicle, and it determined that he did. This decision would not have changed had the jury viewed the stop or discovery of marijuana from a different police cruiser camera. Harding has not carried his burden to prove that is counsel was ineffective for not filing a motion to preserve evidence. As such, Harding's final assignment of error is overruled.

{¶ 45} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

      The court's entry contains a typographical error in that it lists the statute specific to the purposes and principles of sentencing as "R.C. 2929.1." However, it is obvious from the record that the court properly considered the statutory factors according to R.C. 2929.11, as the court made specific reference to the "purposes and principles of sentencing," which are found in R.C. 2929.11. "When sentencing a defendant, a trial court is not required to consider each sentencing factor, but rather to exercise its discretion in determining whether the sentence satisfies the overriding purpose of Ohio's sentencing structure." State v. McCree , 12th Dist. Warren No. CA2016-06-049, 2017-Ohio-791, 86 N.E.3d 57, ¶ 21. While the trial court's entry and discussion at the sentencing hearing could have been more complete, we nonetheless find that the trial court properly considered the statutory factors before imposing the sentence.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio EX REL. Frank LEE, et al., Relators-Appellants, v. The VILLAGE OF PLAIN CITY, Respondent-Appellee.
    NOS. CA2017-01-002
    Court of Appeals of Ohio, Twelfth District, Madison County.
    December 11, 2017
    Steve J. Edwards, 4030 Broadway, Grove City, Ohio 43123, for relators-appellants, Frank and Twila Lee
    Mazanec, Raskin & Ryder Co., L.P.A., Michael S. Loughry, James A. Climer, Frank H. Scialdone, 175 South Third Street, Suite 1000, Columbus, Ohio 43215 and Isaac Wiles Burkholder & Teetor, LLC, Paul Michael LaFayette, Two Miranova Place, # 700, Columbus, Ohio 43215, for respondent-appellee
   PIPER, J.

{¶ 1} Frank and Twila Lee, relator-appellants, appeal from the decision of the Madison County Court of Common Pleas, which granted summary judgment in favor of respondent-appellee, the Village of Plain City, Ohio ("Plain City" or "the village"). For the reasons discussed below, this court affirms the lower court's decision.

{¶ 2} This case involves a longstanding property dispute. In 2004 the Lees contracted with homebuilder Manor Homes, to build a residential home in the Darby Estates platted subdivision in Plain City. Prior to the purchase, the Lees reviewed a plot and grading plan depicting their lot. The plan depicted a 20-foot public utility easement, running north/south, on the western portion of the lot. The plan further depicted a pre-existing underground sewer line running north/south through the center of this easement and approximately 10 to 12 feet away from the foundation walls of the Lees' future home. The sewer line, which exclusively drained storm water, began at the street and led into a water detention pond immediately behind the home. Manor Homes allegedly advertised this pond as a "wetland preserve" and the Lees paid an upcharge of $5,000 on the lot price for the benefit of its proximity.

{¶ 3} During the home's construction, the parties discovered that the sewer line was not centered in the easement as depicted in the plan. Instead, the sewer ran within several feet of the foundation wall of the Lees' home. The county and village refused to grant the Lees an occupancy permit because of the home's proximity to the sewer.

{¶ 4} Manor Homes, which had installed the sewer system in the subdivision at some earlier time, submitted a plan to relocate the sewer away from the home to Plain City. However, an engineer disapproved of this plan, and recommended the installation of a new sewer line. Following that recommendation, and with the approval of Plain City, Manor Homes installed a new sewer line.

{¶ 5} Manor Homes disconnected the old sewer line and left it in the ground. The company installed underground dams and concrete collars to protect the Lees' home from water migration. These protective structures are located partially in the public utility easement and partially on the Lees' property. A representative of Plain City monitored Manor Homes' work.

{¶ 6} In 2006, the Lees filed a complaint against Manor Homes in federal court ("the federal litigation"). The complaint alleged that Manor Homes, while constructing the Lees' home, improperly placed the home's foundation within three feet of a sewer line, which violated Plain City's building codes. The Lees further alleged that Manor Homes performed their contract obligations in an unworkmanlike manner, which resulted in cracks in the basement walls, failure of the yard to drain properly, and excessive water leakage into the new home. The Lees asserted numerous legal claims, including breach of contract, breach of warranties, and negligence. The Lees additionally raised a claim alleging that Manor Homes committed a trespass by "digging up the ground in plaintiffs' backyard and installing permanent concrete like structures underground as part of the public storm water system."

{¶ 7} Manor Homes thereafter filed a third-party complaint against Plain City, arguing that to the extent the Lees recovered against it, Manor Homes was entitled to indemnification and contribution from the village. In 2009, the Lees, Manor Homes, and Plain City settled the federal litigation. As part of the settlement agreement, the parties agreed to a mutual release of claims.

{¶ 8} In 2014, the Lees filed this action, asserting three claims against the village. First, the Lees pled an action in mandamus alleging that the village failed to enforce its building codes or ordinances with respect to the proximity of the home to the sewer line, that the placement of the sewer line and dam structures constituted an unconstitutional taking, and requesting that the court compel the village to initiate a proceeding to compensate the Lees. Second, the Lees set forth a declaratory judgment claim asking the court to determine whether the Lees or the village owned the sewer lines and dams. Third, the Lees asserted a nuisance claim, which alleged that the water detention pond produced stagnant water, rotting vegetation, collected trash, and was a breeding ground for mosquitoes. The Lees asked for an injunction prohibiting the village from diverting storm water into the pond.

{¶ 9} Plain City moved for summary judgment, arguing that the federal litigation settlement agreement precluded the Lees' claims. In addition, and with respect to the nuisance claim, Plain City argued that it did not own the detention pond and that the Lees failed to join the pond's owner, an indispensable party. In support of summary judgment, Plain City offered the affidavit of its administrator, Kevin Vaughn. The Lees moved to strike Vaughn's affidavit on various evidentiary grounds, including lack of personal knowledge and hearsay.

{¶ 10} The trial court rendered judgment in favor of Plain City on all claims. The court found that the Lees released Plain City from "all claims related to the sewers and dams." The court specifically stated that the settlement agreement released Plain City from the mandamus and declaratory judgment claims. With respect to the nuisance claim, the court noted that Vaughn's affidavit averred that the village did not own the detention pond and that the pond was owned by a private citizen. The court found this portion of Vaughn's affidavit admissible under an exception to hearsay. The court then granted summary judgment in favor of Plain City on the nuisance claim.

{¶ 11} Plain City did not assert a counterclaim asking for a declaratory judgment. Nevertheless, after dismissing the Lees' declaratory judgment action, the court commented on some of the issues raised in the request for declaratory judgment. The court stated that Plain City owned the sewer lines within its utility easement and that the abandoned sewer line was "of no consequence" to the Lees and "at best a technical trespass."

{¶ 12} The Lees appeal, raising six assignments of error. This court will address certain assignments of error collectively.

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE LEES' TAKINGS/MANDAMUS CLAIM BASED ON THE DEFENSE OF RELEASE.

{¶ 15} Assignment of Error No. 3:

{¶ 16} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE LEES' CLAIM FOR A DECLARATORY JUDGMENT BASED ON THE DEFENSE OF RELEASE.

{¶ 17} Assignment of Error No. 6:

{¶ 18} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE LEES' NUISANCE CLAIM.

{¶ 19} In their first, third, and sixth assignments of error, the Lees argue that the settlement agreement did not release Plain City from the claims raised in this action and therefore the trial court should not have granted summary judgment. An appellate court reviews a trial court's decision on a motion for summary judgment de novo, independently and without deference to the decision of the trial court. Flagstar Bank, FSB v. Sellers , 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-3951, 2010 WL 3294683, ¶ 7. Summary judgment is proper when there is no genuine issue of material fact remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party's favor. Civ.R. 56(C) ; Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 20} A settlement agreement is designed to terminate claims by preventing or ending litigation. Stewart v. Vivian , 12th Dist. Clermont, 2016-Ohio-2892, 64 N.E.3d 606, ¶ 75. The result of a valid settlement agreement is a contract between parties. Rulli v. Fan Co. , 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). The construction of a written contract is a question of law, which this court reviews de novo. In re All Kelley & Ferraro Asbestos Cases , 104 Ohio St.3d 605, 2004-Ohio-7104, ¶ 28, 821 N.E.2d 159.

{¶ 21} "In construing the terms of a written contract, the primary objective is to give effect to the intent of the parties, which we presume rests in the language that they have chosen to employ." Id. at ¶ 29. Where the terms of the contract are clear and unambiguous, a court need not go beyond the plain language of the agreement to determine the rights and obligations of the parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co. , 46 Ohio St.3d 51, 55, 544 N.E.2d 920 (1989). Additionally, "[w]here possible, a court must construe the agreement to give effect to every provision in the agreement." In re All Kelley & Ferraro Asbestos Cases at ¶ 29.

{¶ 22} The relevant portion of the settlement agreement provides:

6. Mutual Release : In consideration for the payments and covenants set forth in this Agreement, the Parties and their respective affiliates, related companies, heirs, executors, administrators, beneficiaries, principals, employees, fiduciaries, subsidiaries, attorneys, successors, predecessors, representatives, partners, agents, and assigns, hereby RELEASE, ACQUIT AND FOREVER DISCHARGE each other, as well as each other's affiliates, related companies, heirs, executors, administrators, beneficiaries, employees, fiduciaries, subsidiaries, attorneys, successors, predecessors, representatives, partners, principals, agents and assigns, as well as all other defendants and third-party defendants named in the lawsuit, from any and all manner of action, damages, losses, costs, actions, causes of action, claims, liens, demands, charges, fees, debts, obligations, attorney fees, interest, and any and all liabilities of any nature and description, both known or unknown, suspected or unsuspected, foreseen or unforeseen, real or imaginary, actual or potential, whether arising in law or in equity, arising from any act or omission from the beginning of time through the date of this Agreement. Any claim or right that might arise under this Agreement, however, is not so released.

Mandamus

{¶ 23} The Lees contend that the settlement agreement did not preclude the mandamus action because the village had not yet formally accepted municipal responsibility for the new sewer line installed at the time the parties signed the settlement agreement. Additionally, the Lees claim that Plain City had not yet "refused to enforce its ordinances" relevant to the sewer. The Lees' primary evidence in support of their argument is a 2006 letter from Plain City's attorney to Manor Homes in which the village informs Manor Homes that the village has not accepted the new sewer and will not until certain conditions are met, e.g., that the new sewer line and other infrastructure are located within a utility easement allowing access and that all work is verified to have been completed according to approved plans.

{¶ 24} Plain City argues that the Lees were aware of the sewers and other infrastructure on their lot since at least 2006, that any takings claim relative to those structures would have accrued at that time, and that the Lees released Plain City from any such claims in the settlement agreement. The village argues that the Lees lack any legal basis for arguing that a taking has not yet occurred where a public utility has physically intruded on private property but the utility has not been formally accepted by the municipality.

{¶ 25} Having reviewed the settlement agreement, this court concludes that the agreement precluded the mandamus claim. The Lees do not dispute that they were aware of the sewers and other infrastructure on their property when they filed the federal litigation. In fact, Manor Homes' decision to place the home so close to the sewer line was the central focus of that lawsuit. Moreover, the Lees pled that the infrastructure installed by Manor Homes was a "trespass." Likewise, the sewers' location is the central focus of the mandamus claim.

{¶ 26} The Lees and Plain City mutually released one another from all claims "both known or unknown, suspected or unsuspected, foreseen or unforeseen, real or imaginary, actual or potential." Given the Lees' knowledge of the sewers, we find that this broad language encompasses any potential mandamus action against the village asking the court to compel the village to compensate the Lees for the location of the sewer infrastructure. Moreover, the claims raised in the Lees' mandamus action have a clear and logical connection to the damages alleged in the federal litigation. This court concludes that the Lees released Plain City from any potential action in mandamus in return for the consideration received in settlement.

{¶ 27} However, the Lees argue that an Ohio Supreme Court decision establishes that their mandamus claim did not accrue until sometime after the parties executed the settlement agreement because the takings claim was not viable when the sewers and infrastructure were installed in 2006 and earlier. State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235. In Doner , the spillway of a lake, constructed in 1997 and managed by the Ohio Division of Natural Resources ("ODNR") repeatedly caused flooding in privately owned land. Id. at ¶ 16 -17. In 2009, the landowners petitioned for a writ of mandamus compelling the agency to initiate proceedings to accommodate them for the physical taking of their land. Id. at ¶ 16.

{¶ 28} ODNR argued that a four-year statute of limitations on takings claims barred the mandamus action because ODNR completed construction of the spillway in 1997 and all events which resulted in the agency's liability to the landowners was then complete. Id. at ¶ 36, 50. The court reviewed cases involving takings claims related to flooding or water damage and in doing so focused on whether the allegedly tortious conduct occurred on the defendant's or property owner's land. In those cases where the tortious act occurred on the property owner's land, no tolling would likely occur because the property owner should have "direct and immediate notice of any alleged taking as well as the cause of the taking." Id. at ¶ 46. The court contrasted such cases with those where the defendant engaged in conduct on their own property that caused flooding or water damage and the defendant retained control of the property. Id. at ¶ 47. In these cases of a "continuing trespass," the defendant's ongoing control tolls the running of the statute of limitations period. Id. at ¶ 45.

{¶ 29} Doner is distinguishable as it involved a continuing trespass by repeated flooding of the landowners' property resulting from a state agency's construction of a new spillway on its land and its control over the level of a lake. Here, however, there is a permanent trespass, as the sewers and other infrastructure were in place and on the Lees' property as of 2006, the Lees had "direct and immediate notice" of the presence of the structures, and the structures have remained in place since with no further action by the village. In addition, in Doner , 10 to 15 years of hydrologic data was necessary to decide whether the flooding was so significant as to constitute a taking. Id. at ¶ 49 -50. Here, however, no further information was necessary for the Lees to determine where the storm sewers were located.

{¶ 30} The Lees argue that the village had not yet accepted the new sewer line and until the village did so, not all events had taken place which established the village's liability. This court disagrees. Again, the Lees were aware of the sewers in 2006 and the location of the public utility easement. They had the opportunity in the 2009 settlement to resolve any issues with respect to the village, including the village's acceptance of the sewer line and any easement that the village may need to obtain. They did not use that opportunity and instead, in a negotiated settlement, released all claims against the village, whether "known or unknown," "seen or unforeseen." The Lees could have resolved these issues with the village as part of the settlement but did not. Accordingly, this court overrules the Lees' first assignment of error.

Declaratory Judgment

{¶ 31} The Lees argue that they did not release Plain City from the declaratory judgment claim because "several facts occurred" after the settlement. These occurrences are (1) the Lees sought to sell their home and make a full disclosure to any buyer but were uncertain whether they or the village owned the sewer improvements underneath their property, (2) the Lees were "uncertain" as to whether the village "had done anything to enforce the promises it made to the Lees" in the 2006 letter, and (3) in 2013, Plain City informed the Lees' counsel that it was uninterested in further discussions with respect to their concerns about their property.

{¶ 32} The Lees' claim for declaratory judgment asked the court to determine who owns the underground structures, which were in place in 2006 when the Lees commenced the federal litigation. Having reviewed the settlement agreement, this court concludes that the Lees released Plain City from the declaratory judgment claim, which was well within the ambit of the issues raised in the federal litigation. The Lees claim that events have occurred since the parties have settled. However, the principal event the Lees refer to is an alleged promise in a letter written approximately three years before the settlement agreement. Moreover, the settlement agreement specifically referenced that letter and required Manor Homes to make certain repairs consistent with the letter. The Lees had the opportunity to resolve any issues with respect to the ownership of the underground structures via the settlement agreement but did not. Then, for the consideration they received in settlement, the Lees broadly released Plain City from all claims. Consequently, this court concludes that the settlement agreement precluded the Lees' declaratory judgment claim. This court overrules the Lees' third assignment of error.

The Nuisance Claim

{¶ 33} The Lees argue that the court erred in dismissing their nuisance claim. The Lees argue that the settlement agreement did not preclude the nuisance claim because the record contains summary judgment evidence showing that the conditions around the water detention pond "worsened" since 2009 and had become a nuisance only after the parties signed the settlement agreement.

{¶ 34} This court concludes that the nuisance claim against Plain City is also precluded by the settlement agreement. The detention pond behind the home was the subject of at least one claim in the 2006 federal litigation. Specifically, the Lees asserted that Manor Homes fraudulently represented that the pond was a wetland preserve, when in fact Manor Homes knew that the area was a storm water detention pond.

{¶ 35} The Lees claim that the conditions worsened after 2009. However, implicit in this argument is the concession that the pond was a problem prior to the settlement. Again, the Lees had the opportunity in the 2009 settlement to resolve any concerns with respect to the pond. Yet they released Plain City from all claims " of any nature and description, both known or unknown, suspected or unsuspected, foreseen or unforeseen, real or imaginary, actual or potential." Thus, while the conditions may have worsened, the Lees released Plain City regardless of whether they could foresee the conditions worsening or not. Accordingly, this court overrules the Lees' sixth assignment of error.

{¶ 36} Assignment of Error No. 2:

{¶ 37} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE LEES' TAKINGS/MANDAMUS CLAIM BASED UPON THE DEFENSE OF STATUTE OF LIMITATIONS.

{¶ 38} Given our resolution of the Lees' first assignment of error, we find that the Lees' second assignment of error is moot. See App.R. 12(A)(1)(c). Consequently, this court overrules the Lees' second assignment of error.

{¶ 39} Assignment of Error No. 4:

{¶ 40} THE TRIAL COURT ERRED IN GRANTING A DECLARATORY JUDGMENT HOLDING THAT PLAIN CITY WAS THE OWNER OF THE NEWLY CONSTRUCTED STORM SEWER LINE; THAT THE ABANDONED SEWER LINE IS OF NO CONSEQUENCE AND APPEARS TO CAUSE NO HARM TO [RELATORS'] PROPERTY; THAT PLAIN CITY HAS OFFERED TO REMEDY THE ABANDONED SEWER LINE AND THAT THE LEES OWN THE BURIED PIPE AND THE MIGRATION PREVENTION DAMS.

{¶ 41} The Lees argue that the court erred by dismissing their declaratory judgment action but then, nonetheless, announcing that Plain City owns the sewer line within the public utility easement, that the abandoned sewer line is "of no consequence" to the Lees and that the Lees own the "buried pipe" and migration prevent dams.

{¶ 42} The relevant portions of the trial court's decision read:

This Court grants [the Village's] Motion for Summary Judgment in the [Lees'] mandamus and declaratory judgment claims.
* * *
The Village argues that it is entitled to a declaration that it has a valid easement through the [Lees'] property for a sewer line and that it owns the sewer line inside the easement. This Court agrees that [the Village] owns the sewer line contained [within] its valid easement on [the Lees'] property. The abandoned sewer line is of no consequence and appears to cause no harm to [the Lees'] property. Its presence is at best a technical trespass which the Village has offered to remedy. The village does not dispute that the Lees own the buried pipe and the migration prevention dams.

{¶ 43} This court concludes that the lower court could not dismiss the declaratory judgment action while also issuing conclusions of fact or law concerning the subject of the declaratory judgment action. However, we find no reversible error. The court dismissed the declaratory judgment and therefore, its comments regarding the ownership of the new sewer line, the abandoned line, and other infrastructure were more akin to collateral observations on the case in the nature of dicta. Adverse dicta are not appealable. Alesi v. Warren Cty. Bd. of Commrs. , 12th Dist. Warren, 2014-Ohio-5192, 24 N.E.3d 667, ¶ 51. This court overrules the Lees' fourth assignment of error.

{¶ 44} Assignment of Error No. 5:

{¶ 45} THE TRIAL COURT ERRED IN FAILING TO STRIKE THE AFFIDAVIT OF KEVIN VAUGHN AND/OR GRANTING SUMMARY JUDGMENT BASED ON THE AFFIDAVIT OF KEVIN VAUGHN.

{¶ 46} The Lees argue that the trial court erred in failing to strike the Vaughn affidavit because it contained averments inconsistent with Vaughn's deposition testimony, was not based on personal knowledge, contained hearsay, and contained inadmissible opinion evidence. Given our resolution of the first, third, and sixth assignments of error, we find that the Lees' fifth assignment of error is moot and is therefore overruled. See App.R. 12(A)(1)(c).

HENDRICKSON, P.J., and M. POWELL, J., concur.

      "Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings when an involuntary taking of private property is alleged. Any direct encroachment upon land that subjects it to a public use that excludes or restricts the dominion and control of the owner over it is a taking of property, for which the owner is guaranteed a right of compensation under Section 19, Article I of the Ohio Constitution." State ex rel. Doner v. Zody , 130 Ohio St. 3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph four of the syllabus, citing State ex rel. Shemo v. Mayfield Hts. , 95 Ohio St.3d 59, 63, 765 N.E.2d 345 (2002) ; and Norwood v. Sheen , 126 Ohio St. 482, 186 N.E. 102 (1933).

      With respect to the 2006 letter, Plain City directed the letter to Manor Homes, although the Lees' were included in the communication. It is unclear what "promises" the Lees are referring to but we assume the Lees construed the letter as an agreement to purchase an easement from them at some point in the future.

      The Lees suggest that the court's decision was ambiguous as to its basis for dismissing the nuisance claim. Our reading of the decision suggests that the court resolved the claim based on the portion of the Vaughn affidavit it found admissible, i.e., that the Lees failed to join the owner of the detention pond, an indispensable party. We do not address that issue as we may affirm the decision of the court so long as it was correct on other grounds. Butler v. Wyndtree Housing Ltd. Partnership , 12th Dist. Butler No. CA2011-03-056, 2012-Ohio-49, 2012 WL 37535, ¶ 71.

      Webster's defines obiter dictum as "an incidental and collateral opinion uttered by a judge and therefore not material to his decision or judgment and not binding." Webster's Third New International Dictionary 1555 (1993).


author: McFarland, J.

text:
    Lisa A. MARTINDALE, Petitioner-Appellee, v. Eric J. MARTINDALE, Respondent-Appellant.
    No. 17CA5
    Court of Appeals of Ohio, Fourth District, Athens County.
    Released: December 14, 2017
    Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
    Sierra Meek, Nolan & Meek Co., LPA, Nelsonville, Ohio, and Micaela C. Deming, Bluffton, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   McFarland, J.

{¶ 1} Eric Martindale commenced an appeal of the January 4, 2017 judgment of the Athens County Court of Common Pleas, subsequent to a Domestic Violence Civil Protection Order Full Hearing. Appellant contends the trial court erred in granting the full protection order and in naming the children as protected parties. Upon review, we find the trial court's decision is supported by competent, credible evidence. Accordingly, we overrule both assignments of error and affirm the judgment of the trial court.

FACTS

{¶ 2} Appellant and Appellee were married in 2011. They have four children: A.M., age 6, M.M., age 5, and twins born in July 2014. When the parties were married in 2011, Appellant was an active member of the United States Military. The parties lived together in Ohio, North Carolina, and Pennsylvania. According to the parties' testimony, the relationship between them was violent during most of the marriage. Appellee and the two older children returned to Athens County in November of 2013.

{¶ 3} On December 20, 2013, Appellee filed a petition for an ex parte domestic violence civil protection order (CPO) in the Athens County Court of Common Pleas. On the same date, Appellee was granted an order of protection and the matter was set for a full hearing on January 6, 2014. The matter was continued to February 20, 2014.

{¶ 4} On February 20, 2014, prior to the full hearing, Appellant filed a motion to dismiss the domestic violence petition, alleging that he had suffered abuse at Appellee's hands, due to her anger issues and illicit drug usage. Appellant also alleged a lack of jurisdiction. The magistrate took testimony from both parties regarding the allegations of domestic violence and the jurisdictional issue.

{¶ 5} On February 26, 2014, the Magistrate's Order found that Appellant had sufficient minimum contacts with the State of Ohio to satisfy the jurisdictional requirements. The full hearing on the civil protection order was scheduled for April 28, 2014. However, the full hearing actually resumed on May 30, 2014.

{¶ 6} At that hearing, Appellee presented testimony from Nancy Grigsby, a director employed by the Ohio Domestic Violence Network, and Donna Pierce, Deputy Chief Probation Officer of the Dayton Municipal Court. On July 17, 2014, the magistrate issued a decision that all child-related matters should be addressed in the Pennsylvania proceedings. The parties' children were also ordered removed as "protected persons" from the current proceedings.

{¶ 7} On August 7, 2014, the trial court requested the Common Pleas Court for the County of Montgomery, Pennsylvania, Family Court Division, to release the sealed transcript and/or recording of the in-camera interview of testimony given by G.M., Appellant's older daughter by a prior marriage. Her testimony was given in April 2014 in the Pennsylvania proceedings. The trial court requested G.M.'s testimony for consideration in the upcoming full hearing on the CPO, scheduled for August 25, 2014.

{¶ 8} At the full hearing, Appellee again testified and also presented testimony from Ariah Ripley, Appellant's prior spouse and mother of G.M. Appellant also testified. On October 31, 2014, the Magistrate issued Findings of Fact and Conclusions of Law: Magistrate's Order Denying Petition for Domestic Violence Civil Protection Order. The pertinent findings are as follows:

"4. Both parties presented evidence of physical injuries that he/she has sustained at the hands of the other party. Both parties testified that the last incident of physical violence between the parties occurred on July 6, 2013.
* * *
6. Neither party presented testimony from any third-party who had witnessed any incidence of physical violence by either of the parties.
* * *
10. During the pendency of this matter, Respondent has had limited, supervised visitation with A.M. and M.M. * * * No evidence was presented that Petitioner's parents ever noticed any injuries to the children upon retrieving them from Respondent after visitation."

{¶ 9} The magistrate denied the Petition and ordered the Ex Parte CPO terminated, finding Appellee had failed to show by a preponderance of the evidence that she or children were in imminent danger of domestic violence. The magistrate made the following conclusions of law:

"Even without concerning the question of the remoteness of the events and whether they are even proximate enough in time to engender current rear, the Magistrate finds Petitioner's testimony not credible.
* * *
There's no credible evidence that Respondent attempted to cause or recklessly caused bodily injury to either of the children. Further, there's no credible evidence of any threats Respondent made that would place the children or Petitioner in fear of imminent serious physical harm to either of the children."

{¶ 10} Of significance, on February 15, 2015, Appellee filed Notice of Preferred Charges against Appellant. On June 1, 2015, Appellee filed supplemental objections to the magistrate's order denying the CPO. On June 19, 2015, counsel for Appellant filed his response to the objections. On July 2, 2015, Appellee next filed a Notice of General Court Martial Hearing, which stated that military prosecutors had contacted her to inform her that after a months-long investigation, the military was proceeding with charges against Appellant on four counts of assault.

{¶ 11} On December 20, 2015, the trial court issued its Ruling on Objections and Entry. The trial court adopted the magistrate's decision denying the full CPO and dismissing the Ex Parte CPO.

{¶ 12} On January 21, 2016, Appellee filed a Motion for New Trial, pursuant to Civil R. 59(A)(8), based on newly discovered evidence. Appellee argued that on December 7, 2015, Appellant had appeared at a court martial and had submitted written stipulations of fact in which he admitted to domestic violence against Appellee while the children were in the home. On March 17, 2016, Appellant filed a Memorandum Contra the Motion for New Trial. On June 7, 2016, the trial court granted the motion for new trial, in part, to hear any new evidence as to the underlying proceedings. A hearing was set for November 2, 2016.

{¶ 13} At the November 2, 2016 hearing, Appellee presented testimony from Phillip Stackhouse, Major Spicer, and Appellant as on cross-examination. The trial court subsequently granted a CPO which covered Appellee and the parties' two older children. The CPO expires in December 2018. The Court found as follows:

"Respondent admitted to striking Petitioner, see Petitioner's Exhibit A, causing her a black eye. * * * Respondent is permitted visitation with parties' children as established by any other court order having jurisdiction."

{¶ 14} This timely appeal followed. Where pertinent, additional facts are set forth below.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED IN GRANTING THE DOMESTIC VIOLENCE PROTECTION ORDER.
II. THE TRIAL COURT ERRED BY NAMING THE CHILDREN AS PROTECTED PARTIES IN THE PROTECTION ORDER."

A. STANDARD OF REVIEW

{¶ 15} "Our standard of review upon a challenge to a CPO depends upon the nature of the challenge to the CPO." Wootten v. Culp, 2017-Ohio-665, 85 N.E.3d 198, ¶ 18 (4th Dist.), quoting Walters v. Walters, 150 Ohio App.3d 287, 2002-Ohio-6455, 780 N.E.2d 1032, ¶ 9 (4th Dist.), citing Gooderham v. Patterson, 4th Dist. Gallia No. 99CA01, 1999 WL 1034472 (Nov. 9, 1999) ; see also Corrao v. Corrao, 8th Dist. Cuyahoga No. 103411, 2016-Ohio-4862, 2016 WL 3632494, ¶ 16 ("Our standard of review depends on the nature of the challenge"). When the issue is whether a CPO should have been issued at all, we must determine whether the trial court's finding that the petitioner has shown by the preponderance of the evidence that the petitioner or petitioner's family or household members are in danger of the domestic violence is against the manifest weight of the evidence. Wootten, supra, at 18. See, e.g., Lewis v. Gravely, 4th Dist. Adams No. 14CA990, 2016-Ohio-1502, 2016 WL 1404159, ¶ 23.

{¶ 16} When an appellate court reviews whether a trial court's decision is against the manifest weight of the evidence, the court weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. Wootten, supra, at 19. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20 ; Lewis, supra, at ¶ 23 (applying this standard of review in a CPO case).

{¶ 17} Moreover, when reviewing the evidence under this standard, we are aware that the weight and credibility of the evidence are to be determined by the trier of fact; we thus defer to the trier of fact on these issues because it is in the best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. Wootten, supra, at 20. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132 ; State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, 2016 WL 3216241, ¶ 17. The trier of fact is free is believe all, part, or none of any witness's testimony. Id. citing State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, 2014 WL 1875931, ¶ 23.

{¶ 18} Ultimately, a reviewing court should find a trial court's decision is against the manifest weight of the evidence only in the exceptional case in which the evidence weighs heavily against the decision. State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330 ; Lewis, 2016-Ohio-1502, at ¶ 23.

B. LEGAL ANALYSIS

1. Petitioner-Appellee as a protected party.

{¶ 19} R.C. 3113.31(A) provides:

"(1) Domestic violence" means the occurrence of one or more of the following acts against a family or household member:
(a) Attempting to cause or recklessly causing bodily injury;
(b) Placing another person by the threat of force in fear of imminent serious physical harm * * *.

{¶ 20} R.C. 3113.31 (E) further provides:

"(1) After an ex parte or full hearing, the court may grant any protection order, with or without bond, or approve any consent agreement to bring about a cessation of domestic violence against the family or household members."

{¶ 21} In his brief, Appellant discusses at length the December 30, 2015 magistrate's decision which denied Appellee's request for a civil protection order. The December 30, 2015 decision placed emphasis on the remoteness of the alleged events, the absence of Appellee's fear, and the idea that Appellee was using the CPO proceedings in order to obtain leverage in the parties' Pennsylvania court proceedings.

Appellant also emphasizes the trial court's finding that there was no immediate and present danger of domestic violence to Appellee and the children. Appellant argues the evidence presented at the new trial did not directly affect the magistrate's findings. Upon review of the record, however, we disagree.

{¶ 22} We first observe that Appellant's failure to request findings of fact and conclusions of law limits our review in this case. Civ.R. 52 states:

"When questions of fact are tried by a court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law."

{¶ 23} The purpose of Civ.R. 52 findings of fact and conclusions of law is " 'to aid the appellate court in reviewing the record and determining the validity of the basis of the trial court's judgment.' " See Harper v. Neal, 4th Dist. Hocking No. 2016-Ohio-7179, 2016 WL 5874628, quoting In re Adoption of Gibson, 23 Ohio St.3d 170, 172, 492 N.E.2d 146 (1986), quoting Werden v. Crawford , 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (1982). Thus, a party may file a Civ.R. 52 request in order "to ensure the fullest possible review." Cherry v. Cherry, 66 [Ohio St.2d] Ohio St.3d 348, 356, 421 N.E.2d 1293 (1981).

{¶ 24} In the absence of findings of fact and conclusions of law, we presume that the trial court applied the law correctly and will affirm its judgment if evidence in the record supports it. Harper, supra, at ¶ 19 ; Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, 2007 WL 1225734, ¶ 10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (12th Dist.1989) ; accord Leikin Oldsmobile, Inc. v. Spofford Auto Sales , 11th Dist. Lake No. 2000-L-202, 2002-Ohio-2441, 2002 WL 1012588, ¶ 17 ("It is difficult, if not impossible, to determine the basis of the trial court's ruling without findings of fact and conclusions of law * * *."); Yocum v. Means, 2nd Dist. Darke No. 1576, 2002-Ohio-3803, 2002 WL 1729892, ¶ 7 ("The lack of findings obviously circumscribes our review * * *."). As the court explained in Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th Dist.1988) :

{¶ 25} "[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence. The message should be clear: If a party wishes to challenge the * * * judgment as being against the manifest weight of the evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already "uphill" burden of demonstrating error becomes an almost insurmountable "mountain." Harper, supra, at 19.

{¶ 26} Here, Appellant's failure to request findings of fact and conclusions of law means that we presume the court correctly applied the law and will affirm the trial court's judgment so long as some evidence supports it. After our review of the record in its entirety, we believe that the record contains some competent, credible evidence, if believed, to support the trial court's judgment.

{¶ 27} The November 2, 2016 hearing was for the purpose of introducing new evidence that Appellant had entered into a written stipulation of fact to resolve a court martial proceeding and receive non-judicial punishment. This evidence was relevant evidence not available to Appellee at the time of the August 25, 2014 full hearing. Appellee asserted that the written stipulation, entered into evidence as Joint Exhibit A, was evidence that Appellant did in fact strike his wife in the July 6, 2013 incident. Regarding the July 6, 2013 incident, the pertinent language of Joint Exhibit A stated:

"* * * [T]he events escalated into a physical confrontation and I struck her one occasion. As a result of this altercation my wife developed a black eye. Our children were in the house at the time of the incident."

{¶ 28} Appellee presented evidence from 3 witnesses: Major Katherine Spicer, a military prosecutor; Phillip Stackhouse, a retired expert on military processes and proceedings; and Appellant, as on cross-examination. The new trial focused on two issues: (1) whether or not Appellant misrepresented the events of the July 6, 2013 incident of violence between the parties; and, (2) whether or not Appellant misrepresented his prior martial arts training.

{¶ 29} Major Spicer, a litigation associate working in the Marine Corps Reserves, testified that she prosecuted the Martindale case. Major Spicer testified Appellant was initially charged with two charges: assault and conduct unbecoming an officer. In 2015, a hearing officer found probable cause on the charges, but not enough objective evidence to support a conviction. Therefore, it was recommended that the case not be referred to a general court martial.

{¶ 30} However, Major Spicer personally investigated the matter further. Appellee turned over her entire phone to the Naval Criminal Investigative Service (NCIS) to perform a forensic analysis on Appellee's phone. Pictures on the phone corroborated Appellee's version of the events that took place on July 6, 2013. Major Spicer also reviewed Appellant's NCIS interrogation. She testified Appellant did not deny hitting Appellee, but indicated he claimed "self-defense."

{¶ 31} Importantly, Major Spicer also noted that during the NCIS interrogation, Appellant informed that he took a week off work due to his injuries and that his commanding officer saw his black eye. Based on this information, Major Spicer also interviewed the commanding officer and executive officer. During her investigation, she was unable to corroborate that Appellant had missed any work related to the July 2013 incident or that he ever suffered a black eye.

{¶ 32} Major Spicer testified that Appellant also submitted photographs to verify his own injuries. However, upon analysis, these photographs were unable to corroborate his version of the facts of the July 2013 incident. Major Spicer also testified she was never under any pressure to bring charges against Appellant.

{¶ 33} Phillip Stackhouse, a retired military lawyer, testified as an expert in the area of military legal procedure and non-judicial punishment. He was not involved in Appellant's court martial proceedings. However, he testified he did review Joint Exhibit A. He testified he interpreted the word "struck" as meaning "slap" or "punch." He also testified the Marine Corps Martial Arts program is "very serious." He testified it is a violent program, teaching striking, choking, and weapon usage.

{¶ 34} On direct examination, Appellant reaffirmed his testimony that he never hit, struck, or punched his wife, and that he just "shoved her face away." Appellant testified that Joint Exhibit A contained the word "strike" in it because the Navy "wanted it included." The Navy also required his black belt experience to be contained in Joint Exhibit A. Appellant testified composing the document was a "back and forth" process he participated in remotely from his hotel room. He kept refusing to sign the stipulation with "strike" in it. He explained the attorneys convinced him as follows:

"[I]f I was shoving my wife's face away from me when she had bit me could be constituted as a strike. I felt like it was something I could reconcile and sign. Uh, looking at this now I regret it. * * * This is what the Navy insisted on. They insisted on that wording as I understand it."

{¶ 35} Appellant also testified that he did not deliberately omit the information that he had a black belt in martial arts during his August 2014 testimony. He explained the omission as wanting to "make sure he was answering the questions directly," and he wanted to give his most significant experience. He could not recite the actual requirements.

{¶ 36} Appellant also testified there may have been improper influence from a Congressman who contacted Appellant's command, which caused the charges to be filed. He did not claim unlawful command influence because he was not sure to whom he would make the claim, and he was unsure of the success of such a claim.

{¶ 37} On cross-examination, Appellant reiterated previous testimony that he had never hit his wife. Then, Appellant was asked to read from Joint Exhibit A, which stated as previously set forth above, that he "struck her on one occasion, * * * as a result [she] developed a black eye." Appellant also identified his signature and his counsel's signature on the document.

{¶ 38} Appellant was then asked to review Exhibit 2 entitled "Response to report of Non-judicial Punishment," which set forth as follows: "It was then that I struck my wife with an open hand as I tried to push her away from me." He confirmed either he or his counsel wrote the sentence. Appellant confirmed he was found guilty of disorderly conduct for engaging in an altercation with his spouse.

{¶ 39} Appellant denied initiating a plea deal on the morning of the court martial. He admitted he accepted responsibility for "his involvement" in the incident on July 6, 2013. According to his testimony, the Navy required him to take responsibility for his actions on July 6, 2013 "as they understood them."

{¶ 40} On cross-examination, Appellant testified in the Marines he had received hand to hand combat training. Appellant admitted he had a black belt despite testifying three times in August 2014 that he had "a little bit" of martial arts training. He had not practiced martial arts since 2012.

{¶ 41} Based on the foregoing testimony, we find the evidence adequately supports the trial court's decision to grant the full CPO. While the full CPO issued January 4, 2017 contains only brief findings of the court, we note that the December 15, 2015 entry denying the full CPO demonstrates the trial court's familiarity with the case. In the December 2015 entry, the trial court stated that it had made its own independent analysis in its review of the record. The trial court analyzed the parties' testimony at length as to various incidents and the court noted several times that the evidence was conflicting and unable to be corroborated. The trial court stated it had reviewed the exhibits and photographs of both parties of injuries allegedly sustained. The court also commented that it found both parties' credibility to be "strained."

{¶ 42} Based on our limited review, we can only conclude that having heard the new testimony regarding the July 6, 2013 incident, the trial court found Appellant's credibility to be more than "strained," and possibly found it to be deceptive and untruthful. Even from a cold record, Appellant's testimony appears to be vague and evasive at times. On January 5, 2017, the trial court made only the specific finding that Appellant admitted to striking Appellee and causing her a black eye.

{¶ 43} Appellant points out nothing in the trial court's January 4, 2017 order speaks to Appellee's lack of fear. Appellant also points out that the issuance of a civil protection order cannot be based solely on previous incidents of alleged domestic violence. Appellant emphasizes there is no evidence of a reasonable, ongoing imminent fear of domestic violence.

{¶ 44} Appellant has directed us to M.J. v. L.P. , 9th Dist. Medina No. 15CA0036-M, 2016-Ohio-7080, 2016 WL 5723752, wherein the appellate court observed when reviewing whether there is sufficient evidence that a petitioner is under fear of imminent serious physical harm, "the critical inquiry is 'whether a reasonable person would be placed in fear of imminent (in the sense of unconditional, non-contingent) serious physical harm." Id. at 11, quoting State v. McKinney , 9th Dist. Summit No. 24430, 2009-Ohio-2225, 2009 WL 1314871, ¶ 11, quoting State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-1437, 2005 WL 697411, ¶ 14. Although "we refer to the petitioner's history with respondent" when carrying out this inquiry, M.H. v. J.H., 9th Dist. Medina No. 15CA0031-M, 2015-Ohio-5178, 2015 WL 8553569, ¶ 7, to support the extension of a civil protection order, "[t]here must also be evidence the petitioner has a reasonable belief of serious physical harm based on new threats of domestic violence." Studer v. Studer, 3rd Dist. Crawford No. 3-11-04, 2012-Ohio-2838, 2012 WL 2371452, ¶ 23 ; see also Woolum v. Woolum , 131 Ohio App.3d 818, 822, 723 N.E.2d 1135 (12th Dist.1999) (affirming extension of civil protection order "on the basis of past domestic abuse coupled with present threat of future violence") (Emphasis added.). This requirement of continued threats beyond those that gave rise to the initial civil protection order is necessary because "[t]he purpose of the civil protection order is not to address past abuse." Wetterman v. B.C., 9th Dist. Medina No. 12CA0021-M, 2013-Ohio-57, 2013 WL 141752, ¶ 11.

{¶ 45} While it is true that in the December 2015 entry the trial court specifically found "no indication that Petitioner is fearful of serious imminent physical harm," given the limited review to which we are constrained by the lack of findings of fact and conclusions of law, we presume the trial court applied the law correctly and considered all the evidence in the record. While the trial court did not make a specific finding in the January 2017 CPO addressing the issues of reasonable imminent fear or the remoteness in time of the events, we further point out the absence of a request for findings of fact and conclusions of law ordinarily results in a waiver of the right to challenge the trial court's lack of an explicit finding concerning an issue. Cline v. Rogers Farms , 4th Dist. Pickaway No. 16CA7, 87 N.E.3d 637, 2017-Ohio-1379, 27. Fultz v. Fultz, 4th Dist. Pickaway No. 13CA9, 2014-Ohio-3344, 2014 WL 3779087, ¶ 51 ; Pawlus v. Bartrug, 109 Ohio App.3d 796, 801, 673 N.E.2d 188 (9th Dist.1996).

{¶ 46} Again, we presume the trial court's familiarity with the record and review of the record. At the February 2014 hearing, Appellee testified that she was fearful for her life. Throughout these proceedings, both parties acknowledged their relationship was a violent one. And, the various rulings have hinged on the parties' credibility, with neither party's testimony establishing any strong indication of reliability. In the December 20, 2015 entry, the court noted as follows:

"A review of the record reveals that [Appellant] does not dispute that the parties have had a violent past. He concedes that there has been violence in the past. Respondent asserts it had been mutual. * * * There is no corroborating information concerning incidents of [Appellant] choking, grabbing, pushing, or striking the [Appellee]."

{¶ 47} Significantly, in January 2017, the trial court at last had corroborating information before it and a strong indicator of Appellant's lack of credibility, due to his minimization of his actions in the July 6, 2013 incident which formed the basis of the court martial proceedings. Other courts have observed that minimizing the nature of charges that formed the basis of a court martial and military sentence reveals a tendency to discount one's own conduct and responsibility, ultimately affecting credibility determinations. The trial court was free to believe all, part, or none of Appellant's testimony. West, supra, at 23. Mindful that the trial court is in the best position to assess demeanor and truthfulness, as Appellant minimized his actions on July 6, 2013, we defer to the trial court's apparent assessment that his credibility was lacking. See Wootten, supra, at 20.

{¶ 48} Given the parties' violent history, Appellee's testimony that she was fearful, and the clear evidence that Appellant did strike his wife's face causing a black eye on July 6, 2013 and resulting in non-judicial punishment via the United States Military, we do not believe that the trial court's judgment creates a manifest miscarriage of justice. The trial court's finding that Appellee had shown by a preponderance of the evidence that she was in danger of domestic violence was supported by evidence in the record and justified issuance of the full CPO. As such, the first assignment of error has no merit and is hereby overruled.

2. The children as protected parties.

{¶ 49} In the second assignment of error, Appellant argues the scope of the CPO is too broad. Appellant argues, notwithstanding the above, there is no evidence whatsoever to justify the addition of the minor children as protected parties. Appellant argues the only allegations relating to the children were several unexplained bruises that Appellee either did not report to children's services or did report but no action was taken. Appellant emphasizes the trial court's December 2015 finding Appellee not to be credible. Appellant points out prior to the third day of testimony at the original civil protection order hearing, the magistrate removed the children from the civil protection order. No evidence was presented as to the children at the new trial.

{¶ 50} In response, Appellee contends the inclusion of the children was proper because they were both exposed to the domestic violence perpetrated against Appellee. Appellee points out the inconsistency of Appellant's testimony about whether or not the children were present during the July 2013 domestic violence incident. Appellee argues their presence in an unsafe environment was a form of domestic violence.

{¶ 51} "[W]hen the challenge to the CPO involves the scope of the order, we review the order for an abuse of discretion." Wootten, supra , at 30, quoting Walters v. Walters, 150 Ohio App.3d 287, 2002-Ohio-6455, 780 N.E.2d 1032, at ¶ 10 ; Corrao v. Corrao, 2016-Ohio-4862, 2016 WL 3632494, at ¶ 16, quoting Allan v. Allan , 8th Dist. Cuyahoga No. 101212, 2014-Ohio-5039, 2014 WL 6065710, ¶ 11, quoting Reynolds v. White , 8th Dist. Cuyahoga No. 74506, 1999 WL 754496 (Sept. 23, 1999) (" R.C. 3113.31 expressly authorizes trial courts to ' "craft protection orders that are tailored to the particular circumstances,' " and therefore, challenges to the scope of a protection order are reviewed for an abuse of discretion"); Denney v. Sanders , 1st Dist. Hamilton No. C-150556, 2016-Ohio-5113, 2016 WL 4063898, ¶ 19 ("As the trial court has discretion over the scope of the civil protection order, we review challenges to the scope of a [protection order] under an abuse of discretion standard").

{¶ 52} " 'A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.' " Wootten, supra, at 31, quoting State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. "An abuse of discretion includes a situation in which a trial court did not engage in a 'sound reasoning process'; this review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶ 29 (4th Dist.), quoting Darmond at ¶ 34.

{¶ 53} However, "[a]lthough the abuse of discretion standard usually affords maximum [deference] to the lower court, no court retains discretion to adopt an incorrect legal rule or to apply an appropriate rule in an inappropriate manner. Such a course of conduct would result in an abuse of discretion." 2-J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, 2015 WL 4113330, at ¶ 9. See Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16.

{¶ 54} While no evidence was presented at the new trial regarding direct violence to the children, Appellee testified numerous times in previous hearings that the children were present and observed the physical altercations between the parties. While that evidence was conflicting and uncorroborated, Joint Exhibit A demonstrates corroborating evidence that the children were present during the July 6, 2013 incident. Appellee has directed us to McBride v. McBride, 2012-Ohio-2146, 971 N.E.2d 1007 (12th Dist.), where the appellate court found that one child's presence during times when the father was repeatedly beating the brother placed both children in an unsafe environment. The McBride court held at ¶ 25 :

"The trial court did not err in issuing a CPO on behalf of E.M. in light of our previous holding that 'placing children in an environment where there is a substantial risk to their health and safety constitutes one form of domestic violence.' Ferris v. Ferris, 2006-Ohio-878, 2006 WL 456811, at ¶ 28."

{¶ 55} Likewise, we do not find the trial court abused its discretion in adding A.M. and M.M. to the full CPO. Given that the testimony of both parties throughout these proceedings acknowledged the home environment was violent, along with Appellant's admission that the children were present during the July 6, 2013 incident, the children were placed in substantial risk to their health and safety. For the foregoing reasons, we find no merit to Appellant's second assignment of error and it is hereby overruled. Accordingly, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

      On January 6, 2014, Appellee filed a complaint for a legal separation in the same court. Appellant filed a complaint for divorce in a Pennsylvania court in January 2014. Appellee's complaint for legal separation was eventually dismissed, in a decision stating that the matter should be prosecuted in the State of Pennsylvania. The matter then came before us on appeal in Martindale v. Martindale, 4th Dist. Athens No. 14CA30, 2016-Ohio-524, 2016 WL 562864, wherein we found merit to the argument that the magistrate failed to consider the statutory factors for determination of whether Ohio is the proper forum.

      During these proceedings, both parties have filed numerous motions concerning issues such as changes in the visitation schedule, supervised visitation, requests for records, protective orders, disqualification of Appellant's attorney, clarification and contempt. Due to death and withdrawal, the parties have also been represented by various counsel.

      The parties' younger children, the twins, were not made part of the proceedings.

      See Miller v. Ohio Department of Education, 2nd Dist. Montgomery No. 27359, 2017-Ohio-7197, 2017 WL 3446987, ¶ 38 (Miller admitted at ODE hearing that he had pled guilty to the charges that formed the basis of the court-martial and his military sentence, but maintained that he was not guilty of the crimes, thus minimizing the seriousness of his convictions and sentence and militating against the idea of true rehabilitation.). In re Application of Tynes, 146 Ohio St.3d 243, 2016-Ohio-3307, ¶ 19, 54 N.E.3d 1237 (Court had significant concerns regarding Tynes' honesty and integrity during the admissions process, given his efforts to minimize his own culpability for criminal convictions which occurred in 1998 by a court-martial for multiple felony offenses.).

      We observe that during these proceedings, notwithstanding the very full case load on the trial court's docket, both parties filed numerous motions concerning issues such as changes in the visitation schedule, supervised visitation, requests for records, protective orders, disqualification of Appellant's attorney, clarification, and contempt. Due to death and withdrawal, the parties have also been represented by various counsel. These factors have also contributed to the fact that the July 2013 incident occurred over 4 years ago at this point.