author: Delaney, P.J. Hoffman, J., concurring in part and dissenting in part

text:
    Lois BREECH, Plaintiff-Appellant v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, et al., Defendant-Appellee
    No. 2017CA00012
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: December 21, 2017
    RAYMOND V. VASVARI, JR., 1301 East Ninth Street, 110 Erieview Tower, Cleveland, OH 44114-1844, for Plaintiff-Appellant.
    JOHN G. FARNAN, MONICA L. FRANTZ, 1301 East 9th Street, Suite 1900, Cleveland, OH 44114-1862, for Defendant-Appellee.
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
   Delaney, P.J.

{¶ 1} Plaintiff-Appellant Lois Breech appeals the December 22, 2016 judgment entry of the Stark County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 27, 2014, a storm damaged the home of Plaintiff-Appellant Lois Breech. Defendant Liberty Mutual Insurance Company insured her home.

{¶ 3} Charles Lusher, Breech's grandson, was granted a power of attorney by Breech. Lusher retained the services of Defendant Finnicum Adjusting Company, Inc. to assist Breech in presenting a claim to Liberty Mutual.

{¶ 4} Lusher hired Defendant-Appellee First Response Restoration to put a tarp on the roof of Breech's home. While the tarp was on the roof, a dispute arose between Breech's representatives and Liberty Mutual as to the coverage for the property damage and value.

{¶ 5} The parties were unable to resolve the claim for property damage to Breech's home. On April 22, 2015, Breech filed a complaint against Liberty Mutual in the Hamilton County Court of Common Pleas. The complaint was removed to federal court and dismissed. On February 12, 2016, Breech filed a complaint in the Stark County Court of Common Pleas against Defendants Liberty Mutual, Stephen Johnson, Finnicum, Steven Hillman, James Garrity, and First Response. Breech alleged First Response negligently applied the roof tarp to her home. Breech claimed breach of contract and bad faith against Liberty Mutual and employees. As to Finnicum and its employees, Breech claimed breach of contract, fraud, negligence, breach of fiduciary duty, civil conspiracy, and violations of the Fair Debt Collections Practices Act.

{¶ 6} The trial court set the matter for mediation on August 25, 2016. In the Stark County Court of Common Pleas, a court mediator conducts the mediation. Lusher and counsel represented Breech at the mediation. Breech was unable to resolve her claims against Liberty Mutual and Finnicum. As to First Response, the "Report of Mediation" stated, "A mediation conference took place on the 25th day of August, 2016. The result of the conference is as follows: 1. Case settled CONTINGENT on the following terms: CONFIDENTIAL."

{¶ 7} On October 17, 2016, First Response filed a Motion to Enforce the Settlement Agreement. In the motion, First Response provided details of its understanding of the settlement negotiations between Breech and First Response. First Response stated that at the mediation, Breech agreed to settle her claims and release First Response in exchange for a confidential amount of money to be paid by Crum & Forster Insurance Company on behalf of its insured, First Response. The adjuster for Crum & Forster participated in the mediation via telephone. After the mediation, counsel for First Response emailed counsel for Breech a draft settlement release. Counsel for Breech objected to the draft release because it failed to include a confidentiality clause. Counsel for First Response agreed to include confidentiality language. Breech did not sign the release. Counsel for the parties spoke again and counsel for Breech requested additional changes to the release. The changes included revised language as to the release of Crum & Forster. Counsel for Breech stated his client would not agree to release Crum & Forster from liability due to concerns that Crum & Forster insured another party, currently unknown, involved in Breech's cause of action. Counsel for First Response offered to draft a release that would release Crum & Forster only in its capacity as the insurer to First Response. Counsel for Breech stated his client would not sign the release document that included language releasing Crum & Forster of its liability.

{¶ 8} Breech responded on October 24, 2016. Breech argued that at mediation, Breech agreed only to release First Response. Crum & Forster was not a party to the action merely because it was the insurer of First Response.

{¶ 9} The trial court held an oral hearing on November 10, 2016. William Harter, counsel for Liberty Mutual, testified first on behalf of First Response. He had no knowledge of the terms of the alleged settlement agreement between Breech and First Response. He testified that based on his experience in insurance defense work, it was customary for the insurer to be released when the insurer pays a settlement on behalf of the insured.

{¶ 10} John Farnan, counsel for First Response, testified over the objection of Breech. Farnan was present at the mediation as counsel for First Response. He testified that it was understood and accepted as common practice in litigation that the client and the entity paying the money were released after a settlement. He recalled the negotiations between counsel for Breech and himself:

So we spent hours, Mr. Seebohm and I, going back and forth negotiating; and I tried to tailor it as narrowly as possible to accommodate the concerns that he expressed as relayed by Mr. Lusher, her POA.
So for that reason we offered to limit it to this claim, this insured, on this claim only.
* * * We are only asking the Court to confirm that * * * he is releasing First Response Restoration and the paying insurer in its capacity as the insurer of this particular claim that we have been sued on. Nothing else.
I am willing to limit it to that and that's it.
For that reason I am here because I couldn't get that agreement.

(T. 23-25).

{¶ 11} Farnan was asked by counsel for Breech, "Did we at any time during the [mediation] discuss Crum & Forster being released from this case?" Farnan answered, "We did not discuss who was going to be released at all is my recollection. * * We also didn't discuss whose names were going to be on the release. * * * We didn't discuss the timing of the payment. All those things were understood between experienced counsel in the case both from the Plaintiff's side and the Defense side." (T. 29-30).

{¶ 12} Neither Breech nor her power of attorney, Lusher, testified at the hearing.

{¶ 13} On November 18, 2016, the trial court issued a redacted judgment entry (omitting the settlement amount) and a judgment entry filed under seal (including the confidential settlement amount). In its judgment entry, the trial court granted the motion to enforce the settlement. It acknowledged the parties disputed whether Crum & Forster should be released. The trial court found the confidential mediation report did not contain any details of the settlement agreement. It relied on the testimony of Farnan that the mediation report was not a fully integrated contract, it did not contain all the terms necessary to effectuate a settlement, and the parties anticipated a formal written release. Breech did not present any contrary evidence as to what occurred at mediation; therefore, the trial court found the parole evidence rule did not bar the consideration of Farnan's testimony as to the terms of the settlement agreement. The trial court concluded that the parties entered into a settlement agreement at mediation and the release of Crum & Forster was one of the terms of the settlement agreement. In its judgment entry, the trial court recited the terms of the settlement agreement, which included a release of Crum & Forster. It ordered Crum & Forster pay Breech the settlement amount within ten days of the judgment entry. The judgment entry did not contain Civ.R. 54(B) language.

{¶ 14} On December 8, 2016, First Response filed a motion requesting the trial court dismiss Breech's claims against First Response. In the motion, First Response stated that Breech received a draft of the settlement agreement but Breech would not sign the agreement. Breech also would not agree to dismiss First Response from the action. In its motion, First Response states,

This refusal leaves First Response in the position of having fully funded a settlement, but unable to get a signed release or dismissal. Given that the terms of the release are specified in the Court's order, and that order is an interlocutory order, it cannot be appealed until the end of the case, when the plaintiff's claims against the other defendant, Liberty Mutual, are resolved.

(Motion, Dec. 8, 2016). First Response stated it would honor the settlement if the trial court would dismiss it from the action with prejudice.

{¶ 15} On December 22, 2016, the trial court issued a judgment entry dismissing Breech's claims against First Response. The judgment entry stated:

In a November 18, 2016 Judgment Entry, after an evidentiary hearing, the Court found that plaintiff Lois Breech fully settled all of her claims against defendant First Response and the Court's November 18, 2016 Order specified the terms of the settlement. Since that time, no one disputes that defendant First Response's insurer, Crum & Forster, fully funded the settlement that the Court found existed between Plaintiff Lois Breech and defendant First Response. Accordingly, the Court finds defendant First Response's Motion well taken and hereby orders all of plaintiff Lois Breech's claims against defendant First Response are hereby dismissed, "with prejudice", with each such party to bear her/its own cost.

(Judgment Entry, Dec. 22, 2016).

{¶ 16} Breech filed a Notice of Appeal on January 23, 2017 stating she was appealing the December 22, 2016 judgment entry. No other trial court order is referenced in the notice of appeal.

{¶ 17} On January 31, 2017, Breech dismissed without prejudice her claims against Liberty Mutual. Her claims against the remaining parties had been previously dismissed.

ASSIGNMENTS OF ERROR

{¶ 18} Breech raises two Assignments of Error:

{¶ 19} "I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS A MEETING OF THE MINDS BETWEEN THE PARTIES AS TO AN ESSENTIAL TERM OF THE SETTLEMENT AGREEMENT-TO WIT, THE IDENTITIES OF THE NON-PARTIES TO BE RELEASED-BECAUSE NEITHER THE CONFIDENTIAL MEDIATION STATEMENT NOR THE PAROLE TESTIMONY OF DEFENSE COUNSEL ESTABLISHED AN AGREEMENT AS TO THAT TERM, AND THE LATTER TESTIMONY TENDED TO NEGATE IT, RENDERING THE HOLDING OF THE TRIAL COURT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 20} "II. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING THE TESTIMONY OF COUNSEL FOR FIRST RESPONSE AS TO BOTH FACTS AND THE STANDARDS AND PRACTICES OF INSURANCE DEFENSE COUNSEL IN NEGOTIATING SETTLEMENT AGREEMENTS BECAUSE: A. THE TRIAL COURT FAILED TO CONDUCT THE INQUIRY REQUIRED BEFORE PERMITTING AN ATTORNEY TO TESTIFY FOR OR ON BEHALF OF HIS CLIENT MANDATED BY THE OHIO SUPREME COURT IN MENTOR LAGOONS, INC. V. RUBIN, 31 OHIO ST.3D 256 [510 N.E.2d 379] (1987) AND; B. MR. FARNAN WAS NOT A NECESSARY WITNESS IN THE MEANING OF OHIO PROF. COND. R. 3.7."

ANALYSIS

Jurisdiction

{¶ 21} Breech's first Assignment of Error challenges the trial court's decision to find the parties entered into a settlement at mediation when the parties did not come to an agreement as to the release of Crum & Forster from liability. Her second Assignment of Error contends the trial court committed plain error when it allowed counsel for First Response testify at the hearing on its motion to enforce the settlement agreement.

{¶ 22} Before we consider Breech's Assignments of Error, we must first address whether we have jurisdiction to consider these Assignments of Error. Breech's arguments both relate to the trial court's judgment entry issued on November 18, 2016. First Response argues that Breech's Assignments of Error are not properly before this court because Breech's Notice of appeal does not indicate that she seeks to appeal from the trial court's November 18, 2016 interlocutory order granting the motion to enforce the settlement agreement.

{¶ 23} App.R. 3(A) states, "An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by [App.R.] 4." App.R. 3(D) provides in pertinent part that the "notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." Ohio appellate courts have jurisdiction to review only final appealable orders of lower courts within their districts. Pla v. Cleveland State University , 10th Dist. Franklin No. 17AP-212, 2017-Ohio-8149, 2017 WL 4512255, ¶ 10 citing Section 3(B)(2), Article IV, Ohio Constitution ; R.C. 2501.02.

{¶ 24} In support of its argument that the November 18, 2016 judgment entry is not properly before this court because Breech's notice of appeal does not refer to the judgment entry, First Response cites to previous decisions by this court where we determined an appeal was not properly before the court pursuant to App.R. 3(D). For example, in Smith v. Conley , 5th Dist. Stark No. 2004CA00068, 2004-Ohio-7057, 2004 WL 2980361, rev'd on other grounds , we held that where the notice of appeal referenced only the judgment entry granting summary judgment in favor of appellee, under App.R. 3(D) the appellant could not also argue the trial court erred when it granted appellee's leave to plead and denied appellant's motion for default judgment. Id. at ¶ 15. In State v. Perez , 5th Dist. Licking No. 03-CA-107, 2004-Ohio-3646, 2004 WL 1534127, the defendant-appellant entered a plea of guilty and was sentenced on April 4, 2003. The appellant filed a post-sentence motion to withdraw his guilty plea and a petition for post-conviction relief. On November 25, 2003, the trial court denied the motion to withdraw the plea and petition for post-conviction relief. On December 5, 2003, the appellant filed a notice of appeal of his conviction and sentence. In his assignments of error, the appellant argued the trial court erred in denying his post-sentence motion to withdraw his guilty plea and ineffective assistance of trial counsel. Because the appellant did not file a notice of appeal of the November 25, 2003 judgment entry denying his motion to withdraw his guilty plea, we applied App.R. 3(D) and found we were without jurisdiction to review the November 25, 2003 judgment entry. Id. at ¶ 21-24.

{¶ 25} A review of Ohio case law, however, shows a different approach to the appeal of interlocutory orders and the application of App.R. 3(D). It begins with Grover v. Bartsch , 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547 (2nd Dist.). In Grover , the appellee filed a motion to dismiss the appellant's complaint for lack of personal jurisdiction and as being outside the statute of limitations. The appellee simultaneously filed a motion for protective order, which the trial court granted. The trial court later granted the motion to dismiss and the appellant appealed. In their notice of appeal, the appellant referenced only the judgment of dismissal. Id. at ¶ 9. In the appellant's first assignment of error, however, the appellant stated the trial court erred in granting the protective order. The appellee argued the appellant failed to raise the protective order in the notice of appeal and was therefore barred from raising the matter on appeal. Id. The Second District Court of Appeals found the appellee's argument lacked merit. It held, "Interlocutory orders, such as most discovery orders, are merged into the final judgment. Thus, an appeal from the final judgment includes all interlocutory orders merged with it, such as the trial court's protective order." Id.

{¶ 26} The Tenth District Court of Appeals next examined the application of App.R. 3(D) to an interlocutory order in Beatley v. Knisley , 183 Ohio App.3d 356, 2009-Ohio-2229, 917 N.E.2d 280 (10th Dist.), appeal not accepted . The appellants in Beatley referred only to a July 18, 2008 judgment entry awarding damages in favor of the appellees in their notice of appeal. In their first assignment of error, however, the appellants challenged the March 19, 2008 entry granting summary judgment in favor of appellees. The appellees argued the court should limit the appeal to the July 18, 2008 judgment because the appellants did not designate the March 19, 2008 judgment entry as an order being appealed. The Tenth District declined to limit the appellant's appeal. Id. at ¶ 8. The court stated:

Pursuant to App.R. 3(D), a notice of appeal "shall designate the judgment, order or part thereof appealed from." However, this rule does not require an appellant to separately identify each interlocutory order issued prior to a final judgment. Shaffer v. OhioHealth Corp., 10th Dist. No. 04AP-236, 2004-Ohio-6523, 2004 WL 2806417, ¶ 12 ; Kvinta v. Kvinta, 10th Dist. No. 02AP-836, 2003-Ohio-2884, 2003 WL 21291049, ¶ 20. Interlocutory orders merge into the final judgment, and thus an appeal from a final judgment allows an appellant to challenge both the final judgment and any interlocutory orders merged with it. Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 9 ; Lingo v. Ohio Cent. RR., Inc., 10th Dist. No. 05AP-206, 2006-Ohio-2268, 2006 WL 1230679, ¶ 17 ; Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, 829 N.E.2d 326, ¶ 21.
Here, the March 19, 2008 judgment entry granting Beatley summary judgment was an interlocutory order because it failed to completely dispose of Beatley's claim. See Parrett v. Univ. of Cincinnati Police Dept., 10th Dist. No. 02AP-220, 2002-Ohio-5076, 2002 WL 31122980, ¶ 9 (" 'entry of judgment by the trial court in favor of the plaintiff on the issue of liability which leaves the amount of damages to be awarded unresolved until some future time, does not constitute a final judgment which may then be treated as an appealable order' "). As an interlocutory order, the March 19, 2008 judgment entry merged with the July 18, 2008 final judgment. Therefore, defendants did not need to name the March 19, 2008 judgment entry in their notice of appeal.

Id. at ¶ 9-10.

{¶ 27} The Fourth District Court of Appeals cited favorably to Beatley in Redmond v. Big Sandy Furniture, Inc. , 4th Dist. Lawrence No. 09CA13, 2009-Ohio-6824, 2009 WL 4981222, ¶ 38. The Ninth District Court of Appeals also relied upon Grover and Beatley in Aber v. Vilamoura, Inc. , 184 Ohio App.3d 658, 2009-Ohio-3364, 922 N.E.2d 236, ¶ 7 (9th Dist.) to find that when a party appeals from a final judgment and challenges not only the final judgment, but also interlocutory orders that were made during the trial court proceedings, it is permissible under App.R. 3(D). The Eighth District Court of Appeals relied upon Aber to hold that an appellant which did not identify in its notice of appeal the interlocutory judgments denying a motion to exclude testimony and a motion for directed verdict could still challenge those judgments because they merged into the final judgment. O'Connor v. Fairview Hosp. , 8th Dist. Cuyahoga No. 98721, 2013-Ohio-1794, 2013 WL 1859020, ¶ 19.

{¶ 28} In 2015, the Third District Court of Appeals relied upon Beatley to reject the appellee's argument to limit the appellant's appeal based on App.R. 3(D). See Snapp v. Castlebrook Builders, Inc. , 2014-Ohio-163, 7 N.E.3d 574 (3rd Dist.). In Snapp , the court allowed an appeal of an interlocutory order even though the appellant did not separately designate and attach the interlocutory judgment entry to the notice of appeal of the final judgment. In 2015, the Ohio Supreme Court referenced Grover for the proposition that interlocutory orders are merged into the final result so that an appeal from the final judgment includes all interlocutory orders merged with it. Navistar, Inc. v. Testa , 143 Ohio St.3d 460, 2015-Ohio-3283, 39 N.E.3d 509, ¶ 38. The Tenth District again relied on Beatley in 533 Short North LLC v. Zwerin , 10th Dist. Franklin No. 14AP-1016, 2015-Ohio-4040, 2015 WL 5771924, ¶ 52-53.

{¶ 29} Most recently, the Tenth District considered App.R. 3(D) in Pla v. Cleveland State University , 10th Dist. Franklin No. 17AP-212, 2017-Ohio-8149, 2017 WL 4512255. The court reaffirmed its previous holdings that App.R. 3(D) does not require the appellant to separately identify each interlocutory order issued prior to a final judgment. Id. at ¶ 12. It held when an appellant appeals a final judgment, the appellant may challenge the final judgment and all interlocutory orders merged with it. Id.

{¶ 30} Based on the case law from the Ohio Supreme Court and six of the twelve appellate districts, we find it appropriate to hold that App.R. 3(D) does not require an appellant to separately identify each interlocutory order issued prior to the final judgment in its notice of appeal. An interlocutory order merges into the final judgment; thus, an appeal from the final judgment allows an appellant to challenge both the final judgment and the interlocutory orders merged with it. Further, this court's holding in State v. Perez, 5th Dist. Licking No. 03-CA-107, 2004-Ohio-3646, 2004 WL 1534127, as to App.R. 3(D) can be distinguished from the case law analyzing the application of App.R. 3(D) to interlocutory orders. In Perez , the appellant appealed the denial of a post-sentence written motion to withdraw a guilty plea, which is a final appealable judgment entry separate from a sentencing judgment entry. State v. Gray , 5th Dist. Knox No. 17 AP 000004, 2017-Ohio-7969, 2017 WL 4334175, ¶ 13.

{¶ 31} In the present case, there is no dispute between the parties that the November 18, 2016 judgment entry granting the motion to enforce the settlement agreement was an interlocutory order. There is also no dispute the December 22, 2016 judgment entry dismissing with prejudice First Response as a defendant was a final appealable order. The interlocutory order therefore merged into the final judgment. Further, when reviewing the December 22, 2016 judgment entry, the trial court stated it granted the motion to dismiss based solely on its ruling in the November 18, 2016 judgment entry granting First Response's motion to enforce the settlement agreement. First Response was notified of the appeal and the scope of the appeal within the notice of appeal and December 22, 2016 judgment entry.

{¶ 32} Based on the above case law and a review of the judgment entries, we find First Response's argument as to jurisdiction to be without merit. We have jurisdiction to consider Breech's appeal.

I. Meeting of the Minds

{¶ 33} Breech argues in her first Assignment of Error that the trial court erred when it found First Response established the existence of a settlement agreement and the release of Crum & Forster as a term of the agreement. We agree.

{¶ 34} A settlement agreement is a particularized form of a contract. Hinds v. Muskingum Cty. , 5th Dist. Muskingum No. CT2016-0063, 2017-Ohio-8212, 2017 WL 4675812, ¶ 17 citing Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 (1982). It is a "contract designed to terminate a claim by preventing or ending litigation, and * * * such agreements are valid and enforceable by either party." Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). If a contract encompasses the essential terms of the agreement, it is binding and enforceable. Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d 586 (8th Dist.1983). "If less essential terms are omitted from an agreement, they may be resolved by 'later agreement or judicial resolution.' " Id. " 'If the court can determine that the parties intended to be bound, it may fashion those less essential terms that were omitted in order to reach a fair and just result.' Imbrogno v. MIMRx.COM, Inc. , 10th Dist. No. 03AP-345, 2003-Ohio-6108 [2003 WL 22707792]." (Additional citations omitted.) Reed Elsevier, Inc. v. Carter , 2nd Dist. Montgomery, 2017-Ohio-7513, 96, N.E.3d 1213, ¶ 15 quoting Ruffian, L.L.C. v. Hayes , 10th Dist. Franklin No. 09AP-948, 2011-Ohio-831, 2011 WL 683770, ¶ 17.

{¶ 35} The Ohio Supreme Court has stated the issue of "whether the parties intended to be bound * * * is a question of fact properly resolved by the trier of fact." Oglebay Norton Co. v. Armco, Inc., 52 Ohio St.3d 232, 235, 556 N.E.2d 515 (1990). The parties must have a "distinct and common intention that is communicated by each party to the other." Champion Gym & Fitness, Inc. v. Crotty, 178 Ohio App.3d 739, 744, 2008-Ohio-5642, 900 N.E.2d 231, ¶ 12.

{¶ 36} A trial court has the authority to conduct a hearing to determine whether or not a verbal settlement agreement has been reached. Klever v. Stow, 13 Ohio App.3d 1, 468 N.E.2d 58 (9th Dist.1983). "When the parties agree to a settlement offer, this agreement cannot be repudiated by either party, and the court has the authority to sign a journal entry reflecting the agreement and to enforce the settlement." Id. at 4, 468 N.E.2d 58. However, where the meaning of the terms of a settlement agreement is in dispute, or where there is a dispute contesting the existence of a settlement agreement, a trial court must conduct an evidentiary hearing prior to entering judgment. Rulli v. Fan Co., 79 Ohio St.3d 374, 377, 683 N.E.2d 337 (1997).

{¶ 37} In the November 18, 2016 judgment entry granting the motion to enforce the settlement, the trial court stated the sole disputed term of the settlement agreement was whether the language of the release should release Crum & Forster.

{¶ 38} The August 25, 2016 report of meditation did not contain any terms of the alleged settlement agreement between Breech and First Response. Farnan, counsel for First Response, presented testimony at the evidentiary hearing from himself and counsel for Liberty Mutual that it was common practice in a settlement agreement for the insurer to be released when the insurer pays a settlement on behalf of the insured. Farnan testified the insurance adjuster for Crum & Forster participated in the mediation by telephone. The terms of the release of First Response or Crum & Forster, however, were not discussed at the mediation.

{¶ 39} It was after mediation that the dispute arose as to the release of Crum & Forster. Farnan recalled the negotiations between counsel for Breech and himself as to the release of Crum & Forster:

So we spent hours, Mr. Seebohm and I, going back and forth negotiating; and I tried to tailor it as narrowly as possible to accommodate the concerns that he expressed as relayed by Mr. Lusher, her POA.
So for that reason we offered to limit it to this claim, this insured, on this claim only.
* * *
For that reason I am here because I couldn't get that agreement.

(T. 23-25).

{¶ 40} In its judgment entry enforcing the settlement agreement, the trial court found First Response submitted evidence that the release of its insurer, Crum & Forster, was one of the terms of the settlement agreement and therefore enforceable. We do not disagree with trial court's statement that a release is a term of an agreement. Case law, however, requires a narrower characterization of a term of an agreement and the trial court's authority to enforce it. If a contract encompasses the essential terms of the agreement, it is binding and enforceable. If less essential terms are omitted from an agreement, they may be resolved by later agreement or judicial resolution. If the court can determine that the parties intended to be bound, it may fashion those less essential terms that were omitted in order to reach a fair and just result.

{¶ 41} "A release, or compromise agreement, is a particular kind of contract, and, like other contracts, requires a definite offer and an acceptance thereof. 15 Ohio Jurisprudence 3d 517, Compromise, Accord, and Release, Section 4. A release must be the result of a meeting of the parties' minds in order to be binding. See 30 Ohio Jurisprudence 2d 801, Insurance, Section 875." Noroski v. Fallet , 2 Ohio St.3d 77, 79, 442 N.E.2d 1302, 1304 (1982). In this case, the limited evidence demonstrates the essential terms of this settlement agreement were the payment of money to end litigation and release of First Response and Crum & Forster from further litigation. The evidence shows there was no meeting of the minds as to the release of Crum & Forster from further litigation. First Response admitted it could not reach an agreement with Breech as to this term of the settlement agreement. While there was testimony that the release of the insurer is common practice, that it is common practice does not make the release of the insurer a less essential term of this agreement. Because the release was an essential term of the settlement agreement to which the parties could not agree, we find the trial court erred when it fashioned the release of Crum & Forster in the November 18, 2016 judgment entry granting the motion to enforce the settlement agreement.

{¶ 42} Breech's first Assignment of Error is sustained.

II. Attorney Testimony

{¶ 43} Breech argues in her second Assignment of Error that the trial court erred in allowing the testimony of counsel for First Response at the evidentiary hearing.

{¶ 44} Based on our decision in the first Assignment of Error, we find this argument to be moot.

CONCLUSION

{¶ 45} The December 22, 2016 and November 18, 2016 judgments of the Stark County Court of Common Pleas are reversed and remanded to the trial court for further proceedings consistent with this opinion and law.

Wise, Earle, J., concur,

Hoffman, J., concurs in part and dissents in part.

Hoffman, J., concurring in part and dissenting in part

{¶ 46} I concur in the majority's analysis and decision regarding this Court's jurisdiction to review Appellant's assignments of error. However, I respectfully dissent from the majority's decision to sustain Appellant's first assignment of error and to reverse the trial court's decision.

{¶ 47} Given the unrefuted testimony of Attorney Farnan concerning the accepted, common practice of releasing the entity paying money on behalf of its insurer, in addition to the party being released, I would find the failure of the agreement to specifically discuss the release of Crum & Forster is a "less essential term" of the settlement agreement. The trial court properly determined the parties intended to be bound by the agreement and the trial court was free to fashion the release terms to restrict the scope of the release of Crum & Forster in accordance with the acknowledgment set forth by Attorney Farnan at the hearing.

      I would also overrule Appellant's second assignment of error.


source: Caselaw Access Project

author: MARY J. BOYLE, J.:

license: Public Domain

text:
    IN RE: $75,000.00 U.S. CURRENCY
    [Appeal by Brian Katz]
    No. 105314
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    James R. Willis, 1144 Rockefeller Building, 614 West Superior Avenue, Cleveland, Ohio 44113, Attorney for Appellant.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jennifer Meyer, Assistant County Prosecutor, 1200 Ontario Street, Justice Center, 8th Floor, Cleveland, Ohio 44113, Attorneys for Appellee.
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Claimant-appellant, Brian Katz, appeals the trial court's judgment, ordering the forfeiture of the $75,000 seized from him on March 11, 2016. On appeal, he raises two assignments of error for our review:

1. The court erred when it denied the motion to suppress and for the return of illegally seized property.
2. Given the state cannot seize money from an individual, with or without probable cause, and require the person from whom it was seized to prove it was lawfully acquired, it follows the court erred when it forfeited this money to the state.

{¶ 2} Finding no merit to the assignments of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} On March 11, 2016, the state filed a complaint for civil forfeiture of the $75,000 found in Katz's vehicle pursuant to R.C. 2981.05. On May 31, 2016, Katz filed a motion to suppress the money found during the traffic stop. At the hearing on both the motion to suppress and forfeiture, the following evidence was presented.

{¶ 4} In January 2016, Detective Payne with the city of Broadview Heights was assigned to the Cleveland, Ohio high intensity drug trafficking area ("HIDTA"). Along with other HIDTA assigned officers, Detective Payne was conducting surveillance on a number of individuals suspected of drug trafficking who were traveling to and from the Cleveland Hopkins Airport and leaving and entering multiple hotels and residences throughout their stays in Cleveland. During his surveillance, Detective Payne conducted criminal history checks of the observed individuals and even approached them in the airport and searched their bags after receiving their consent to do so; however, he and the other officers found nothing of evidentiary value in their bags. Detective Payne and HIDTA officers also searched one of the hotel rooms where the individuals stayed, finding drug residue and other materials that Detective Payne testified were commonly used to package and transport drugs.

{¶ 5} On February 15, 2016, HIDTA officers observed one of the individuals pick up two males at the airport, one being Katz. The individual dropped Katz off at a hotel in Cleveland, where Katz paid cash for a one night's stay. The next day, HIDTA officers observed Katz travel to a Cleveland residence with the same males from the day before. At the residence, Katz entered a 2014 Toyota Camry with California license plates and drove away.

{¶ 6} HIDTA officers continued to follow Katz and informed a local Ohio State Highway Patrol officer, Lieutenant Hughes, that they suspected Katz to be a drug courier and gave him a description of the vehicle. Lieutenant Hughes subsequently observed Katz's vehicle traveling over the speed limit on Interstate 71. Lieutenant Hughes paced Katz's vehicle at a speed over the speed limit for a short distance and then activated his emergency lights and conducted a traffic stop at approximately 1:39 p.m.

{¶ 7} After approaching the vehicle and asking for Katz's license and registration, Lieutenant Hughes requested Katz to accompany him to his vehicle and conducted a pat down of Katz's person. While sitting in the police cruiser, Lieutenant Hughes ran Katz's information. During this time, Katz asked for a break, but did not deny that he was speeding. Approximately five minutes after Lieutenant Hughes stopped Katz and during the time that Lieutenant Hughes was running Katz's information, Officer Andrejack of the Cleveland Police Department and his canine partner arrived at the scene upon request from HIDTA officers. While encircling the vehicle, the canine positively alerted. Subsequent to that alert, Lieutenant Hughes read Katz his Miranda warnings and asked him if there were drugs or money in the vehicle. Katz stated, "Not that I know of." Katz was then securely placed in the back of a patrol car.

{¶ 8} Lieutenant Hughes and other officers began to search the vehicle on the side of Interstate 71; however, due to weather conditions and safety concerns, the officers requested a tow, deciding to conduct the search at the Brookpark State Highway Patrol post instead. Katz was also transported to the post and held in a separate room while the police conducted their search.

{¶ 9} A search of the vehicle yielded 13 bundles of U.S. currency, totaling $75,000, which was hidden in the vehicle's rear rocker panels. The money was vacuum sealed, covered in brake grease, and then vacuum sealed again. Upon finding the money and confirming that he was already Mirandized and understood his rights, Detective Payne then interviewed Katz. When Detective Payne asked him about the money, Katz stated that it was "absolutely not" his and denied knowing about the hidden compartments in the vehicle. Katz provided a signed statement to Detective Payne, stating, "I never knew about money found in car. It's not my money. 2014 Camry."

{¶ 10} Before letting Katz-who was not placed under arrest-leave for the airport, the officers gave Katz a receipt for the money, vehicle, and other property inside the car. As for the speeding violation, Lieutenant Hughes only issued Katz a written warning.

{¶ 11} At the forfeiture hearing and contrary to his earlier statements to police, Katz claimed that the money belonged to him and was his life savings. Specifically, the following exchange took place at the hearing:

ATTORNEY: [W]ho owned the money?
MR. KATZ: Me.
ATTORNEY: And how long had that money been in that car?
MR. KATZ: In that car for two years.
ATTORNEY: Yes. And what's the source of that money?
MR. KATZ: It's been income I've been earning for the last 25, 30 years.
ATTORNEY: Your life savings?
MR. KATZ: Yes. I lost a lot of money in 2008, in the crash, because I had most of my funds in the stock market[.] * * * So I decided to keep my money, to hide it, and I paid taxes on the money anyway, because it was income. So it was my hard-earned money for 44 years[.]

Further, when asked why he initially denied knowledge and ownership of the money, Katz explained that he believed he would be arrested for a hidden-compartments violation if he claimed the money.

{¶ 12} In its opinion and judgment entry, the trial court denied Katz's motion to suppress, finding that the traffic stop was constitutional because Katz was speeding, the traffic stop was not unlawfully prolonged, the police had probable cause to search the vehicle because the canine alerted, and the police's removal of the vehicle to the patrol post was lawful.

{¶ 13} Additionally, the trial court found that Katz failed to establish his ownership of the funds. Nevertheless, the trial court considered the merits of the forfeiture action and additionally found that the state proved by a preponderance of the evidence that the money was subject to forfeiture. Specifically, the court stated that it was:

more probable than not * * * that $75,000 in currency, wrapped in plastic, coated with brake grease to avoid scent detection, then vacuum sealed and placed in [a] hidden compartment in a vehicle, is either proceeds derived from or acquired through the commission of an offense or an instrumentality that was used in or intended to be used in the commission or facilitation of a felony.

{¶ 14} It is from this judgment that Katz appeals.

II. Law and Analysis

A. Motion to Suppress

{¶ 15} In his first assignment of error, Katz argues that the trial court improperly denied his motion to suppress the money seized from his vehicle during the March 11, 2016 traffic stop because the officers' claim of a traffic violation was pretext, the drug dog did not actually alert to drugs, the officers unconstitutionally delayed their search, the officers lacked a search warrant, and the officers took statements from Katz in violation of his constitutional rights.

Standard of Review

Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

The Exclusionary Rule in Forfeiture Cases

{¶ 16} In support of his motion to suppress, Katz argues that the exclusionary rule applies to civil forfeiture actions, citing One 1958 Plymouth Sedan v. Pennsylvania , 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The state argues that the exclusionary rule does not apply in civil actions, citing State ex rel. Roszmann v. Lions Den , 89 Ohio App.3d 775, 627 N.E.2d 629 (12th Dist.1993). We agree with Katz.

{¶ 17} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. The exclusionary rule, which upholds the rights guaranteed by the Fourth Amendment, applies to forfeiture proceedings because they are quasi-criminal in nature, penalizing individuals by depriving them of their property. One 1958 Plymouth Sedan at 701-702, 85 S.Ct. 1246 ; see also State v. Recinos , 5th Dist. Richland No. 14CA9, 2014-Ohio-3021, 2014 WL 3339624, ¶ 24, citing State v. Roberts , 102 Ohio App.3d 514, 657 N.E.2d 547 (9th Dist.1995) (holding that forfeiture actions are "instituted as a criminal penalty").

{¶ 18} The state's case, Roszmann , is unpersuasive for several reasons. In that case, the Twelfth District Court of Appeals, reviewing a nuisance action filed by the state against a local adult arcade, stated, " '[G]enerally, the exclusionary rule has not been applied in civil cases; we see no reason to expand the exclusionary rule to the facts of this case.' " Id. at 786, 627 N.E.2d 629, quoting State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals , 63 Ohio St.3d 354, 588 N.E.2d 116 (1992). If we were to adopt the state's position, that adoption would directly conflict with the United States Supreme Court's decision in One 1958 Plymouth Sedan. Further, the Twelfth District's use of "generally" shows that the exclusionary rule is sometimes applied in civil cases, such as forfeiture actions. Roszmann is distinguishable in that it-as well as the case it cites to, Rear Door -concerned a nuisance action, which, unlike forfeiture actions, is not recognized as a "quasi-criminal" proceeding in Ohio. See Hamilton v. Ebbing , 12th Dist. Butler No. CA2011-01-001, 2012-Ohio-2250, 2012 WL 1825268, ¶ 25 (rejecting the appellant's argument that a nuisance abatement action was a "quasi-criminal" action).

{¶ 19} Further, as the trial court pointed out, since the Supreme Court's holding in One 1958 Plymouth Sedan , Ohio courts have held that the exclusionary rule applies to forfeiture proceedings. See State v. Crumpler, 9th Dist. Summit Nos. 26098 and 26118, 2012-Ohio-2601, 2012 WL 2128025, ¶ 23; State v. McShepard , 9th Dist. Summit No. 07CA009118, 2007-Ohio-6006, 2007 WL 3342418, ¶ 13 ; Ohio Dept. of Liquor Control v. FOE Aerie 0456 , 99 Ohio App.3d 380, 386, 650 N.E.2d 940 (10th Dist.1994) ; State v. Bailey , 64 Ohio App.3d 379, 382, 581 N.E.2d 1104 (6th Dist.1989). Therefore, the state's position is not well taken, and we find that Katz's motion to suppress is properly before this court and review Katz's assignment of error concerning his claim involving the exclusionary rule.

The Traffic Stop

{¶ 20} In his initial argument concerning his first assignment of error, Katz argues that Lieutenant Hughes's traffic stop violated his Fourth Amendment protection against unreasonable seizures.

{¶ 21} " 'A traffic stop must comply with the Fourth Amendment's general reasonableness requirement.' " State v. Fontaine , 8th Dist. Cuyahoga No. 99771, 2013-Ohio-5257, 2013 WL 6221373, ¶ 13, quoting State v. Aquirre , 4th Dist. Gallia No. 03CA5, 2003-Ohio-4909, 2003 WL 22136234. "[A] law enforcement officer may briefly stop and detain an individual for investigative purposes if he has a reasonable suspicion supported by articulable facts that 'criminal activity may be afoot.' " Brassfield at ¶ 34, quoting Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop is unreasonable if it is not supported by the requisite suspicion. Dayton v. Erickson , 76 Ohio St.3d 3, 9, 665 N.E.2d 1091 (1996) ; State v. Caldwell , 5th Dist. Richland No. 2011-CA-0024, 2011-Ohio-5429, 2011 WL 5022896, ¶ 19.

{¶ 22} A traffic stop is reasonable if a police officer has probable cause to believe that a traffic violation occurred or was occurring. Erickson at syllabus, citing United States v. Ferguson , 8 F.3d 385 (6th Cir.1993). "It is well settled that a traffic stop is lawful even if the traffic violations are minor, or 'de minimis[,]' " such as a speeding violation. State v. White , 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, 2014 WL 4748425, ¶ 14 ; State v. Brassfield, 8th Dist. Cuyahoga No. 83331, 2004-Ohio-2412, 2004 WL 1068781, ¶ 37. An officer's ulterior motive for stopping the vehicle does not deprive the traffic stop of its constitutionality. White at ¶ 15, citing Erickson ; see also State v. Mitchell , 8th Dist. Cuyahoga No. 94917, 2011-Ohio-477, 2011 WL 346043, ¶ 8 (holding that "the officers had authority to stop appellant based on the loud music violation regardless of whether they were using that violation as a pretext to investigate further.").

{¶ 23} Here, Lieutenant Hughes testified that Katz was speeding, a fact that Katz did not entirely deny during his own testimony. In response to a question of whether he knew how fast he was driving, Katz testified that he did not believe he was speeding because he was going with the flow of traffic. While Katz now argues that he never admitted to speeding, we defer to the trial court's credibility determinations and, here, the trial court found Lieutenant Hughes to be credible. State v. Eason , 8th Dist. Cuyahoga, 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 47. Therefore, we defer to the trial court's finding that a traffic violation did occur and hold that, alone, allowed Lieutenant Hughes to conduct a traffic stop.

{¶ 24} Further, even though Katz argues that Lieutenant Hughes's ultimate purpose for the stop was to search for money, rather than to enforce the speed limit, that unproven and ulterior motive has no bearing on the traffic stop's constitutionality.

Length of the Traffic Stop

{¶ 25} Next, Katz argues that the police unconstitutionally prolonged the traffic stop to effectuate a canine sniff of his vehicle. The state argues that the canine sniff occurred within the time needed to issue a traffic citation, and therefore, did not unconstitutionally prolong the traffic stop.

{¶ 26} " 'When conducting the stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time sufficient to investigate the reason for which the vehicle was initially stopped.' " White , 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, 2014 WL 4748425, at ¶ 17, quoting State v. Bennett , 8th Cuyahoga No. 86962, 2006-Ohio-4274, 2006 WL 2381646. An "officer must limit both the scope and duration of the stop to the matter at hand, namely, writing the citation, and any expanded investigation unrelated to the traffic violation must be based upon reasonable articulable suspicion." White at ¶ 17, citing State v. Duran , 9th Dist. Lorain No. 11CA009969, 2012-Ohio-2114, 2012 WL 1660823 ; see also Rodriguez v. United States , 575 U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015) (during a stop for a traffic violation, an officer's duties typically "involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.").

{¶ 27} When determining whether there is a Fourth Amendment issue with the length of a traffic stop, courts examine the totality of the circumstances and must ask " 'at what point in time did the purpose of the traffic stop end and the detention of the driver and the vehicle's occupants begin?' " Fontaine , 8th Dist. Cuyahoga No. 99771, 2013-Ohio-5257, 2013 WL 6221373, at ¶ 16, quoting United States v. Bonilla , 357 Fed. Appx. 693 (6th Cir.2009) ; State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12 ; Fontaine at ¶ 18. Ohio courts have held that the longest a traffic stop and citation issuance should take is approximately 15 minutes. See State v. Armstrong , 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, 2016 WL 1593075, ¶ 25 ; White at ¶ 22 ; State v. Brown , 183 Ohio App.3d 337, 2009-Ohio-3804, 916 N.E.2d 1138, ¶ 23 (6th Dist.).

{¶ 28} Police may conduct a canine sniff during the time that it takes to issue a traffic citation "so long as the duration of the traffic stop is not extended beyond what is reasonably necessary to resolve the issue that led to the stop and issue a traffic citation." State v. Vega , 8th Dist. Cuyahoga, 2017-Ohio-651, 79 N.E.3d 600, ¶ 15, quoting State v. Greene , 2d Dist. Montgomery No. 25577, 2013-Ohio-4516, 2013 WL 5603936. Police may conduct a canine sniff during a traffic stop "[e]ven without a reasonable suspicion of drug-related activity." State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763, 2014 WL 2932533, ¶ 23, citing State v. Jones , 4th Dist. Washington No. 03CA61, 2004-Ohio-7280, 2004 WL 3090198 ; State v. Neal , 10th Dist. Franklin No. 15AP-771, 2016-Ohio-1406, 2016 WL 1288000, ¶ 13. But "a detention justified by issuing a ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that process [,]" such as when police continue to detain the driver to effectuate a canine sniff of the vehicle. Armstrong at ¶ 25.

{¶ 29} Here, Lieutenant Hughes testified that approximately five minutes after he initiated the traffic stop, Officer Andrejack and his canine arrived and sniffed the exterior of the car. Officer Andrejack completed the canine sniff while Lieutenant Hughes was still checking Katz's vehicle registration and license. The timing of the canine sniff was well within the usual 15-minute timespan typically needed to complete a traffic citation. Katz has offered no evidence or clear argument refuting the timing of the canine sniff, and "[i]n the absence of some evidence that the normal procedures were delayed for reasons unrelated to the investigation of the traffic violation, the only reasonable conclusion to draw from the evidence is that the length of appellant's detention was no longer than necessary." State v. Neal , 10th Dist. Franklin No. 15AP-771, 2016-Ohio-1406, 2016 WL 1288000, ¶ 23. Therefore, the evidence shows that Katz's detention was not prolonged by the canine sniff and does not require the suppression of the seized money.

The Search of the Vehicle

{¶ 30} In his brief, Katz argues that the canine "allegedly" alerted and even if the canine alerted, the officers still needed a warrant to search the vehicle.

{¶ 31} Contrary to Katz's argument, it is well established in Ohio and this district that

[u]nder the "automobile exception," the police may search an automobile without a warrant, as long as the police have probable cause to believe the vehicle contains evidence of criminal activity. The courts, including this court, have held that once a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, * * * there is probable cause to justify a warrantless search of the vehicle for contraband.

White, 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, 2014 WL 4748425, at ¶ 23, citing State v. Davis , 8th Dist. Cuyahoga No. 87964, 2007-Ohio-408, 2007 WL 274380 ; see also Jones at ¶ 23, citing Davis ("Once a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, there is probable cause to search the vehicle for contraband."). "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross , 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

{¶ 32} Here, Lieutenant Hughes, Officer Andrejack, and even Katz testified that the canine alerted during the traffic stop. Therefore, the police had probable cause to search the vehicle for contraband and did not need a warrant.

Delay in Search

{¶ 33} Also in support of his first assignment of error, Katz argues that the police unlawfully delayed the search when they transported both him and his vehicle to the Brookpark State Highway Patrol post.

{¶ 34} "The United States Supreme Court has held that there is no prohibition in moving a car to the station in order to conduct a probable cause search under more practical, and perhaps safer, conditions." State v. Brooks , 3d Dist. Hancock No. 5-11-11, 2012-Ohio-5235, 2012 WL 5507092, ¶ 33, citing Chambers v. Maroney , 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Relocating a vehicle promotes the safety of officers, stopped pedestrians, and travelers.

{¶ 35} "The test to be applied where the vehicle is moved * * * is whether, under the circumstances, the act of moving the vehicle to the station house was 'reasonable.' " State v. Jones, 1st Dist. Hamilton No. C-75272, 1976 WL 189698, *5, 1976 Ohio App. LEXIS 8496, *11 (Apr. 12, 1976), citing Chambers . Therefore, the location to which the vehicle is moved, as well as the time it takes to move the vehicle to that location, must be reasonable.

{¶ 36} Ohio courts have held that police do not lose probable cause when they reasonably move a vehicle to a safer location to conduct a search. State v. Williams , 4th Dist. Highland No. 12CA7, 2013-Ohio-594, 2013 WL 658249, ¶ 27 (finding that the police were allowed to conduct their search at another location because the conditions alongside the road "were not optimal"); Brooks at ¶ 34 (finding that moving the vehicle to another location, even after the officers had been searching for 30 minutes, was permissible for officer safety concerns and easier accessibility); State v. Bolding , 6th Dist. Erie No. E-97-115, 1999 WL 334494, *7-8, 1999 Ohio App. LEXIS 2383, *22-23 (May 28, 1999) (finding that moving the vehicle was reasonable because of the better lighting and safer conditions for the troopers); State v. Carpenter , 9th Dist. Medina No. 2667-M, 1998 WL 161289, *4, 1998 Ohio App. LEXIS 1467, *10 (Apr. 8, 1998) (upholding the officers' decision to move the vehicle to their patrol post to gain assistance in opening the vehicle's trunk); Jones at *5, 1976 Ohio App. LEXIS 8496, at *11 (upholding the relocation of the vehicle to the station house because of the "hazardous" conditions).

{¶ 37} Here, the evidence shows that the conditions on Interstate 71 were dangerous due to the weather and location of the stop. When asked why the officers moved the vehicle to the trooper post, Officer Payne testified that "[i]t was pretty cold and snowy, rainy that day, it was on the side of the highway, so I presume they wanted to take it back there to be able to search it in a little bit safer of a place." Lieutenant Hughes testified that one trooper "had flagged a car over to tell it to move over because it was in the right-hand lane, and in a controlled environment we can conduct a search more safely and thoroughly as opposed to on the side of the road a few feet from traffic on the interstate." The dash cam video from Lieutenant Hughes's police car confirms the officers' testimony citing the hazardous conditions.

{¶ 38} At oral argument, Katz set forth a "slippery-slope" argument, contending that should the officer's removal of his vehicle stand, officers will have free range to relocate any vehicle that is the subject of a traffic stop. That argument has no merit based on the cases previously discussed. Once again, the removal of a vehicle from the side of the road to a safer location must be reasonable, which is a determination that will be made on a case-by-case basis. For example, in cases where road conditions are safe, visibility is optimal, and officer safety is not in jeopardy, removal of a vehicle to another location may not be reasonable. But, as stated above, the conditions in this case establish that removing the vehicle from the side of the road to conduct a search was reasonable.

{¶ 39} Further, the probable cause to search the vehicle established by the canine's alert did not dissipate during the time that it took to tow the vehicle to the patrol post. Therefore, the officers still had probable cause to search Katz's vehicle. See Texas v. White , 423 U.S. 67, 68, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (discussing Chambers and concluding that the probable cause factor still existed when the vehicle was relocated to the station house); Bolding , 6th Dist. Erie No. E-97-115, 1999 WL 334494, at *7-8, 1999 Ohio App. LEXIS 2383, at *22-23, citing Chambers ("Since the facts of the case support a warrantless search of the vehicle at the stop, they also support[ed] a search after the vehicle [was] moved to the patrol station."). Therefore, Katz's argument concerning the reasonableness of the relocation and delay in searching the vehicle is unconvincing.

{¶ 40} Finally, in his brief, Katz cites to Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), to support his argument that the police's delay in searching the vehicle and obtaining a search warrant was excessive. After a thorough reading of McNeely , however, we find it uninformative. McNeely concerned the taking of a blood sample from a suspected intoxicated driver without a warrant, which the state argued was not needed based on the exigency exception to the warrant requirement. In that case, the United States Supreme Court stated that "technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential role as a check on police discretion, are relevant to an assessment of exigency." Id. at 1562. This case, however, concerns the search of a car after a positive alert by a canine. As already discussed, the officers here did not need a warrant after establishing probable cause through that canine alert, and they were able to search the car without a warrant under the automobile exception to the warrant requirement, not the exigency exception. Moreover, McNeely sets forth no rule of law concerning the relocation of a stopped vehicle to effectuate a search.

Katz's Statements

{¶ 41} Finally, Katz vaguely argues that his statements denying ownership of the seized money should be suppressed because they were taken in violation of his right to counsel.

{¶ 42} Here, the trial court found that "[t]he only evidence of [the] request [for counsel] is Katz's testimony, which is controverted by two taped interactions where Katz was advised of his rights, acknowledged understanding his rights, and proceeded to talk with law enforcement officers without mentioning an attorney." Once again, because the trial court is the trier of fact and weighs the credibility of the evidence, we must defer to its factual and credibility findings if supported by competent, credible evidence. State v. Robinson , 8th Dist. Cuyahoga No. 90731, 2008-Ohio-5580, 2008 WL 4748529, ¶ 44, citing State v. DePew , 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), and State v. Polk , 8th Dist. Cuyahoga No. 84361, 2005-Ohio-774, 2005 WL 433519. Therefore, in light of the trial court's determination concerning Katz's credibility and a review of the supporting evidence, we find that the statements were not taken in violation of Katz's right to counsel and were properly admitted.

{¶ 43} In sum, the trial court's denial of Katz's motion to suppress was proper as to both the seized money and Katz's statements to police. Accordingly, Katz's first assignment of error is overruled.

B. Forfeiture

{¶ 44} In his second assignment of error, Katz argues that the trial court erred in ordering the forfeiture of the seized money because the state failed to show that it was related to a criminal offense. In response, the state argues that it proved, by a preponderance of the evidence, that the money was subject to forfeiture, and the trial court's ruling was proper.

Standing

{¶ 45} Before addressing the merits of his second assignment of error, we must first determine if Katz has standing to challenge the forfeiture action. Even though the issue was not clearly raised or addressed in either party's appellate briefs, "the issue of standing is jurisdictional and may be raised by the court sua sponte." State v. Langston , 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, 2012 WL 6738309, ¶ 7, citing In re Foreclosure of Parcel of Land Encumbered with Delinquent Tax Liens , 11th Dist. Lake No. 2007-L-002, 2007-Ohio-4377, 2007 WL 2410347, and In re Forfeiture of John Deere Tractor , 4th Dist. Athens No. 05CA26, 2006-Ohio-388, 2006 WL 225368. Standing is a question of law for us to review de novo. State v. Jamison , 2d Dist. Montgomery No. 23211, 2010-Ohio-965, 2010 WL 892082, ¶ 10.

{¶ 46} Under the forfeiture statutes, only "a person with an interest in the property subject to forfeiture" has standing to challenge an action by the state. In re $449 United States Currency , 1st Dist. Hamilton No. C-110176, 2012-Ohio-1701, 2012 WL 1366736, ¶ 21, citing R.C. 2981.05(C). Therefore, a party with no interest in the seized property lacks the standing required to appeal the forfeiture. Id.

{¶ 47} In its opinion and judgment entry, the trial court stated:

Mr. Katz consistently disclaimed that he owned or even knew of the money at the time of the traffic stop and the subsequent seizure. While he now maintains the currency is his, he did not know where the money was or how much money was seized at the time of the search. His testimony in Court offered no competent or credible evidence establishing his ownership of the money. As set forth above, his explanation for how and why the money was found sealed in hidden compartments in his vehicle lacked credibility. Mr. Katz failed to present any corroborating evidence to establish his ownership of the funds.

While it is not entirely clear if the trial court found that Katz lacked standing, especially considering that it decided the case on the merits, we find that, based on case law, Katz's in-court assertion of an ownership interest is enough to establish standing. In Langston , the court found that the appellant lacked standing to challenge the state's forfeiture action because he did not claim "an interest in any of the seized currency; nor did he claim such an interest during the proceedings in the trial court." Id. at ¶ 10. In Crumpler , 9th Dist. Summit Nos. 26098 and 26118, 2012-Ohio-2601, 2012 WL 2128025, the court found that the claimant lacked standing to demand the return of jewelry because "she testified at the hearing that she did not own that jewelry." Id. at ¶ 20. Further, in Jamison , the court found that the claimant lacked standing because he failed to make his claim of ownership "in the trial court." Id. at ¶ 32.

{¶ 48} Based on the above case law, testimony alleging an ownership interest is enough to establish standing. Here, Katz initially denied that he knew about or owned the money; however, unlike the parties in the above-cited cases, Katz testified at the hearing that the money was actually his life savings. Incredible or not, that testimony is enough to establish an interest in the money according to the above case law. Therefore, we find that Katz had standing to challenge the civil forfeiture action.

Forfeiture

{¶ 49} We now turn to the merits of Katz's second assignment of error.

{¶ 50} "On review, an appellate court may not reverse the trial court's [forfeiture order] where there is 'some competent, credible evidence going to all the essential elements of the case.' " State v. Fort , 8th Dist. Cuyahoga, 2014-Ohio-3412, 17 N.E.3d 1172, ¶ 17, quoting State v. Watkins , 7th Dist. Mahoning No. 07 JE 54, 2008-Ohio-6634, 2008 WL 5245581 ; see also Watkins at ¶ 34, quoting State v. Balwanz , 7th Dist. Belmont No. 02-BE-37, 2004-Ohio-1534, 2004 WL 609602 ("When reviewing a judgment based on a preponderance of the evidence, an appellate court should not reverse the judgment if there is 'some competent, credible evidence going to all the essential elements of the case.' "). "The scope of our review in this case is limited to an examination of the evidence presented to see if the evidence supports the finding that the items seized were an instrumentality or proceeds of a conduct that would constitute a felony drug offense." State v. $765.00 in United States Currency , 181 Ohio App.3d 162, 2009-Ohio-711, 908 N.E.2d 486, ¶ 26 (5th Dist.). Further, "we defer to the trial court's determination of witness credibility in a civil forfeiture action." State v. Baas , 10th Dist. Franklin No. 13AP-644, 2014-Ohio-1191, 2014 WL 1347637, ¶ 29 ; see also Marmet Drug Task Force v. Paz , 3d Dist. Marion No. 9-11-60, 2012-Ohio-4882, 2012 WL 5207553, ¶ 25, citing Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984) ("Mere disagreement over the credibility of witnesses or evidence is not sufficient reason to reverse a judgment.").

{¶ 51} "In general, forfeiture is disfavored in Ohio." Fort at ¶ 17. "As a consequence, such statutes must be strictly construed against the state." State v. Golston , 66 Ohio App.3d 423, 429, 584 N.E.2d 1336 (8th Dist.1990). The procedures that the state must follow when seeking forfeiture of an individual's property are codified in Chapter 2981 of the Ohio Revised Code. R.C. 2981.05 allows the state to seek forfeiture through civil actions. To succeed, the state must establish that the seized property is subject to forfeiture under R.C. 2981.02 by a preponderance of the evidence. R.C. 2981.05(D) ; see Fort at ¶ 17.

{¶ 52} "Proceeds derived from or acquired through the commission of an offense" and instrumentalities "used in or intended to be used in the commission or facilitation of" a felony are subject to forfeiture. R.C. 2981.02. R.C. 2981.01(B) defines "proceeds" as "any property derived directly or indirectly from an offense," which "may include * * * money or any other means of exchange[.]"

{¶ 53} Further, R.C. 2981.01(B)(10) defines "offense" as "any act or omission that could be charged as a criminal offense * * * whether or not a formal criminal prosecution * * * began at the time the forfeiture is initiated" and "an offense for which property may be forfeited includes any felony and any misdemeanor." In other words, "it is immaterial to civil forfeiture proceedings whether the defendant is also charged or convicted of an underlying criminal offense." Marmet at ¶ 23, citing R.C. 2981.01(B)(10). "[T]rial courts are not limited to considering only the underlying criminal offense when deciding a forfeiture action, and may pursue property derived from any act that would constitute a felony drug offense, regardless of a defendant's conviction or acquittal on such an offense." State v. Brownridge , 3d Dist. Marion No. 9-09-24, 2010-Ohio-104, 2010 WL 169282, ¶ 25, citing Watkins , 7th Dist. Mahoning No. 07 JE 54, 2008-Ohio-6634, 2008 WL 5245581 ; see also Dayton Police Dept. v. Thompson , 2d Dist. Montgomery No. 24790, 2012-Ohio-2660, 2012 WL 2196190, ¶ 12 ("Contrary to Thompson's argument, the government was required to prove that the money in his pocket constituted proceeds of 'an offense,' not necessarily proceeds of the offense at issue in his criminal case."); State v. Parks , 8th Dist. Cuyahoga No. 90368, 2008-Ohio-4245, 2008 WL 3870615, ¶ 26 (holding that an "acquittal does not mean that forfeiture of items cannot be ordered."). "A conviction is not required." Thompson at ¶ 23.

{¶ 54} The state's burden in civil forfeiture actions, a preponderance of the evidence, is "relatively low." State v. Bustamante , 3d Dist. Seneca Nos. 13-12-26 and 13-13-04, 2013-Ohio-4975, 2013 WL 6034715, ¶ 40. Nevertheless, because the " '[m]ere possession of cash is not unlawful [,]' " the state must point to other factors demonstrating that it " 'is more probable than not, from all the[ ] circumstances, that the defendant used the money in the commission of a criminal offense.' " Parks at ¶ 29, quoting State v. Blackshaw , 8th Dist. Cuyahoga No. 70829, 1997 WL 284748, 1997 Ohio App. LEXIS 2362 (May 29, 1997). Some of those factors include whether the money was in small denominations, whether drugs or drug paraphernalia were found with the money, where the money was found, the amount of money found, how the money was packaged, the possessor's employment status, the owner's explanation for the cash, and if the money was marked and given to the possessor by an informant. See Fort, 8th Dist. Cuyahoga, 2014-Ohio-3412, 17 N.E.3d 1172, at ¶ 23 ; State v. Crumpler , 9th Dist. Summit No. 26763, 2014-Ohio-3211, 2014 WL 3643346, ¶ 8 ; Bustamante at ¶ 40 ; Marmet at ¶ 28-34 ; Harris v. Mayfield Hts. , 8th Dist. Cuyahoga No. 95601, 2011-Ohio-1943, 2011 WL 1584579, ¶ 19-22 ; Brownridge at ¶ 27 ; Watkins at ¶ 36-41 ; Parks at ¶ 29 ; State v. Harris , 12th Dist. Butler No. CA2007-04-089, 2008-Ohio-3380, 2008 WL 2633117, ¶ 28.

{¶ 55} While some Ohio courts have also looked to whether a drug dog alerted to the money, we have found that factor as "insufficient to support an inference of criminal activity." Compare State v. Harris at ¶ 28with Harris v. Mayfield Hts. at ¶ 19. In Harris v. Mayfield Hts. , we discussed two federal circuit court of appeals cases: United States v. $5,000 in U.S. Currency , 40 F.3d 846 (6th Cir.1994), and United States v. $639,558.00 in United States Currency , 955 F.2d 712 (D.C.Cir.1992). In those cases, the courts relied on evidence showing that most U.S. currency is tainted with traces of drugs. In $639,558.00 ,"the court cited the testimony of an expert, * * * who testified that 90% of all cash in the United States contains sufficient quantities of cocaine to alert a trained dog." Harris at ¶ 20. Based on that case law, we refused to consider a drug dog's alert as an indication that money is connected to drug trafficking activity.

{¶ 56} Here, in its opinion and judgment entry, the trial court stated:

The evidence before the Court demonstrates that this was not merely cash in the passenger compartment or even in the vehicle's trunk. Nor was the amount of cash such that it could be reasonably explained under ordinary circumstances. Rather, it was $75,000 in 1-3 packets, (wrapped in plastic, coated with brake grease to mask its odor, and wrapped again in plastic) secreted within two hidden compartments in the vehicle.
The amount of currency, its manner of packaging, and the efforts at deception in both packaging and storage are compelling evidence that the money was used for or derived from illegal activities.
The attendant circumstances of Mr. Katz's activities bolster this conclusion. As Det. Payne recounted, substantial activity associated with drug trafficking was occurring around Mr. Katz [sic] disclaimed all knowledge of the compartments or the currency at the time of the search.
Standing alone, this pattern of conduct strongly indicates drug trafficking. The Court cannot hypothesize a reasonable explanation for creating hidden compartments in a vehicle to store cash or to package the cash to avoid detection by law enforcement. Additionally, the creation of hidden compartments in a leased vehicle is even more suspect since such material alteration voids the terms of the lease.
If there were a reasonable explanation for hiding substantial sums of money in hidden compartments in one's car, Mr. Katz had ample opportunity to establish it as well as to establish his claim to the money. He did neither. Mr. Katz offered conflicting versions of why he was in Cleveland and how he arrived here. First, he told officers he drove here frequently, then he told them he flew in to pick up his car to drive to an auto-auction, and finally it was to retrieve his car that had been damaged during his last visit to a friend in Amherst even though he frequently disclaimed that any body work had been done on the car.
Additionally, the explanation that the vehicle was used as a "car-bank" is incredible. No reasonable person, living in the State with one of the highest theft rates (https://www.nicb.org/newsroom/news-releases/2015-hot~spots-vehicle-theft-report), driving one of the most frequently stolen vehicles (NICB's Hot Wheels: America's 10 Most Stolen Vehicles, https://www.nicb.org/newsroom/news-releases), would seal his life savings in an easily destructible object, much less leave that vehicle with a stranger to perform body work for a period of weeks.

In concluding its opinion, the trial court found "that it is more probable than not, * * * that $75,000 in currency, wrapped in plastic, coated with brake grease to avoid scent detection, then vacuum sealed and placed in hidden compartment [sic] in a vehicle, is either proceeds * * * or an instrumentality * * * intended to facilitate drug trafficking."

{¶ 57} To summarize, the trial court found that the state met its burden based on (1) the amount of the money found, (2) the way the money was wrapped and hidden, (3) the prior activity of Katz's acquaintances observed by HIDTA officers, (4) Katz's inconsistent explanations for being in Cleveland, and (5) Katz's lack of a credible explanation for the money.

{¶ 58} Here, the trial court's conclusion is supported by evidence presented at the forfeiture hearing and delineated in its judgment entry and opinion. The significant amount, location, and packaging of the money found in Katz's vehicle was more indicative of drug trafficking than that in Marmet. While no drugs were ultimately found on Katz or in his vehicle, the surrounding circumstances and observations made by HIDTA officers also strongly indicate a nexus between the money and drug trafficking activity. Accordingly, we find that the trial court's order for forfeiture is supported by competent, credible evidence.

{¶ 59} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and

PATRICIA ANN BLACKMON, J., CONCUR

      At the hearing and during his testimony, Katz contested the amount of money that was in the vehicle. Katz stated that there was $105,000 in the vehicle in 15 bundles, but that only $75,000 "turned up."

      When asked about the packaging of the money at the forfeiture hearing, Katz testified that he coated the money in brake grease "because it deters any odors" and he was "just protecting [his] assets."

      Although the 2014 Toyota Camry was listed on the receipt, the officers released the vehicle to the Toyota leasing company, based on the alterations made to the vehicle-specifically, the hidden compartments-which violated the terms of Katz's lease agreement.

      We will discuss more specific facts related to the appellant's assignments of error and the trial court's opinion more fully in the body of this opinion.

      According to the Emergency Responder Safety Institute, a national advisory group of public safety and transportation experts, an average of 6 to 8 rescue and EMS workers and 10 to 12 police officers are killed while working in or near moving traffic every year. Emergency Management, "Move Over" Laws Aim to Save Emergency Responders' Lives on Highways , http://www.govtech.com/em/safety/ Move-Over-Laws-Aim-Save-Lives-Highways.html (accessed Nov. 8, 2017). Further, according to the National Law Enforcement Officers Memorial Fund, in 2015, 11 officers were struck and killed by traffic. National Law Enforcement Officers Memorial Fund, Preliminary 2015 Law Enforcement Officer Fatalities Report , http://www.nleomf.org/assets/pdfs/reports/2015-EOY-Officer-Fatalities-Report.pdf (accessed Nov. 8, 2017). See also Washington's Top News, Highways are Dangerous for Police Officers, Road Crews , https://wtop.com/maryland/2016/04/ highways-are-dangerous-for-police-officers-road-crews/ (accessed Nov. 8, 2017); Move Over Laws.com, http://www.moveoverlaws.com/ (accessed Nov. 8, 2017) ("According to FBI statistics, law enforcement officers being struck and killed is a major cause of law enforcement deaths[,]" and "Police put their lives in danger each time they leave their patrol cars parked along a busy freeway.").

      In 2016, the General Assembly amended R.C. 2981.05, changing the burden of proof required in civil forfeiture proceedings to clear and convincing evidence. The statute now reads:
      [T]he state may file a civil forfeiture action, in the form of a civil action, against any person who is alleged to have received, retained, possessed, or disposed of proceeds, in an amount exceeding fifteen thousand dollars, knowing or having reasonable cause to believe that the proceeds were allegedly derived from the commission of an offense subject to forfeiture proceedings in violation of section 2927.21 of the Revised Code. * * * The court shall issue a civil forfeiture order if it determines that the prosecutor has proved by clear and convincing evidence that the property is subject to forfeiture under section 2981.02 of the Revised Code, and, after a proportionality review under section 2981.09 of the Revised Code when relevant, the trier of fact specifically describes the extent of the property to be forfeited.


author: EILEEN T. GALLAGHER, P.J.:

text:
    Janice MCCOY, Plaintiff-Appellant v. OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, Defendant-Appellee
    No. 105466
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Janice McCoy, pro se, 3135 Lorain Avenue, Cleveland, Ohio 44113, FOR APPELLANT.
    Mike DeWine, Ohio Attorney General, BY: Theresa Hanna, Assistant Attorney General, Health and Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEES.
    BEFORE: E.T. Gallagher, P.J., Boyle, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, P.J.:

{¶ 1} Appellant, Janice McCoy, appeals from the judgment of the common pleas court that affirmed an administrative appeal decision issued by appellee, Ohio Department of Job and Family Services ("ODJFS"). McCoy raises the following assignments of error for review:

1. ODJFS erred by claiming that the appellant failed to complete four hours of activity on November 30, 2015.
2. ODJFS erred by claiming that the appellant failed to attend an Ohio Works First reassessment for November 30, 2015 to amend her self-sufficiency contract.
3. ODJFS erred by declaring the date of the sanction notice to be December 15, 2015.
4. ODJFS erred by alleging that the appellant did not request a state hearing within the time frame allotted.
5. ODJFS erred by assuming the state hearing requested on December 28, 2015 was for a sanction.
6. ODJFS erred by claiming that the appellant was in receipt of fair healing benefits.
7. ODJFS erred by assuming a state hearing occurred for the request date of December 28, 2015.
8. ODJFS erred by not adhering to the dates on their own notices that they issued.
9. ODJFS erred by insisting that the appellant sign a sanction compliance form when the appellant did not do anything to cause her case to be sanctioned.

{¶ 2} After careful review of the record and relevant case law, we reverse the trial court's judgment and remand for proceedings consistent with this opinion.

I. Procedural and Factual History

{¶ 3} McCoy was a recipient of benefits from the Ohio Works First cash assistance program ("OWF") and the Ohio Food Assistance program ("OFA"). OWF is the financial assistance portion of Ohio's Temporary Assistance to Needy Families program, which provides cash benefits to qualifying families for up to 36 months. The OFA program offers nutrition assistance benefits to low-income individuals and families. R.C. 5101.54.

{¶ 4} In order to receive OWF cash assistance, McCoy was required to sign and comply with a "self-sufficiency contract," which sets forth the rights and responsibilities of the program participants. See R.C. 5107.14(B). McCoy was also required to sign a self-sufficiency plan, which is an individualized assessment of what actions are required for the applicant to remain eligible under the program. Id.

{¶ 5} Relevant to this appeal, McCoy signed a self-sufficiency contract with ODJFS for benefits in May 2015. McCoy's self-sufficiency contract required her to participate in 129 hours per month of Work Experience Program work activities, including post-secondary educational hours for the period of August 2015 through December 2015. The contract informed McCoy that failing to adhere to its terms or the terms of the self-sufficiency plan could result in a sanction to her account.

{¶ 6} OWF sanctions are imposed pursuant to Ohio Adm.Code 5101:1-3-15. For a first sanction, "the county agency shall deny or terminate benefits for one calendar month or until the failure or refusal ceases, whichever is longer." Ohio Adm.Code 5101:1-3-15(C)(1) ; R.C. 5107.16. When an OFW recipient is sanctioned, his or her OFA benefits are also sanctioned. Ohio Adm.Code 5101:4-3-09.

{¶ 7} On March 23, 2016, McCoy requested a state hearing "because she did not receive her [OFW and OFA] benefits in March [2016] and a sanction was placed on [her] case in error."

{¶ 8} On April 27, 2016, a state hearing decision overruled McCoy's state hearing appeal because her request for a state hearing was made outside of the 90-day period provided under Ohio Adm.Code 5101:6-3-02(B)(1). The decision stated, in pertinent part:

In this case, the Agency proposed sanctions against McCoy and mailed notices on 12-15-16. [McCoy] requested a state hearing on these negative actions on 03-23-16. The 90th day would be 03-14-16. Therefore, McCoy is out of her 90 days to request a hearing on these actions and this Hearing Officer cannot make a decision. The [food assistance] issue is on a sanction and not on the current level of benefits.

{¶ 9} Thereafter, McCoy filed an administrative appeal from the state hearing decision, arguing:

ODJFS made several mistakes involving my case. I submitted documented evidence in the email I sent to request a state hearing as well as faxed evidence to the request hearing officer at the hearing in which I don't think was taken into consideration.

{¶ 10} On May 6, 2016, an administrative appeal decision was issued affirming the state hearing decision. The decision found that McCoy's state hearing request was untimely, stating:

The Agency issued sanction notices December 15, 2016 and McCoy timely requested a state hearing and received fair hearing benefits. McCoy then withdrew from the hearing and the Agency re-imposed the sanction. A first occurrence sanction was served March 2016. McCoy requested another state hearing on March 23, 2016.
Ohio Adm. Code 5101: 6-3-02(B) provides for 90 days to request a state hearing in most cases. See also 7 CFR 273.15.
The sanction notices at issue were issued December 15, 201[5] and the 90th day to request a state hearing was March 14, 2016 and the instant request for a hearing was March 23, 2016.
The hearing decision determined that McCoy's hearing request was untimely and the appeal was overruled on that basis. We can find no grounds for reversal per Ohio Adm. Code 5101:6-8-01(C) and (I).

{¶ 11} McCoy appealed the administrative appeal decision to the Cuyahoga County Court of Common Pleas pursuant to R.C. 119.12 and R.C. 5101.35. On January 17, 2017, the trial court affirmed the administrative appeal decision, stating, in relevant part:

After careful review of McCoy's brief, appellee's brief, McCoy's reply brief and the accompanying certified record, the court finds that appellee's decision is supported by reliable, probative evidence, and is in accordance with law.

{¶ 12} McCoy now appeals from the trial court's judgment.

II. Law and Analysis

{¶ 13} Collectively, McCoy argues in her assigned errors that the administrative appeal decision is not supported by reliable, probative, and substantial evidence and is not in accordance with law. Thus, McCoy contends the trial court committed reversible error by affirming the administrative appeal decision.

{¶ 14} R.C. 5101.35(A)(2) and (E) provide that an applicant, participant, or recipient of assistance from a family services program who disagrees with an administrative decision of the director of job and family services may appeal that decision to the court of common pleas, pursuant to R.C. 119.12. Haghighi v. Moody , 152 Ohio App.3d 600, 2003-Ohio-2203, 789 N.E.2d 673 (1st Dist.).

{¶ 15} In an administrative appeal under R.C. 119.12, a trial court must affirm the agency's decision if it is supported by reliable, probative and substantial evidence, and is in accordance with the law. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993) ; In re Williams , 60 Ohio St.3d 85, 86, 573 N.E.2d 638 (1991).

{¶ 16} In reviewing the lower court's decision as to the evidentiary basis for the agency's order, appellate review is limited to whether the trial court abused its discretion in rendering its decision. Pons at 621, 614 N.E.2d 748. An abuse of discretion occurs when the court's judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). With respect to purely legal questions, such as the construction of a statute or constitutional provision, we exercise de novo review. Haynam v. Ohio State Bd. of Edn. , 6th Dist. Lucas No. L-1101100, 2011-Ohio-6499, 2011 WL 6365144, ¶ 9, citing Washington Cty. Home v. Ohio Dept. of Health , 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011, ¶ 25 (4th Dist.).

{¶ 17} Chapter 5101 of the Ohio Administrative Code governs the process by which a party may request a state hearing. A "request for a state hearing" is defined as a clear expression, by the individual or authorized representative, to the effect that he or she wishes to appeal a decision or wants the opportunity to present his or her case to a higher authority. The request may be either made orally or submitted written or electronically. Ohio Adm.Code 5101:6-3-02(A).

{¶ 18} Pursuant to Ohio Adm.Code 5101:6-3-02(B)(1), "[t]he individual shall be allowed ninety calendar days to request a hearing on any action or inaction." "The ninety-day period begins on the day after the date the notice of action is mailed. The date of the hearing request is the date it is received by either the state or local agency." Ohio Adm.Code 5101:6-3-02(B)(2)

{¶ 19} On appeal, McCoy maintains that she first received notice in a letter dated January 14, 2016. Thus, she argues that she had until April 13, 2016, to request a state hearing. In contrast, the agency contends that McCoy received the sanction notification letter on December 16, 2015, and that she untimely filed her request for a state hearing approximately one week after the 90-day period expired under Ohio Adm.Code 5101:6-3-02(B)(1).

{¶ 20} After careful review of the complete record submitted pursuant to R.C. 5101.35, we find the trial court abused its discretion in finding that the administrative appeal decision was supported by reliable, probative evidence. As stated, the state hearing decision and the administrative appeal decision each concluded that McCoy's request for a state hearing was untimely. Those decisions stated that the agency issued a sanction notice to McCoy on December 16, 2015, "per the agency's Client Notice History Screen."

{¶ 21} Upon review, the Client Notice History Screen referenced in the state hearing and administrative appeal decisions, this court is unable to determine whether McCoy received a notice of the first-occurrence sanctions on December 16, 2015 as the agency claims. The Client Notice History Screen reflects that McCoy received 14 notices from the agency between October 23, 2015 and February 10, 2016. With respect to December 16, 2015, the screen reflects that McCoy received notices from the agency that were classified as "Denial" and "Reduction."

{¶ 22} Significantly, however, the Client Notice History Screen does not specifically indicate when the first-occurrence sanction notification was sent to McCoy. In fact, the only reference to the first-occurrence sanction is found on the "Notice History Reason Code Screen" relating to a notification mailed to McCoy on January 14, 2016. That screen, found at page 84 of the administrative record, reflects that the "Reason Code" for the notification was:

628-1st Failure to Comply with SSC-Recipient Sanction. For a first failure you are not eligible for one month. Information below tells you how you failed and what must be done to end the sanction. The following people failed to comply: Janice McCoy.

{¶ 23} The record further contains a "Notice History Reason Code Screen" for a notification mailed on February 10, 2016. That notification reflects that the agency took a "No Change" action because "Reason Code: 455-Previous Sanction Still in Effect." The notification does not reference when the sanction was initially imposed.

{¶ 24} Having reviewed the administrative record in its entirety, we can not ascertain from this record, with certainty, whether McCoy received notice of her first-occurrence sanction on December 16, 2015 as ODJFS suggests. The record does not contain copies of the subject notification letters and the only information available to this court is a description of the actions taken by the agency on December 16, 2015, that indicates that the agency denied McCoy's OWF benefits and reduced her food stamp benefits. There is no reference to the imposition of a first-occurrence sanction.

{¶ 25} In cases such as this, where the merits of an administrative appeal are not considered based on an alleged procedural defect, we believe the record must unambiguously set forth the basis for such a conclusion without requiring inferences to be made. It is plausible, and perhaps probable, that the "denial" and "reduction" notification sent to McCoy on December 16, 2015, contained language that informed McCoy of the agency's decision to impose sanctions and/or referenced its authority to do so pursuant to Ohio Adm. Code 5101-1-3- 15. However, we cannot uphold judgments based on probabilities. Here, the subject sanction notice is not in the record and a print-out of McCoy's Client Notice History Screen is vague and insufficient. Neither this court, nor the trial court, should be asked to interpret code numbers and abbreviations used in the agency's internal database when reviewing an agency decision.

{¶ 26} Without supporting documentary evidence, we find that the trial court abused its discretion in determining that the agency's conclusion that McCoy's request for a state hearing was untimely was supported by "reliable, probative evidence."

{¶ 27} Accordingly, we sustain McCoy's assigned errors.

{¶ 28} Judgment reversed and remanded for further proceedings.

MARY J. BOYLE, J., and ANITA LASTER MAYS, J., CONCUR