author: Harsha, J.

text:
    Alysha CONNER , Plaintiff-Appellant, v. Leonard CONNER, et al., Defendants-Appellees.
    No. 17CA16
    Court of Appeals of Ohio, Fourth District, Gallia County.
    RELEASED: June 20, 2018
    Tracy S. Comisford, Granville, Ohio, for appellant.
    Steven L. Story, Pomeroy, Ohio, for appellee Leonard Conner.
    DECISION AND JUDGMENT ENTRY

      Appellant is also referred to as "Alicia" in various filings in the trial court and this appeal.

   Harsha, J.

{¶ 1} The Gallia County Municipal Court found that Leonard and Rose Conner (landlords) constructively evicted Alysha Conner (Alysha) from a leased premises and awarded her damages, but not attorney fees. Alysha asserts that the provisions of the Ohio Revised Code mandate an award of attorney fees here.

{¶ 2} Based on the plain language of R.C. 5321.15(C), as well as a consideration of persuasive case law interpreting it, we agree that an award was mandatory upon the court's finding that the landlords wrongfully evicted her under R.C. 5321.15(A). We reverse the judgment of the trial court and remand the cause for a determination of the amount of reasonable attorney fees due her.

I. FACTS

{¶ 3} In November 2015, Alysha filed a complaint alleging claims of constructive eviction/breach of the covenant of quiet enjoyment, assault and battery, conversion, trespass, and civil conspiracy to commit trespass against her landlords. Alysha alleged that Rose Conner owned a mobile home located on Leonard Conner's land. In April 2014, she began living at the home with Rose Conner's consent after subsequently reaching an agreement that Alysha would pay the trailer's finance payment. She claimed that the landlords forced her to move from the home after they had utilities shut off. Alysha requested compensatory and punitive damages, as well as an award of attorney fees. The landlords filed an answer denying Alysha's allegations and set forth a counterclaim for damages.

{¶ 4} After a bench trial the court found by a preponderance of the evidence that the landlords constructively evicted Alysha from the leased premises on or about August 2, 2014, about two weeks before she was supposed to move out. The court concluded that the landlords were jointly and severally liable to Alysha for damages on her first claim for relief and ordered it be submitted initially to mediation. The court also found in favor of the landlords on Alysha's remaining claims and for Alysha on the landlords' counterclaim.

{¶ 5} After mediation failed to resolve the case, the parties submitted post-trial briefs on the issue of damages. The trial court entered a judgment awarding Alysha "nominal inferred damages" of $100 for the constructive eviction, and special damages of $1,000, plus post-judgment interest. The court did not award Alysha any attorney fees.

II. ASSIGNMENT OF ERROR

{¶ 6} Alysha assigns the following error for our review:

THE TRIAL COURT ERRED IN FAILING TO AWARD TO THE APPELLANT HER REASONABLE ATTORNEY FEES INCURRED TO SUCCESSFULLY PROSECUTE AND [sic] ACTION PURSUANT TO R.C. 5321.15.

III. STANDARD OF REVIEW AND GENERAL PRINCIPLES

{¶ 7} The dispositive issue is whether R.C. 5321.15(C) requires an award of reasonable attorney fees once a landlord is found under subdivision (A) to have wrongfully excluded a tenant from residential premises. The interpretation of this statute presents a question of law that we review de novo. See Stewart v. Vivian , 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 23 ; Wray v. Gahm Properties, Ltd. , 2018-Ohio-50, 103 N.E.3d 148, ¶ 8 (4th Dist.) ("This case also involves statutory construction, which raises a question of law that we review de novo").

{¶ 8} Our primary concern when construing statutes is legislative intent. State v. Wolfe , 2017-Ohio-6876, 83 N.E.3d 956, ¶ 16 (4th Dist.), citing State v. J.M. , 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642. In determining that intent we first look to the plain language of the statute. Id. Terms that are undefined by statute are given their plain, common, and ordinary meaning. State v. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 46, citing R.C. 1.42 ; State v. Erskine , 2015-Ohio-710, 29 N.E.3d 272, ¶ 26 (4th Dist.). When a statute's language is clear and unambiguous, we apply it as written without interpreting or construing it. Wolfe at ¶ 16. "It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation." Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11.

IV. LEGAL ANALYSIS

{¶ 9} Alysha asserts that R.C. 5321.15(C) applies and requires the trial court to award her attorney fees.

{¶ 10} In 1974, the General Assembly enacted R.C. Chapter 5321, the Ohio Landlords and Tenants Act, to clarify and broaden tenants' common-law rights. See Wallace v. Golden Comb, Inc. , 2013-Ohio-5320, 4 N.E.3d 445, ¶ 10 (8th Dist.) ; Bowen v. Columbus Airport Ltd. Partnership , 10th Dist. Franklin No. 07AP-108, 2008-Ohio-763, 2008 WL 499353, ¶ 25 ; Maseck v. Lindav Properties , 1st Dist. Hamilton No. C-050528, 2006-Ohio-3721, 2006 WL 2034591, ¶ 5. "Included in the Act are provisions permitting the court to award attorneys' fees to a party who succeeds in vindicating a right protected by the Act."See Drake v. Menczer , 67 Ohio App.2d 122, 123, 425 N.E.2d 961 (8th Dist.1980).

{¶ 11} R.C. Chapter 5321 authorizes the award of attorney fees to a tenant for a landlord's retaliatory conduct ( R.C. 5321.02(B) ), unlawful entry ( R.C. 5321.04(B) ), wrongful eviction ( R.C. 5321.15(C) ), or wrongful retention of a security deposit ( R.C. 5321.16(C) ). It also authorizes the award of attorney fees to a landlord for a tenant's breach of a statutory obligation ( R.C. 5321.05(C)(1) ) or abuse of rent withholding ( R.C. 5321.09(D) ).

{¶ 12} Alysha claims entitlement to an award of reasonable attorney fees in her successful civil action against the landlords based on R.C. 5321.15, which provides:

(A) No landlord of residential premises shall initiate any act, including termination of utilities or services, exclusion from the premises , or threat of any unlawful act, against a tenant , or a tenant whose right to possession has terminated, for the purpose of recovering possession of residential premises, other than as provided in Chapters 1923., 5303., and 5321. of the Revised Code.
* * *
(C) A landlord who violates this section is liable in a civil action for all damages caused to a tenant , or to a tenant whose right to possession has terminated, together with reasonable attorneys fees.

(Emphasis added.)

{¶ 13} It is uncontroverted that the landlords violated R.C. 5321.15(A) by constructively evicting Alysha from the residential premises. At issue is whether Alysha was then automatically entitled to an award of reasonable attorney fees under R.C. 5321.15(C).

{¶ 14} The language of R.C. 5321.15(C) is plain and unambiguous-a landlord who violates R.C. 5321.15(A) and/or (B)"is liable in a civil action for all damages caused to a tenant * * * together with reasonable attorneys fees." Therefore, after the trial court concluded that the landlords had violated R.C. 5321.15(A) by constructively evicting her, she was entitled to an award of "all damages caused," as well as an award of "reasonable attorneys fees." Nothing in this language commits the award of attorney fees to the discretion of the trial court; it is a mandatory award, although the amount of "reasonable" attorney fees is within the court's discretion.

{¶ 15} This conclusion is consistent with the view of other appellate courts. See Gaitwae v. Mays , 2d Dist. Montgomery No. 25083, 2012-Ohio-4749, 2012 WL 4859073, ¶ 10 ("Several Ohio appellate courts have found that when a landlord violates R.C. 5321.15(A) or (B), R.C. 5321.15(C) mandates the award of reasonable attorney fees"); Crenshaw v. Rowland , 196 Ohio App.3d 717, 2011-Ohio-5942, 965 N.E.2d 341, ¶ 13 (6th Dist.), quoting Thomas v. Papadelis , 16 Ohio App.3d 359, 360, 476 N.E.2d 726 (9th Dist.1984) (" 'Pursuant to R.C. 5321.15(C), a landlord is liable for the necessary legal fees incurred by a tenant who seeks legal redress for a landlord's violation of R.C. Chapter 5321' ").

{¶ 16} Nonetheless, the landlords counter by arguing that the entitlement to an award of attorney fees under R.C. 5321.15(C) is within the discretion of the trial court, and that in the absence of a transcript of the bench trial, we must presume that the court exercised that discretion properly. But a transcript of the bench trial is unnecessary here, where the record establishes that the trial court found that the landlords violated R.C. 5321.15(A) by constructively evicting Alysha but did not award her attorney fees under R.C. 5321.15(C). But, they cite Drake , 67 Ohio App.2d 122, 425 N.E.2d 961, Lewis v. Romans , 70 Ohio App.2d 7, 433 N.E.2d 622 (8th Dist.1980), Yarber v. Cooper , 61 Ohio App.3d 609, 573 N.E.2d 713 (6th Dist.1988), Stark v. Weimer , 6th Dist. Huron No. H-98-031, 1999 WL 253451 (Apr. 30, 1999), and Lewis v. Urquhart , 12th Dist. Butler No. CA95-07-118, 1996 WL 103770 (Mar. 11, 1996), in support of their argument.

{¶ 17} Some of these cases are distinguishable because they involved other attorney-fee provisions of R.C. Chapter 5321, which employ different language than at issue here in R.C. 5321.15(C). See Drake (interpreting R.C. 5321.02(B), which provides that if a landlord commits a prohibited retaliatory act, "the tenant may recover from the landlord any actual damages together with reasonable attorneys' fees"); Yarber (interpreting R.C. 5321.02(B) and 5321.04(B), which provides that if a landlord makes an entry in violation of R.C. 5321.04(A)(8) or commits other specified violations, "the tenant may recover actual damages resulting from the entry or demands * * * and obtain a judgment for reasonable attorney's fees").

{¶ 18} Others have been implicitly overruled by a later opinion by the same court of appeals. See Crenshaw , 196 Ohio App.3d 717, 2011-Ohio-5942, 965 N.E.2d 341, implicitly overruling Yarber and Stark .

{¶ 19} Finally, although some of the remaining cases, as well as others we have discovered, did involve R.C. 5321.15(C), they erroneously relied on earlier cases interpreting the other attorney-fee provisions in reaching their holdings that entitlement to the award is within the discretion of the trial court. See Lewis , 70 Ohio App.2d 7, 9, 433 N.E.2d 622, citing Drake , 67 Ohio App.2d 122, 125, 425 N.E.2d 961 ; Lewis , 1996 WL 103770, at *2, citing Meacham v. Miller , 79 Ohio App.3d 35, 42, 606 N.E.2d 996 (4th Dist.1992) (interpreting R.C. 5321.04, and Lewis , 70 Ohio App.2d at 9, 433 N.E.2d 622 ); and Crawford v. Tivener , 5th Dist. Knox No. 15CA22, 2016-Ohio-6982, 2016 WL 5638379, ¶ 58, citing Meacham and Lewis .

{¶ 20} In fact, even the cases that interpreted the other attorney-fee provisions of R.C. Chapter 5321 to hold that entitlement to an award of the fees is discretionary are of questionable precedential value in light of Smith v. Padgett , 32 Ohio St.3d 344, 513 N.E.2d 737 (1987). In Smith at 349, 513 N.E.2d 737, the Supreme Court of Ohio held that "under R.C. 5321.16(B) and (C), a landlord who wrongfully withholds a portion of a tenant's security deposit is liable for damages equal to twice the amount wrongfully withheld and for reasonable attorney fees. Such liability is mandatory * * *." The language of R.C. 5321.16(C), which states that if a landlord wrongfully withholds a security deposit, "the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees." This language is similar to the language in R.C. 5321.02(B) and 5321.04(B), calling into question the viability of the cases construing them to be discretionary.

{¶ 21} Based on the plain language of R.C. 5321.15(C), as well as an analysis of the most persuasive case law interpreting it, we conclude that the trial court erred by failing to award Alysha attorney fees after determining that the landlords had violated R.C. 5321.15(A) by constructively evicting her. " '[W]hile the amount of attorney fees due a successful tenant in an R.C. 5321.15 action is a matter left to the trial court's discretion, an award of reasonable fees is mandated by R.C. 5321.15(C).' " Gaitawe , 2012-Ohio-4749, at ¶ 11, quoting Crenshaw , 196 Ohio App.3d 717, 2011-Ohio-5942, 965 N.E.2d 341, at ¶ 15.

{¶ 22} We sustain Alysha's assignment of error.

V. CONCLUSION

{¶ 23} The trial court erred by failing to award reasonable attorney fees to Alysha after it found that she had been constructively evicted by her landlords, and awarded her damages. Having sustained her assignment of error, we reverse the judgment of the trial court, and remand the cause to that court for a determination of reasonable attorney fees due her.

JUDGMENT REVERSED AND CAUSE REMANDED.

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


source: Caselaw Access Project

author: S. POWELL, P.J.

license: Public Domain

text:
    OHIO DISTRICT COUNCIL, INC. OF THE ASSEMBLIES OF GOD, et al., Plaintiffs-Appellants/Cross-Appellees, v. Patricia M. SPEELMAN, et al., Defendants-Appellees/Cross-Appellants.
    NOS. CA2018-02-025 CA2018-02-031
    Court of Appeals of Ohio, Twelfth District, Butler County.
    October 29, 2018
    Taft Stettinius & Hollister LLP, Donald C. Brey, Celia M. Schnupp, 65 East State Street, Suite 1000, Columbus, OH 43215, for plaintiffs-appellants/cross-appellees, Ohio District Council, Inc. of the Assemblies of God and Christian Assembly of God
    Law Office of Bill W. Cummins, Bill W. Cummins, 5815 Winged Foot Drive, West Chester, Ohio 45069, for defendants-appellees/cross-appellants, S. Mathew Morgan, Dennis Speelman, Fellowship of Praise Church of God, Inc., and defendant-appellee, Patricia Speelman
    Eric B. Hershberger, 862 Bluffview Drive, Columbus, Ohio 43235, for defendants-appellees/cross-appellants, S. Mathew Morgan, Dennis Speelman, Fellowship of Praise Church of God, Inc., and defendant-appellee, Patricia Speelman
   S. POWELL, P.J.

{¶ 1} Plaintiffs-appellants, Ohio District Council, Inc. of the Assemblies of God and Christian Assembly of God, appeal from the decision of the Butler County Court of Common Pleas that rendered judgment in their favor and against defendants-appellees, Dennis and Patricia Speelman, Samuel Morgan, and Fellowship of Praise Church of God, Inc. The defendants cross-appeal. For the reasons described below this court reverses the lower court's decision with respect to damages and remands for further proceedings.

{¶ 2} Christian Assembly of God ("Christian Assembly") was a church located in Middletown, Ohio and was established in 1968. In 1972, Christian Assembly applied for and was granted affiliation with Assemblies of God ("AOG"), a national, hierarchical church organization. Ohio District Council, Inc. of the Assemblies of God ("ODC") is a subordinate organization of AOG. ODC is comprised of Assemblies of God churches in Ohio.

{¶ 3} Christian Assembly was once a thriving church; it underwent a physical expansion in the early 1980s because of a growing congregation. However, by 2005, the church was in serious decline. Its pastor resigned and most of the congregation left. The remaining church members sought a new pastor and eventually called defendant Dennis Speelman ("Speelman") to pastor and to improve the church's health.

{¶ 4} Speelman and his wife, defendant Patricia Speelman, acted as co-pastors at the church from 2006 through 2011. However, membership at Christian Assembly continued to decline. In 2010, Speelman and Patricia met with defendant Samuel Morgan, the pastor of defendant Fellowship of Praise Church of God, Inc. ("FOP"). Morgan had demonstrated success in church development; he had overseen FOP grow from 12 members to over 900.

{¶ 5} The Speelmans and Morgan discussed Christian Assembly disaffiliating with AOG and merging with FOP. Eventually, nine voting members of Christian Assembly's board, which included both Speelmans, voted unanimously to disaffiliate and merge with FOP. The board further voted to move day-to-day operations of Christian Assembly to FOP and transfer Christian Assembly's real and personal property to FOP.

{¶ 6} Speelman and Morgan then entered into a "merger agreement" on behalf of their respective churches. Christian Assembly and FOP filed a certificate of merger with the Ohio Secretary of State. The parties recorded a deed conveying Christian Assembly's real property, i.e., the church premises, to FOP.

{¶ 7} Speelman and Christian Assembly's board notified ODC of the disaffiliation. ODC disputed Christian Assembly's disaffiliation and passed a resolution finding that Speelman and the remaining voting members of Christian Assembly had breached ODC's constitution by disaffiliating and transferring Christian Assembly's property without its approval. Essentially, ODC claimed that the actions taken by Speelman and Christian Assembly's board were void and the transfer of Christian Assembly's real and personal property to FOP was unlawful.

{¶ 8} ODC served an eviction notice at Christian Assembly's church premises and then, in 2011, filed this action asking the lower court to declare that the defendants' actions with respect to the disaffiliation, merger, and transfer of property were void. ODC also asserted claims for conversion, fraud, and conspiracy. Finally, ODC pled a claim for forcible entry and detainer and for a writ of restitution of the church premises.

{¶ 9} In 2014, the matter proceeded to a bench trial. ODC introduced the relevant constitutions and by-laws of the AOG, ODC, and Christian Assembly. ODC argued that these documents established that the defendants' actions in the merger and transfer of property exceeded the defendants' authority and that Christian Assembly's property became ODC's because of a contingency set forth in ODC's constitution. Morgan, Speelman, and several representatives of ODC testified. Morgan testified that FOP had been using the church premises since the disaffiliation and the congregation had grown to approximately 150 worshipers.

{¶ 10} In 2015, the lower court issued a decision granting judgment in favor of the defendants. The court found that Christian Assembly had the ability to merge with FOP and alienate its property based on its own corporate powers. The court declined to resolve ODC's claim that its constitution and by-laws made it sovereign over Christian Assembly. The court reasoned that this issue was a matter of religious concern not subject to review by a secular court. Accordingly, the court granted judgment in favor of Christian Assembly on ODC's claims.

{¶ 11} ODC appealed. This court sustained the appeal, finding that the issues raised in ODC's complaint did not require the lower court to resolve ecclesiastical matters. Ohio Dist. Council, Inc. of the Assemblies of God v. Speelman , 12th Dist. Butler, 2016-Ohio-751, 47 N.E.3d 954, ¶ 31. We reversed and remanded with instructions that the lower court construe the effect of the relevant AOG and ODC constitutions and by-laws. Id. at ¶ 40.

{¶ 12} The lower court then issued a second decision finding that Christian Assembly was bound by ODC's constitution and that control of Christian Assembly and title to its property were held by ODC. Accordingly, the court found that the defendants' actions merging Christian Assembly with FOP were void, including the transfer of property.

{¶ 13} The court further found in favor of ODC on its claims of conversion against defendants Speelman, Morgan, and FOP, but not against Patricia Speelman. With respect to damages for conversion, the court found that ODC failed to prove damages with reasonable certainty and awarded nominal damages of $100. The court dismissed ODC's claims of fraud and conspiracy, finding that ODC failed to prove all the necessary elements of those claims. Finally, the court granted ODC's request for a writ of restitution for the church premises.

{¶ 14} ODC appeals, raising four assignments of error. The defendants raise one assignment of error in their cross-appeal, which this court addresses first.

{¶ 15} Cross-assignment of Error No. 1:

{¶ 16} THE TRIAL COURT ERRED BY FINDING ANY DEFENDANT CONVERTED THE PROPERTY.

{¶ 17} The defendants argue that the lower court erred in finding Speelman and Morgan liable for conversion because neither personally received any property in the merger of the two churches, i.e., only FOP received Christian Assembly's property. The defendants further argue that conversion was legally impossible because real property cannot be the subject of a conversion action.

{¶ 18} This assignment of error presents both a legal argument and a challenge to the evidence in support of the court's finding of liability. This court reviews legal issues de novo. Arbors E. RE, L.L.C. v. Franklin Cty. Bd. of Revision , 153 Ohio St.3d 41, 2018-Ohio-1611, 100 N.E.3d 379, ¶ 13. Challenges to the evidence supporting a finding of liability in a civil case are subject to a manifest weight of the evidence analysis, which concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. A manifest weight analysis requires this court to weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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. Id. at ¶ 20.

{¶ 19} Conversion is "the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights." McIntosh v. Alum Cliff Industries , 12th Dist. Butler No. CA2001-03-049, 2001 WL 1568803, *1 (Dec. 10, 2001), quoting Joyce v. Gen. Motors Corp. , 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990). The essential elements of conversion are: "(1) plaintiff's ownership or interest in the property; (2) plaintiff's actual or constructive possession or immediate right to possession of the property; (3) defendant's wrongful interference with plaintiff's property rights; and (4) damages." Preston Trucking Co., Inc., Frontier Div. v. Lindamood , 12th Dist. Warren No. CA86-12-076, 1987 WL 18758, *2 (Oct. 19, 1987).

{¶ 20} The lower court could conclude that Speelman and Morgan were liable for conversion despite FOP being the only legal recipient of property in the merger. A conversion claim does not require a plaintiff to prove that a defendant was enriched. Instead, the plaintiff must show that the defendant wrongfully interfered with the plaintiff's property rights. In this regard, the record is undisputed that Morgan and Speelman directed the merger of and transfer of property between Christian Assembly and FOP, did so without ODC's consent, and continued to take acts in furtherance of the merger despite knowledge of ODC's disapproval. Thus, some competent and credible evidence supports the court's finding of liability against Morgan and Speelman for conversion.

{¶ 21} Next, the defendants argue that they could not be found liable for conversion with respect to the transfer of Christian Assembly's church premises because real property cannot be the subject of a conversion claim. The implication of the defendants' argument is that ODC should have pled a cause of action in trespass as opposed to conversion. The defendants did not raise this argument in the proceedings below.

{¶ 22} An action for conversion lies only with respect to personal property; real estate is not subject to conversion. 18 Ohio Jurisprudence 3d, Conversion, Section 4, at 345 (2001), citing 18 Am. Jur. 2d, Conversion, Section 19 ; accord Beavers v. PNC Bank, N.A. , 8th Dist. Cuyahoga No. 99773, 2013-Ohio-5318, 2013 WL 6408727, ¶ 30. ODC did not expressly plead an action in trespass. But this court finds no error.

{¶ 23} Civ.R. 8 requires notice pleading. A plaintiff must concisely set forth sufficient operative facts in a claim to give fair notice of the nature of the action. Civ.R. 8(A), (E). Here, ODC served an eviction notice and then filed a complaint that alleged claims of conspiracy, fraud, and conversion, which accused the defendants of "fraudulently and knowingly converting property and assets," including transferring the church premises to FOP. The complaint further alleged a claim for forcible entry and detainer and requested a writ of restitution of the premises. This court finds that the complaint stated sufficient operative facts such that the defendants were notified that ODC was asserting a claim in the nature of civil trespass to the church premises. Moreover, the fact that the defendants waited seven years to raise this issue belies any potential prejudice. This court overrules the defendants' cross-assignment of error.

{¶ 24} This court addresses ODC's first two assignments of error collectively.

{¶ 25} Assignment of Error No. 1:

{¶ 26} THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE AMOUNT OF DAMAGES MUST BE PROVEN WITH CERTAINTY.

{¶ 27} Assignment of Error No. 2:

{¶ 28} THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT THERE WAS NO EVIDENCE OF DAMAGES FOR THE DEPRIVATION OF THE PROPERTY.

{¶ 29} In its first and second assignments of error, ODC argues that the court improperly subjected it to a heightened standard of proof for damages, i.e., the court required it to prove damages to a "mathematical certainty" although it was only required to prove damages to a reasonable certainty. ODC further argues that the court abused its discretion by not considering the evidence introduced at trial regarding ODC's loss of use of the church premises.

{¶ 30} This court reviews the lower court's award of damages for an abuse of discretion. Henry v. Richardson , 193 Ohio App.3d 375, 2011-Ohio-2098, 951 N.E.2d 1123, ¶ 8 (12th Dist.). However, the issue of whether the lower court applied the correct measure of and burden of proof for damages is a legal matter that this court reviews de novo.

{¶ 31} The measure of damages in a case alleging injury to real property "is the reasonable cost of restoration plus reasonable value of loss of use unless the cost of restoration exceeds the difference in market value before and after the damage, in which case such difference becomes the measure." Adams v. Riley , 12th Dist. Butler No. CA84-08-086, 1985 WL 7759, *3 (Oct. 15, 1985). However, this is not an "arbitrary or exact formula to be applied in every case without regard to whether its application would compensate the injured party fully for losses which are the proximate result of the wrongdoer's conduct." Id. , citing Adcock v. Rollins Protective Servs. Co. , 1 Ohio App.3d 160, 440 N.E.2d 548 (1st Dist.1981) ; and Thatcher v. Lane Constr. Co. , 21 Ohio App.2d 41, 254 N.E.2d 703 (1970). "It is a fundamental principle of the law of damages that an injured party should recover an amount sufficient to compensate him fully for losses which are the result of a wrongdoer's conduct." Thatcher at 44, 254 N.E.2d 703, quoting 69 A. L. R. 2d 1335, 1340.

{¶ 32} ODC submitted evidence concerning the value of the church premises but did not submit any evidence concerning restoration costs. Accordingly, the cost of restoration is not a damage available to ODC.

{¶ 33} With respect to loss of use, ODC's assistant superintendent, Jim Palmer, testified that it would cost ODC approximately $7,700 per month to rent church premises comparable to those at Christian Assembly. He based this claim on his knowledge of the rental costs at other AOG church properties in Washington Courthouse and Fremont, Ohio.

{¶ 34} Morgan made an admission in his testimony related to loss of use evidence. Morgan testified that he had, on FOP's behalf, researched renting a church in Butler County. Morgan found that it would cost $1,500 per month, "on the low end," to rent a church in West Chester, Ohio. There was also testimony and documentary evidence presented at trial as to the fair market value of the church premises as well as the costs paid by FOP for maintenance of the premises during the holdover period.

{¶ 35} In its decision on loss of use damages, the lower court announced that it would afford Palmer's testimony no weight. The court explained that the two churches Palmer used for comparison were "well outside" the Middletown real estate market and that Palmer did not testify that the buildings were comparable. The court did not discuss Morgan's testimony or other relevant evidence presented at trial. Based on these findings, the court found that ODC failed to prove damages with reasonable certainty and awarded $100 in nominal damages.

{¶ 36} "The uncertainty which prevents a recovery of damages is generally uncertainty as to the fact of the damages, not the amount." Bemmes v. Pub. Emps. Retirement Sys. , 102 Ohio App.3d 782, 789, 658 N.E.2d 31 (12th Dist.1995), citing 22 Am. Jur. 2d, Damages, Section 25 (1988, Supp.1995). "Where it is certain that damages have resulted, mere uncertainty as to the amount will not preclude the right of recovery." Id. As to the amount of damages, only a reasonable certainty is required, which has been defined as "that degree of certainty of which the nature of the case admits." Id. citing 22 Am. Jur.2d, Damages, Section 23 (1988, Supp.1995). Damages are not uncertain merely because they cannot be calculated with absolute exactness; it is sufficient if the evidence affords a reasonable basis for computing damages, even if the result is only an approximation. TJX Cos., Inc. v. Hall , 183 Ohio App.3d 236, 2009-Ohio-3372, 916 N.E.2d 862, ¶ 32 (8th Dist.). "Reasonable certainty" in tort cases requires less proof than in a breach of contract case. See Textron Fin. Corp. v. Nationwide Mut. Ins. Co. , 115 Ohio App.3d 137, 144, 684 N.E.2d 1261 (9th Dist.1996).

{¶ 37} This court has held that a trial court abuses its discretion when it awards nominal damages when credible evidence of damages is presented at trial. West v. Shattuck , 12th Dist. Clinton No. CA86-02-003, 1986 WL 13435 (Dec. 1, 1986). The appellant, a mobile home owner, hired the appellee, a mover, to transport her mobile home. Id. at *1. During transport, the mover seriously damaged the home. Id. at *1. At trial, the owner testified as to her belief that the home was worth $6,500 to $7,000 and was rendered valueless by the damage. Id. at *1. The owner also called her insurance agent as an expert witness, who provided a similar estimate as to the home's worth before and after the damage. Id. at *1-2. The mover presented no evidence of the value of the home. Id. at *1.

{¶ 38} The lower court held that the owner had not put forth credible evidence as to the market value of the mobile home before the damage occurred because she did not have the qualifications to testify as to the value of mobile homes. Id. at *1. The lower court also discredited the insurance agent's testimony because the agent had not physical inspected the home prior to the damage. Id. at *1-2.

{¶ 39} This court reversed, noting that the owner was qualified to offer an opinion as to the value of her own home under Ohio law and that the court erred in ignoring the evidence presented by the insurance agent. Id. at *1-2. This court noted that " '[o]nce a right to damages has been established, such right will not be denied because the damages are incapable of being calculated with mathematical certainty.' " Id. at *2, quoting Pennant Moldings, Inc. v. C & J Trucking Co. , 11 Ohio App.3d 248, 252, 464 N.E.2d 175 (12th Dist.1983).

{¶ 40} Similarly, the lower court's decision to award nominal damages for ODC's loss of use of an approximate 18,000 square foot church facility for seven years is unreasonable given that the record contains some credible and probative evidence of loss of use by which the court could arrive at a damage award that would be within its discretion and approximate damages to a reasonable certainty. Palmer testified at length concerning his background with ODC and was qualified to offer an opinion as to rents based on his involvement with other AOG churches. Palmer's testimony as to comparable rents had a sufficient basis to permit an informed opinion; he explained that the two AOG churches were renting space in similar rural, farming areas, and that he had based his price on the average rent per square foot. Morgan testified to "quite a bit" of knowledge of the church rental market in nearby West Chester and many other counties. Thus, the court had a baseline and range of rental values from which it could begin to determine a damage award. ODC also introduced the testimony and written opinion of its appraiser, who offered an opinion as to the value of the property, which was $325,000. The appraisal sets forth significant detail concerning the condition of the church, which the lower court could take into consideration in fashioning an appropriate award. The defendants submitted detailed records concerning the ongoing maintenance costs of the property.

{¶ 41} While not mathematically precise, an award of damages derived from this evidence would approximate ODC's damages more precisely than a nominal award of $100. Therefore, this court finds that there was sufficient evidence in the record by which the lower court could exercise its discretion and award ODC with damages that are reasonable given the seven-year loss of use of the church premises. Accordingly, this court reverses and remands with instructions that the court review the record, consider the evidence submitted by the parties, exercise its discretion, and enter an appropriate award of damages in favor of ODC. This court sustains ODC's first and second assignments of error.

{¶ 42} Assignment of Error No. 3:

{¶ 43} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD PUNITIVE DAMAGES AND ATTORNEY'S FEES FOR DEFENDANTS' CONVERSION.

{¶ 44} ODC next argues that the court abused its discretion in declining to award punitive damages. R.C. 2315.21(C) permits an award of punitive damages in a tort case where the actions or omissions of a defendant demonstrate "malice" and the plaintiff proves actual damages because of those actions or omissions. The plaintiff must prove, by clear and convincing evidence, his right to recover punitive damages. R.C. 2315.21(D)(4). Clear and convincing evidence is that degree of proof which establishes in the mind of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

{¶ 45} The Ohio Supreme Court has held that "[a]ctual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty , 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus. The reason behind awarding punitive damages in Ohio "has been recognize * * * as that of punishing the offending party and setting him up as an example to others that they might be deterred from similar conduct * * *." Detling v. Chockley , 70 Ohio St.2d 134, 136, 436 N.E.2d 208 (1982), overruled on other grounds in Cabe v. Lunich , 70 Ohio St.3d 598, 640 N.E.2d 159 (1994). Since punitive damages are assessed for punishment and not compensation, a positive element of conscious wrongdoing is always required. Preston at 335, 512 N.E.2d 1174.

{¶ 46} The court found that the defendants' actions with respect to the conversion claims were not the result of actual malice. After a thorough review of the record, we find that conclusion supported by competent and credible evidence. Speelman testified that he did not read ODC's constitution or by-laws and believed that Christian Assembly was "voluntarily" affiliated with AOG and ODC. When he was called to pastor, Christian Assembly's board did not inform him that he had any obligations to AOG. When asked why he continued to take steps effectuating the merger despite being aware of ODC's protest, Speelman explained, "we weren't doing anything wrong."

{¶ 47} Morgan also testified that he acted under the assumption that the merger was permitted because of prior dealings with AOG churches. He understood that AOG churches were only loosely affiliated with the national or regional organizations and that they were all "sovereign" churches. Morgan explained that he had no interest in reviewing the by-laws or constitutions of either AOG or ODC because he presumed that Christian Assembly was sovereign. Morgan did review the chain of title on Christian Assembly's real property. From this he observed that AOG had no legal interest in the property, which confirmed to him that the church was sovereign. The evidence, if believed, would indicate that both Speelman and Morgan did not act with hatred or malice.

{¶ 48} ODC next argues that a punitive damage award was proper because the evidence demonstrated that the defendants acted purposefully and knowingly pursuant to R.C. 2315.21(D)(6) and 2901.22(A) and (B).

{¶ 49} Generally, punitive damages in Ohio are capped. R.C. 2315(D)(2). However, R.C. 2315.21(D)(6) sets forth the following exception:

Division (D)(2) of this section does not apply to a tort action where the alleged injury, death, or loss to person or property resulted from the defendant acting with one or more of the culpable mental states of purposely and knowingly as described in section 2901.22 of the Revised Code and when the defendant has been convicted of or pleaded guilty to a criminal offense that is a felony, that had as an element of the offense one or more of the culpable mental states of purposely and knowingly as described in that section, and that is the basis of the tort action.

{¶ 50} Thus, R.C. 2315.21(D)(6) sets forth a specific exception to the statutory cap on punitive damages where a defendant's tortious acts resulted in a felony conviction where the culpable mental states of knowingly or purposefully were demonstrated.

{¶ 51} R.C. 2315.21(D)(6) has no application to this case. The court did not award punitive damages so there were no damages to cap. Moreover, there was no evidence of any criminal charges being brought against any of the defendants that were the basis of this tort action. This court overrules ODC's third assignment of error.

{¶ 52} Assignment of Error No. 4:

{¶ 53} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO FIND JUDGMENT IN FAVOR OF THE DEFENDANTS [SIC] ON THE FRAUD AND CIVIL CONSPIRACY CLAIMS.

{¶ 54} ODC argues that the lower court lost its way in finding that ODC failed to establish its fraud and conspiracy claims. ODC argues that the greater weight of the evidence established those claims and this court should direct a judgment in its favor. Again, our standard of review requires us to weigh the evidence and all reasonable inferences, considers the credibility of witnesses and determine 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. Eastley , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 20. After a thorough review of the record, we find that some competent and credible evidence exists to support the lower court's findings in the defendants' favor.

{¶ 55} The fraud claim required ODC to demonstrate that Speelman knowingly made a false representation of material fact with the intent to mislead and induce ODC's reliance on that fact, that ODC justifiably relied on that fact, and damages. See Roberts v. McCoy , 12th Dist. Butler, 2017-Ohio-1329, 88 N.E.3d 422, ¶ 15. ODC claimed that Speelman defrauded it by falsely representing that he would agree to obey all rules of ODC, including promising to tithe 80 percent of his income to the organization and to become a credentialed AOG minister. ODC alleged that it allowed Speelman to continue as pastor of Christian Assembly based on these promises.

{¶ 56} The lower court found that Speelman's representations were not made with the intent to induce detrimental reliance. The court noted that Speelman did not tithe as promised because he could not afford to tithe. The record supports this finding. Speelman and his wife earned $200 a week as pastors of Christian Assembly and for some period the couple was residing at the church. The court further found that Speelman did not misrepresent that he would obtain AOG credentials. ODC officials informed Speelman that he could not obtain credentials because of a divorce. There was some evidence that Speelman later could have been credentialed despite the divorce, but the evidence supported the court's conclusion that Speelman was unaware of this development.

{¶ 57} A civil conspiracy is a "malicious combination of two or more persons to injure another person or property, in a way not competent for one alone, resulting in actual damages." Mohme v. Deaton , 12th Dist. Warren No. CA2005-12-133, 2006-Ohio-7042, 2006 WL 3833923, ¶ 36, quoting Kenty v. Transamerica Premium Ins. Co. , 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). The element of "malicious combination to injure" does not require a showing of an express agreement between defendants, but only a common understanding or design, even if tacit, to commit an unlawful act. See Pumphrey v. Quillen , 102 Ohio App. 173, 177-178, 141 N.E.2d 675 (1955), citing Prosser on Torts (Hornbook Series) , Section 109, at 1094.

{¶ 58} The court found that Speelman and Morgan did not have a malicious common understanding to commit conversion or wrongfully interfere with ODC's property rights because both operated under the assumption that Christian Assembly was sovereign. As discussed in the preceding assignment of error, this finding is supported by competent and credible evidence in the record. The evidence presented at trial indicated that Speelman and Morgan's belief would have been mostly accurate but for Christian Assembly having decreased in membership and losing its sovereignty. Accordingly, this court finds that the lower court did not lose its way in finding in favor of the defendants on ODC's fraud and conspiracy claims and therefore this court overrules ODC's fourth assignment of error.

{¶ 59} Judgment affirmed in part, reversed in part, and remanded.

RINGLAND and HENDRICKSON, JJ., concur.

      ODC's constitution provided that if Christian Assembly's membership fell below a certain threshold it would lose its sovereign status and Christian Assembly's property would then become ODC's. Christian Assembly reported less than 20 members in 2005 and 2006, triggering the contingency.

      ODC did not appeal the dismissal of claims against Patricia Speelman.


author: BROWN, P.J.

text:
    Carol RAY, Plaintiff-Appellant, v. The OHIO DEPARTMENT OF HEALTH c/o Director Richard Hodges et al., Defendants-Appellees.
    No. 17AP-526
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on June 5, 2018
    On brief: Adams & Liming LLC, and Sharon Cason-Adams, New Albany, for appellant. Argued: Sharon Cason-Adams.
    On brief: Michael DeWine, Attorney General, Peter E. DeMarco, and Timothy M. Miller, Columbus, for appellee Ohio Department of Health. Argued: Peter E. DeMarco.
    DECISION
   BROWN, P.J.

{¶ 1} Plaintiff-appellant, Carol Ray, appeals from a judgment of the Court of Claims of Ohio which granted the Civ.R. 56 motion for summary judgment of defendant-appellee, Ohio Department of Health ("ODH"), finding appellant's termination was not based on her disabilities and that ODH was not required to engage in the interactive process with appellant for a reasonable accommodation.

{¶ 2} In 1990, appellant began working at ODH in the Office of General Counsel. She was an at-will employee. Appellant was diagnosed with depression after the birth of her son in 1993 and treated with medication. Her supervisor at that time, Jodi Govern, knew appellant was required by her health insurance company "to go see a psychiatrist" to obtain coverage for her medication. (Ray Depo. at 110.) Appellant testified she had worked with Lance Himes since 2004, and had discussed her health conditions with him. In April 2011, appellant's daughter passed away. Appellant was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), in addition to her depression. In September 2011, Govern left the employment of ODH; in late 2011, Himes was appointed general counsel, and appellant reported directly to Himes. In approximately February 2014, Himes became interim director, and Mahjabeen Qadir was named interim acting general counsel.

{¶ 3} Appellant stated that her workload from 2011 through August 2012 was overwhelming and heavier than she had experienced previously. In 2012 or 2013, Dr. Ted Wymslo, the former director, mentioned to Himes that he was concerned about appellant and suggested sending her for an independent medical exam ("IME"). Himes stated that Dr. Wymslo "worked late often, as did Carol, and when he would walk out, Carol would still be in the office. He would walk past her office. She would be either in a bad or low mood, might tear up when she's sharing with him." (Himes Depo. at 90.) Himes declined to send appellant for an IME at that time, but he did discuss his concerns with appellant. He also reassigned some of her duties to help manage her workload.

{¶ 4} Himes testified he never disciplined or put appellant on a performance improvement plan. However, after the first review he conducted in 2011, Himes indicated to appellant that she could be more effective if she did not exhibit strong emotions in meetings. In that evaluation, Himes wrote that " '[s]he regularly provides her program areas with accurate, timely, and thoughtful legal analysis. * * * Her advice is well written and comprehensive. Carol identifies the right legal issues and offers solutions based in law, an asset to the department.' " (Himes Depo. at 48.)

{¶ 5} Between March 2014 and June 6, 2014, several incidents occurred that ODH cited as reasons for appellant's termination. Himes stated that he terminated appellant because she exhibited "[u]nprofessional conduct, embarrassing conduct, [and an] inability to work with colleagues/program staff." (Himes Depo. at 62.) The first incident, on March 26, 2014, involved a complaint from two co-workers regarding a telephone call from appellant to an ODH vendor to discuss a contract. The co-workers, Sean Keller and Nicole Brennan, complained to Qadir that appellant had called a vendor without program employees requesting that she do so, and without their input regarding a contract modification. Qadir testified that Keller informed her the vendor then telephoned him to complain about appellant's "negative" tone, "aggressive" style, and the fact the vendor felt "intimidated." (Qadir Depo. at 95.) Keller and Brennan were concerned that appellant had damaged ODH's relationship with the vendor.

{¶ 6} Later that day, Qadir called Vanessa Harmon-Gouhin, the other contracts attorney, to discuss the general contracts process in order to have a non-biased perception of the role of the contracts attorney before speaking to appellant. Qadir also discussed a separate employee matter with Harmon-Gouhin. While Qadir was on the telephone, appellant entered Qadir's office "very quickly, surprised me." (Qadir Depo. at 108.) Appellant wanted Qadir to discuss the matter with her, rather than Harmon-Gouhin.

Qadir testified that appellant "continued to yell [at her] until she decided to leave," and she slammed Qadir's office door. (Qadir Depo. at 110.) Approximately 15 minutes later, appellant entered Qadir's office again without knocking and started to yell at Qadir "and accused [Qadir] of excluding her and saying she could be trusted." (Qadir Depo. at 117.) Qadir stated that appellant was "completely disrespectful" and "unprofessional." (Qadir Depo. at 117.)

{¶ 7} Qadir talked to Will McHugh, the assistant director of health at that time, and Jaime Erickson, chief of human resources, regarding the outbursts and how to proceed regarding the complaint about appellant with the vendor. On March 28, 2014, appellant again went to Qadir's office. Qadir stated that appellant had tears in her eyes. Appellant was upset that Qadir had not talked to her regarding the March 26 incident, and that Qadir did not respect appellant's abilities or experience. Appellant testified that Qadir called appellant "paranoid, crazy-not paranoid, crazy." (Ray Depo. at 201.) Qadir stated she told appellant:

[B]efore she comes in my office, she needs to knock. She can't speak to me rudely. She can't yell at me. She can't be disrespectful, condescending. Communication is a two-way street. She told me she didn't do any of those things. I said, you know, "You're yelling at me right now at this very moment." She didn't see what she was doing as yelling, instead she thought that her voice was simply elevated. She was waving her arms around in a rapid and exasperated manner. Her eyes were getting teary again.

(Qadir Depo. at 126-27.)

{¶ 8} After the meeting, appellant telephoned Himes on his cell phone and explained she was having difficulties with Qadir and asked him not to share any information regarding her mental health with Qadir. Qadir again met with McHugh and Erickson to update them regarding appellant's behavior. They decided to discuss the incident with Himes. Qadir testified that she recommended termination because:

[W]ithin a few short days, her being completely rude and disrespectful toward me, trying to-she basically made me uncomfortable with her behavior, and she was choosing to be rude. She was choosing to disrespect her supervisor. She clearly didn't think that she needed to respect me. That sort of behavior to me is indicative of an employee that I don't know if I'm going to be able to rely upon their advice to me. She was insubordinate.

(Qadir Depo. at 136.)

{¶ 9} Qadir explained that appellant was insubordinate by "[m]aking a face and saying it was me, comparing me to her child; saying that I had a boyfriend and now I don't and that's why I'm treating her poorly; yelling at me; you know, just being disrespectful the entire time she was in my office." (Qadir Depo. at 136.) Himes decided to send appellant for an IME to "make sure she was okay, to see if something else was going on." (Himes Depo. at 72.) Himes testified he was cognizant of the anniversary of appellant's daughter's death, which was a factor in his decision to send appellant for an IME.

{¶ 10} Belinda Kerr, human resources administrator, scheduled an IME for appellant with Nick Marzella, Ph.D. After the IME, Dr. Marzella issued his psychological fitness-for-duty evaluation and diagnosed appellant with major depression by history, ADHD, and histrionic personality traits and features. Dr. Marzella reported that "[t]hough these traits and features do not rise to the level of a personality disorder, they will nonetheless bring her into more conflict with her environment than most of her peers." (Plaintiff's Ex. at 8.) Dr. Marzella also noted appellant may have difficulty understanding the impact of her behavior on others.

{¶ 11} Kerr received the results of the IME and informed appellant she was "cleared to work" and responsible for her actions in the workplace. (Kerr Depo. at 98.) Kerr testified she shared the results of the IME with Himes and Qadir, but did not discuss the doctor's diagnoses. Erickson did not read the report thoroughly.

{¶ 12} Appellant met with Qadir and McHugh on April 16, 2014, during which Qadir and McHugh explained that appellant was given a new position description. Qadir testified she gave appellant a list of expectations, including better communication. Qadir, McHugh, and Harmon-Gouhin testified that Harmon-Gouhin was to be the primary attorney for all contracts, and appellant would no longer supervise Harmon-Gouhin. Appellant testified that she recalled at the meeting Qadir assigned her to the smoke-free program and told her to continue with the contracts until July.

{¶ 13} On May 29, 2014, appellant attended two separate program procurement meetings. Appellant testified the meetings were uncomfortable, and that a co-worker, Carol Cook, accused appellant of going on a "fishing expedition" because appellant continued to ask questions. (Ray Depo. at 321.) After the meeting, Paul Maragos, chief of procurement, e-mailed Harry Kadmar, chief financial officer, McHugh and Qadir, and asked that appellant be removed from attending future regularly scheduled procurement meetings.

{¶ 14} Following that e-mail, Elaine Stewart, labor relations administrator, conducted an investigation of the incidents and gathered witness statements from employees who attended the meetings, including Keller, Cook, Harmon-Gouhin, and Reginald Surmon, but not appellant. Stewart issued an investigative report on June 4, 2014 concluding that witnesses reported appellant acted in an unprofessional manner and communicated in an aggressive manner.

{¶ 15} On June 5, 2014, in the late afternoon, Himes met with Qadir and Erickson and decided to terminate appellant's employment; Himes concluded that appellant "did not have the ability to perform the duties because she couldn't get along with and be a team player with the programs that she was assigned to work with and advise." (Himes Depo. at 136.)

{¶ 16} Appellant testified that she met with Qadir after business hours on June 5, 2014, and asked to transition out of the day-to-day contract process as a reasonable accommodation to reduce her increased anxiety. Qadir denied the meeting took place. On June 6, 2014, Himes signed appellant's letter of termination; that morning, Erickson informed appellant that her employment was being terminated.

{¶ 17} On December 22, 2015, appellant filed a complaint in the Court of Claims asserting disability discrimination in violation of Ohio law, failure to accommodate in a disability discrimination claim, disability discrimination in violation of the Americans with Disabilities Act ("ADA"), and a failure to accommodate in violation of the ADA. On March 15, 2017, ODH filed a motion for summary judgment and appellant filed a motion for partial summary judgment. On June 21, 2017, the Court of Claims granted ODH's motion for summary judgment.

{¶ 18} On appeal, appellant sets forth the following four assignments of error for this court's review:

[I.] The trial court erred when it ruled that Appellant failed to present direct evidence of disability discrimination in violation of the Americans with Disabilities Act and Ohio law.
[II.] The trial court erred when it ruled that Appellant failed to present sufficient evidence that the employer's stated "legitimate non-discriminatory" reason for Appellant's discharge was, in fact, pretext for disability discrimination.
[III.] The trial court erred when it ruled that Appellant failed to prove that Appellee violated the ADA and Ohio law by failing to accommodate her disability.
[IV.] The lower court erred by overruling Appellant's Motion for Summary Judgment and by granting Appellee's Motion for Summary Judgment.

{¶ 19} Appellant's four assignments of error, all raising various challenges to the decision of the Court of Claims granting summary judgment in favor of ODH and denying appellant's motion for partial summary judgment, will be addressed jointly. Through these assignments of error, appellant contends the Court of Claims erred in its ruling that: (1) appellant failed to present direct evidence of disability discrimination, (2) appellant failed to present sufficient evidence that the employer's stated legitimate non-discriminatory reason was pretext for disability discrimination, (3) appellant failed to prove that ODH violated the ADA and Ohio law by failing to accommodate her disabilities, and (4) in denying her motion for partial summary judgment and granting appellee's motion for summary judgment.

{¶ 20} "Pursuant to Civ.R. 56(C), summary judgment is proper when '(1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion which is adverse to the non-moving party.' " Brust v. Franklin Cty. Sheriff's Office , 10th Dist. No. 16AP-881, 2017-Ohio-9128, 2017 WL 6493299, ¶ 14, quoting Lee v. Cleveland , 151 Ohio App.3d 581, 2003-Ohio-742, 784 N.E.2d 1218, ¶ 16 (8th Dist.). This court reviews the granting of a summary judgment motion de novo. Id.

{¶ 21} We first address appellant's argument that the Court of Claims erred in granting ODH's motion for summary judgment on her disability discrimination claim. R.C. 4112.02(A) prohibits discrimination based on disabilities as follows:

It shall be an unlawful discriminatory practice:
For any employer, because of * * * disability * * * to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

{¶ 22} The Supreme Court of Ohio has explained that discrimination actions under federal and state law each require the same analysis. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. , 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981) ; Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. , 61 Ohio St.3d 607, 609-10, 575 N.E.2d 1164 (1991). Ohio courts may look to both federal and state courts' statutory interpretations of both federal and state statutes when determining the rights of litigants under state discrimination laws. Dautartas v. Abbott Labs. , 10th Dist. No. 11AP-706, 2012-Ohio-1709, 2012 WL 1344030, ¶ 24, citing Miller v. Potash Corp. of Saskatchewan, Inc. , 3d Dist. No. 1-09-58, 2010-Ohio-4291, 2010 WL 3529248, ¶ 16.

{¶ 23} In order to prevail in her employment discrimination case, appellant must prove discriminatory intent and may establish such intent through either direct or indirect methods of proof. Ricker v. John Deere Ins. Co. , 133 Ohio App.3d 759, 766, 729 N.E.2d 1202 (10th Dist.1998), citing Mauzy v. Kelly Servs., Inc. , 75 Ohio St.3d 578, 583, 664 N.E.2d 1272 (1996). "[A] plaintiff may establish a prima facie case of age discrimination directly by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent." Mauzy at paragraph one of the syllabus. In the absence of the direct method of proof of discrimination, a plaintiff may indirectly demonstrate discriminatory intent using the analysis provided in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

{¶ 24} A plaintiff must first establish a prima facie case of discrimination. Greer-Burger v. Temesi , 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14, citing McDonnell Douglas . To prevail on a claim of disability discrimination under Ohio law, appellant must establish: (1) that she was disabled, (2) that an adverse employment action was taken, at least in part, because of her disabilities, and (3) that she, although disabled, can safely and substantially perform the essential functions of the job. Taylor v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-385, 2011-Ohio-6060, 2011 WL 5878335, ¶ 19. Since an employee must prove all three elements in order to establish a prima facie case of disability discrimination, the failure to establish any single element is fatal to a discrimination claim. Id. at ¶ 20.

{¶ 25} If the plaintiff demonstrates a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse employment action. Temesi at ¶ 14. If the employer does so, then the burden again shifts to the plaintiff to demonstrate " 'that the proffered reason was not the true reason' " for the adverse employment action. Id. , quoting Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In general, "courts have found that a plaintiff establishes pretext by proving one or more of the following: (1) that the employer's proffered reasons for the adverse employment action had no basis in fact, (2) that the proffered reasons were not the true reason(s), or (3) that the proffered reason(s) were insufficient to motivate discharge." Nelson v. Univ. of Cincinnati , 10th Dist., 2017-Ohio-514, 75 N.E.3d 1304, ¶ 35. Plaintiff has the ultimate burden of persuasion. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). "A case that reaches this point is decided by the trier of fact on the ultimate issue of whether the defendant discriminated against the plaintiff." Williams v. Akron , 107 Ohio St.3d 203, 2005-Ohio-6268, 837 N.E.2d 1169, ¶ 14.

{¶ 26} A disability is a "physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment ; or being regarded as having a physical or mental impairment." R.C. 4112.01(A)(13). We note there was no argument in this case regarding whether appellant suffered from a disability because ODH conceded, for purposes of summary judgment, that appellant stated a prima facie case of disability discrimination.

{¶ 27} Appellant argues she presented direct evidence to support her claim for disability discrimination and that the Court of Claims erred in finding she failed to present such direct evidence. Under Ohio law, "[d]irect evidence is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions. * * * If that evidence is credible, 'discriminatory animus may be at least part of an employer's motive, and in the absence of an alternative, non-discriminatory explanation for that evidence, there exists a genuine issue of material fact suitable for submission to the jury without further analysis by the court.' " Ceglia v. Youngstown State Univ. , 10th Dist. No. 14AP-864, 2015-Ohio-2125, 38 N.E.3d 1222, ¶ 16, quoting Norbuta v. Loctite Corp. , 1 Fed.Appx. 305, 312 (6th Cir.2001). "[D]irect evidence of discrimination does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group." Johnson v. Kroger Co. , 319 F.3d 858, 865 (6th Cir.2003).

{¶ 28} Appellant argues Himes admitted he terminated her for behavior that caused him to question her mental health. Appellant further contends the incidents which led him to conclude that an IME was necessary were the same incidents Himes used to justify her termination.

{¶ 29} Himes' testimony, however, does not constitute direct evidence of discrimination. Both Ohio and federal courts have concluded that the act of an employer sending an employee to an IME does not constitute evidence that the employer perceived the employee as disabled. Dalton v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 13AP-827, 2014-Ohio-2658, 2014 WL 2809275, ¶ 31 ; Ames v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 14AP-119, 2014-Ohio-4774, 23 N.E.3d 162, ¶ 29. Moreover, the complaints regarding appellant's behavior at the two meetings on May 29, 2014 occurred subsequent to the IME and, therefore, could not constitute a basis for sending her to have an IME.

{¶ 30} Appellant argues this case is similar to Wells v. Cincinnati Children's Hosp. Med. Ctr. , 860 F.Supp.2d 469 (S.D.Ohio 2012). In Wells , the plaintiff was suspended from her nursing position pending the outcome of a fitness-for-duty evaluation. The plaintiff was examined by three doctors; the first doctor concluded the plaintiff should not be allowed to work in a clinical setting and posed a risk to her patients. The plaintiff saw the second doctor, a psychologist, for substance abuse counseling, and this doctor concluded plaintiff could return to work during counseling. However, after approximately six weeks, the doctor provided a follow-up report explaining that he and the plaintiff had mutually agreed to terminate counseling because the plaintiff was not prepared to admit she had a substance abuse problem. Finally, the plaintiff's own physician provided a note stating she could return to work without restrictions.

{¶ 31} The employer in Wells refused to reinstate the plaintiff because her medical condition rendered her incapable of performing her duties. The plaintiff's supervisor testified in part: "It was not whether or not they decided she was ready to come back, it was that she was still having medical issues, and those issues had caused her to have practice issues, or could have caused her to have practice issues." Id. at fn. 4. The court in Wells found the supervisor's admission constituted direct evidence that plaintiff's impairment was the reason she was not reinstated.

{¶ 32} We find Wells to be distinguishable from the instant case, as ODH did not refuse to reinstate appellant after her IME indicated she was fit for duty without an accommodation. Moreover, Himes did not admit that he believed appellant was incapable of performing her duties because of medical issues.

{¶ 33} Appellant also argues that Qadir called her "paranoid" and "crazy." However, appellant failed to argue this to the Court of Claims as direct evidence of disability discrimination. In general, "a party waives the right to raise an argument on appeal that it could have raised, but did not, in earlier proceedings." Union Sav. Bank v. Schaefer , 10th Dist. No. 13AP-222, 2013-Ohio-5704, 2013 WL 6843607, ¶ 28, citing Niskanen v. Giant Eagle, Inc. , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34. Furthermore, appellant testified she told Himes not to reveal to Qadir anything regarding her disabilities. Qadir testified she did not know about appellant's disabilities. In the absence of knowledge on the part of Qadir of appellant's disabilities, this comment cannot constitute direct evidence of disability discrimination. Accordingly, we conclude the Court of Claims did not err in finding that appellant failed to present direct evidence of disability discrimination.

{¶ 34} Without direct evidence of disability discrimination, appellant's claim must be analyzed using the indirect method of proof pursuant to the McDonnell Douglas framework. Appellant argues the Court of Claims erred in finding that she failed to present sufficient evidence that the employer's stated legitimate, non-discriminatory reason was pretext for disability discrimination. ODH conceded, for purposes of summary judgment, that appellant stated a prima facie case of disability discrimination: She suffered a mental disability (depression and ADHD); she was otherwise qualified for her position with or without an accommodation; her employment was terminated; and ODH knew or had reason to know of her disabilities. Thus, the burden of production shifted to ODH to demonstrate a legitimate, non-discriminatory reason for the adverse employment action. ODH produced evidence of multiple co-workers' complaints regarding appellant's aggressive and unprofessional behavior. (See Depos. of Qadir; Harmon-Gouhin, and Maragos.) Here, the deposition testimony supported various instances of unprofessional behavior and examples of appellant's inability to work compatibly with her co-workers, and the Court of Claims found, even construing the evidence most strongly in appellant's favor, that ODH had legitimate, non-discriminatory reasons to terminate appellant's employment.

{¶ 35} Appellant argues the Court of Claims erred in finding she failed to present sufficient evidence that the employer's stated legitimate, non-discriminatory reason was pretext for disability discrimination. ODH presented evidence, however, that it terminated appellant's employment due to her "[u]nprofessional conduct, embarrassing conduct, inability to work with colleagues/program staff." (Himes Depo. at 62.) Himes testified that appellant "has a style that can be aggressive, it can be condescending, it can be off putting." (Himes Depo. at 22.) Himes stated that some co-workers found her style "abusive." (Himes Depo. at 22.)

{¶ 36} ODH also presented evidence that a vendor complained about appellant's behavior during a telephone call. The vendor indicated she felt intimidated and that appellant had acted unprofessionally. Maragos requested appellant be removed from attending regularly scheduled procurement meetings because of her confrontational manner resulting in unproductive meetings and damaged working relationships. Maragos, who was concerned that Cook and Harmon-Gouhin would seek other employment, testified that appellant's behavior caused stress. Qadir testified appellant was rude and unprofessional to her on several occasions. Such evidence amounts to a legitimate, non-discriminatory reason. "So long as the employee's misconduct is related to the performance of her job, an employer may discipline or terminate the employee even if her misconduct was caused by her disability." (Citations omitted.) Sper v. Judson Care Ctr., Inc. , 29 F.Supp.3d 1102, 1110 (S.D.Ohio 2014).

{¶ 37} In order for appellant to demonstrate that ODH's stated reasons for terminating her employment were pre-textual and not the true reasons, appellant must demonstrate that:

(1) the employer's stated reason for terminating the employee has no basis in fact, (2) the reason offered was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer's action.

Hartman v. Ohio Dept. of Transp. , 10th Dist., 2016-Ohio-5208, 68 N.E.3d 1266, ¶ 21, quoting Smith v. Ohio Dept. of Pub. Safety , 10th Dist., 2013-Ohio-4210, 997 N.E.2d 597, ¶ 77, citing Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1084 (6th Cir.1994).

{¶ 38} Appellant acknowledges she called a vendor to discuss a contract, and the evidence reveals there was an internal complaint about the telephone call. Appellant also acknowledges she and Qadir had stressful meetings; specifically, appellant admits that the two meetings on May 29, 2014 were stressful and loud, and that Maragos asked that she be removed from further procurement meetings after these two meetings. Despite admitting these events occurred, appellant maintains ODH is exaggerating and that the events are insufficient to justify her termination. Appellant contends it is ODH's "discriminatory animus" that led to her termination. (Appellant's Brief at 31.)

{¶ 39} Appellant cannot demonstrate that the stated reasons had no basis in fact, especially in light of her acknowledgement that the incidents occurred. Appellant also cannot demonstrate that the incidents cited as the basis for her termination were pre-textual reasons. As discussed, Qadir calling appellant "paranoid" or "crazy" cannot be the result of discrimination because Qadir was unaware of appellant's disabilities. Furthermore, Maragos testified that he sent management the e-mail requesting appellant be removed from future procurement meetings. Maragos noted he had never before, in his employment at ODH, made such a request. According to Maragos, appellant "is very good at knowing what the rules and regulations say. She's very knowledgeable about the department. I can't tell you how many years of experience, but she's pretty much worked with many different programs. Not very many people have that wide range of knowledge." (Maragos Depo. at 52-53.)

{¶ 40} However, when Maragos was asked if the problem with appellant involved difficulty building positive relationships, he replied: "Yes, it was getting to a point that what [appellant] was bringing to the table wasn't outweighing the issues that were happening with people, issues that were going on." (Maragos Depo. at 53.) Maragos further testified that, even though appellant had been difficult to work with in the past, the situation was worsening to the point where he asked that she be removed from future procurement meetings because "[t]he situation is becoming detrimental to our team and is not healthy." (Plaintiff's Ex. at 20.) Similarly, Harmon-Gouhin testified that her working relationship with appellant was initially good, but that uncomfortable interactions occurred over the ensuing months, leading Harmon-Gouhin to avoid interactions with appellant. According to the testimony of Qadir, Harmon-Gouhin came into Qadir's office in May 2014 and was in tears, complaining she was having problems with appellant and was considering quitting her job at ODH. In light of the record presented, appellant cannot demonstrate that the reasons given for her termination were pre-textual.

{¶ 41} Appellant argues the Court of Claims erred when it ruled she failed to prove that ODH violated the ADA and Ohio law by failing to accommodate her disabilities. Appellant testified that on June 5, 2014, at approximately 6:00 p.m., she requested that Qadir remove her from working on contracts as an accommodation to relieve her stress. According to appellant, Qadir told her to "[g]o home and get some rest." (Ray Depo. at 265.) By contrast, Qadir testified she did not meet with appellant and that appellant did not ask for an accommodation. Himes and Qadir testified that the decision to terminate appellant's employment had already been determined the afternoon of June 5, 2014, but Himes just signed the termination letter on the morning of June 6, 2014. (See Himes Depo. at 118; 132-33; Qadir Depo. at 227.)

{¶ 42} In accordance with the ADA, "an employer must make 'reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee' unless it can prove that such an accommodation would impose an 'undue hardship' on the business." Yarberry v. Gregg Appliances, Inc. , 625 Fed.Appx. 729, 741 (6th Cir. 2015), citing 42 U.S.C. 12112(b)(5)(A). However, an employer is not required to rescind discipline, including termination, or to engage in further discussions if the request for accommodation is made after the misconduct occurs and the decision to discipline is made. Id. at 742. Further, "[t]he timing of a request is crucial." Id. Here, assuming appellant's request constitutes a reasonable accommodation as defined in the ADA, Himes had already made the decision to terminate appellant before her request for an accommodation was made. ODH, therefore, was not required to consider the request for an accommodation.

{¶ 43} Finally, in her fourth assignment of error, appellant argues the Court of Claims erred in denying her motion for summary judgment and granting ODH's motion for summary judgment. However, appellant makes no further argument to advance this assignment of error, other than issues we have previously addressed. Based on this court's de novo review, we find appellant's termination was not attributable to her disabilities and that ODH was not required to engage in the interactive process for a reasonable accommodation. Finding no genuine issues as to any material fact, we conclude the Court of Claims did not err in granting ODH's motion for summary judgment. Accordingly, appellant's four assignments of error are not well-taken and are overruled.

{¶ 44} Based on the foregoing, appellant's four assignments of error are overruled, and the judgment of the Court of Claims of Ohio is affirmed.

Judgment affirmed .

TYACK and DORRIAN, JJ., concur.

      In 2014, her job title was chief of employee services, which later involved a change to her title but not job responsibilities.


author: HENSAL, Judge.

text:
    Margie TAYLOR, Appellant v. GOODYEAR TIRE & RUBBER CO., et al., Appellee
    No. 28620
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: June 6, 2018
    JESSICA M. BACON, Attorney at Law, for Appellant.
    RICHARD D. SCHUSTER and DAMIEN C. KITTE, Attorneys at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Judge.

{¶ 1} Margie Taylor, executor of the estate of Russell Young, appeals from the judgment of the Summit County Court of Common Pleas. For the reasons that follow, we affirm in part, and reverse in part.

I.

{¶ 2} This appeal involves an asbestos case that originated in the Cuyahoga County Court of Common Pleas. In that case, Ms. Taylor brought several claims against Goodyear Tire & Rubber Co. ("Goodyear"), including claims for premises liability, negligent undertaking, and intentional tort. Ms. Taylor's claims were based upon Mr. Young's (her late father) exposure to asbestos while working on aircraft brake linings during his employment with Goodyear Aerospace Corporation ("Aerospace").

{¶ 3} Relevantly, Goodyear filed motions for partial summary judgment on Ms. Taylor's claims for premises liability, negligent undertaking, and intentional tort. The trial court granted Goodyear's motions in an entry on the File & Serve docket, which is a separate electronic docket used for asbestos cases. The trial court then journalized those entries with the Clerk of Courts, and included language indicating that "[t]here is no just reason for delay pursuant to Ohio Rule of Civil Procedure 54(B)." Ms. Taylor subsequently moved the trial court to vacate or modify the "no just reason for delay" language. The trial court granted Ms. Taylor's motion in an entry on the File & Serve docket. That entry, however, was never journalized with the Clerk of Courts. The trial court subsequently dismissed the case pursuant to Rule 41(A).

{¶ 4} Due to the dismissal of certain defendants in the Cuyahoga County case, Ms. Taylor re-filed her action in the Summit County Court of Common Pleas. In her re-filed action, Ms. Taylor brought claims for negligence, premises liability, negligent undertaking, and employer intentional tort against Goodyear. She also brought an additional claim for products liability against Goodyear. Goodyear moved for summary judgment on Ms. Taylor's claims for premises liability, negligent undertaking, and employer intentional tort on the basis of res judicata. Goodyear also moved for summary judgment on Ms. Taylor's claim for products liability. The trial court granted both motions. Ms. Taylor now appeals, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR GOODYEAR TIRE AND RUBBER COMPANY ON RES JUDICATA GROUNDS.

{¶ 5} In her first assignment of error, Ms. Taylor argues that the trial court erred by granting summary judgment in favor of Goodyear on the basis of res judicata. We review a trial court's award of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civil Rule 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 6} The moving party bears the initial burden of informing the trial court of the basis for the motion and pointing to the parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "To accomplish this, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) [.]" Id. at 292, 662 N.E.2d 264. If the moving party meets this burden, then the nonmoving party bears the burden to offer specific facts demonstrating a genuine issue for trial. Id. at 293, 662 N.E.2d 264. "The non-moving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact." Garvey v. Vermilion , 9th Dist. Lorain No. 10CA009873, 2012-Ohio-1258, 2012 WL 1019071, ¶ 12.

{¶ 7} In its motion for summary judgment, Goodyear argued that the Cuyahoga County Court of Common Pleas granted summary judgment on Ms. Taylor's claims for premises liability, negligent undertaking, and employer intentional tort in three separate journalized entries, all of which contained Rule 54(B) language. Goodyear argued that Ms. Taylor could have appealed those final orders, and that res judicata precluded her from raising those claims in the Summit County Court of Common Pleas.

{¶ 8} In anticipation of Ms. Taylor's counter-arguments, Goodyear acknowledged that Ms. Taylor subsequently filed a motion to vacate the Rule 54(B) language on those orders, and that the Cuyahoga County Court of Common Pleas granted her motion in an entry on the File & Serve docket. Goodyear argued that, because the entry granting Ms. Taylor's motion was never journalized, it did not take effect. To that end, Goodyear argued that a trial court speaks only through its journalized entries, and that a judgment on the File & Serve docket is not officially rendered until it is journalized with the Clerk of Courts. In support of its position, Goodyear relied upon the Eighth District's decision in Shesler v. CONRAIL , which held that an entry on an asbestos docket is not equivalent to a journalized entry, and that a trial court speaks only through its journalized entries. 8th Dist. Cuyahoga No. 83656, 2004-Ohio-3110, 2004 WL 1353086, ¶ 20. In doing so, the Eighth District noted that "[a] docket is not the same as a journal." Id. at ¶ 17, quoting State ex rel. White v. Junkin , 80 Ohio St.3d 335, 337, 686 N.E.2d 267 (1997). Goodyear also argued that the proper procedure for challenging the finality of those judgments was through an appeal, which Ms. Taylor did not pursue.

{¶ 9} In response, Ms. Taylor argued that the Cuyahoga County Court of Common Pleas' entry granting her motion to vacate the Rule 54(B) language was an effective order regardless of it not being journalized. She also argued that all summary-judgment rulings became moot when the trial court administratively dismissed the case under Rule 41(A). She further argued that, in addition to the lack of finality with respect to the summary-judgment orders, res judicata did not apply because new evidence supporting those claims arose between the dismissal of the Cuyahoga County case and the filing of the Summit County case. Ms. Taylor did not provide any legal authority in support of these positions, nor did she address the Eighth District's precedent in Shesler .

{¶ 10} In granting summary judgment in favor of Goodyear, the trial court determined that, since the Cuyahoga County Court of Common Pleas included Rule 54(B) language in its summary-judgment orders, Ms. Taylor was required to appeal those orders, which she failed to do. As a result, the trial court held that Goodyear was entitled to summary judgment on the basis of res judicata.

{¶ 11} On appeal, Ms. Taylor argues that the trial court erred by determining that the Cuyahoga County Court of Common Pleas added Rule 54(B) language to the summary-judgment orders. She argues that Goodyear's counsel, not the trial court, prepared those orders and, therefore, the trial court itself did not add any Rule 54(B) language. She also argues that Goodyear did not consult her when composing the proposed orders, which violated local rules, and that Goodyear's counsel appears to have had ex-parte communications with the trial court. She further argues that she did not receive notice of the summary-judgment orders (journalized with the Clerk of Courts on October 1, 2009 and October 2, 2009) until she received notification from the File & Serve docket on October 28, 2009. Ms. Taylor, however, did not raise these arguments in her brief in opposition to Goodyear's motion for summary judgment at the trial court, and cannot do so for the first time on appeal. Jones v. Summit Cty. Job & Family Servs. , 9th Dist. Summit No. 27708, 2016-Ohio-4940, 2016 WL 3745679, ¶ 3.

{¶ 12} As previously noted, the record reflects that the trial court journalized its summary-judgment orders containing Rule 54(B) language on October 1, 2009 and October 2, 2009. Per Appellate Rule 4(A), she had 30 days to appeal those orders, which she did not do. Instead, she moved to vacate the Rule 54(B) language from those orders on October 29, 2009. A motion to vacate, however, does not toll the time requirements for filing an appeal. Berlin v. Varney , 9th Dist. Summit No. 15459, 1992 WL 194205, *1 (Aug. 12, 1992). While the trial court did grant Ms. Taylor's motion to vacate via an entry on the File & Serve docket during the 30-day period (i.e., on November 2, 2009), the Eighth District's precedent dictates that an entry on an asbestos docket is not equivalent to a journalized entry, and that a trial court speaks only through its journalized entries. Shesler , 8th Dist. Cuyahoga No. 28356, 2004-Ohio-3110, at ¶ 20; see also Junkin , 80 Ohio St.3d at 337, 686 N.E.2d 267 ("A docket is not the same as a journal."). Despite Ms. Taylor's attempts on appeal to distinguish this case from the facts in Shesler , we find her arguments unpersuasive, and determine that the trial court's entry on the File & Serve docket granting her motion to vacate had no effect on Ms. Taylor's obligation to timely appeal the trial court's final, journalized orders. We, therefore, cannot say that the trial court erred in granting summary judgment on the basis of res judicata. Accordingly, Ms. Taylor's first assignment of error is overruled.

ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR GOODYEAR TIRE AND RUBBER COMPANY ON PLAINTIFF'S PRODUCTS LIABILITY CLAIM.

{¶ 13} In her second assignment of error, Ms. Taylor argues that the trial court erred by granting Goodyear's motion for summary judgment on her claim for products liability. We apply the same standard of review set forth in the preceding assignment of error.

{¶ 14} We will begin by addressing certain facts. There is no dispute that Mr. Young worked for Aerospace in Plant B, which housed the manufacturing of asbestos containing brake linings during the relevant time period. Plant B consisted of two divisions: the Vinyl Division and the Wheel & Brake Division. Per Ms. Taylor's complaint, Mr. Young worked in both divisions, and was "exposed to raw asbestos and asbestos containing products." While there is no dispute that the asbestos containing brake linings were manufactured in Plant B, the parties dispute whether the manufacturing process, which began in the Vinyl Division, continued once the brake linings were transferred to the Wheel & Brake Division for additional work. Further, the parties dispute whether Goodyear or Aerospace manufactured the brake linings, and whether Goodyear had control over the Wheel & Brake Division. With those facts in mind, we proceed with an analysis of Goodyear's motion for summary judgment on Ms. Taylor's claim for products liability.

{¶ 15} In its motion, Goodyear claimed that Aerospace manufactured the asbestos containing brake linings. Regarding the manufacturing process, Goodyear cited the affidavit of John Reese, a former Aerospace employee, who averred that,

[p]rior to 1973, brake linings were formed by Goodyear Aerospace employees in Plant B * * *, then brought to the Wheel & Brake Division, which was also in Plant B, where Goodyear Aerospace employees would complete the brake linings by drilling holes and shaping those linings until they were ready to be incorporated as components of the brake assembly.

He also averred that, in 1973, Aerospace moved the function of forming the brake linings from Plant B to a new facility in Berea, Kentucky. He concluded that,

[r]egardless of whether the brake linings were formed in Plant B * * * or in the Berea facility, the brake linings did not leave the control of their manufacturer, Goodyear Aerospace , until they were shipped to the purchaser of the brake assembly.

(Emphasis added.)

{¶ 16} Goodyear acknowledged that Ms. Taylor claimed that Goodyear, not Aerospace, manufactured the brake linings. It argued, however, that whether Goodyear or Aerospace manufactured the brake linings was irrelevant for purposes of determining whether Ms. Taylor's products-liability claim failed as a matter of law. In this regard, Goodyear argued that the Ohio Products Liability Act requires a plaintiff to show that the product in question was defective as defined in Revised Code Sections 2307.74 through 2307.77. Goodyear argued that the plain language of those statutory sections provides that the product must have been defective when it left the control of the manufacturer and, thus, not while the product remained in the manufacturing process.

{¶ 17} In support of its argument, Goodyear relied upon the Third District's decision in Moeller v. Auglaize Erie Machine Co. , 3d Dist. Auglaize No. 2-08-10, 2009-Ohio-301, 2009 WL 161784. There, a lawnmower manufacturer sent a lawnmower to a subcontractor to perform touch-up paint work so that the lawnmower could then "be brought to a dealer to be sold." Id. at ¶ 6. While there, one of the subcontractor's employees sustained injuries when the lawnmower fell on top of his legs and abdomen. Id. at ¶ 5. The employee brought a number of claims against the lawnmower manufacturer, including a claim for products liability, and the manufacturer moved for summary judgment. Id. at ¶ 2, 9. In granting summary judgment in favor of the manufacturer, the trial court determined that the lawnmower was still in the "manufacturing process" while the subcontractor performed work on it. Id. at ¶ 11.

{¶ 18} On appeal, the Third District affirmed the trial court's decision, holding that, although the manufacturer did not have possession of the lawnmower while the subcontractor performed work on it, the lawnmower remained in the manufacturer's control. Id. at ¶ 20, 31. Goodyear concluded that, because Ms. Taylor claimed that Mr. Young was exposed to asbestos during the manufacturing process, her products-liability claim-like in Moeller -failed as a matter of law.

{¶ 19} In response, Ms. Taylor argued that Mr. Young was exposed to asbestos while working in the Wheel & Brake Division. She argued that Goodyear, not Aerospace, manufactured the asbestos containing brake linings in its Vinyl Division and that, by the time they were transferred to the Wheel & Brake Division for assembly, they were finished products that had left the control of the manufacturer (i.e., Goodyear). In support of her position, Ms. Taylor cited deposition testimony from former Aerospace employees who averred that Goodyear manufactured the brake linings in the Vinyl Division.

{¶ 20} Ms. Taylor also argued that Moeller is not dispositive. Specifically, she argued that Moeller focused on whether the manufacturer maintained control of the product, not whether the manufacturing process was complete. She argued that, in its motion for summary judgment related to premises liability, Goodyear denied having control over the Wheel & Brake Division.

{¶ 21} In granting summary judgment in favor of Goodyear, the trial court determined that the record contained no evidence to support the conclusion that the brake linings ever left the control of Goodyear at any time during Mr. Young's alleged exposure. In reaching this conclusion, the trial court adopted the reasoning in Blakely v. Goodyear Tire & Rubber Co. , another Summit County Court of Common Pleas case that addressed the same issue and, in relying on Moeller , granted summary judgment in favor of Goodyear. Summit C.P. No. AC 2014-07-3155, 2015 WL 13284609 (Dec. 8, 2015). In Blakely , the trial court "presume[d] Goodyear [wa]s the manufacturer[,]" and further "presume[d] Goodyear controlled both the Vinyl Division and the Wheel & Brake Division inside Plant B." In relying upon Moeller , the Blakely court held that, "[w]hen a product is still being manufactured it cannot be deemed to have left the hands of, or left the control of, the manufacturer."

{¶ 22} Despite Goodyear's arguments, we cannot say that Moeller stands for the proposition that a product that is still in the manufacturing process is, as a matter of law, under the control of the manufacturer. While the trial court in Moeller relied upon the product still being in the manufacturing process , the Third District's holding focused on the manufacturer's control under the particular circumstances presented (including the fact that the subcontractor performed the touch-up paint work at the manufacturer's direction). Moeller at ¶ 20. This is consistent with what the relevant statutes require. See R.C. 2307.74 through 2307.77 (requiring a product to be defective at the time it leaves the control of the manufacturer).

{¶ 23} Even assuming without deciding that a product that is still in the manufacturing process is, as a matter of law, in the control of the manufacturer for purposes of products liability, we are troubled by the trial court's analysis in this case. Specifically, we are troubled by the fact that the parties disputed below-and continue to dispute on appeal-whether Goodyear manufactured the brake linings, and whether Goodyear controlled the Wheel & Brake Division. Yet the trial court, without any explanation or analysis, determined that Goodyear manufactured the brake linings, and that Goodyear controlled the Wheel & Brake Division. It then relied upon those facts to determine that "[t]here is no evidence in the record to support the conclusion that the brake linings ever left the control of Goodyear at any time during Mr. Young's alleged exposure." A trial court, however, cannot weigh the evidence and determine issues of fact when ruling on a motion for summary judgment. Horner v. City of Elyria , 9th Dist. Lorain No. 13CA010420, 2015-Ohio-47, 2015 WL 134218, ¶ 10.

{¶ 24} Given the arguments and facts presented below, as well as the trial court's analysis of same, we hold that the trial court erred by granting summary judgment in favor of Goodyear on Ms. Taylor's claim for products liability. Accordingly, Ms. Taylor's second assignment of error is sustained.

III.

{¶ 25} Ms. Taylor's first assignment of error is overruled. Ms. Taylor's second assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part, and reversed in part.

Judgment affirmed in part, and reversed in part.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.

      As previously noted, the trial court journalized its summary-judgment orders on October 1, 2009 and October 2, 2009. Thirty days from those orders fell on a Saturday and Sunday, respectively. Ms. Taylor, therefore, had until the following Monday, November 2, 2009, to file her appeal. See App.R. 14(A).