author: EILEEN A. GALLAGHER, A.J.:

text:
    CITY OF EAST CLEVELAND, Plaintiff-Appellee v. Tonja M. HALL, Defendant-Appellant
    No. 106134
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Tonja M. Hall, pro se, 10915 Churchill Avenue, Cleveland, Ohio 44106, for APPELLANT
    Willa M. Hemmons, Law Director, City of East Cleveland, 14340 Euclid Avenue, East Cleveland, Ohio 44112, ATTORNEY FOR APPELLEE
    BEFORE: E.A. Gallagher, A.J., Kilbane, J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant Tonja Hall, pro se, appeals her conviction for criminal simulation on sufficiency of the evidence and manifest weight grounds. For the reasons that follow, we reverse the trial court's judgment and vacate her conviction.

Factual and Procedural Background

{¶ 2} On May 16, 2017, a complaint was filed in the East Cleveland Municipal Court charging Hall with one count of criminal simulation in violation of section 545.13 of the Codified Ordinances of East Cleveland, General Offenses Code ("E.C.C.O.") arising out of her attempt to cash a fraudulent check. The preceding day, Hall had gone to PLS Financial Services ("PLS"), a checking cashing business in East Cleveland, and presented a check in the amount of $30,787.50 for cashing. The check was dated May 8, 2017. Designer Hardware & Plumbing L.L.C. d.b.a. Designer Hardware by Faye ("Designer Hardware & Plumbing") in Oklahoma City, Oklahoma was the drawer of the check. The purported payee was "[a]ttention: Tonja Maria Hall" with an address on Cedar Avenue in Cleveland, Ohio. The complaint alleged that, on or about May 15, 2017, Hall "with purpose to defraud, uttered or possessed with the purpose to utter, a check in the amount of $30,787.50, knowing it to have been simulated when presented to PLS Check Cashiers * * *."

{¶ 3} A bench trial was held on July 13, 2017. The city presented testimony from Ebony Sims, the assistant manager of PLS, who received the check Hall presented for cashing and Officer Westfield, the arresting officer. The city also introduced the allegedly altered check.

{¶ 4} Sims testified that when Hall presented the check, she immediately suspected that the check was fraudulent. Sims testified that she had seen similar altered checks in the past and that, in this case, she could see on the face of the check "where the name part had been erased and also the amount and the date" and then "type[d] over * * * with a typewriter of some sort." Sims testified that, as was her practice when she was presented with a check she believed could be fraudulent, she "called the company to verify." She testified that, after speaking with someone in the accounting department at Designer Hardware & Plumbing, she learned that the check had been issued in April 2017 to a different company "for like $130-something." Sims stated that she informed Hall that the check was fraudulent and that she could not return the check to her and then called the police.

{¶ 5} Officer Westfield was the responding officer. He testified that when he arrived at the business, Sims informed him that Hall had attempted to cash a fraudulent check and she showed him said check. Officer Westfield examined the check and testified that, based on his experience, the amount, address and name on the check appeared to have been altered. He testified that he asked Hall about the check but that she refused to talk to him, so he called his supervisor. Officer Westfield testified that his supervisor directed him to arrest Hall and that he did so.

{¶ 6} Hall, who appeared pro se, was the sole witness to testify in her defense. Hall claimed that she was an independent contractor for Kunlun Energy Co. Ltd. ("Kunlun Energy") based in Hong Kong and that she had received the check on its behalf. Hall testified that, pursuant to the terms of her contract with Kunlun Energy, she was to receive a monthly salary of $4,900 plus a 6.5% commission for receiving and processing payments from Kunlun Energy's debtors in the United States and Canada. She testified that all of the communications related to her work for Kunlun Energy were conducted by email and telephone and that she did not know anyone from Designer Hardware & Plumbing.

{¶ 7} Hall introduced a copy of the contract and portions of email communications involving Hall, Sun Patrick (identified as the "executive director" of Kunlun Energy) and Donald Tendani (an unidentified third party) allegedly relating to the check at issue. The contract between the parties was dated April 3, 2017, and was for a term of six months, subject to termination upon seven days written notice. Hall testified that the check at issue was from "one of the debtors" of Kunlun Energy or "the debtor of one of the clients" of Kunlun Energy, that she had received the check on behalf Kunlun Energy and that under the terms of the contract, she was to "process" the check, keep 6.5% of the funds she received as commission and then remit the balance of the funds to Kunlun Energy. Hall stated that she had her own bank account into which she could have deposited the check but she did not explain why she failed to do so.

{¶ 8} After considering the evidence and arguments of the parties, the trial court found Hall guilty of criminal simulation in violation of E.C.C.O. 545.13, sentenced her to 180 days in jail and imposed a $500 fine. The trial court stayed the sentence pending Hall's appeal.

{¶ 9} Hall appealed her conviction, raising the following assignment of error for review:

ASSIGNMENT OF ERROR: Did the trial court commit error convicting defendant of [c]riminal simulation, R.C. statute 2913.32(A)(4) [sic] and applying plaintiff's manifest weight of the evidence.

Law and Analysis

{¶ 10} In her sole assignment of error, Hall argues that her conviction was not supported by sufficient evidence and was against the manifest weight of the evidence.

{¶ 11} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production.

State v. Hunter , 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, 2006 WL 23252, ¶ 41, citing State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1977). When reviewing sufficiency of the evidence, an appellate court must determine " 'whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state's evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks , 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, 2009 WL 1965296, ¶ 25, citing Thompkins at 387, 678 N.E.2d 541 ; Jenks at paragraph two of the syllabus.

{¶ 12} A manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion. State v. Whitsett , 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, 2014 WL 5762874, ¶ 26, citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) ; State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 13. When considering an appellant's claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a "thirteenth juror" and may disagree "with the factfinder's resolution of the conflicting testimony." Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses' credibility and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, 678 N.E.2d 541, citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 13} Hall was convicted of one count of criminal simulation under E.C.C.O. 545.13. E.C.C.O. 545.13 provides, in relevant part:

(a) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
(1) Make or alter any object so that it appears to have value because of antiquity, rarity, curiosity, source, or authorship, which it does not in fact possess;
* * *
(4) Utter, or possess with purpose to utter, any object that the person knows to have been simulated as provided in subsection (a)(1) * * * of this section.
(b) Whoever violates this section is guilty of criminal simulation, a misdemeanor of the first degree. * * *

{¶ 14} This case turns on the interpretation of E.C.C.O. 545.13-specifically, the meaning of the phrase "[m]ake or alter any object so that it appears to have value because of * * * source, or authorship, which it does not in fact possess." The interpretation of an ordinance and the application of an ordinance to the facts are questions of law that we review de novo. See, e.g. , State v. Vanzandt , 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6 ; State v. Chapman , 4th Dist. Gallia No. 14CA8, 2015-Ohio-902, 2015 WL 1143183, ¶ 9 ; Brobst v. Lyndhurst, 8th Dist., 2018-Ohio-1518, 110 N.E.3d 990, ¶ 16, citing Cleveland Clinic Found. v. Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25.

{¶ 15} Hall argues that the trial court erred in convicting her of criminal simulation because the offense "does not apply to a bad check." The city argues that Hall was properly convicted of criminal simulation because the city presented evidence that she presented a check for cashing-an " 'object' * * * predicated upon [a] writing"-that had been "alter[ed]" as to "source" and "authorship" to make it appear as if it had value it otherwise would not have had.

{¶ 16} In reviewing an ordinance, we apply the same rules we apply when reviewing a statute. We give the words their plain, ordinary and customary meaning. See, e.g. , Brobst v. Lyndhurst , 2018-Ohio-1518, 110 N.E.3d 990, ¶ 16, citing Bosher v. Euclid Income Tax Bd. of Rev. , 99 Ohio St.3d 330, 2003-Ohio-3886, 792 N.E.2d 181, ¶ 14 ; Cleveland v. Go Invest Wisely, LLC , 8th Dist. Cuyahoga No. 95529, 2011-Ohio-3242, 2011 WL 2566378, ¶ 9. We give effect to all of the words used and may not " 'restrict, constrict, qualify, narrow, enlarge or abridge' " the plain language of the ordinance. Sivit v. Village Green of Beachwood, L.P. , 2016-Ohio-2940, 65 N.E.3d 163, ¶ 28 (8th Dist.), quoting State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn. , 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18 ; see also Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 53-54, 524 N.E.2d 441 (1988). If the plain language of the ordinance conveys a clear, unequivocal and definite meaning, we apply the language as stated without interpretation or construction. See, e.g. , Georgetown of the Highlands v. Cleveland Div. of Water , 2016-Ohio-8039, 75 N.E.3d 794, ¶ 21 (8th Dist.), citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 ; Cleveland v. Elkins , 8th Dist. Cuyahoga No. 91378, 2008-Ohio-6288, 2008 WL 5096927, ¶ 19. If, however, an ordinance is ambiguous, i.e., if the language of the ordinance is susceptible to more than one reasonable interpretation, we must apply rules of construction to interpret the ordinance. See, e.g. , Georgetown of the Highlands at ¶ 21 ; Columbus v. Reiner , 10th Dist., 2018-Ohio-975, 108 N.E.3d 719, ¶ 33.

{¶ 17} The terms "object," "source" and "authorship" are not defined in the ordinance. Webster's Third New International Dictionary defines "object," in relevant part, as "a discrete or visible or tangible thing." Webster's Third New International Dictionary 1555 (1993); see also Black's Law Dictionary 1240 (10th Ed.2014) (defining "object," in relevant part, as "[a] person or thing to which thought, feeling, or action is directed"). "[S]ource" is defined, in relevant part, as "the point of origin of," "a generative force or stimulus" or "point of origin or procurement." Webster's at 2177; see also Black's Law Dictionary at 1610 (defining "source" as "[t]he originator or primary agent of an act, circumstance, or result"). "[A]uthorship" is defined, in relevant part, as "the origin of a literary production" and "the state or act of creating." Webster's at 147; see also Black's Law Dictionary at 160 (defining "authorship," in relevant part, as "[t]he fact of having written a particular book or document").

{¶ 18} After a thorough review of the ordinance and applying the plain, ordinary and customary meanings to the words used, we find that Hall's and the state's interpretations are both reasonable and that the ordinance is ambiguous as to whether a check that has been altered in the manner in which the check was altered in this case falls within the scope of the ordinance. We, therefore, apply principles of statutory construction to interpret the ordinance.

{¶ 19} Ordinances defining offenses or penalties must be strictly construed against the city and liberally construed in favor of the defendant. See, e.g., Go Invest Wisely , 2011-Ohio-3242, at ¶ 9 ; Cleveland v. Pugh , 110 Ohio App.3d 472, 474, 674 N.E.2d 759 (8th Dist.) ; see also E.C.C.O. 501.04(a). E.C.C.O. 101.07(c) further provides:

If an ordinance is ambiguous, the court, in determining the intention of Council, may consider among other matters:
(1) The object sought to be attained;
(2) The circumstances under which the ordinance was enacted;
(3) The legislative history;
(4) The common law or former legislative provisions, including laws upon the same or similar subjects;
(5) The consequences of a particular construction;
(6) The administrative construction of the ordinance.

{¶ 20} Applying these considerations and construing the ordinance strictly against the city and liberally in favor of Hall, we find that altering the payee and amount of a check does not constitute "alter[ation]" of the "source" or "authorship" of an "object" within the meaning of E.C.C.O. 545.13 and that, therefore, there was insufficient evidence to support Hall's conviction for criminal simulation.

{¶ 21} E.C.C.O. 545.13(a) is nearly identical to Ohio's criminal simulation statute, R.C. 2913.32(A). The Committee Comment to R.C. 2913.32 states:

This section is designed to prohibit forgery where the subject of the offense is not a writing but an object. Among other things, the section prohibits the increasingly common practices of simulating antique furniture, or of counterfeiting phonograph records.

R.C. 2913.32, 1974 Committee Comment to H 511.

{¶ 22} Thus, it appears that the criminal simulation statute was intended to fill a gap left by the forgery statute, which applies to "forgery" of "writings," see R.C. 2913.31, by extending the prohibition against forgery to "objects." See, e.g. , State v. Joseph , 7th Dist. Mahoning No. 00 CA 218, 2002-Ohio-3009, 2002 WL 1370900, ¶ 29 ("The criminal simulation statute was enacted in part to prohibit the production of counterfeit merchandise.").

{¶ 23} The Second District considered a similar issue in State v. Primous, 164 Ohio App.3d 26, 2005-Ohio-5586, 840 N.E.2d 1142 (2d Dist.). In Primous , the defendant was charged with one count of passing a bad check in violation of R.C. 2913.11 and one count of criminal simulation in violation of R.C. 2913.32 based on a personal check the defendant had presented to a retail store. Id. at ¶ 1. The defendant pled guilty to the passing bad check charge and no contest to the criminal simulation charge. Id. at ¶ 2. On appeal, the defendant argued that he was not properly convicted of criminal simulation because "passing a bad check does not fit under the ambit of criminal simulation." Id. at ¶ 16. The Second District agreed. The Second District held that the Committee Comment to R.C. 2913.32"makes it quite clear that the section applies to forging objects and not a writing, such as forging antiques or phonograph records." Id.

{¶ 24} This case is, in certain respects, factually distinguishable from Primous . In Primous , the conduct at issue was "passing a bad check." Passing a bad check is different from what occurred here. Passing a bad check occurs when a check is drawn on a nonexistent account or on an account with insufficient funds to honor the check when presented. See R.C. 2913.11. In this case, the check at issue was from an existing account. There was no evidence that there were insufficient funds in the account to honor the check. Rather, the original payee and the amount of the check had had been erased and replaced to make it appear as if the check was a check payable to Hall in the amount of $30,787.50 when it was actually a check payable to an unidentified company "for like $130-something." Nevertheless, we find the reasoning of the court in Primous persuasive. See also State v. Rea , 145 Ariz. 298, 300, 701 P.2d 6 (Ariz.App.1985) ("[T]he criminal simulation statute was designed to address 'the problems of forged art treasures or the sale of faked antiques or rare natural objects.' Given that history, we hold that 'object' * * * does not include 'written instrument.' "), quoting Report of the Arizona Criminal Code Commission 196 (1975).

{¶ 25} The city argues that we should ignore Primous and instead follow Cleveland v. Brown , 8th Dist. Cuyahoga No. 96964, 2012-Ohio-702, 2012 WL 589502. In Brown , this court held that evidence supported defendant's conviction for criminal simulation under R.C. 2913.12 where counterfeit bills, which were "immediately recognizable as counterfeit," were found in defendant's possession at a club. Id. at ¶ 9-18. In that case, no issue was raised regarding whether the counterfeit bills constituted "objects" that had been "made" or "alter[ed]" so that they "appear[ed] to have value because of antiquity, rarity, curiosity, source, or authorship, which [they did] not in fact possess." The issue in Brown was whether there was sufficient evidence that the defendant had the requisite knowledge or intent to support his conviction under R.C. 2913.12 based on the fact that he possessed counterfeit bills. Id. at ¶ 14-18. This court affirmed his conviction, reasoning that given that the defendant had no legitimate currency to pay for any goods or services he would acquire that night as a patron of the club, but only counterfeit bills, a reasonable person could infer that he had tendered or intended to tender the counterfeit bills in exchange for goods and services and, therefore, had intent to defraud or acted knowingly. Id. at ¶ 16-18.

{¶ 26} Furthermore, cases involving counterfeit currency are distinguishable in that they involve a tangible object, i.e., currency, that appears to have value specifically because of its purported "source," i.e., because it appears to be legal currency issued by the United States government rather than the counterfeit "paper money" it actually is. See also State v. Fry , 6th Dist. Sandusky No. S-93-3 n., 1993 WL 476375, *3-6 (Nov. 19, 1993) (evidence was sufficient to support conviction for criminal simulation where defendant participated in a scheme to pass simulated $100 bills at bar); State v. Lantz , 4th Dist. Vinton No. 475, 1992 WL 129327, *7-9 (June 10, 1992) (sufficient evidence existed to support conviction for criminal simulation where defendant paid $50 for a counterfeit $100 bill, which was circumstantial evidence that he intended to utter it later). In this case, there was no evidence that the name or signature of the drawer of the check was altered or that any information related to the payor bank or account on which the check was drawn was altered.

{¶ 27} We need not decide in this case whether an alteration of a check could never support a conviction for criminal simulation under E.C.C.O. 545.13(a) or R.C. 2913.12(A). Compare State v. Sweet , Tenn. App. No. E2010-00728-CCA-R3-CD, 2011 WL 6318506, *1-2, 34, 42-43 (Dec. 16, 2011) (defendant committed act of criminal simulation when he altered check to appear to be from the account of "Mr. Jamie Turpin" rather than "Ms. Jamie Turpin"); State v. Baggett , Tenn. App. No. W2008-00618-CCA-R3-CD, 2008 WL 5156124, *3 (Dec. 8, 2008) (evidence was sufficient to convict defendant of criminal simulation where defendant presented a check made payable to him, signed with the name of a fictitious person, that was drawn on a bank that had ceased operations by the listed name five years earlier).

{¶ 28} For purposes of resolving this appeal, we hold only that altering a check to erase and replace the payee and amount of the check does not constitute "alter[ation]" of the "source" or "authorship" of an "object" within the meaning of E.C.C.O. 545.13(a) and that, therefore, there was insufficient evidence to support Hall's conviction for criminal simulation under that provision.

{¶ 29} Because we find that Hall's conviction was not supported by sufficient evidence, Hall's argument that her conviction was against the manifest weight of the evidence is moot. Hall's assignment of error is sustained in part.

{¶ 30} Judgment reversed; conviction vacated.

MARY EILEEN KILBANE, J., and PATRICIA A. BLACKMON, J., CONCUR

      The email chain does not appear to be complete and portions of the text of the email chain are cut off in the copy of the exhibit filed with the trial court.

      Although Hall refers to R.C. 2913.32(A)(4) in her assignment of error, she was actually convicted of violating E.C.C.O. 545.13.

      "Defraud" is defined as "to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another." E.C.C.O. 545.01(b). "Deception" is defined as "knowingly deceiving another or causing another to be deceived, by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act or omission that creates, confirms or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact." E.C.C.O. 545.01(a). "Utter" is defined as "to issue, publish, transfer, use, put or send into circulation, deliver or display." E.C.C.O. 545.01(h).

      E.C.C.O. 101.07(c) mirrors the language of the statutory rules of construction in R.C. 1.49.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael WILLIAMSON, Defendant-Appellant
    No. 106480
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Michael Williamson, Inmate No. A423451, Richland Correctional Institution, P.O. Box 8107, Mansfield, Ohio 44901, FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Diane Smilanick, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., E.T. Gallagher, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant, Michael Williamson ("Williamson"), appeals the trial court's denial of his postconviction application for DNA testing. We affirm.

I. Facts and Procedural Background

{¶ 2} In 2001, Williamson was convicted of 12 counts of rape in violation of R.C. 2907.02 and was sentenced to 12 consecutive life terms. This court affirmed his convictions in State v. Williamson , 8th Dist. Cuyahoga No. 80982, 2002-Ohio-6503, 2002 WL 31667650.

{¶ 3} On November 23, 2016, Williamson filed an application for DNA testing pursuant to R.C. 2953.71 through 2953.81. On December 9, 2016 the trial court denied Williamson's motion as "untimely filed." Williamson appealed and this court reversed, finding that the trial court's denial of Williamson's DNA testing application as "untimely" constituted an insufficient order. State v. Williamson , 8th Dist. Cuyahoga No. 105320, 2017-Ohio-4192, 2017 WL 2482846. We remanded the case for the trial court to comply with R.C. 2953.71 through 2953.81 and make a ruling on his application for DNA testing. Id. at ¶ 5.

{¶ 4} On October 12, 2017, the trial court issued an opinion and order denying Williamson's application. The trial court noted that Williamson was requesting testing of a "cup and flooring" related to the victim's testimony that she spit his semen on both items. The court found, however, that no physical evidence was presented at his trial that could be tested for DNA; the court stated that the only physical evidence collected and tested by the state was the victim's bedding, which tested negative for semen and blood. The court found that Williamson's application could be denied per R.C. 2953.74(C)(1). The court further found that results from the DNA testing would not be outcome determinative because the presence of another person's DNA would not have exonerated Williamson. The victim alleged that Williamson raped her over 40 times; he was convicted of 12 of those incidents, and the cup and flooring only related to one incident. Thus, DNA exoneration for the alleged evidence on the cup and flooring would not exonerate him on all counts.

{¶ 5} Williamson filed a timely pro se notice of appeal and has assigned six assignments of error for our review:

I. The dispositive opinion factual finding that "the physical cup itself and samples from the floor are unavailable for DNA testing at this point" was not made in accordance with statutory requirements and therefore fails.
II. The dispositive trial court legal conclusion that "the trial of (Neiswonger's or) another person's DNA (in or on the cup or immediate flooring) would have * * * not * * * completely * * * exonerated (the) appellant (with an) exclusion result," established a standard for the requirement (as to DNA application rejection) or 2953.74(B)(4) contrary to Ohio law and thus fails.
III. The dispositive opinion mixed finding of fact and conclusion of law that "the cup and floor relate to only one incident (out of the victim's allegations that the appellant raped her in forty-plus incidents) thus (even if some other person's, and not the appellant's DNA, was found in or on the cup or in the immediate flooring, that) "evidence would not exonerate Williamson for all 12 counts with an exclusion result and thus the requirements of 2953.71(C)(4) as defined by 2953.71(L) were not met" misstates the law as to 2953.74(C)(4) and thus fails.
IV. The opinion and order erroneously ignores Williamson's application made pursuant to R.C. 2953.74(B).
V. The opinion and order erroneously fails to analyze the requirements of the U.S. and Ohio Constitutions impacted in R.C. 2953.71 - 2953.81, mandating the DNA testing requested.
VI. The R.C. 2953.71 - 2953.81 statutory scheme is unconstitutional under the due process and equal protection clauses of the 14th Amendment; and under the due process and equal protection clauses of the Ohio Constitution.

II. Law and Analysis

{¶ 6} Assignments of error one through five will be combined for review because they discuss the same issue: Williamson claims that the trial court erred in denying his application for DNA testing.

{¶ 7} Postconviction DNA testing for eligible inmates is addressed in R.C. 2953.71 through 2953.81. Detailed grounds for accepting or rejecting applications can be found in R.C. 2953.74. State v. Widmer , 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, 2013 WL 142041, ¶ 114. R.C. 2953.74(A) provides that a trial court "has the discretion, on a case-by-case basis" to accept or reject an eligible inmate's application for DNA testing. Thus, we review the trial court's decision to deny Williamson's application for an abuse of discretion. An abuse of discretion is more than an error of law or judgment, but instead connotes that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard, an appellate court may not merely substitute its judgment for that of the trial court. Berk v. Mathews , 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶ 8} R.C. 2953.74(C) provides, in part, that the court may accept an application for DNA testing only if:

(1) the court determines pursuant to section 2953.75 of the Revised Code that biological material was collected from the crime scene or the victim of the offense for which the inmate is an eligible inmate and is requesting DNA testing and that the parent sample of that biological material against which a sample from the inmate can be compared still exists at that point in time.

R.C. 2953.75(A) requires the court to direct the prosecuting attorney to canvass any and all law enforcement authorities that might have retained the biological material to be tested to determine "whether the parent sample of that biological material still exists at that point in time."

{¶ 9} In this case, the state reported that no parent sample existed, and submitted a report in accordance with R.C. 2953.75(B). The state reported that it conducted a search in July 2017 and found that the Cleveland Police Department collected evidence relevant to the crime in April 2001; the physical evidence had tested negative for semen and blood. The physical evidence consisted of the victim's clothing, her bedding and blankets, a towel, and a doll's jacket. The state also reviewed relevant lab reports, police reports, and trial testimony. The police did not take a cup or flooring into evidence in April 2001 or anything thereafter; thus, the state was unable to locate a cup or flooring.

{¶ 10} Therefore, no parent sample existed on which a DNA test could be performed and the court denied Williamson's application on that finding, pursuant to R.C. 2953.74(C)(1).

{¶ 11} Further, the results of the requested DNA material would not be "outcome determinative." R.C. 2953.74(C)(4) provides that a trial court may only accept the application if the exclusion result will be "outcome determinative." As the trial court found, even if DNA from another person was found, Williamson would not be completely exonerated because the victim testified he raped her over 40 times. Williamson's identity was not at issue; he denied raping the victim and was convicted of 12 counts of rape.

{¶ 12} In State v. Madden , 10th Dist. Franklin No. 08AP-172, 2008-Ohio-2653, 2008 WL 2252553, the court affirmed the trial court's denial of an application for DNA testing when the allegation with regard to the item of DNA only concerned a single incident, but the victim had testified that appellant sexually abused her on multiple occasions over a two-year period. The court found that an "exclusion result" from the DNA testing the appellant requested would not be "outcome determinative." Id. at ¶ 11.

{¶ 13} As mentioned, in the present case, the victim testified that Williamson, a family member, raped her more than 40 times over an extended period of time. The cup and the flooring that Williamson desires to be tested only relate to a single incident. Thus, as in Madden , an "exclusion result" from the DNA testing on these items, even if they could be located, would not be outcome determinative.

{¶ 14} Therefore, the trial court did not abuse its discretion in denying Williamson's application for DNA testing. The first through fifth assignments of error are overruled.

{¶ 15} In the sixth assignment of error, Williamson claims that R.C. 2953.71 through 2953.81 are unconstitutional. We disagree.

{¶ 16} All statutes are presumed constitutional. State v. Thompkins , 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996). "The party challenging the statutes bears the burden of proving otherwise." Id. Moreover, "[t]he legislation being questioned will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt." Id. , citing Arnold v. Cleveland , 67 Ohio St.3d 35, 38-39, 616 N.E.2d 163 (1993).

{¶ 17} The United States Supreme Court has held that there is no substantive due process right to obtain evidence for DNA testing in a postconviction setting. Dist. Attorney's Office for Third Judicial Dist. v. Osborne , 557 U.S. 52, 68, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Although Williamson's argument with regard to the alleged due process violation is difficult to decipher, we note that, in Ohio, "the plain language of the current DNA testing statutes does not include within their scope the testing of a victim's DNA." State v. Widmer , 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, 2013 WL 142041, ¶ 142. Nor, common sense dictates, does the plain language of the current DNA testing statutes include within their scope the testing of physical items not within the state's custody and control. See R.C. 2953.74(C)(1).

{¶ 18} Williamson contends that the terms "exclusion" and "exclusion result" are unconstitutionally vague in relation to the term "outcome determinative."

{¶ 19} In order to survive a void-for-vagueness challenge, "the statute must be written so that a person of common intelligence is able to determine what conduct is prohibited, and secondly, the statute must provide sufficient standards to prevent arbitrary or discriminatory enforcement." State v. Baumgartner , 8th Dist. Cuyahoga Nos. 89190, 91027, and 91028, 2009-Ohio-624, 2009 WL 344988, ¶ 42, citing State v. Williams , 88 Ohio St.3d 513, 2000-Ohio-428, 728 N.E.2d 342.

{¶ 20} "The void-for-vagueness doctrine does not require statutes to be drafted with scientific precision." (Citation omitted.) Perez v. Cleveland , 78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997). "Instead, it permits a statute's certainty to be ascertained by application of commonly accepted tools of judicial construction, with courts indulging every reasonable interpretation in favor of finding the statute constitutional." (Citation omitted.) Id. at 378-379, 678 N.E.2d 537. The person challenging the statute bears the burden of showing that, upon examination of the statute, a person of ordinary intelligence would be unable to understand what the law requires of him or her. State v. Schneider , 9th Dist. Medina No. 06CA0072-M, 2007-Ohio-2553, 2007 WL 1531414, ¶ 6, citing State v. Anderson , 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991).

{¶ 21} R.C. 2953.71(G) defines "exclusion" or "exclusion result" to mean

a result of DNA testing that scientifically precludes or forecloses the subject offender as a contributor of biological material recovered from the crime scene or victim in question, in relation to the offense for which the offender is an eligible offender and for which the sentence of death or prison term was imposed upon the offender.

"Outcome determinative" means that

had the results of DNA testing of the subject offender been presented at the trial of the subject offender and been found relevant and admissible with respect to the felony offense for which the offender is an eligible offender and is requesting the DNA testing, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the offender's case as described in division (D) of section 2953.74 of the Revised Code, there is a strong probability that no reasonable factfinder would have found the offender guilty of that offense * * *.

R.C. 2953.71(L).

{¶ 22} In State v. Waire , 1st Dist. Hamilton No. C-040782, 2005-Ohio-4853, 2005 WL 2248924, the court explained that in order for DNA-testing results to be "exclusive" for purposes of R.C. 2953.71 et seq., the results had to preclude the inmate as the contributor of the biological material recovered from the crime scene or victim. The First Appellate District, discussing a former, but similar version of R.C. 2953.71, explained that a trial court may "accept" the application only if the DNA-testing results are "exclusive" and the court determines that the results are "outcome determinative." Waire at ¶ 4 ; R.C. 2953.74(B) and (C)(4). DNA-testing results are "exclusive" if they scientifically preclude or foreclose the subject offender as a contributor of biological material recovered from the crime scene or victim. Waire at id. , citing former R.C. 2953.71(G). "Exclusive" results are "outcome determinative" if, had the results been presented at the offender's trial and been found relevant and admissible, no reasonable factfinder would have found the offender guilty of that offense. Waire at id. , citing former R.C. 2953.71(L).

{¶ 23} Thus, in reading the terms "exclusion," "exclusion result," and "outcome determinative," we find that the statute contains ascertainable standards, provides sufficient notice of what the terms apply to, and contains sufficient guidelines to avoid arbitrary or discriminatory enforcement.

{¶ 24} In light of the above, the terms "exclusion" and "exclusion result" in relation to the term "outcome determinative" are not unconstitutionally vague.

{¶ 25} Williamson also claims that the trial court's application of R.C. 2953.71 et seq. violates his equal protection rights. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides, "No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." Ohio's Equal Protection Clause, Section 2, Article I of the Ohio Constitution, states, "All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." These constitutional guarantees do not forbid classifications. "[They] simply keep[ ] governmental decision makers from treating differently persons who are in all relevant respects alike." Burnett v. Motorists Mut. Ins. Co. , 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 30 ; Nordlinger v. Hahn , 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). "Thus, the comparison of only similarly situated persons or groups is integral to an equal protection analysis." Widmer at ¶ 145.

{¶ 26} Although Williamson's argument is again difficult to understand, he appears to claim that he was denied equal protection because DNA testing should be allowed on "all available admissible evidence related to the inmate's case," whether that evidence was collected at the time of the crime or not.

{¶ 27} Postconviction relief is strictly a statutory right, not a constitutional right. Widmer at ¶ 142. We fail to see how Williamson, as an offender who seeks to compare physical items that are not, and were likely never, in the state's custody or control, is similarly situated to the offenders listed in R.C. 2953.71 et seq., so as to violate the guarantees of equal protection. Simply put, Williamson seeks to have the DNA tested on two physical items, a cup and a piece of flooring, that were never collected as part of the criminal investigation but, according to Williamson, may be available 17 years after the crimes were committed. His request is far different from offenders who seek to compare their own DNA with physical items that remain in the state's possession and may otherwise qualify under R.C. 2953.74(C).

{¶ 28} The Equal Protection Clause "does not require things which are different in fact * * * to be treated in law as though they were the same." GTE N., Inc. v. Zaino , 96 Ohio St.3d 9, 2002-Ohio-2984, 770 N.E.2d 65, ¶ 22, citing Tigner v. Texas , 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940).

{¶ 29} We find that Williamson's claims are without merit.

{¶ 30} The sixth assignment of error is overruled.

{¶ 31} The trial court did not err in denying Williamson's application for DNA testing and R.C. 2953.71 et seq. does not violate Williamson's due process or equal protection rights. Accordingly, judgment is affirmed.

EILEEN T. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR

      Neiswonger was a homeless person Williamson alleged committed the rapes.

      R.C. 2953.75(B) states: "The prosecuting attorney shall prepare a report that contains the prosecuting attorney's determinations made under division (A) of this section and shall file a copy of the report with the court and provide a copy to the eligible offender and the attorney general."


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

text:
    Ylli AGAJ, et al., Plaintiffs-Appellants v. UNIVERSITY HOSPITALS HEALTH SYSTEM, INC., et al., Defendants-Appellees
    No. 105988
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Ronald C. Swencki, R.C. Swencki & Associates, 55 Public Square, Suite 2100, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANTS
    George Moscarino, Moscarino & Treu, L.L.P., The Hanna Building, 1422 Euclid Avenue, Suite 630, Cleveland, Ohio 44115, For University Hospitals Health System, Inc.
    Y. Timothy Chai, Moscarino & Treu, L.L.P., The Hanna Building, 1422 Euclid Avenue, Suite 630, Cleveland, Ohio 44115, For Cliff A. Megerian, M.D.
    BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, P.J.:

{¶ 1} Plaintiffs-appellants, Ylli and Mirela Agaj (together "appellants"), appeal from the trial court's judgment dismissing their complaint against defendants-appellees, University Hospitals Health System, et al. (collectively "UH") with prejudice. Appellants raise the following assignment of error for review:

1. The trial court erred and abused its discretion in not permitting appellants to refile their complaint by showing that the negligence in delaying the refiling was excusable.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} On November 4, 2015, appellants filed a complaint against UH, alleging that Mr. Agaj received negligent medical care in May 2014 that resulted in permanent injuries, loss of income, and other damages. On April 27, 2016, appellants filed a notice of voluntary dismissal pursuant to Civ.R. 41(A).

{¶ 4} On May 2, 2017, appellants filed a motion captioned "request to file complaint instanter." In the motion, appellants acknowledged that their complaint was not refiled within one year of the notice of voluntary dismissal as required by Ohio's savings statute, R.C. 2305.19. However, appellants requested leave to refile their complaint based on their belief that counsel's failure to comply with the time requirements of the savings statute was the result of excusable neglect.

{¶ 5} On May 16, 2017, UH filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. UH argued that appellants' claims were untimely because the complaint was not refiled within one year of the voluntary dismissal in accordance with the savings statute.

{¶ 6} Appellants opposed the motion to dismiss, reiterating their position that the failure to comply with the savings statute was the result of counsel's excusable neglect.

{¶ 7} On June 14, 2017, the trial court denied appellants' motion for leave and granted UH's motion to dismiss, stating, in relevant part:

Plaintiffs dismissed their initial complaint without prejudice on 4/27/2016. Plaintiffs did not refile their complaint until 5/2/2017. Plaintiffs failed to refile their complaint within one year of their dismissal and therefore their claims are now time[-]barred, pursuant to R.C. 2305.113(A) and 2305.19(A). Plaintiffs' complaint is dismissed with prejudice.

{¶ 8} Appellants now bring this timely appeal.

II. Law and Analysis

{¶ 9} In their sole assignment of error, appellants argue the trial court erred by dismissing their complaint with prejudice.

{¶ 10} A motion to dismiss for failure to state a claim on which relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt. , 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11 (2010). In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiff's favor. Id. at ¶ 12 ; LeRoy v. Allen, Yurasek & Merklin , 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. A court may dismiss a claim under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the face of the complaint conclusively shows that the claim is time barred. Ohio Bur. of Workers' Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 13. Appellate court review of a trial court's decision to dismiss a claim pursuant to Civ.R. 12(B)(6) is de novo. Id. at ¶ 12.

{¶ 11} Ohio's savings statute, R.C. 2305.19, affords a plaintiff a limited period of time to refile a dismissed claim that would otherwise be time barred. The statute provides, in part:

In any action that is commenced or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of * * * the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.

R.C. 2305.19(A).

{¶ 12} Thus, " '[i]n certain instances, [ R.C. 2305.19 ] operates to save timely filed actions by permitting a party to refile its complaint or file a new action * * *' within one year of a failure otherwise than on the merits." Vaught v. Pollack , 8th Dist. Cuyahoga No. 103819, 2016-Ohio-4963, 2016 WL 3763136, ¶ 12, quoting Allegretti v. York , 8th Dist. Cuyahoga No. 101231, 2014-Ohio-4480, 2014 WL 5089073, ¶ 15. A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than on the merits within the meaning of the savings statute. Frysinger v. Leech , 32 Ohio St.3d 38, 512 N.E.2d 337 (1987), paragraph two of the syllabus; Ruch v. Ohio Dept. of Transp. , 10th Dist. Franklin No. 03AP-1070, 2004-Ohio-6714, 2004 WL 2893150, ¶ 9.

{¶ 13} In this case, appellants do not dispute that the applicable statute of limitations period for their claims expired before the complaint was refiled on May 2, 2017. In addition, appellants concede that counsel failed to refile the complaint within one year of the voluntary dismissal. Nevertheless, appellants argue the trial court erred by dismissing their complaint and denying their motion for leave where the failure to comply with R.C. 2305.19 was the result of excusable neglect.

{¶ 14} In their brief in opposition to UH's motion to dismiss, the appellants attached an affidavit from a paralegal who was employed by appellants' counsel. In the affidavit, the paralegal averred that on or about April 27, 2017, she was working on appellants' complaint when she became ill and went home for the day. The paralegal claimed that she attempted to file the complaint with the trial court from home, but "was unable to enter the court's e-filing system." Therefore, the paralegal did not file the complaint until she returned to the office on May 2, 2017.

{¶ 15} Appellants submit that the circumstances that prevented counsel from refiling the complaint within the one-year time period set forth in R.C. 2305.19 amounted to excusable neglect as defined by the Ohio Civil Rules of Procedure. In support of their position, appellants cite Civ.R. 6(B)(2) and 60(B), procedural rules that excuse a party's failure to act in a timely manner under certain circumstances if the party can establish excusable neglect. Civ.R. 6(B) provides that if a civil rule specifies a time limit for any act, a court can still allow the act after the expiration of the stated time period, where the failure to act in a timely manner was the result of excusable neglect. Civ. R. 60(B) applies to motions for relief from judgment and provides for the use of excusable neglect as a basis for a time extension when a party so moves the court.

{¶ 16} After careful consideration, we adopt holdings from other appellate districts that have rejected similar arguments and hold that the exceptions for excusable neglect under Civ.R. 6 and 60(B) are not applicable to R.C. 2305.19. See Williams v. E. & L. Transp. Co. , 81 Ohio App.3d 108, 111, 610 N.E.2d 491 (9th Dist.1991) (holding that the time-extension provisions for excusable neglect under Civ.R. 6(B) is not applicable to Ohio's saving statute, R.C. 2305.19 ); McCullough v. Budd Co. , 3d Dist. Wyandot No. 16-92-12, 1992 WL 180096, *2 (July 23, 1992) (" Rule 60(B) excusable neglect also does not excuse compliance with R.C. 2305.19."). See also Shue v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 16AP-432, 2017-Ohio-443, 2017 WL 495596, ¶ 12 ("as several courts have noted, Civ.R. 6(B)'s excusable neglect provisions cannot excuse non-compliance with the statute of limitations (which includes R.C. 2305.19 ).") citing Hughes v. Fed. Mogul Ignition Co. , 5th Dist. Guernsey No. 06 CA 27, 2007-Ohio-2021, 2007 WL 1226416, ¶ 23-28 ("Appellant's argument that she was entitled to extension due to her attorney's illness fails because the time-extension provisions of Civ.R. 6(B) do not apply to R.C. 2305.19."); Ruch v. State of Ohio Dept. of Trans. , 10th Dist. Franklin No. 03AP-1070, 2004-Ohio-6714, 2004 WL 2893150, ¶ 22-23.

{¶ 17} Although appellants attempt to show, through the paralegal's affidavit, that the failure to comply with the savings statute amounted to excusable neglect because it was not done intentionally, this is not the type of mistake the civil rules contemplate. Harris v. O'Brien , 8th Dist. Cuyahoga Nos. 86218 and 86323, 2006-Ohio-109, 2006 WL 73452, ¶ 25. As this court has stated, "[t]he statute of limitations period and R.C. 2305.19 would be meaningless if attorneys could claim mistake for missing clear deadlines." Id. Regardless of the circumstances that led to the untimely filing, appellants were not relieved from having to comply with the express time restrictions set forth in R.C. 2305.19.

{¶ 18} Based on the foregoing, we find the trial court did not err by granting UH's motion to dismiss for failure to state a claim. Appellants' complaint was not timely refiled under the one-year savings statute because the refiling date, May 2, 2017, was more than one year after the voluntary dismissal of their original complaint filed on April 27, 2016.

{¶ 19} Appellants' sole assignment of error is overruled.

{¶ 20} Judgment affirmed.

MELODY J. STEWART, J., and PATRICIA ANN BLACKMON, J., CONCUR

      Pursuant to R.C. 2305.113(A), "an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued."


text:
    Lewis C. MERLETTI, Plaintiff-Appellant v. E-MERGING TECHNOLOGIES GROUP, INC., et al., Defendants-Appellees
    No. 106081
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 14, 2018
    Richard C. Haber, Daniel M. Connell, Haber, Polk & Kabat, L.L.P., 1300 W. 78th Street, Suite 305, Cleveland, Ohio 44102, ATTORNEYS FOR APPELLANT
    Louise M. Mazur, Kate M. Bradley, Marc B. Merklin, Kyle A. Shelton, Brouse McDowell, L.P.A., 388 S. Main Street, Suite 500, Akron, Ohio 44311, ATTORNEYS FOR APPELLEES, Jeremy A. Samide, William D. Edwards, Ulmer & Berne, L.L.P., Skylight Office Tower, 1660 West 2nd Street, Suite 1100, Cleveland, Ohio 44113, Edward J. Stoll, P.O. Box 45293, Cleveland, Ohio 44145, ATTORNEYS FOR APPELLEES, Ann Katigbak
    BEFORE: Jones, J., McCormack, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Plaintiff-appellant Lewis Merletti ("Merletti") appeals from the trial court's August 1, 2017 decision granting summary judgment in favor of defendants-appellees Jeremy Samide ("Samide") and Ann Katigbak ("Katigbak"). For the reasons that follow, we affirm.

I. Factual and Procedural Background

{¶ 2} Samide and Katigbak, along with nonparties Don Heestand ("Heestand") and Brian McCune, founded defendant-appellee E-Merging Technologies Group, Inc. ("ETG" or "the company"). Pursuant to a January 1, 2001 shareholder agreement, Heestand was the chief executive officer and owned 85 shares of the company's stock; Samide was the treasurer and owned five shares; and Katigbak was the secretary and owned five shares. McCune owned the remaining five shares of the company's stock. Heestand, Samide, and Katigbak were primarily responsible for the day-to-day operations of the company.

{¶ 3} In 2007, Heestand recruited Merletti to sit on ETG's senior advisory board and Merletti agreed. Heestand gifted Merletti ten shares of the company's stock in exchange for his participation. Merletti thereby became an ETG minority shareholder and advisory board member; it is undisputed that Merletti was never an ETG employee. According to Merletti, Heestand told him that his shares in the company would one day make him a millionaire.

{¶ 4} In June 2008, Heestand passed away. At the time of Heestand's passing, ETG was a multimillion dollar company. After Heestand's death, Samide and Katigbak took control of the company and, according to Merletti, did so in a manner to benefit themselves and to the detriment of the shareholders. For example, Merletti detailed "dramatic pay increases [Samide and Katigbak took] without any notice to or approval by the other shareholders."

{¶ 5} In March 2009, a meeting was held to nominate and appoint a board of directors for the company. As a result of the meeting, seven people were appointed: Samide, Katigbak, Merletti, Charles Painter, Thomas Kasza, Michael Dobeck, and Jacquelyn Huron.

{¶ 6} In July 2009, Merletti was appointed as chairman of the board of directors, and was compensated for his services in that position. He was also provided a commission for any business that he helped the company develop. However, Merletti never received a salary or other employment-related compensation from ETG.

{¶ 7} As a result of Heestand's passing, Samide was promoted to the position of chief executive officer, and he and the company executed an employment agreement. Katigbak also executed a similar employment agreement with the company.

{¶ 8} Merlettti contends that the agreements were "surreptitiously" executed without board approval, and provided "exorbitant" compensation and "significant fringe benefits" for Samide and Katigbak. The agreements included provisions that if Samide or Katigbak were terminated or had their salaries reduced, they were entitled to have ETG repurchase their shares of stock. Additionally, after Heestand's passing, the company, as required by the shareholder agreement, entered into an agreement with Heestand's estate to purchase his shares in the company.

{¶ 9} After this reorganization in the company, Samide and Katigbak each owned 20 shares in ETG; Merletti retained his original ten shares; and other employees/directors owned the remaining shares.

{¶ 10} Further, because a number of the company's shareholders were directors but not employees of the company (including Merletti), the shareholders executed a first amendment to the 2001 shareholder agreement. Pursuant to the amendment, the company had the right, in its sole discretion, to purchase a director's shares in ETG upon the director's termination or resignation from service to the company in the same manner that the company could elect to purchase the shares of employees who resigned or were terminated from the company. The amended agreement provided that

[f]or purposes of the [shareholder agreement], a member of the Board of Directors of [the] Company shall be considered an employee and removal or resignation shall be considered a right for the Company to purchase the Director's shares at Book Value pursuant to Section 4 of the [shareholder agreement].

{¶ 11} The record demonstrates that the company's financial outlook declined after Heestand's death. The board secured an outside accounting firm to conduct a forensic audit of the company for the year 2011. The audit revealed an unexplained increase of over $975,500 from 2010 to 2011 in "general and administrative" expenses.

{¶ 12} In August 2012, a board meeting was held, and the results of the audit were reviewed. According to Merletti, the unexplained increase was not properly accounted for. The board decided that it was going to conduct another audit for the years 2010-2012. Merletti sought to obtain documents relative to ETG, including financial documents. The company, through Katigbak, refused to provide Merletti with any financial documents.

{¶ 13} After Merletti raised his concerns, Samide scheduled a "special" shareholder meeting for September 7, 2012. The purpose of the meeting was to fix the number of board members to three and elect those members. During his deposition, Samide testified that he felt this was necessary because Merletti and some of the other board members had become "adversarial" toward him, and he felt that reducing the board to three members would help protect himself, his family, and ETG. Believing that his removal from the board was certain, Merletti resigned.

{¶ 14} After Merletti's resignation, the company provided Merletti notice of its intention to purchase his shares at book value as provided under the shareholder agreement and the first amendment to the agreement. In October 2012, the company informed Merletti that his shares in ETG had a negative book value and, thus, the company had no obligation to pay him for the shares.

{¶ 15} In November 2012, Merletti initiated this action against ETG, Samide, and Katigbak seeking (1) a declaratory judgment regarding the "appropriate method for calculating the value of [his] shares" due to his resignation from the board (Count 1); (2) specific performance of the shareholder agreement to value his shares at the fair market value (Count 2); and (3) production of the company's financial documents (Count 3). Merletti also asserted claims against the defendants for breach of fiduciary duty (Count 4) and fraud (Count 5).

{¶ 16} ETG, Samide, and Katigbak counterclaimed against Merletti for breach of contract, breach of fiduciary duty, tortious interference with business relations, and unjust enrichment. The defendants also filed a Civ.R. 12(B)(6) motion to dismiss Merletti's complaint. The trial court granted the motion to dismiss as it related to Counts 1, 2, and 3 of Merletti's complaint.

{¶ 17} The case proceeded through discovery, and in June 2015, while the case was still pending, ETG filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. Despite the bankruptcy filing, the case remained active on the common pleas docket, and Samide and Katigbak filed motions for summary judgment.

{¶ 18} As a result of proceedings in the bankruptcy court, Merletti dismissed his claims against ETG and ETG dismissed its counterclaims against Merletti. Thus, Merletti's remaining claims were against Samide and Katigbak for breach of fiduciary duty and fraud.

{¶ 19} In August 2017, the trial court rendered its decision on Samide's and Katigbak's motions for summary judgment. The court found that it was "constrained by the bankruptcy proceeding of [ETG] from allowing [Merletti] to proceed forward with his remaining claims in the matter." The trial court therefore granted summary judgment in favor of Samide and Katigbak and against Merletti. Merletti now appeals, contending the following in his sole assignment of error:

The trial court erred by granting summary judgment in favor of Defendant-Appellees Jeremy Samide and Ann Katigbak based upon a finding that Plaintiff-Appellant Lewis Merletti's claims against Mr. Samide and Ms. Katigbak personally were derivative, became the property of the bankruptcy estate for the company in which he, Mr. Samide, and Ms. Katigbak were shareholders, and were resolved in the bankruptcy proceedings.

{¶ 20} Additional facts will be discussed below.

II. Law and Analysis

Summary Judgment Standard

{¶ 21} Appellate review of a summary judgment ruling is de novo. Coventry Twp. v. Ecker , 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995) ; Koos v. Cent. Ohio Cellular, Inc. , 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Summary judgment is appropriate only when the moving party demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

{¶ 22} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). However, the moving party cannot discharge its initial burden under this rule with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id. ; Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997).

{¶ 23} Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at id. ; Vahila at 430, 674 N.E.2d 1164 ; Civ.R. 56(E).

Crosby v. Beam , 47 Ohio St.3d 105, 548 N.E.2d 217 (1989)

{¶ 24} The issue to be resolved in this case is whether Merletti's breach of fiduciary duty and fraud claims against Samide and Katigbak were permissible as direct claims against them, or whether they were exclusively the property of ETG's bankruptcy estate. Merletti relies on Crosby for his contention that, as a minority shareholder of ETG, a closely held corporation, he was permitted to file a direct action against Samide and Katigbak for the alleged individual harm they caused him. He is correct that Crosby stands for that proposition.

{¶ 25} In Crosby , Howard Crosby was a minority shareholder in Seascape Building Company, Inc. ("Seascape"). Crosby transferred all of his Seascape stock to Christian Caring Center, The Church of Holy Light ("the church"). A few months after Crosby's transfer of his Seascape stock, Seascape was voluntarily dissolved. As a result of its dissolution, all of its corporate assets were transferred to the Crosby Properties Liquidating Trust ("the trust"). Each shareholder of Seascape became a beneficiary of the trust in the percentage equaling his or her interest in Seascape.

{¶ 26} Two couples were the controlling shareholders and officers and directors of Seascape. Crosby and the church brought an action against the couples, contending that they improperly expended corporate funds by, for example, paying themselves unreasonable salaries and using Seascape funds for their personal benefit.

{¶ 27} The defendants sought dismissal of the action under Civ.R. 12(B)(6) on the ground that the plaintiffs' action could only be maintained as a shareholder derivative action under Civ.R. 23.1. According to the defendants, the alleged misappropriation of corporate funds directly affected the corporation and only indirectly harmed Crosby and the church and, therefore, Crosby and the church could not maintain their case as a direct action.

{¶ 28} The Ohio Supreme Court, recognizing the nature of a closely held corporation, held that

if we require a minority shareholder in a close corporation, who alleges that the majority shareholders breached their fiduciary duty to him, to institute an action pursuant to Civ.R. 23.1, then any recovery would accrue to the corporation and remain under the control of the very parties who are defendants in the litigation. Thus, a derivative remedy is not an effective remedy because the wrongdoers would be the principal beneficiaries of the recovery. See, generally , 2 [O'Neal & Thompson] O'Neal's Close Corporations [ (3 Ed.1987) ] 120-123, Section 8.11.

{¶ 29} Under the authority of Crosby , Merletti contends that, as a minority shareholder of ETG, a closely held corporation, he properly brought his breach of fiduciary duty and fraud claims as direct claims against the defendants.

Trial Court's Ruling

{¶ 30} The trial court recognized Crosby and its holding, stating that "Ohio law allows for a minority shareholder like [Merletti] to file a direct action lawsuit at the outset for claims asserting individual harm against majority shareholders of a closely held corporation * * *."

{¶ 31} But the court found that "even in situations in which a direct action by a minority shareholder against majority shareholders is appropriate under state law, the bankruptcy proceeding of the debtor corporation takes precedence in rendering the minority shareholder's direct action inappropriate if the debtor corporation could have also brought forth an action for the same state claims at the time of its bankruptcy filing."

{¶ 32} The trial court went on to find that Merletti's "state claims for breach of fiduciary duty and fraud against defendant Samide and defendant Katigbak could have been brought by debtor ETG at the commencement of ETG's bankruptcy proceeding, and thus those claims have exclusively become the property of ETG's bankruptcy estate and cannot be maintained by [Merletti] as a creditor at this stage in the litigation." In reaching its conclusion, the trial court relied on Honigman v. Comerica Bank (In re Van Dresser Corp.) , 128 F.3d 945 (6th Cir.1997), Boedeker v. Rogers , 140 Ohio App.3d 11, 746 N.E.2d 625 (8th Dist.2000), and Stanley v. Trinchard , 579 F.3d 515 (5th Cir.2009).

Honigman v. Comerica Bank (In re Van Dresser Corp.) , 128 F.3d 945 (6th Cir.1997)

{¶ 33} In In re Van Dresser , the plaintiff, Daniel Honigman ("Honigman"), was a shareholder of the Van Dresser Corporation. Van Dresser owned two subsidiaries: Renaissance Manufacturing Company ("Renaissance") and Van Dresser Corporation/Westland ("Westland"). One of the defendants, Grant Friley ("Friley"), was the president of Renaissance and the manufacturing manager of Westland. Friley drained approximately $2.7 million from Renaissance and Westland, causing both subsidiaries and the parent company, Van Dresser, to declare bankruptcy. In state court, Honigman sued Friley, Comerica Bank, which was the bank Honigman dealt with, and an assistant branch manager of the bank, alleging that the defendants caused him to lose approximately $1.1 million.

{¶ 34} Honigman maintained that he was not suing as a shareholder who had been injured by the loss of his stock value; rather, he contended that he had a direct relationship with the bank as a longtime borrower, which gave rise to special duties owed to him personally. Specifically, according to Honigman, Van Dresser obtained a $225,000 loan from the bank because of his relationship with the bank and his cosigning on the loan, and he guaranteed another $900,000 in loans from the bank to Van Dresser. Thus, Honigman maintained that when the company defaulted on the loans, he was forced to repay them and, therefore, he suffered an injury separate and distinct from the injuries that Van Dresser, Renaissance, and Westland suffered.

{¶ 35} Renaissance and Westland recovered a portion of the $2.7 million from the bank. The bankruptcy trustees for the companies notified all creditors, including Honigman, of a proposed settlement with the bank. Honigman did not object, and the bankruptcy court approved the settlement.

{¶ 36} The district court found that Honigman's claims were derivative and therefore were the exclusive property of the debtors' estates. Honigman appealed, contending that state law (Michigan) allowed him to recover personally from Friley, the bank, and the bank's assistant manager and to recover from the defendants through the bankruptcy proceedings. The defendants, on the other hand, contended that recovery was solely through the bankruptcy proceedings, and the Sixth Circuit Court of Appeals agreed. The court reasoned as follows:

Property of a debtor's estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). "The commencement of the case" is the moment the debtor files for bankruptcy. Koch Refinancing. [Refining] v. Farmers Union Cent. Exchange, Inc. , 831 F.2d 1339, 1343 (7th Cir. 1987). And it is "well established that the 'interests of the debtor in property' include 'causes of action.' " Bauer v. Commerce Union Bank , 859 F.2d 438, 441 (6th Cir.1988). A debtor's appointed trustee has the exclusive right to assert the debtor's claim. Schertz-Cibolo-Universal City, Indep. School Dist. v. Wright (In re Educators Group Health Trust ), 25 F.3d 1281, 1284 (5th Cir.1994). "If, on the other hand, a cause of action belongs solely to the estate's creditors, then the trustee has no standing to bring the cause of action." Id.
Whether a creditor has sole right to a cause of action is determined in accordance with state law. Oakland Gin Co. v. Marlow (In re The Julien Co. ), 44 F.3d 426, 429 (6th Cir.1995). However, if the debtor could have raised a state claim at the commencement of the bankruptcy case, then that claim is the exclusive property of the bankruptcy estate and cannot be asserted by a creditor. In re Educators Group Health Trust , 25 F.3d at 1284. "Conversely, if the cause of action does not explicitly or implicitly allege harm to the debtor, then the cause of action could not have been asserted by the debtor as of the commencement of the case, and thus is not property of the estate." Id. Thus, if Honigman's state claims could have been brought by Van Dresser or its subsidiaries on [the date bankruptcy was filed], then the plaintiff is barred from pursing them now.

In re Van Dresser, 128 F.3d at 947.

Boedeker v. Rogers , 140 Ohio App.3d 11, 746 N.E.2d 625 (8th Dist.2000)

{¶ 37} The issue in Boedeker was whether the superintendent of insurance of the Ohio Department of Insurance, in his capacity as the liquidator of the P.I.E. Mutual Insurance Company, was authorized to be substituted as the plaintiff in the case, in which the shareholders of the insurer pleaded derivative claims on behalf of the corporation as well as individual claims on behalf of the shareholders. The shareholders opposed the substitution, and the trial court agreed with them and denied the superintendent/liquidator's request to be substituted as the plaintiff, but allowed him to intervene in the action. The trial court also dismissed the plaintiffs' individual claims and left only the derivative claims for disposition.

{¶ 38} On appeal, the superintendent/liquidator challenged the denial of his motion seeking substitution; the plaintiffs also filed an appeal challenging the dismissal of their individual claims. This court considered the superintendent/liquidator's request to be substituted as to each set of the plaintiffs' claims: (1) the derivative claims and (2) the individual claims.

{¶ 39} The plaintiffs' derivative claims included counts for unauthorized payments, excessive compensation, breach of fiduciary duties, and professional malpractice. In determining whether the superintendent/liquidator should have had control of the plaintiffs' derivative claims, this court considered the "nature and extent of authority granted to a liquidator under Ohio law." Boedeker at 21, 746 N.E.2d 625. This court noted that the "extensive authority conferred upon a statutory liquidator is intended to prevent waste of the insurer's assets." Id. , citing 1 Couch on Insurance 3d (1997) 5-65, Section 5:37.

{¶ 40} The Boedeker court concluded that Ohio law "clearly authorize[s] a liquidator to take over, without interference, any claims, suits, or rights of action possessed and asserted directly by the insurer" and there was "no reason why there should be a different result for claims, suits, or rights of action asserted derivatively on behalf of the insurer by its shareholders." Id. , 140 Ohio App.3d at 23-24, 746 N.E.2d 625. Thus, this court held that, although the plaintiffs had the right to prosecute their claims prior to liquidation, the "liquidation order effectively transferred that interest to the liquidator." Id. at 26, 746 N.E.2d 625.

{¶ 41} In regard to the plaintiffs' individual or personal claims, which included counts for conversion, tortious interference with contractual relationships and violation of Ohio insurance laws, this court found that a "shareholder's direct claim against an officer or director * * * is personal to the shareholder and is not on behalf of the insurer. Consequently, [Ohio law] does not authorize the liquidator to prosecute the shareholder's direct claims." Id. at 30, 746 N.E.2d 625. This court recognized that " 'some actions for fraud are by their nature personal to each creditor, or each stockholder, or each policyholder, and the receiver may not then maintain a suit in his representative capacity for their joint benefit.' " Id. at 28, 746 N.E.2d 625, quoting Cotten v. Republic Natl. Bank of Dallas , 395 S.W.2d 930, 941 (Tex.Civ.App.1965).

Stanley v. Trinchard , 579 F.3d 515 (5th Cir.2009)

{¶ 42} In Stanley , the 5th Circuit Court of Appeals considered which statute of limitations controlled a bankrupt estate's legal malpractice claim: the state of Louisiana or the United States Bankruptcy Code. The court held that the bankruptcy code took precedence, stating that although it was "sympathetic to the importance of preserving state law property rights intact in bankruptcy," "[t]he subject of bankruptcy falls within the express constitutional powers of Congress, and bankruptcy law therefore takes precedence over state laws under the Supremacy Clause." Id. at 519.

Parties' Positions

{¶ 43} The defendants contend that In re Van Dresser , 128 F.3d 945, is on point with this case, while Merletti contends that it is inapplicable because it was decided under Michigan law and because the debtor was not a close corporation. Merletti further claims that Boedeker , 140 Ohio App.3d 11, 746 N.E.2d 625, is inapplicable here because the issue in that case is the real party in interest in an insurance liquidation proceeding. In addition to relying on Crosby , 47 Ohio St.3d 105, 548 N.E.2d 217, Merletti cites Yackel v. Kay , 95 Ohio App.3d 472, 642 N.E.2d 1107 (8th Dist.1994), and Edelman v. JELBS , 10th Dist. Franklin, 2015-Ohio-5542, 57 N.E.3d 246.

Yackel v. Kay , 95 Ohio App.3d 472, 642 N.E.2d 1107 (8th Dist.1994)

{¶ 44} In Yackel , the plaintiff brought an action against a closely held manufacturing company and the company's president; the plaintiff was a minority shareholder and former vice president of sales.

{¶ 45} As to the claims against the president, the plaintiff alleged that the president, the majority shareholder, breached his fiduciary duty to the company by using his position as majority shareholder to "derive personal financial benefit from [the company] thereby depriving minority shareholders of their just share of the corporation's profits." Id. at 475, 642 N.E.2d 1107. The alleged personal benefits included excessive salary and bonuses; medical insurance for the president, his former wife and an unidentified individual; payment on personal credit card bills; personal travel expenses; and real estate taxes on the president's personal property. The plaintiff also alleged that the president conspired with the remaining shareholders and orchestrated the plaintiff's ouster as vice president of sales.

{¶ 46} One of the issues on appeal was whether the plaintiff's direct action against the president was proper, or whether it should have been brought as a shareholder derivative action under Civ.R. 23.1. Citing Crosby , 47 Ohio St.3d 105, 548 N.E.2d 217, this court held that the plaintiff properly brought his direct action against the president.

Edelman v. Jelbs , 10th Dist. Franklin , 2015 - Ohio - 5542 , 57 N.E.3d 246

{¶ 47} Edelman involved a situation where the plaintiff was a minority shareholder and former employee of a closely held corporation, and alleged that the other shareholders breached their fiduciary duties to plaintiff and the company relative to share dividend distributions. The plaintiff filed an action individually and derivatively. In resolving another issue - i.e., the burden regarding the reasonableness of the defendants' compensation - the court, citing Crosby and Yackel , 95 Ohio App.3d 472, 642 N.E.2d 1107, noted that Ohio law allows direct actions by a minority shareholder in a closely held corporation.

Discussion

{¶ 48} Review of the above-cited cases demonstrates that a direct action by a minority shareholder in a closely-held corporation is permissible under Ohio law. Thus, to the extent that Merletti's action was a direct action, it would generally be permissible under Ohio law. But that does not end our inquiry because there is a complicating factor here: the company's bankruptcy. The cases Merletti relies on - Crosby , Yackel , and Edelman - did not involve bankruptcy. Here, as mentioned, ETG filed for bankruptcy in June 2015, while this case was still pending, and a trustee was appointed. We now review some further facts relative to the bankruptcy proceeding in this case.

{¶ 49} In addition to Merletti's claims against ETG, the company was also subject to claims made by others. Specifically, former board member and shareholder Jacquelyn Huron ("Huron") and former employee and shareholder Stephen Heestand filed an action against ETG, Samide, and Katigbak ("the Huron case"). The claims of all these plaintiffs - Merletti , Huron , and Stephen Heestand - were subject to the bankruptcy proceedings .

{¶ 50} In regard to Merletti, the record demonstrates that in November 2015, by and through the same counsel who represented him in this action, Merletti filed a notice of claim in the bankruptcy case, seeking $1.6 million for the "repurchase of [his] shares of stock per [the] shareholder agreement"; Merletti also sought $1.6 million in this case.

{¶ 51} During the course of the bankruptcy proceedings, the parties in the Huron case and the bankruptcy trustee entered into a settlement agreement. The settlement included a release of Samide and Katigbak. The settlement was approved by the bankruptcy court after finding that there were no objections to it and that it was "in the best interests of this estate and its creditors."

{¶ 52} In November 2016, the bankruptcy trustee and Merletti entered into a settlement agreement. Under the agreement, ETG would dismiss its counterclaims against Merletti set forth in this action in exchange for Merletti dismissing his claims against the company in this action and subordinating his $1.6. million claim. Merletti also agreed not to object to the settlement in the Huron case . The trustee stated the following in regard to the settlement:

Having given serious consideration to the litigation alternative, the trustee believes that the compromise as proposed is fair and reasonable in light of the fact that the State Court Action [this case] has been aggressively prosecuted and defended without any meaningful prospect of settlement until now, the costs and expenses of continuing the litigation, the risks inherent in such litigation and the delay in expeditiously administering the estate as the result of continued litigation.

{¶ 53} As stated, the settlement in the Huron case included a release of Samide and Katigbak; Merletti agreed to not object to that release. Merletti's claims were therefore settled in the bankruptcy proceeding, and review of documents submitted in this case from the bankruptcy proceeding demonstrate that that was the intent of the parties: to completely settle the matter.

{¶ 54} Therefore, Merletti's attempt to continue to litigate his claims in this case is an attempt to obtain a double recovery. It is a well-settled rule of law that the "measure of damages is that which will compensate and make the plaintiff whole." Pryor v. Webber , 23 Ohio St.2d 104, 263 N.E.2d 235 (1970), paragraph one of the syllabus. Thus, the law of damages is generally intended to preclude double recovery for an injury.

{¶ 55} Moreover, the doctrine of res judicata has been applied in the bankruptcy context. See Badovick v. Greenspan , 8th Dist. Cuyahoga No. 96097, 2011-Ohio-3262, 2011 WL 2568218, ¶¶ 13, 16-17 (" 'Numerous courts have held that in context of bankruptcy matters, not only formally named parties, but all participants in the bankruptcy proceedings, are barred by res judicata from asserting matters they could have raised in the bankruptcy proceedings.' ") Id. at ¶ 16, quoting Federated Mgt. Co. v. Latham & Watkins , 138 Ohio App.3d 815, 823, 742 N.E.2d 684 (10th Dist.2000).

{¶ 56} This case is, as the trial court found, most in line with In re Van Dresser , 128 F.3d 945 (6th Cir.1997). We recognize, as Merletti points out, that the company at issue in In re Van Dresser , was not a closely held corporation. Nonetheless, we cannot ignore the bankruptcy proceeding.

{¶ 57} A matter is within the jurisdiction of a bankruptcy proceeding if it is simply "related to" the bankruptcy. Intl. Total Servs., Inc. v. Garlitz , 8th Dist. Cuyahoga No. 90441, 2008-Ohio-3680, 2008 WL 2834174, ¶ 11, citing Peabody Landscape Constr., Inc. v. Schottenstein , 371 B.R. 276 (S.D. Ohio 2007). The Sixth Circuit Court of Appeals has determined that a claim is "related to" a bankruptcy proceeding if the result of the matter " 'could alter the debtor's rights, liabilities, options, or freedom of action and which in any way impacts upon the handling and administration of the bankrupt estate.' " Browning v. Levy , 283 F.3d 761, 773 (6th Cir.2002), quoting Lindsey v. O'Brien, Tanski, Tanzer & Young Health Care Providers (In re Dow Corning Corp.) , 86 F.3d 482, 489 (6th Cir. 1996).

{¶ 58} The record here demonstrates that Merletti participated and reached a settlement in the bankruptcy proceeding. The record further indicates that it was the intent of the parties that settlement of Merletti's bankruptcy claim was for complete settlement of the entire matter. The fact that ETG was a closely-held corporation does not change the outcome for the purpose of resolving this case.

{¶ 59} Further, although Boedeker did not involve bankruptcy, it addressed more than the issue of a real party in interest, as previously discussed. And the ruling that although a plaintiff may have had a right to prosecute his or her claim prior to liquidation, but the interest transfers to a liquidator upon a liquidation order, is persuasive, analogous authority for us in resolving this matter involving bankruptcy.

{¶ 60} Therefore, for the reasons discussed above, we find that the trial court properly granted summary judgment in favor of Samide and Katigbak. Merletti's sole assignment of error is overruled.

{¶ 61} Judgment affirmed.

TIM McCORMACK, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR

      "Book value" was to be determined by ETG or its accountants.

      "Close corporations bear a striking resemblance to a partnership. In essence, the ownership of a close corporation is limited to a small number of people who are dependent on each other for the enterprise to succeed. Just like a partnership, the relationship between the shareholders must be one of trust, confidence and loyalty if the close corporation is to thrive." Crosby , 47 Ohio St.3d at 108-109, 548 N.E.2d 217. Given this nature, the court stated that the close corporation structure "also gives majority or controlling shareholders opportunities to oppress minority shareholders." Id. at 109, 548 N.E.2d 217.

      The court found, however, that Honigman's claims for costs and attorney fees arose solely under state law and did not involve the debtors' estate.

      The bankruptcy trustee found that the Merletti's claim in the bankruptcy proceeding was "predicated upon the claims asserted [in this case]," which the trustee found "consumed a substantial amount of time and resources of all the parties involved over the past four (4) years."