author: Wise, P.J.

text:
    In the MATTER OF the GUARDIANSHIP OF: A.E.R. and C.S.R.
    Nos. 17 CAF 06 0040 17 CAF 06 0041
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT ENTRY: April 27, 2018
    EIMEAR M. BAHNSON, COLLEEN L. MARSHALL, LEEANN M. MASSUCCI, 250 Civic Center Drive, Suite 600, Columbus, Ohio 43215, JAY E. MICHAEL, 729 South Front Street, Columbus, Ohio 43206, For Appellee Rebekah B.
    JOHN J. KULEWICZ, ELIZABETH S. ALEXANDER, 52 East Gay Street, Post Office Box 1008, Columbus, Ohio 43216, SCOTT M. GORDON, 82 North Franklin Street, Delaware, Ohio 43015, For Appellant Susan R.
    JUDGES: Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Wise, P.J.

{¶ 1} Appellant Susan R. appeals the decision of the Delaware County Court of Common Pleas, Probate Division, which ruled in favor of Appellee Rebekah B. following a trial on competing guardianship applications regarding the parties' two nieces. The relevant facts leading to this appeal are as follows.

{¶ 2} The minor children at the center of this matter are A.E.R., born in 2011, and C.S.R., born in 2013. The children's parents are Todd and Rachel R., who both died on December 4, 2016. In their last wills and testaments, executed in 2014, Todd and Rachel each had nominated Appellant Susan R. (Todd's sister) and Appellee Rebekah B. (Rachel's sister), "in the order named," to serve as guardian of A.E.R. and C.S.R.

{¶ 3} The tragic death of the parents resulted from Todd's fatal shooting of Rachel in front of A.E.R. and C.S.R., and his subsequent suicide at a nearby state park. In the preceding few months, during the autumn of 2016, Todd and Rachel had become estranged, and Todd was spending weekends at the Wheelersburg, Ohio, home of Appellant Susan (his younger sister) and her spouse, Carol. Early on the afternoon of December 4, 2016, Todd had contacted Appellant Susan by text message, referencing a "note" he had left in the guest room of appellant's home. Appellant went back to her house and found the note, which included a reminder of the storage location for his and Rachel's wills, and the statement that "it makes the most sense for you and Carol to primarily care for the girls * * *." Appellant thereupon contacted Todd by phone in Columbus. At Todd's behest, appellant and Carol departed southern Ohio and headed to Columbus. Numerous calls and texts were exchanged during the drive. By the time they arrived, Todd had departed the area, but he told them by phone from an undisclosed location that he had "hurt" Rachel. At that point, appellant and Carol called 911, and law enforcement officials responded.

{¶ 4} On January 4, 2017, the probate court appointed appellant as emergency custodian of both children. A hearing on the emergency guardianship applications was conducted on January 6, 2017. After hearing the testimony, the probate court expressly adhered to the language of the parents' wills. The court further continued the emergency guardianship for an additional thirty days, subject to visitation rights and certain limitations. Emergency Hearing Tr. at 180-84.

{¶ 5} The court, via a judgment entry, appointed appellant as limited guardian for both girls on February 3, 2017.

{¶ 6} On March 13, 2017, a four-day guardianship trial commenced. Appellant's witnesses included her spouse, her older sister, fellow faculty members and administrators at the school at which she teaches and coaches, her cousin, other family members, her childhood best friend, her mother and appellant herself. The guardian ad litem and the probate court investigator also testified. Appellee's witnesses were the two ex-wives of the children's deceased father, her brother, her sister, her sister-in-law, a detective from the Delaware County Sheriff's Office, her first cousin, her mother and appellee herself.

{¶ 7} During the trial, the probate court allowed use of hearsay evidence in regard to the deceased parents, the guardianship applicants, and some of the relatives, over the continuing objection of appellant's counsel. The probate court took the guardianship decision under advisement following the trial.

{¶ 8} On May 31, 2017, the probate court issued a 34-page judgment entry naming appellee, the children's maternal aunt, as guardian for both children, despite the nomination in the wills and the guardian ad litem's recommendation that appellant, the children's paternal aunt, be named. The court recognized that Rachel and Todd each had indicated a "clear desire for an ordered preference" in their wills, with their first choice being Susan. Entry at 29. The probate court further observed: "The question, then, is whether the testimony in this matter rises to the level of good cause shown or disqualifies [appellant], such that the Court should move on to the parents' secondary designation of [appellee]." Id. The court then answered its question in the affirmative, and ultimately ruled that "[f]or the reasons outlined in section XI, above, the appointment of [appellant] * * * would not be in the [children's] best interests and good cause has been shown to overcome the primary designation * * *." Entry at 33.

{¶ 9} On June 21, 2017, appellant filed a notice of appeal. She herein raises the following four Assignments of Error:

{¶ 10} "I. THE PROBATE COURT MISINTERPRETED THE TWO EXCEPTIONS

TO R.C. 2111.121(B), WHICH PROVIDE THAT, WHEN APPOINTING THE GUARDIAN OF A MINOR CHILD, THE COURT 'SHALL MAKE ITS APPOINTMENT IN ACCORDANCE WITH' A TESTAMENTARY NOMINATION 'EXCEPT FOR GOOD CAUSE SHOWN OR DISQUALIFICATION.'

{¶ 11} "II. THE PROBATE COURT ABUSED ITS DISCRETION BY APPOINTING THE SECONDARY NOMINEE AS GUARDIAN ON THE BASIS OF NON-PROBATIVE EVIDENCE AS TO THE SECONDARY NOMINEE AND IN THE ABSENCE OF ANY FINDING AS TO THE PRIMARY NOMINEE THAT THERE IS 'GOOD CAUSE' TO DISREGARD THE PARENTAL ORDER OF PREFERENCE.

{¶ 12} "III. THE PROBATE COURT ABUSED ITS DISCRETION BY FINDING 'DISQUALIFICATION' OF THE PRIMARY NOMINEE BASED ON CONSIDERATIONS THAT ARE SUBJECTIVE IN NATURE, DO NOT RENDER HER INELIGIBLE TO SERVE AS GUARDIAN, AND WERE NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.

{¶ 13} "IV. THE PROBATE COURT IMPROPERLY RELIED ON OTHERWISE INADMISSIBLE HEARSAY EVIDENCE IN A CONTESTED GUARDIANSHIP PROCEEDING."

I.

{¶ 14} In her First Assignment of Error, appellant contends the probate court committed reversible error in interpreting R.C. 2111.121(B) as applied to her guardianship application. We disagree.

{¶ 15} R.C. 2111.121(B) states in pertinent part that "* * * except for good cause shown or disqualification, the [probate] court shall make its appointment in accordance with the person's most recent nomination [in a writing as described in division (A) ]. * * *." (Bracketed language added).

{¶ 16} We note the General Assembly, effective March 20, 2014, amended R.C. 2111.121(B), in response to the Uniform Power of Attorney Act. See 2013 Am.Sub. H.B. No. 126. The Ohio Supreme Court has indicated that a model act's official comment sections are instructive for interpreting Ohio law when the language is founded on the model act. See Heritage Hills, Ltd. v. Deacon, 49 Ohio St.3d 80, 82, 551 N.E.2d 125 (1990) (interpreting "consumer transactions" under R.C. Chap. 1345). Notably, the official comment to the Uniform Power of Attorney Act states that "[d]eference for the principal's autonomous choice is evident * * * in the directive that the court shall appoint a fiduciary in accordance with the principal's most recent nomination." UNIF. POWER OF ATTORNEY ACT § 108 (UNIF. LAW COMM'N 2017).

{¶ 17} Appellant herein properly posits that when parents have established an order of preference for guardianship, the court must determine, under R.C. 2111.121(B), whether there is either "good cause" not to appoint the primary nominee or the primary nominee is "disqualified." In the absence of either determination, the court must appoint the primary nominee.

The "Good Cause" Consideration

{¶ 18} Appellant initially asserts the probate court mistakenly quoted repealed language from the pre-2014 version of R.C. 2111.121(B), when the court noted that it had a duty to "examine whether the person nominated is 'competent, suitable, and willing to accept the appointment.' " See Judgment Entry at 28. Appellant herein further challenges the probate court's observation that it "should make a nomination [sic]" in accordance with a valid writing nominating a guardian. Id. at 29 (emphasis added). However, we note the probate court on those same two pages of its judgment entry recited the correct statutory language of "except for good cause shown or disqualification" found in modern R.C. 2111.121(B). We also note that toward the end of the trial, while the guardian ad litem was on the stand, the court stated: "And I think you're aware that the law in Ohio * * * says that the court is to follow the recommendation made in the estate planning documents of the parties unless good cause is shown." Tr. at 968. We are therefore unpersuaded that the court's recitations in the entry represent a misinterpretation of the legal standard as urged by appellant.

{¶ 19} The remaining focus of appellant's present challenge to the probate court's analysis is that no "good cause" findings were made specifically "as to" her, either in Section XI or anywhere else in the judgment entry. Appellant asserts the court improperly "skipped directly" to consideration of Appellee Rebekah as guardian (Appellant's Brief at 13) and limited its findings as to the "good cause" exception to "whether good cause has been shown that granting guardianship to [appellee] would be in the best interests of the children." Judgment Entry at 29.

{¶ 20} In the judgment entry, the court essentially found "good cause" in support of Appellee Rebekah for eight reasons, which can be summarized in five categories: (1) Rebekah and her husband have two children and strong parenting techniques; (2) Rachel and Rebekah had similar parenting techniques; (3) Rachel had expressed an interest in moving back to the Waterford, Ohio, area; (4) Rachel's extended family in the Waterford area would provide support; and (5) Rachel had listed her mother and another sister as emergency school contacts. Entry at 29-30. In essence, appellant thus charges that the probate court misapplied R.C. 2111.121(B) by improperly weighing one applicant against another and not following the nominating preference in the parents' wills. In other words, appellant maintains that in the case of consecutive guardianship nominations, where the testators have nominated two persons "in the order named," the protocol set forth in R.C. 2111.121(B) requires the court to focus first on the primary nominee before turning, in the event of "good cause shown or disqualification," to the secondary nominee. Appellant contends the probate court's approach instead constituted an improper "shortcut." Appellant's Reply Brief at 2.

{¶ 21} However, we find appellant's insistence on this type of rigid two-step process reads too much into the statute. At the outset, we are mindful that under R.C. 2111.50(A)(1), "[a]t all times, the probate court is the superior guardian of wards who are subject to its jurisdiction * * *." As this Court recognized in In re Myers , 5th Dist., 2017-Ohio-603, 85 N.E.3d 217, in making a determination as to who should serve as guardian, the probate court's primary responsibility is to ensure that the person appointed will act in the best interests of the ward. Id. at ¶ 43, quoting In re Guardianship of Thomas , 10th Dist., 148 Ohio App.3d 11, 771 N.E.2d 882 (2002), ¶ 96 (internal quotations omitted). Notably, the Eighth District Court of Appeals has succinctly stated that under R.C. 2111.121(B) a probate court is required to appoint the primary designated nominee as guardian "unless there [is] a good reason not to, i.e., it would not be in the child's best interest." In re I.B. , 8th Dist. Cuyahoga No. 102373, 2015-Ohio-4181, 2015 WL 5883180, ¶ 52.

{¶ 22} Accordingly, upon review, while it indeed may have been the better practice for the probate court to have included more discussion of appellant in its "application of relevant law" analysis (Section XI of the judgment entry), we find no abuse of discretion in the court's fundamental "good cause" analysis in this matter.

The "Disqualification" Consideration

{¶ 23} Appellant next contends the trial court failed to properly interpret and apply the disjunctive term "disqualification" set forth in R.C. 2111.121(B), as applied to her.

{¶ 24} It is a well-established principle of statutory construction that a statute is to be read, to the extent practicable, to give effect to all its parts. See Weckbacher v. Sprintcom, Inc. , 5th Dist. Stark No. 2006 CA 00033, 2006-Ohio-4398, 2006 WL 2459077, ¶ 9. See , also , R.C. 1.47(B). The principles of statutory construction also indicate that separate terms should reasonably be given distinct meaning. See D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 96 Ohio St.2d 250, 254, 2002-Ohio-4172, 773 N.E.2d 536 (stating "all words [in a statute] should have effect and no part should be disregarded").

{¶ 25} We note the statutory definitions set forth in R.C. 2111.01 do not provide legislative guidance as to the meaning of "disqualification" in the present context, although R.C. 2111.03 does require a prospective guardian to provide "[a] statement whether the applicant ever has been charged with or convicted of any crime involving theft, physical violence, or sexual, alcohol, or substance abuse, and, if the applicant has been so charged or convicted, the date and place of each charge and each conviction[.]"

{¶ 26} The verb "disqualify" has been defined in the general sense as "[t]o incapacitate, to disable, to divest or deprive of qualifications." Tillis v. Wright , 217 W.Va. 722, 731, 619 S.E.2d 235, 244 (2005), quoting Bouvier's Law Dictionary 888 (8th ed.1984). However, our research reveals only a handful of Ohio appellate decisions touching upon the post-2014 version of R.C. 2111.121(B), and none of them appear to provide a judicial definition of the term "disqualification."

{¶ 27} Appellant herein nonetheless proposes that the term should be viewed as objective or non-situational. She also directs us to In re R.S., 9th Dist. Wayne No. 15AP0057, 2016-Ohio-1492, 2016 WL 1403953, for the proposition when determining whether a guardianship applicant is disqualified, courts should look to "objective factors" such as criminal convictions or abuse allegations. In R.S. , which actually was an appeal from a grant of permanent custody by the Wayne County Juvenile Court under R.C. 2151.414, the Ninth District Court observed that the child's maternal uncle had a "disqualifying criminal record" regarding consideration as a possible relative placement. Id. at ¶ 34. Appellant also cites a pre-2014 case, Hafner v. Hafner, 9th Dist. Summit No. 16073, 1993 WL 498365, wherein the Ninth District Court affirmed a determination that an applicant was "unsuitable" to be his mother's guardian, under the prior version of R.C. 2111.121(B), in part because he had previously "pled guilty to a charge involving striking his mother about the head with a tennis shoe." Id. at 1.

{¶ 28} In the case sub judice , the probate court relied first on certain witnesses' negative testimony concerning some of the members of appellant's extended family. The court found that they "would not be appropriate persons to provide care and supervision * * *." Judgment Entry at 31. The court also found that appellant was disqualified because "her actions on the night of December 4th[the date of the parents' deaths], although made under extreme and stressful circumstances, demonstrate a lack of appropriate protective actions towards these wards[.]" Id. Appellant essentially contends these factors do not meet the statutory requirement of "disqualification."

{¶ 29} The case of In re Guardianship of Hilt , 6th Dist. Sandusky No. S-14-010, 2015-Ohio-3186, 2015 WL 4720506, although utilizing a "suitability" standard, sheds some light on the present issue. In that case, which followed a ruling on three competing guardianship applications, the Sixth District Court affirmed a probate court's determination that each applicant had "potentially disqualifying issues," including "various lapses in judgment as to their respective handling of certain situations and interactions with [the ward] and each other." Id. at ¶ 12. Furthermore, Ohio's statutory scheme conveys upon a probate court broad powers in all matters touching the guardianship. See In the Guardianship of B.I.C. , 9th Dist. Wayne No. 09CA0002, 2009-Ohio-4800, 2009 WL 2918562, ¶ 16, citing In re Hoke, 10th Dist. Franklin No. 02AP-1398, 2003-Ohio-4704, 2003 WL 22064121. Therefore, upon review, we reject appellant's restrictive reading of "disqualification" under R.C. 2111.121(B), and we find the probate court's consideration of this aspect of the statute did not constitute an abuse of discretion.

Conclusion

{¶ 30} Appellant's First Assignment of Error is therefore overruled.

II.

{¶ 31} In her Second Assignment of Error, appellant argues the probate court abused its discretion by appointing appellee, the secondary nominee, as guardian for A.E.R. and C.S.R., alleging the evidence as to appellee was non-probative and that there was no adequate finding as to appellant of "good cause" to disregard the nomination preference in the children's parents' wills. We disagree.

{¶ 32} Probate courts have broad discretion in appointing guardians and those decisions regarding the appointment of guardians will not be reversed absent an abuse of discretion. In re Guardianship of Borland , 5th Dist. Stark No. 2002CA00410, 2003-Ohio-6870, 2003 WL 22969359, ¶ 8 (additional citation omitted). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140.

{¶ 33} Appellant herein directs us to the final section of the probate court's judgment entry, which was captioned as "XI. Application of Relevant Law." We note this section runs from page 28 to page 33 in the judgment entry, even though the court had set forth an extensive recitation of evidence in the prior sections of the entry. As indicated previously, the court specifically found "good cause" in support of guardianship to Appellee Rebekah for eight reasons, which can be summarized in five categories: (1) Rebekah and her husband have two children and strong parenting techniques; (2) Rachel and Rebekah had similar parenting techniques; (3) Rachel had expressed an interest in moving back to the Waterford, Ohio, area; (4) Rachel's extended family in the Waterford area would provide support; and (5) Rachel had listed her mother and another sister as emergency school contacts. Entry at 29-30.

{¶ 34} Appellant proposes that all but the last of the aforesaid grounds (the listing of her mother and another sister as contacts) would have been known to Rachel when she completed her will in 2014. Appellant further challenges the paucity of testimony and the lack of discussion in the entry regarding appellee's husband, Aaron B., despite the "ample testimony" about appellee, her parents, her brother and sister, and her sister's partner. Appellant's Brief at 21. Appellant also questions whether the existence of child-raising responsibilities as to appellee and her husband and the evidence as to similarity of parenting styles by Rachel and appellee should have been relied upon to override the preference set forth in Rachel's will. Appellant further maintains the court, in finding Rachel had expressed a desire to move back to her hometown of Waterford, Ohio, completely ignored Rachel's expressed concerns about the health effects of power plants in that area. Evidence was adduced that Rachel had also wanted AER and CSR to be at the smaller Waterford schools; however, appellee apparently intends to either home school or send the children to a private Christian school. Appellant also suggests that appellee might decide to remain in North Carolina, despite her plans to move to Waterford upon final confirmation that she has become guardian. Finally, appellant maintains the evidence of the emergency contact listing has nothing to do with "good cause" for rejecting appellant as guardian.

{¶ 35} In general terms, in a bench trial, a trial court judge is presumed to know the applicable law and to properly apply it. See In re Adoption of J.L.M-L. , 5th Dist. Muskingum No. CT2016-0030, 2017-Ohio-61, 2017 WL 90636, ¶ 15. In a guardianship proceeding, the rationale for giving deference to the findings of the probate court is that the court is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and to use these observations in weighing the credibility of the proffered testimony. See In re Poliksa , 1st Dist. Hamilton No. C-050474, 2006-Ohio-2617, 2006 WL 1449533, ¶ 10. Upon review of the record in the case sub judice , we find the trial court properly rationalized its conclusions as to "good cause" and did not abuse its discretion in naming appellee as the guardian of A.E.R. and C.S.R. in this regard.

{¶ 36} Appellant's Second Assignment of Error is therefore overruled.

III.

{¶ 37} In her Third Assignment of Error, appellant contends the probate court abused its discretion by making a finding of her "disqualification," alleging this finding was based on considerations that are "subjective in nature," do not render her ineligible to serve as guardian, and were not supported by competent, credible evidence. We disagree.

{¶ 38} Appellant presently develops and extends her arguments pertaining to the "disqualification" factor as set forth in the First Assignment of Error. She essentially submits that the probate court's concerns about her extended family, particularly her parents (the paternal grandparents of A.E.R. and C.S.R.), were exaggerated and could have been remedied by court orders forbidding unsupervised relative visitation with the children.

{¶ 39} Appellant further takes issue with the probate court's finding of disqualification under R.C. 2111.121(B) based on the court's negative assessment of her reaction to the crisis brought about by Todd R.'s actions on December 4, 2016, which she alleges made her a "scapegoat for trusting in her own instincts in the way others trusted theirs." Appellant's Brief at 25. She notes there was evidence that Todd often turned to her in crisis situations and submits that calling for law enforcement sooner on the tragic day in question might have been counterproductive and put the children at a greater risk. To borrow an observation this Court has previously made in custody matters outside of the realm of probate proceedings, "we are confident in this case that both appellant and appellee care greatly about the [children's] welfare and both believe they can provide for [their] optimal care." In re D.B.E. , 5th Dist. Holmes No. 08 CA 8, 2009-Ohio-1396, 2009 WL 795206, ¶ 23. However, upon review, we again find the probate court's broad reading of "disqualification" under the statute and its evidentiary conclusions in that regard did not constitute reversible error or an abuse of discretion in this instance.

{¶ 40} Appellant's Third Assignment of Error is therefore overruled.

IV.

{¶ 41} In her Fourth Assignment of Error, appellant contends the probate court improperly relied on inadmissible hearsay evidence during the guardianship proceedings. We disagree.

{¶ 42} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a general rule, all relevant evidence is admissible. Evid.R. 402 ; cf. Evid.R. 802. Our task is to look at the totality of the circumstances in the case sub judice , and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v. Oman , 5th Dist. Stark No. 1999CA00027, 2000 WL 222190. We also note that in a bench trial, a trial judge is "presumed to have considered only the competent and material evidence." State v. Davis , 10th Dist. Franklin No. 17AP-438, 2018-Ohio-58, 2018 WL 333000, ¶ 32, citing State v. Sanders , 92 Ohio St.3d 245, 267, 750 N.E.2d 90 (2001).

{¶ 43} Evid.R. 101(C)(7) states that the Ohio Rules of Evidence do not apply to "[s]pecial statutory proceedings of a non-adversary nature in which these rules would by their nature be clearly inapplicable."

{¶ 44} A probate court has plenary jurisdiction in the appointment and removal of guardians. See In re: Guardianship of Herr , 5th Dist. Richland No. 98-CA-16-2, 1998 WL 666986, citing In Re: Guardianship of Daugherty , 7th Dist. Columbiana No. 83-C-24, 83-C-29, 1984 WL 7676. Also, R.C. 2111.02(A) states that "if found necessary," a probate court has the authority to appoint a guardian on its own motion. When a guardianship is established, "[t]he guardian is simply an officer of the court under the court's control and subject to its directions and supervision." Daugherty , supra. The Ohio Supreme Court has clearly stated that guardianship proceedings are not adversarial, "but are in rem proceedings involving only the probate court and the ward * * *." See In re Guardianship of Santrucek , 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 5, citing In re Guardianship of Love (1969), 19 Ohio St.2d 111, 48 O.O.2d 107, 249 N.E.2d 794.

{¶ 45} Nonetheless, the Ohio Supreme Court also stated as follows in In re Estate of Haynes (1986), 25 Ohio St.3d 101, 495 N.E.2d 23 : "We acknowledge that the Staff Note to Evid.R. 101(C)(7) indicates that a probate proceeding may become adversarial when a dispute over the admissibility of a will occurs and in that instance the Rules of Evidence should apply to the proceeding." Id. at 104, 495 N.E.2d 23, fn. 1. However, the Supreme Court in Haynes found it unnecessary to elaborate on the subject, as it concluded the prior out-of-court statements at issue therein would have been admissible as an admission by a party opponent under Evid.R. 801(D)(2). Id.

{¶ 46} In the case sub judice , the probate court relied on In re Guardianship & Conservatorship of Stancin , 10th Dist. Franklin No. 02AP-637, 2003-Ohio-1106, 2003 WL 953840. In that case, the Tenth District Court of Appeals first noted the exception set forth in Evid.R. 101(C)(7), supra . Id. at ¶ 11. Furthermore, "[t]he purpose of guardianship hearings is to gather information in order to determine the best interests of the prospective ward." Id. at ¶ 12, citing In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 551, 609 N.E.2d 1310 ; In re Guardianship of Corless (1981), 2 Ohio App.3d 92, 95, 440 N.E.2d 1203. The Tenth District Court ultimately held: "If the hearsay rules were applicable to guardianship proceedings, the Probate Court would be barred from gathering and considering the very evidence of incompetency that statute and Superintendence Rules require it to gather and consider. Therefore, due to the non-adversarial nature of the guardianship proceedings and the inherent conflict between the purpose of the guardianship proceedings and the limitations imposed by the hearsay rules, we conclude that the hearsay rules are 'clearly inapplicable' to guardianship proceedings." Stancin at ¶ 13.

{¶ 47} Appellant seeks to limit the applicability of Stancin by pointing out that the competency of the ward was at issue in that case, unlike the matter sub judice . However, we note that in the case of In re Guardianship of Spangler , 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, despite the underlying existence of a lengthy legal battle between the parents of an incompetent adult and a county board of developmental disabilities over a guardianship, the Ohio Supreme Court reiterated the rule of Santrucek , supra , stating that "[g]uardianship proceedings, including the removal of a guardian, are not adversarial but rather are in rem proceedings involving only the probate court and the ward." Spangler at ¶ 53.

{¶ 48} Accordingly, we find no error or abuse of discretion in the probate court's decision to allow hearsay evidence regarding certain family members and the deceased parents for purposes of determining the guardianship appointment for A.E.R. and C.S.R.

{¶ 49} Appellant's Fourth Assignment of Error is therefore overruled.

{¶ 50} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Probate Division, Delaware County, Ohio, is hereby affirmed.

Delaney, J., and Baldwin, J., concur.

      The parties in the present appeal are not disputing the trial court's finding that the girls require a guardian.

      We note the probate court at that juncture was relying on a limited portion of this Court's opinion in In re Myers , 5th Dist., 2017-Ohio-603, 85 N.E.3d 217, ¶ 42, which in turn referenced a 1993 case, predating modern R.C. 2111.121(B), In re Guardianship of Hafner , 9th Dist. Summit No. 16073, 1993 WL 498365. In Myers , we nonetheless proceeded to review the lower court's "finding of good cause/disqualification" as per the modern version of the statute. See id. at ¶ 50, et seq .

      As appellee notes in response, the probate court also made reference to evidence of Rachel's change of heart regarding the guardianship nomination in her will. However, we do not find the probate court intended to invalidate Rachel's will.

      Appellant's trial counsel entered a continuing hearsay objection at the emergency hearing, and it appears undisputed that the objection was therefore preserved for the present appeal.


source: Caselaw Access Project

author: MELODY J. STEWART, J.:

license: Public Domain

text:
    STATE of Ohio, EX REL. Ayanna MCELRATH, Relator v. The CITY OF CLEVELAND, Respondent
    No. 106078
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASE DATE: April 27, 2018
    Ayanna McElrath, pro se, 9004 Denison Avenue, Cleveland, Ohio 44102, FOR RELATOR
    Barbara A. Langhenry, City of Cleveland, Director of Law, By: Janeane R. Cappara, Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, ATTORNEYS FOR RESPONDENT
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} On August 2, 2017, the relator, Ayanna McElrath, pro se, commenced this public records mandamus action against the respondents, the city of Cleveland; city of Cleveland public record (sic), Patricia Sanney; and Cleveland City Police. McElrath submitted through email on November 2, 2016, the following public records request: "I request a complete copy of all public records for Police Report # 2015-383726 including but not limited to

All photos Body camera footage
Incident reports
911 calls
Name of all officers involved
Information
About officer Charles Judd
Officer Rutherford
Sargent [sic] Rutherford
Zone car 1A26."

McElrath averred that despite the passage of time, the respondents had provided her no records and had intimated that redactions were necessary, especially relating to officers on the scene of the arrest. Thus, McElrath endeavored to bring a second claim for conspiracy for failure to release all the records fully and promptly.

{¶ 2} On August 4, 2017, some materials were turned over, but this court ordered the case to mediation, and two mediation conferences were held. However, by late September 2017, it was obvious that mediation had not and would not fully resolve the case. Thus, on September 29, 2017, this court ordered the parties to certify the status of the case by October 13, 2017.

{¶ 3} The respondents timely certified that they

had produced: Ayanna McElrath's OPS documents; Cleveland Police Officer Judd's personnel file; Sergeant Rutherford's personnel file; Police Report number 2015-383726; RMS Report and ULLF Investigations; two 911 calls; three videos from the Office of Professional Standards; twenty-four videos from body camera footage taken during Petitioner's arrest; LaCretia McElrath's OPS complaint documents, Cleveland Division of Corrections Floor and Medical Cards and an Event Chronology.

(Paragraph 2 of respondents' certification.) In addition, the respondents stated that they had released these materials on March 10, 2017, September 1, 2017, and contemporaneously with the filing of the certification. The respondents also provided a redaction log in which they stated that they had redacted Social Security numbers and/or Federal Identification numbers, employee private addresses, as well as employees' birthdays and personal telephone numbers pursuant to R.C. 149.011(G). The respondents relied on R.C. 149.43(A)(7)(g) for redacting photographs of police officers because their assignments may include undercover or plain clothes work. Additionally, the respondents redacted "a very small portion of a radio dispatch call that can be overheard in the background of one of the body camera videos * * * because it disclosed information about a minor (unrelated to this matter) that is privileged pursuant to O.R.C. 2151.421(I)(1) and (2)."

{¶ 4} McElrath did not file a certification, but sought an extension of time to do so. The court, over the respondents' objections, granted her until November 21, 2017, to file her certification. When she still did not file a certification, this court ordered her to show cause by December 20, 2017, why this case should not be dismissed.

{¶ 5} On December 18, 2017, McElrath filed a "brief in opposition to dismiss mandamus." Almost half of McElrath's brief is an apparent recitation of Cleveland police procedures relating to the use of captured media, e.g., the body camera footage. She objected to the redaction of some of the police officers' faces and the failure to name all of the police officers who were present at her arrest. She argued that there is no reason to redact their images and to withhold their names because there is no criminal investigation pending, because to the extent that names are missing it shows that procedures were not followed, and because the names and badge numbers are matters of public knowledge.

She repeated her claim for records relating to the zone car. She also implied that not all of the OPS records were released and that there was no reason not to do so because there is no criminal investigation pending.

{¶ 6} After reviewing these certifications, the court ordered Cleveland to recertify the status of the case and explicitly address the following: (1) what steps were taken to fulfill McElrath's public records request as stated in the complaint; (2) for each individual request, state what records were provided to fulfill that request; (3) for each record containing a redaction, state generally what was redacted along with the legal justification for the redaction; and (4) address each objection that relator makes that the city did not fulfill its obligations, e.g., missing OPS records, unidentified officers on body camera footage, and records concerning zone car 1A26. McElrath's response would be due one week after the filing of the respondent's second certification.

{¶ 7} Cleveland filed its second certification on February 23, 2018. It certified that after seeking clarification on the requests, it sent McElrath on March 10, 2017, copies of the 911 calls, OPS complaints and intake videos, police reports, use of less than lethal force reports, internal affairs reports, Officer Judd's personnel and disciplinary files, Sergeant Rutherford's personnel and disciplinary files, and a pdf titled "Public Safety-Police Redaction List." On that same day, Cleveland informed McElrath that it would produce the body camera footage after it had been redacted.

{¶ 8} Cleveland further certified that on September 1, 2017, it sent McElrath the OPS intake videos and four body camera videos relating to the arrests. On October 5, 2017, Cleveland sent her the AVL locator report for zone car 1A26. On October 13, 2017, Cleveland resent "hundreds of pages of documents (police report, use of less than lethal force report, internal affairs report, booking report, booking photos, and personnel and disciplinary files) and redacted body camera videos in paper and disk format." (Cleveland's second certification.) At McElrath's request, Cleveland sent another copy of her booking photos on November 10, 2017. Cleveland certified that McElrath did not contact the city about any perceived additional deficiencies.

{¶ 9} Pursuant to this court's order, Cleveland then specifically addressed the body camera footage, the OPS reports, and the zone car report. Cleveland explained again that because the officers are subject to undercover and plain clothes assignments, their faces were redacted pursuant to R.C. 149.43(A)(7)(g). Cleveland further certified that the use of less than lethal force report identified all officers who were present during her arrest. It repeated again that a small portion of a radio dispatch, which could be heard in the background, was redacted because it applied to a minor pursuant to R.C. 2151.421(I)(1) and (2). Cleveland then stated that McElrath had somehow procured unredacted copies of the body camera videos and had played them on her cell phone in front of Cleveland's counsel. Invoking the safety of the officers, Cleveland requested that this court order McElrath to return the videos to Cleveland and to identify the individuals who had provided her with the unredacted videos.

{¶ 10} Cleveland then addressed the OPS records. Cleveland certified that aside from the OPS complaint and the intake video, the records "are exempt from production at this time because there is an open investigation of the OPS Complaint and the release of these records would create a high probability of disclosing specific investigatory techniques, procedures and work product." (Cleveland's second certification.) The fact that McElrath's criminal case may have been resolved does not render the confidential law enforcement investigatory record exemption under R.C. 149.43(A)(2) inapplicable.

{¶ 11} Finally, with regard to the request for information about the zone car, Cleveland certified that it had released the police report and the AVL report, "which are the only documents pertaining to Petitioner's arrest and the zone car." If those records did not satisfy McElrath, then she had not fulfilled her responsibility to specifically identify what records she wanted.

{¶ 12} Cleveland concluded that it had fulfilled McElrath's request, that she should be ordered to return the unredacted body camera videos and identify the individual who had provided her with them, and that this court should dismiss this mandamus action.

{¶ 13} In her timely filed certification, McElrath complained that she had a right to know the names of all of the officers who arrested her and see their faces. Thus, Cleveland should produce the unredacted body camera videos. She argued that the claim that the officers might be subject to undercover or plain clothes work is too speculative to support the redaction. She also questioned the good faith of the assertion that the OPS investigation is still open, when there had been conclusions that nothing criminal occurred during her arrest and that there was no use of excessive force. McElrath admitted that she showed the 27 body camera videos to counsel from McElrath's phone. However, she stated that the phone is now broken and that up to this point in time Cleveland has not raised any objections to those videos.

{¶ 14} McElrath clarified that she wants a work order on the zone car. She certified that during her arrest and transportation to the police station, the officer revealed that there was a work order for the car because the door was not working properly. McElrath stated that during the drive, the officer stopped the car and had to open and close the door, so that it would stay shut.

{¶ 15} After reviewing all of the pleadings and certifications, this court concludes that this public records mandamus action is ripe for resolution.

{¶ 16} Pursuant to R.C. 149.43, mandamus is the appropriate remedy to compel compliance with Ohio's Public Records Act. State ex rel. Vindicator Printing Co. v. Youngstown , 104 Ohio St.3d 1436, 2004-Ohio-7079, 819 N.E.2d 1120. Because the statute specifies mandamus as the remedy, the relator does not have to show the lack of an adequate remedy at law to prevail. State ex rel. Morgan v. New Lexington , 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208. As with all writ actions, the relator must establish the right to a writ by clear and convincing evidence. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967) ; and State ex rel. Pietrangelo v. Avon Lake , 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419. Nevertheless, in Ohio public records are the people's records. To that end, the public records act is to be construed liberally in favor of broad access and disclosure. The courts are to resolve any doubt in favor of disclosure. Vindicator, supra . Exemptions to disclosure under the Public Records Act must be strictly construed against the public records custodian, and the government bears the burden of establishing the applicability of an exception. Morgan at ¶ 47. However, the government has no duty under R.C. 149.43 to just give information or to create new records by searching for and compiling information from existing records. State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425, 687 N.E.2d 283 (1997) ; and State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 707 N.E.2d 496 (1999).

{¶ 17} The court rules that with the exception of the work order for the zone car, the respondents have fulfilled their duty to provide McElrath with the requested records.

{¶ 18} The court notes that the respondents have provided McElrath with hundreds of pages of records in response to her very broad request for "all public records for the Police Report # 2015-383726." The records provided included records that were not necessarily evident from the specifics of her request, such as the OPS records, including the OPS complaint of LaCretia McElrath, the events chronology, and corrections floor and medical cards. The court further notes that some of the requests sought information, such as the names of all of the officers involved and about specific officers, that could have been summarily denied as improper in form. Goldsberry , supra. Instead, the respondents provided her with the personnel and disciplinary files of Officer Judd and Sergeant Rutherford. Moreover, McElrath does not question many of the redactions, such as Social Security numbers and personnel information.

{¶ 19} McElrath has clarified that her request for records concerning zone car 1A26 included a work order for the car. Such a record is a public record and should be provided. Accordingly, this court grants the writ of mandamus and orders the respondents to search for the work order and provide it to McElrath within two weeks of the date of this order.

{¶ 20} As to the redaction of the faces of the officers on the body camera videos, the court declines to issue the writ of mandamus to order their production without the redaction. Counsel for the respondents certified that McElrath already had full, complete copies of those videos, and McElrath admitted that at least she had those videos on a cell phone, even if she could no longer access them because the phone is broken. Mandamus will not lie to compel a respondent to give the relator something the relator already has. State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861. Moreover, the respondents certified that the officers came within the scope of R.C. 149.43(A)(7)(g) that exempts photographs of officers whose assignments may include undercover or plain clothes assignments. Because the statute uses "may" and because the respondents certified that the officers may be subject to such assignments, the court rules that the respondents properly invoked this exemption.

{¶ 21} The court declines to issue a writ of mandamus to compel the disclosure of the disputed OPS records. The respondents have certified that the investigation is still ongoing. The fact that there have been conclusions that there was no criminal activity or excessive force during McElrath's arrest is not conclusive as to other possible improprieties. Thus, the court rules that the respondents have properly invoked this exemption. This holding does not preclude McElrath from requesting these records once the investigations are finished.

{¶ 22} R.C. 149.43 does not create a duty to create new records by searching for and compiling information from existing records. Thus, the respondents did not have a duty under the Public Records Act to compile a list of all of the officers who were present at McElrath's arrest. If for whatever reason, including the negligent noncompliance with official policies, the names of all such officers are not in the records, then the respondents under R.C. 149.43 have no duty to list all of the officers in a new record. Thus, the court declines to issue the writ of mandamus to compel the respondents to list all of the officers present during the arrest. State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 WL 173743, 1993 Ohio App. LEXIS 2591 (Apr. 28, 1993).

{¶ 23} Article IV, Section 3(B)(1) of the Ohio Constitution limits this court's original jurisdiction to actions in quo warranto, mandamus, procedendo, habeas corpus, and prohibition. Thus, this court does not have jurisdiction to entertain McElrath's second claim for civil conspiracy. Prescinding the issue of whether a certification is the proper pleading for raising a counterclaim, this court rules that it is without jurisdiction to grant the respondents' request that McElrath turn over copies of the unredacted videos or to compel her to identify who gave her the videos. The respondents also cited no authority that would allow the court to issue such order.

{¶ 24} In summary, the court issues the writ of mandamus to compel the respondents within two weeks of this decision to search for the requested work order for zone car 1A26 and to release it to McElrath or to certify to McElrath that after diligent search the record could not be found. The court declines to issue the writ of mandamus for any other records requested by relator. The court does not have jurisdiction to adjudicate the civil conspiracy claim or the request by the respondents to compel the relator to turn over the unredacted videos or to disclose the identity of a person. Respondents to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶ 25} Writ granted in part and denied in part.

EILEEN T. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR


text:
    IN RE: C.W., DOB: 1/8/00
    NO. 17 CO 0032
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: April 30, 2018
    Atty. Robert L. Herron, Columbiana County Prosecutor, Atty. K. Bret Apple, Assistant Prosecuting Attorney, Columbiana County Courthouse, 105 South Market Street, Lisbon, Ohio 44432, For Plaintiff-Appellee.
    Atty. Mary G. Warlop, Abney Law Office, LLC, 116 Cleveland Ave. N.W., Suite 500, Canton, Ohio 44702, For Defendant-Appellant.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION AND JUDGMENT ENTRY

PER CURIAM.

{¶ 1} Juvenile-appellant C.W. appeals the decision of the Columbiana County Common Pleas Court, Juvenile Division, denying his motion to dismiss and adjudicating him delinquent for grand theft of a motor vehicle. Appellant contends his double jeopardy rights were violated because he was previously adjudicated and sentenced in Stark County for receiving stolen property with regards to the same motor vehicle. He filed a pretrial motion to dismiss, which was denied in a magistrate's decision and a juvenile court's judgment entry. Appellant did not object to the magistrate's decision or appeal. This appeal is from the trial court's subsequent decision overruling his objection to the magistrate's adjudication order entered after the trial on the theft offense. As no dispositional order has been issued, the decision on appeal is not a final, appealable order. Accordingly and for the following reasons, this appeal is dismissed.

{¶ 2} At the time of the theft offense, Appellant was a resident of Stark County, but he was on probation and spent two weeks at a foster home with a special points program in Lisbon, Ohio. The foster parent owned a Chrysler Town and Country minivan. He put the vehicle key in his jacket pocket and left his jacket in the kitchen. At 1:07 a.m. on December 27, 2016, a surveillance camera showed Appellant searching the jacket pockets. The foster parent noticed the vehicle was missing while he was taking out the garbage at approximately 1:45 a.m. He watched the video and called the police. He was contacted by Appellant's caseworker at 10:30 a.m. with news that Appellant was at his father's house. At 1:30 p.m., the foster parent received a call from the Ohio State Highway Patrol informing him the vehicle was involved in an accident on Interstate 77. The vehicle was totaled in the accident.

{¶ 3} On January 10, 2017, a delinquency complaint was filed against Appellant in Columbiana County charging him with grand theft of a motor vehicle, a felony of the fourth degree. See R.C. 2913.02(B)(5) (raising the degree of the theft offense where the property stolen was a motor vehicle). The basic elements of the charged theft offense were: "No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent * * *." R.C. 2913.02(A)(1). The complaint identified the vehicle as a 2008 Chrysler Town and Country minivan and specified the owner's name and Lisbon address (as that of the foster parent).

{¶ 4} On February 6, 2017, the state filed a "motion to dismiss" the complaint stating Appellant was charged in Stark County with receiving stolen property as to the same vehicle. The motion opined it would be in the interest of judicial economy to allow the matter to proceed in Stark County where Appellant was a resident.

{¶ 5} On March 6, 2017, Appellant filed a motion to dismiss under R.C. 2941.25(A). He disclosed that a disposition had been entered in Stark County for the offense of receiving stolen property (the minivan). He therefore urged he could not be convicted in Columbiana County for theft of the same vehicle as the offenses were allied offenses of similar import. The complaint and the order of disposition from Stark County Case Number 2017 JCR 00015 were attached to Appellant's motion. The Stark County complaint charged Appellant with receiving stolen property, a fourth-degree felony if committed by an adult due to the property being a motor vehicle. See R.C. 2913.51(C). The offense of receiving stolen property has the following elements: "No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense." R.C. 2913.51(A). The Stark County complaint stated the offense took place on December 27, 2016 and specified the vehicle was a minivan belonging to the named foster parent who reported it stolen. (There is no date-stamp on the complaint.)

{¶ 6} The Stark County order of disposition appears to be a magistrate's decision, but the signature line above the magistrate's name is blank (and there is no space for a judge's signature.) It is dated February 15, 2017, but there is no date-stamp. The order contains dispositions in various cases against Appellant. As to 2017 JCR 00015, the decision states he was adjudicated delinquent after pleading "true" to receiving stolen property, a fourth degree felony. (He was also adjudicated in that case number for failure to comply with an order or signal of a police officer.) As a disposition for receiving stolen property, he was committed to the Department of Youth Services (DYS) for a minimum of six months, but the sentence was stayed. (At the same time, a stay of a disposition in a previous case was lifted, and Appellant was ordered to serve twelve months in a DYS facility.)

{¶ 7} In this case, the state filed a response in opposition to Appellant's motion to dismiss, citing division (B) of R.C. 2941.25 and Supreme Court case law allowing a conviction on each offense if the offenses were of dissimilar import, were committed separately, or were committed with separate animus. See In re A.G. , 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646 ; State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. The state noted the gap in time between the two offenses and emphasized how Appellant took the vehicle in Columbiana County in order to return to his home in Stark County but engaged the police in a high-speed chase in Stark County hours later.

{¶ 8} On April 14, 2017, the magistrate denied Appellant's March 6, 2017 motion to dismiss (and the state's February 6, 2017 motion to dismiss), citing In re A.G. , Ruff , and the Second District's decision in State v. Skapik , 2d Dist., 2015-Ohio-4404, 42 N.E.3d 790. The juvenile court issued a judgment entry adopting the magistrate's decisions the same day. Both decisions contained notification as to the parameters for filing objections. No objection was taken, and no appeal was filed.

{¶ 9} On June 28, 2017, the adjudicatory hearing was held before the magistrate. The foster parent testified to the aforestated facts regarding Appellant stealing his minivan. A deputy sheriff testified about responding to the foster parent's call. He identified his own incident report and the foster parent's written statement, which were admitted without objection. Defense counsel moved to dismiss in accordance with his prior written motion. The court overruled the motion. Appellant testified in his own defense. He admitted stealing the minivan. He attested he was adjudicated and sentenced in Stark County for receiving stolen property regarding the same van. After agreeing he was in possession of the van continuously from the time he stole it to the time he wrecked it, he was asked, "Did you get out of it or go anywhere or do anything-leave it anywhere?" He responded, "Yeah. I went to a couple of different places." (Tr. 13). At the close of the evidence, defense counsel renewed the motion to dismiss. The magistrate found Appellant delinquent and announced the case would be sent to Stark County for disposition. (Tr. 14-15).

{¶ 10} On July 5, 2017, the magistrate's decision and the juvenile court's corresponding judgment entry on the adjudication were filed. See Juv.R. 40(D)(3)(e)(i) (the court can enter judgment on the magistrate's decision during the period for filing objections). The court found by proof beyond a reasonable doubt that Appellant, with purpose to deprive the owner, knowingly obtained or exerted control over the minivan of the named foster parent without the consent of the owner or a person authorized to give consent in violation of R.C. 2913.02(A)(1), a fourth-degree felony if committed by an adult. The court memorialized the overruling of Appellant's mid-trial motions to dismiss. The court explained that the matter would be transferred to Stark County for disposition. On the same day, a separate order of transfer was issued, and the case was sent to Stark County.

{¶ 11} On July 13, 2017, Appellant filed an objection to the July 5, 2017 magistrate's decision. Appellant argued the complaint should have been dismissed based on the position expressed in his March 6, 2017 motion to dismiss and R.C. 2941.25(A). On July 28, 2017, Stark County denied the request for transfer because a timely objection was pending and the objection stayed the magistrate's decision. See Juv.R. 40(D)(3)(e)(i) (if the court enters a judgment during the fourteen-day period for filing objections, the timely filing of objections to the magistrate's decision shall operate as an automatic stay of execution of the judgment).

{¶ 12} On September 12, 2017, the juvenile court overruled Appellant's objection. The court opined that any attempt to object to the April 14, 2017 decision was untimely. As to the timely objection from the adjudication order, the court concluded the magistrate's decisions overruling the motion to dismiss were correct, citing In re A.G. and Ruff . The court also reviewed the Second District's Skapik case which held the theft of the automobile and the receiving stolen property were not allied offenses of similar import due to the separation in time and location between the offenses. The court found the theft here occurred at 1:07 a.m. in Lisbon, Columbiana County, and the receiving stolen property offense arose out of Appellant fleeing police in a stolen vehicle and crashing it in Canton, Stark County twelve hours later, during which period Appellant stopped at various places. The court concluded: each offense was committed with a separate animus: the theft was done to deprive the owner of his vehicle; and the receiving stolen property charge was based upon his further employment of the vehicle on his own subsequent business in another county twelve hours later.

{¶ 13} Appellant filed a notice of appeal on October 2, 2017. Appellant's sole assignment of error contends: "THE TRIAL COURT ERRED IN FINDING THE JUVENILE DELINQUENT FOR THEFT IN VIOLATION OF THE JUVENILE'S DOUBLE JEOPARDY RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION AND BY THE OHIO CONSTITUTION." The double jeopardy clause in the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." A similar clause in the Ohio Constitution at Article I, Section 10 states: "No person shall be twice put in jeopardy for the same offense." Double jeopardy principles protect juveniles subject to delinquency proceedings in the same manner as they protect adults. In re A.G. , 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 9, 11. The double jeopardy clause prohibits: (1) re-prosecution for the same offense after an acquittal; (2) re-prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense. State v. Ruff , 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.

{¶ 14} The provisions in R.C. 2941.25 are considered a codification of the multiple punishment prohibition. Id. at ¶ 12. Under division (A) of this statute, allied offenses of similar import arising from the same conduct can be charged in the same indictment, but there can only be one conviction. R.C. 2941.25(A). Under division (B), the defendant may be convicted of each count in the indictment if the conduct: (1) constitutes offenses of dissimilar import or significance; (2) shows the offenses were committed separately; or (3) indicates the offenses were committed with separate animus or motivation. See Ruff , 143 Ohio St. 3d 114, 34 N.E.3d 892 at ¶ 13, 20, 25, 31. See also id. at ¶ 26 ("At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's conduct. The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import.").

{¶ 15} Although the two offenses at issue were contained in two different indictments arising out of two different counties, Appellant applies the analysis under R.C. 2941.25(A). The double jeopardy prohibition being challenged here was the re-prosecution for the same offense after a conviction. Appellant's pre-trial motion was denied in a magistrate's decision (adopted by the trial court), and no objection was filed. Likewise, no appeal was filed. Instead, Appellant argued for dismissal again at trial and appealed the adjudication order.

{¶ 16} On the issue of "being tried twice for the same offense," the Supreme Court has ruled a pre-trial motion to dismiss and discharge on double jeopardy grounds is a final appealable order. State v. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 58 ("because the protection against double jeopardy is not just protection against being punished twice for the same offense, it is also the protection against being tried twice for the same offense."). The Anderson case involved a defendant who filed a motion to dismiss after proceeding through multiple trials and experiencing multiple mistrials. The Court held the denial of a motion to dismiss on double jeopardy grounds was a final appealable order as: (1) the order denied a provisional remedy (as it is a proceeding ancillary to the action); (2) it in effect determined the action with respect to the provisional remedy (as it permitted subsequent prosecution); and (3) the defendant would not be afforded a meaningful review of the decision after waiting for the final judgment as to all proceedings in the action. Id. at ¶ 26, 48, 51-52, 59-60.

{¶ 17} Assuming Anderson would make a pre-trial denial of a motion to dismiss immediately appealable in a case where the defendant argues a conviction in another court precluded the current prosecution, no appeal was taken from the juvenile court's denial of the pre-trial motion to dismiss on double jeopardy grounds. The court thereafter addressed motions presented after the state's evidence and again after the defense evidence. Once the second prosecution occurred, the Anderson holding regarding a pre-trial motion to dismiss on double jeopardy grounds on the allegation of successive prosecution was no longer applicable. On the meaningful review prong of the final appealable order test, the Court pointed out, "retrial itself is one of the harms at issue in double-jeopardy cases. That harm cannot be remedied by a subsequent acquittal in the trial court or by the reversal of any conviction through appeal after trial." Id. at ¶ 57. Here, the retrial already occurred.

{¶ 18} This is not to say a double jeopardy argument cannot be appealed after final disposition of the case. The trial court's last decision on the motion analyzed the issue under facts elicited at trial during the testimony of the victim, the deputy, and Appellant. The Supreme Court's decision in Anderson did not imply the interlocutory appeal was the singular way to preserve a double jeopardy issue for appeal. See State v. Emich , 9th Dist. No. CV 17CA0039-M, 2018-Ohio-627, 2018 WL 989761, ¶ 6 (the denial of the motion to dismiss is also reviewable following the entry of the judgment of conviction as that is the point in time that the harm is fully realized; even if the argument on the second prosecution became moot, there is still the issue of multiple punishments).

{¶ 19} Yet, an adjudication without a sentence is not appealable. "It is rudimentary that a finding of delinquency by a juvenile court, unaccompanied by any disposition thereof, is not a final appealable order." In re Sekulich , 65 Ohio St.2d 13, 14, 417 N.E.2d 1014, 1015 (1981). And, that holding was made in a case involving a Juv.R. 11 transfer. See id. Here, the court did not enter a dispositional order as the court ordered the case transferred to Stark County for disposition under Juv.R. 11, which provides in pertinent part:

(A) Residence in Another County; Transfer Optional. If the child resides in a county of this state and the proceeding is commenced in a court of another county, that court, on its own motion or a motion of a party, may transfer the proceeding to the county of the child's residence upon the filing of the complaint or after the adjudicatory or dispositional hearing for such further proceeding as required. The court of the child's residence shall then proceed as if the original complaint had been filed in that court. Transfer may also be made if the residence of the child changes.
(B) Proceedings in Another County; Transfer Required. The proceedings, other than a removal action, shall be so transferred if other proceedings involving the child are pending in the juvenile court of the county of the child's residence.
(C) Adjudicatory Hearing in County Where Complaint Filed. Where either the transferring or receiving court finds that the interests of justice and the convenience of the parties so require, the adjudicatory hearing shall be held in the county wherein the complaint was filed. Thereafter the proceeding may be transferred to the county of the child's residence for disposition.

Juv.R. 11(A)-(C). See also R.C. 2151.71. The juvenile court can therefore transfer the case to the county of the child's residence after the adjudicatory hearing, at which point the transferee court shall proceed as if the original complaint had been filed in that court. Juv.R. 11(A), (C).

{¶ 20} Here, the adjudicatory hearing was held in the county where the complaint was filed. The magistrate's decision and juvenile court entry adjudicated the child and ordered the case transferred to Stark County for disposition. Stark County refused the transfer due to a pending objection on the adjudication order. As the objection regarding the adjudication has been ruled upon, the case can now be retransferred and proceed to disposition (upon dismissal of this appeal).

{¶ 21} Just as a verdict in an adult criminal trial is not appealable until the sentence is imposed, the order of adjudication in a juvenile delinquency proceeding is not subject to appeal until there has been a disposition. See In re Sekulich , 65 Ohio St.2d at 14, 417 N.E.2d 1014 ; In re E.H. , 10th Dist. No. 15AP-680, 2016-Ohio-1186, 2016 WL 1117923, ¶ 18, 21 ("An unruly child adjudication does not have the effect of concluding a juvenile proceeding, as disposition must follow"; "Without an accompanying disposition, it is not a final appealable order."); In re A.H. , 8th Dist. No. 95661, 2011-Ohio-2039, 2011 WL 1639304, ¶ 10-11 (where a delinquency adjudication was left unaccompanied by a disposition, the court dismissed the appeal holding: "Akin to the adult criminal justice system, this is a conviction without a sentence."); In re Domin , 5th Dist. No. 2007CA00073, 2007-Ohio-6618, 2007 WL 4328047, ¶ 13 ("A finding of delinquency without disposition does not constitute a final appealable order.").

{¶ 22} In a Third District case involving a Juv.R. 11 transfer, the appellate court held the juvenile court's imposition of community control after adjudication amounted to a final dispositional order precluding transfer to the juvenile's home county; conversely and implicitly, if no dispositional order had been entered, the adjudication order would not have been final and the case could have been transferred to the juvenile's home county for disposition. In re C.E. , 190 Ohio App.3d 85, 2010-Ohio-4072, 940 N.E.2d 990 (3d Dist.) In a Fourth District case, the juvenile was adjudicated delinquent in Pickaway County, and the case was ordered transferred to Ross County for final disposition under Juv.R. 11. The juvenile filed a notice of appeal in Pickaway County, which the Fourth District dismissed finding it was "uncontestably true" that a delinquency adjudication without a disposition is not a final appealable order. In the Matter of Tyler , 4th Dist. No. 92CA22, 1992 WL 329413 (Oct. 28, 1992), citing In re Sekulich , 65 Ohio St.2d at 14, 417 N.E.2d 1014. The court observed: "Had there been a final appealable order in Pickaway County, there would have been no case to transfer to Ross County." Id. (upon transfer, nothing remains to be appealed in the transferor county; the transferee county juvenile court becomes the trial court where any subsequent notice of appeal must be filed).

{¶ 23} For the foregoing reasons, the juvenile court's decision overruling an objection to a magistrate's adjudication order which was adopted by the juvenile court was not final where there was no disposition. As the adjudication decision which lacked a disposition was not a final appealable order, this court lacks jurisdiction to address the appeal. In accordance, this appeal is dismissed.

Robb, P.J., concurs.

Donofrio, J., concurs.

Waite, J., concurs

      In Skapik , the defendant argued grand theft (of a firearm) and receiving stolen property (the same firearm) should have merged because when he stole a gun, he simultaneously received or retained it. Skapik , 2d Dist. at ¶ 8. The Second District observed that the theft offense occurred one night when the defendant stole firearms and the receiving stolen property offense occurred the next morning when he sold the property in another county. Id. at ¶ 9. The court emphasized how receiving stolen property had alternative elements: "receive, retain, or dispose ." Id. Because the "acts of stealing the guns and disposing of the guns occurred at different times and at different locations," the court concluded the offenses involved separate conduct and were not subject to merger. Id. Here, the minivan was allegedly totaled during a high speed chase 12 hours after it was stolen in another county.

      If a court finds merger is required after two verdicts are rendered, the state must elect which offense it wishes to proceed on, and the court imposes one sentence on that elected offense (and therefore one "conviction"). State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12-13, 18, 21. "[A] conviction is a determination of guilt and the ensuing sentence"; the statutory prohibition on multiple convictions is actually a "protection against multiple sentences." Id. at ¶ 13, 18.

      See State v. Hollinger , 5th Dist., 2017-Ohio-8592, 101 N.E.3d 91, ¶ 22-24 (applying Ruff to an appeal after conviction and concluding the defendant could be convicted of operating a vehicle while intoxicated in Fairfield County after he pled guilty to the same offense in Licking County where both occurred during the same span of intoxicated driving and he was involved in accidents in both counties). Compare State v. Toth , 9th Dist. No. 16CA0086-M, 2017-Ohio-5481, 2017 WL 2766248, ¶ 8, 10 (applying the "same elements" test of Blockburger to determine if a successive prosecution deals with the same offense and rejecting the argument that Ruff should have been applied at the pre-trial hearing on the motion to dismiss).


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

text:
    STATE of Ohio, EX REL. HOME SAVINGS BANK, Relator v. Honorable Kelly Ann GALLAGHER, et al., Respondents
    No. 106457
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASE DATE: May 1, 2018
    Richard J. Thomas, Jerry R. Krzys, Henderson Covington Messenger Newman & Thomas Co., L.P.A., 6 Federal Plaza Central, Suite 1300, Youngstown, Ohio 44503, ATTORNEYS FOR RELATOR
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Charles E. Hannan, Assistant County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR RESPONDENTS
    Nicole R. Woods, Daniel R. Swetnam, Ice Miller L.L.P., 250 West Street, Columbus, Ohio 43215, ATTORNEYS FOR RECEIVER, For Matthew L. Fornshell, Esq.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Relator, Home Savings Bank, successor by merger to The Home Savings and Loan Company of Youngstown, Ohio ("HSB"), seeks a writ of prohibition to prevent respondent, Judge Kelly Ann Gallagher, and respondent court, the Cuyahoga County Court of Common Pleas, from paying administrative expenses of a receivership while a direct appeal is pending with this court. After careful review of the issues raised, this court grants summary judgment in favor of respondents and denies the writ.

I. Procedural and Factual History

{¶ 2} The litigation in the underlying civil case was spawned by a Ponzi scheme perpetrated by Joanne and Alan Schneider. As the scheme came to light, plans for a large commercial development in Parma Heights, Ohio collapsed. This led to litigation involving numerous parties, including the city of Parma Heights ("Parma Heights"), Cleveland Construction Inc. ("Cleveland Construction"), and HSB. The litigation that ensued has lasted the better part of two decades. The claims of these three creditors were disposed of by the trial court in separate orders and cases, and ultimately directed Matthew L. Fornshell, the receiver appointed to oversee the assets mainly generated from the sale of real estate, to disburse funds to HSB and other parties.

{¶ 3} The trial court determined that Parma Heights and Cleveland Construction did not have valid liens on the funds held by the receiver. Both parties appealed the trial court's orders. After those appeals were filed, at the request of Parma Heights, the trial court issued a stay order on March 9, 2016. It stated,

[d]efendant Parma Heights' 3/4/2016 motion for stay of execution pending appeal is granted. The receiver is ordered to stay distribution of all funds pending appeal. The receiver shall continue to perform all other duties under the receivership order. The stay of distribution shall not prohibit further administration of the receivership, including the payment of ongoing fees and expenses of the receiver. Based upon the court's ruling above, defendant Cleveland Construction Inc.'s 3/8/2016 motion to stay distribution of all funds is moot.

{¶ 4} Two days later, HSB filed its notice of appeal. All three cases were separately assigned case numbers but ultimately consolidated in this court.

{¶ 5} The receiver filed four applications for the payment of administrative claims during the pendency of the appeal: April 6, 2016, October 17, 2016, December 8, 2016, and April 6, 2017. These were all granted by the trial court. HSB contested only one application.

{¶ 6} While these appeals were still pending, on November 3, 2017, HSB filed the instant action seeking a writ of prohibition to prevent the court from making further distributions from assets under receivership for administrative claims, and seeking to void the previous four payments made to the receiver. HSB's complaint for writ of prohibition alleges that the trial court lacked subject-matter jurisdiction to grant any of the receiver's fee applications during the pendency of the appeals because the orders directly interfered with the appellate court's jurisdiction "to review, affirm, reverse, or modify" the underlying judgments. According to HSB, "all monies traceable to the Cornerstone Properties sale proceeds"-including the Secured Creditor Allocation Account-are directly at issue in the companion appeals, and therefore, the trial court patently and unambiguously lacks jurisdiction to approve any application for administrative fees (which includes the receiver's fees) that arise from this account.

{¶ 7} This court granted an alternative writ and set a briefing schedule on November 6, 2017. Respondent judge and the receiver filed answers. Respondent, the receiver, and HSB filed motions for summary judgment on December 15, 2017. This court issued a decision resolving all three appeals on December 21, 2017. The parties subsequently filed their briefs in opposition to the motions for summary judgment on January 18, 2018. Aside from arguing that HSB was not entitled to a writ of prohibition because there is no showing that the trial court patently and unambiguously lacks jurisdiction, respondents and receiver argue that the action is now moot because this court decided the appeals, approving the Secured Creditor Allocation and holding that the trial court "did not abuse its discretion by approving the receiver's payments of various administrative fees and costs from the Secured Creditor Allocation." HSB moved for reconsideration, which this court ultimately granted, but reached the same result as the earlier issued opinion. See Williams v. Schneider , 2018-Ohio-968, 109 N.E.3d 124 (8th Dist.).

II. Law and Analysis

{¶ 8} Initially, we emphasize the Ohio Supreme Court's admonition that "[a] writ of prohibition is an extraordinary remedy that is granted in limited circumstances with great caution and restraint." State ex rel. Corn v. Russo , 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). Prohibition should not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas , 137 Ohio St. 273, 28 N.E.2d 641 (1940).

{¶ 9} To be entitled to a writ of prohibition, HSB must establish that (1) the trial court is about to or has exercised judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Huntington Natl. Bank v. Kontos , 145 Ohio St.3d 102, 2015-Ohio-5190, 47 N.E.3d 133, ¶ 16. "Ordinarily, 'a tribunal having general subject-matter jurisdiction of a case possesses authority to determine its own jurisdiction, and a party challenging its jurisdiction has an adequate remedy by postjudgment appeal from its holding that it has the requisite jurisdiction.' " State ex rel. Dailey v. Dawson , 149 Ohio St.3d 685, 2017-Ohio-1350, 77 N.E.3d 937, ¶ 14, quoting State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas , 78 Ohio St.3d 489, 491, 678 N.E.2d 1365 (1997). "However, there is a narrow exception-the availability of appeal 'does not constitute an adequate remedy and does not bar extraordinary relief if the tribunal patently and unambiguously lacks jurisdiction over the case.' " Id. , quoting Rootstown Local School Dist. Bd. of Edn. at 492, 678 N.E.2d 1365. Under this exception, "prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previously jurisdictionally unauthorized actions." State ex rel. Litty v. Leskovyansky , 77 Ohio St.3d 97, 98, 671 N.E.2d 236 (1996).

{¶ 10} Moreover, this court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott , 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

{¶ 11} The thrust of HSB's complaint and motion for summary judgment is that the respondent is patently and unambiguously without jurisdiction to approve the receiver's application for administrative expenses of the receivership while the cases are pending on appeal. HSB does not dispute the existence of an adequate remedy of law; instead, it argues that the narrow exception applies in this case. We find, however, HSB's arguments unpersuasive, and under the facts of this case, we cannot conclude that the trial court patently and unambiguously lacked jurisdiction.

{¶ 12} Once an appeal is filed, a trial court lacks jurisdiction to take any action that will interfere with the determinations of an appellate court. State ex rel. Sullivan v. Ramsey , 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶ 17, quoting State ex rel. Rock v. School Emp. Retirement Bd. , 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8. It may only act in aid of the jurisdiction of the appellate court. State ex rel. Lisboa v. Galvin , 8th Dist. Cuyahoga No. 92525, 2009-Ohio-969, 2009 WL 546422, ¶ 6, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas , 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978).

{¶ 13} The Supreme Court of Ohio, however, has noted some of those instances where the trial court may tread without offending this proposition of law: "it has been stated that the trial court does retain jurisdiction over issues not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed judgment, such as the collateral issues like contempt, appointment of a receiver and injunction." Special Prosecutors at 97, 378 N.E.2d 162, citing In re Kurtzhalz , 141 Ohio St. 432, 48 N.E.2d 657 (1943) ; Goode v. Wiggins , 12 Ohio St. 341 (1861) ; Fawick Airflex Co. v. United Elec. Radio & Machine Workers , 90 Ohio App. 24, 103 N.E.2d 283 (8th Dist.1951). Moreover, "[u]ntil and unless a supersedeas bond is posted the trial court retains jurisdiction over its judgments as well as proceedings in aid of the same." State ex rel. Klein v. Chorpening , 6 Ohio St.3d 3, 4, 450 N.E.2d 1161 (1983).

{¶ 14} Here, we do not find that the trial court's consideration of the receiver's applications for administrative expenses during the pendency of the appeals interfered with this court's ability to act. In the underlying appeal, HSB argued, among other things, that the trial court could not make the secured creditor's account and could not pay the receiver from that account. The trial court's action in paying the expenses of the receivership from this account does not interfere with this court's jurisdiction to affirm, modify, or reverse the lower court's decision. If this court were to have ruled that the trial court's allocation of ten percent of the secured creditor account be set aside for the payment of administrative expenses was invalid, the trial court would have been required to reallocate certain funds in the receivership estate. It does not mean that the trial court cannot pay expenses of the receiver. Indeed, if a trial court did not have jurisdiction to pay costs of the receivership, the corpus of a receivership may be put into jeopardy while an appeal is pending. Moreover, it is clear from the trial court's stay order that the trial court expressly retained authority to act on the receiver's fee and expense applications while the appeals were pending-an order that HSB never successfully obtained a stay from.

{¶ 15} We find HSB's reliance on the Sixth District's decision in Horvath v. Packo , 2013-Ohio-56, 985 N.E.2d 966 (6th Dist.), for the proposition that the trial court lacked jurisdiction in this case to be misplaced. In Horvath , the parties to an appeal were challenging the propriety of a court order that authorized a court-appointed receiver to sell business assets to one of three potential buyers that had submitted offers. A defendant filed an appeal of that order. Id. at ¶ 4. While the appeal was pending, the trial court directed the receiver to consummate the sale and distribute the assets to one of the potential buyers. Id. at ¶ 5. The Sixth District found that the order directing the receiver to consummate the sale was void for want of jurisdiction because the issue of who to sell the business assets to was an issue pending in the underlying appeal. Id. at ¶ 46.

{¶ 16} The facts of Horvath are distinguishable from the instant case. In Horvath , a party was appealing a sale conducted by a receiver and the issue raised in the appeal was the propriety of the sale and to whom specific property should be sold. In the underlying appeals here, HSB, Parma Heights, and Cleveland Construction were not contesting the propriety of the sale. Each appeal asserted an error in the validity or priority of an interest in the proceeds. And as stated above, even if this court had found merit to HSB's attack of the trial court's creation of the secured creditor's account and the payment of the receiver from this account, the court could reallocate funds from the receivership without disturbing this court's ability to affirm, modify, or reverse. As a result, the filing of an appeal in this case did not strip the trial court of all jurisdiction to manage the receivership and to pay the expenses that arise therefrom.

{¶ 17} Finally, this court having already decided on appeal that "the trial court did not abuse its discretion by approving the receiver's payments of various administrative fees and costs from the Secured Creditor Allocation," we decline to grant a writ of prohibition when doing so would be a vain act and the circumstances no longer require it. See generally State ex rel. Cotton v. Ghee , 84 Ohio St.3d 54, 55, 701 N.E.2d 989 (1998) (recognizing that the court will not grant a writ to compel a vain act); State ex rel. Westlake v. Corrigan , 112 Ohio St.3d 463, 2007-Ohio-375, 860 N.E.2d 1017, ¶ 22 (recognizing that in a writ case, a court is not limited to facts at the time a proceeding is commenced, but should consider facts at the time it determines whether to issue a writ).

{¶ 18} In conclusion, we grant respondents and receiver's motions for summary judgment and deny HSB's motion for summary judgment. Further, the alternative writ previously granted is vacated. HSB to pay costs. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

{¶ 19} Writ denied.

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR

      While we note that the appeals are no longer pending, we nonetheless address the merits of HSB's arguments because they attack the prior orders of the trial court that were allegedly entered when the trial court patently and unambiguously lacked jurisdiction.


author: DORRIAN, J.

text:
    James W. BATES, Plaintiff-Appellee, v. MERCHANTS HOLDING LLC et al., Defendants-Appellees,
    Jeffrey Starner, Defendant-Appellant.
    No. 17AP-622
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on May 1, 2018
    On brief: Brunner Quinn, Rick Brunner, and Patrick Quinn, Columbus, for appellee Merchants Holding LLC. Argued: Rick Brunner.
    On brief: Thomas C. Loepp, Law Offices, Co., LPA, and Thomas C. Loepp, for appellant. Argued: Thomas C. Loepp.
    DECISION
   DORRIAN, J.

{¶ 1} Defendant-appellant, Jeffrey Starner, appeals the August 4, 2017 judgment of the Franklin County Court of Common Pleas dismissing his cross-claims against defendants-appellees, Merchants Holding, LLC ("Merchants Holding") and Merchants 5 Star, Inc. ("Merchants Inc."), and third-party claims against Merchants 5 Star, Ltd. ("Merchants Ltd."). For the following reasons, we reverse.

I. Facts and Procedural History

{¶ 2} On August 3, 2015, plaintiff-appellee, James W. Bates, filed a complaint against Merchants Holding, Merchants Inc., and appellant. Bates asserted five claims for relief: breach of contract, unjust enrichment, promissory estoppel, negligent misrepresentation, and common-law fraud. Bates sought $192,346.81 in compensatory damages, punitive damages, attorney fees, pre- and post-judgment interest, and costs. On August 20, 2015, attorneys for Christopher Davis, appointed receiver for Merchants Inc., filed a notice of appointment of receiver for Merchants Inc. and a suggestion of stay. On September 10, 2015, the trial court filed a final agreed judgment entry granting judgment in favor of Bates against Merchants Holding in the amount of $130,000 in full satisfaction of the demand for relief in the complaint as to Merchants Holding only.

{¶ 3} On September 22, 2015, appellant filed an answer to Bates' complaint and cross-claims against Merchants Holding and Merchants Inc., and third-party claims against Merchants Ltd. On the same date, appellant filed a motion to dismiss Bates' complaint against him. On November 24, 2015, appellant filed a motion for default judgment against Merchants Holding. On November 25, 2015, Bates filed a notice of dismissal of his complaint against appellant without prejudice.

{¶ 4} On April 11, 2016, the trial court filed a journal entry staying the case as to Merchants Inc. and Merchants Ltd., denying as moot appellant's motion to dismiss, and denying appellant's motion for default judgment against Merchants Holding.

{¶ 5} On January 31, 2017, appellant's counsel filed a motion to withdraw, which the trial court granted on February 15, 2017. On July 12, 2017, the trial court filed a journal entry lifting the stay and ordering a scheduling conference for August 4, 2017. In its July 12, 2017 entry, the trial court ordered "[n]o later than Monday July 31 , each party that believes it retains any claim, affirmative defense or issue requiring decision in this case shall file a 'Statement of Claim(s), Affirmative Defense(s), and/or Issues.' " (Emphasis sic.) (Entry at 2.) On July 31, 2017, Merchants Holding filed a statement of claims, affirmative defenses and/or issues pursuant to the July 12, 2017 entry. On August 4, 2017, the trial court filed a final judgment dismissing appellant's claims for lack of prosecution pursuant to Civ.R. 41(B)(1) and (C).

II. Assignment of Error

{¶ 6} Appellant appeals and assigns the following sole assignment of error for our review:

The trial court erred and abused its discretion in dismissing the underlying lawsuit without giving the Plaintiff notice of same.

III. Discussion

{¶ 7} In his assignment of error, appellant asserts the trial court erred in dismissing his claims with prejudice pursuant to Civ.R. 41(B)(1) because he never received notice of the trial court's July 12, 2017 order to show cause.

{¶ 8} We review a trial court's decision to dismiss a case under Civ.R. 41(B)(1) for an abuse of discretion. Harris v. Levy , 10th Dist. No. 11AP-301, 2012-Ohio-21, 2012 WL 27582, ¶ 21, citing Thompson v. Ohio State Univ. Hosps. , 10th Dist. No. 06AP-1117, 2007-Ohio-4668, 2007 WL 2668745, ¶ 29. The phrase "abuse of discretion" implies the trial court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). The Supreme Court of Ohio has declared the abuse of discretion standard is heightened when reviewing a dismissal with prejudice pursuant to Civ.R. 41(B)(1) :

[T]he extremely harsh sanction of dismissal should be reserved for cases when [a party's] conduct falls substantially below what is reasonable under the circumstances evidencing a complete disregard for the judicial system or the rights of the opposing party. In other words, dismissal is reserved for those cases in which the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order. Absent such extreme circumstances, a court should first consider lesser sanctions before dismissing a case with prejudice. It is a basic tenet of Ohio jurisprudence that cases should be decided on their merits. Thus, although reviewing courts espouse an ordinary abuse of discretion standard of review for dismissals with prejudice, that standard is actually heightened when reviewing decisions that forever deny a plaintiff a review of a claim's merits.

(Internal citations and quotations omitted.) Sazima v. Chalko , 86 Ohio St.3d 151, 158, 712 N.E.2d 729 (1999). See Quonset Hut, Inc. v. Ford Motor Co. , 80 Ohio St.3d 46, 48, 684 N.E.2d 319 (1997) ("Despite the heightened scrutiny to which dismissals with prejudice are subject, this court will not hesitate to affirm the dismissal of an action when the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order.") (Quotations and citations omitted.); Geico Cas. Ins. Co. v. Durant-Baker , 10th Dist. No. 13AP-573, 2014-Ohio-1530, 2014 WL 1410166, ¶ 7.

{¶ 9} "A trial court errs in dismissing a plaintiff's case for failure to prosecute when notice has not been given." Williams v. RPA Dev. Corp. , 10th Dist. No. 07AP-881, 2008-Ohio-2695, 2008 WL 2308822, ¶ 7, citing Asres v. Dalton , 10th Dist. No. 05AP-632, 2006-Ohio-507, 2006 WL 280416, ¶ 12. "Thus, appellate review of a dismissal for failure to prosecute involves two assessments: first, whether the plaintiff was provided with sufficient notice prior to the dismissal; and second, whether the dismissal constituted an abuse of discretion." Geico at ¶ 8, citing Williams at ¶ 8.

{¶ 10} Here, on January 31, 2017, appellant's counsel filed a motion to withdraw, providing in the motion appellant's mailing address and other contact information. The trial court granted the motion to withdraw and ordered the clerk to "update the docket in accordance with this Order." (Feb. 15, 2017 Order.) On July 12, 2017, the trial court filed its entry ordering the parties to file a statement of claims and to appear for a status conference. However, the record reveals the trial court did not mail notice of its July 12, 2017 entry to appellant, either at his personal address or at the address of his former counsel.

{¶ 11} Appellant admits that he and his replacement counsel became aware of the August 4, 2017 status conference one day before it was held. However, appellant does not state he was aware of the possibility of a dismissal of his claims for failing to appear. Additionally, it is unclear whether a single day would have given appellant a reasonable opportunity to defend against dismissal. Quonset Hut at 49, 684 N.E.2d 319 (finding that counsel has notice for purposes of Civ.R. 41(B)(1) in the context of a dismissal with prejudice for failing to comply with a discovery order where "counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal"). Thus, appellant's admitted awareness does not obviate the trial court's failure to provide notice required by Civ.R. 41(B)(1). Geico at ¶ 9 (finding that "despite plaintiff's arguably dilatory conduct prior to the granting of the motion to dismiss, the trial court committed reversible error by failing to afford plaintiff notice of the possibility of dismissal"). Accordingly, appellant's assignment of error is sustained.

{¶ 12} We note that neither party has addressed whether the statute of limitations for appellant's claims has elapsed, or whether the Ohio's savings statute, codified under R.C. 2305.19, permits appellant to refile his claims. As neither party has raised these issues, we decline to address them at this time. See Lewis v. Moore , 2017-Ohio-4049, 91 N.E.3d 334, ¶ 19.

IV. Conclusion

{¶ 13} Having sustained appellant's sole assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter for further proceedings consistent with law and this decision.

Judgment reversed; cause remanded.

SADLER and LUPER SCHUSTER, JJ., concur.

      We note that in the order attached to the August 20, 2015 notice of appointment of receiver, the court also appointed a receiver for Merchants Ltd.

      We note that appellant stated that Merchants Ltd. "was an Ohio limited partnership, which has since been dissolved pursuant to court order." (Sept. 22, 2015 Cross-Compl. and Third-Party Compl. at 10.) Appellant also stated that Merchants Inc. "was an Ohio corporation, which has since been dissolved pursuant to court order." (Sept. 22, 2015 Cross-Compl. and Third-Party Compl. at 10.)

      We note appellant also argues the trial court's dismissal should have been without prejudice because his third-party claims were never commenced. Although the trial court's order does not indicate whether the dismissal was with prejudice, it does state that "all remaining claims, cross claims, or purported third party claims by [appellant] are DISMISSED for lack of prosecution pursuant to Civ.R. 41(B)(1) and (C)." (Aug. 4, 2017 Final Judgment.) Civ.R. 14(A) provides that "[a]t any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Although counsel for appellant stated that "all parties" were served "via the Court's electronic filing system and/or by e-mail," such service would not be effective as to the third-party claims as Merchants Ltd. was not a party to the case because Bates did not file a claim against them. See Citizens Loan & Savs. Co. v. Elio Internatl. Invests., Inc. , 10th Dist. No. 98AP-794 (June 30, 1999) (finding in the context of a third-party complaint that Civ.R. 5(B) does not apply "until the intended litigant has been properly made a 'party' to the proceedings"). No evidence appears in the record demonstrating that service, pursuant to Civ.R. 4 through 4.6, of a summons and complaint was obtained on Merchants Ltd. Therefore, because service of process was not perfected, the trial court's dismissal of appellant's third party claims was otherwise than on the merits. Thomas v. Freeman , 79 Ohio St.3d 221, 225, 680 N.E.2d 997 (1997).