author: DIANE V. GRENDELL, J.

text:
    Dale PURUCZKY, et al., Plaintiffs-Appellees, v. Edmund CORSI, Defendant-Appellant.
    NO. 2017-G-0110
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided April 9, 2018
    Patrick D. Quinn and Ronald A. Annotico, Quinn Legal Associates, 2802 SOM Center Road, Suite 102, Willoughby Hills, OH 44094 (For Plaintiffs-Appellees).
    Mark S. O'Brien, 2460 Fairmount Boulevard, Suite 301B, Cleveland Heights, OH 44106 (For Defendant-Appellant).
   DIANE V. GRENDELL, J.

{¶ 1} Defendant-appellant, Edmund Corsi, appeals from the judgment of the Geauga County Court of Common Pleas, granting plaintiff-appellee, Dale Puruczky, a preliminary injunction against Corsi. The issues to be determined in this case are whether an injunction prohibiting contact with various entities and the public as a whole acts as a prior restraint on free speech and whether service of the Complaint two business days before a preliminary injunction hearing constitutes notice to satisfy the requirements of due process. For the following reasons, we reverse and vacate the February 15, 2017 Order of the Court and remand for further proceedings consistent with this opinion.

{¶ 2} On January 18, 2017, Puruczky and Puruczky Wealth Management LLC filed a Complaint for Injunctive Relief and Damages against Corsi. The Complaint alleged that Corsi sold Puruczky supplements and treatment for his wife's various illnesses. Puruczky alleged that Corsi had misrepresented his products and that Puruczky "discontinued the business relationship with Defendant, cancelled orders, and stopped payment on checks issued to Defendant * * *." The Complaint contended that Corsi had written a letter containing false, defamatory, libelous and slanderous statements to various entities with which Puruczky did business as a financial planner.

{¶ 3} The Complaint raised claims for Defamation and Defamation Per Se (Count One); Tortious Interference with Contract, based on the contention that the letter authored by Corsi interfered with Puruczky's business relationships (Count Two); Unfair Business Practices (Count Three); and Preliminary Injunction (Count Four).

{¶ 4} On the same date, Puruczky filed a Motion for Temporary Restraining Order, requesting that Corsi be prohibited from making untruthful, libelous, and slanderous statements about him. He attached an affidavit outlining the various ways the letter would impact his career. Also attached was a copy of the "Notice"/letter purported to be sent by Corsi, which stated that Puruczky failed to pay for some products. It further stated: "After trusting this man, he has lied to me, deceived me, stolen from me, and passed bad checks to me. * * * I will not stop exposing this man throughout the entire financial community in which I have ties, through public media and the appropriate federal and state agencies until justice is served. I hope there is no negative impact to your company as a result of all the bad publicity Mr. Puruczky will cause."

{¶ 5} A Temporary Restraining Order was issued on January 23, 2017. It "restrained and enjoined" Corsi from contacting entities in relation to Puruczky and "specifically restrains and enjoins defendant from engaging in malicious, defamatory, libel and tortious conduct against Plaintiff." It also set a hearing on the request for a preliminary injunction for January 31, 2017, which was continued at the plaintiffs' request due to failure to obtain service of the Complaint.

{¶ 6} After a request to renew, a second Temporary Restraining Order was issued on January 30, 2017, which set the hearing on the preliminary injunction for February 14, 2017.

{¶ 7} Puruczky requested an order designating a special process server on February 8, 2017, which was granted on February 9, 2017. On the same date, a document entitled "Instructions for Service" was filed, which stated that pleadings to be served by the process server included the Complaint, Motion for Temporary Restraining Order and the Journal Entry-Notice of Hearing. On February 13, 2017, a copy of a summons return was filed, which indicated that Corsi had been served on February 10, 2017. It did not state which documents were served and the docket states "Service: Summons with Complaint."

{¶ 8} A hearing on the preliminary injunction was held on February 14, 2017, at 9:00 a.m. Puruczky and his counsel were present, but Corsi and his counsel did not appear.

{¶ 9} Puruczky testified that his wife had received treatment and vitamins from Corsi, which he described as similar to holistic treatment, although he did not believe Corsi was licensed. At some point, he and his wife decided to discontinue her treatment since they were dissatisfied and stopped payment on a check. Puruczky referenced the letter he believed to be written by Corsi, which described him as passing a bad check, an allegation Puruczky denied. He also denied lying, cheating Corsi out of money, or defrauding him, also referenced in the letter which Puruczky believes was sent to various entities with which he interacts as a wealth advisor, including boards and professional organizations. Regarding the effect that the letter had on his business, Puruczky provided one example, in which a prospective client stated that he had seen "some disturbing information" in the newspaper, which related to this lawsuit, filed by Puruczky. The client had called to discuss investing and Puruczky testified that he was "very" concerned the client would no longer invest. He did not, however, testify that the client made a decision to that effect. Regarding any other loss of potential clients or business, Puruczky testified "there is no way for me to know."

{¶ 10} On the afternoon of February 14, 2017, hours after the hearing, counsel for Corsi filed a Motion to Dismiss Count for Preliminary Injunction and a Motion to Vacate Temporary Restraining Order. On February 15, 2017, an Order of the Court was filed, finding that the restraining order should be continued "until further order of the Court" and making findings in favor of Puruczky on the preliminary injunction, including that irreparable harm existed, he had a likelihood of success, the injunction was in the public interest, and the balance of hardships favored Puruczky. The same restrictions outlined above were set forth, including Corsi not being permitted to contact entities associated with Puruczky or to engage in "malicious, defamatory, libel, and tortious conduct" against him.

{¶ 11} Corsi filed his Notice of Appeal on February 24, 2017, and raises the following assignments of error:

{¶ 12} "[1.] The trial court erred in granting Appellees' motion for temporary restraining order and preliminary injunction because the temporary restraining order and the preliminary injunction violate Appellant's right to free speech.

{¶ 13} "[2.] The trial court erred in granting Appellees' motion for temporary restraining order and preliminary injunction because the temporary restraining order and the preliminary injunction were not supported by the evidence presented by Appellees at the preliminary injunction hearing.

{¶ 14} "[3.] The trial court erred in scheduling and holding the preliminary injunction hearing only four days (two business days) after Appellant was served with the summons and complaint and by failing to give Appellant clear notice of the fact that the hearing had been scheduled."

{¶ 15} As an initial matter, we will address the finality of the trial court's order, although it is not challenged by Puruczky. "[T]he granting of a temporary or preliminary injunction, in a suit in which the ultimate relief sought is a permanent injunction, is generally not a final appealable order." (Citation omitted.) RKI, Inc. v. Tucker , 11th Dist. Lake No. 2017-L-004, 2017-Ohio-1516, 2017 WL 1496399, ¶ 10. However, in some scenarios, such orders are appealable. It has been held that "a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review." Connor Group v. Raney , 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, 2016 WL 2841190, ¶ 1 ; Internatl. Diamond Exchange Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc. , 70 Ohio App.3d 667, 671, 591 N.E.2d 881 (2d Dist.1991), citing Natl. Socialist Party of America v. Skokie , 432 U.S. 43, 44, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (where an injunction seeks to "impose a restraint [on First Amendment rights]," there must be "strict procedural safeguards * * *, including immediate appellate review"). This court has also noted the exception that "the granting of a preliminary injunction is a final appealable order when the court's order constitutes an abuse of discretion affecting a substantial right." Woodbridge Condominium Owners' Assn. v. Friedland , 11th Dist. Lake No. 2003-L-073, 2004-Ohio-14, 2004 WL 24102, ¶ 5. Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal.

{¶ 16} In the third assignment of error, which is dispositive of the appeal, Corsi argues that his right to due process was violated when the preliminary injunction hearing was held "only two business days after service was perfected."

{¶ 17} "The question of whether the due process requirements have been satisfied presents a legal question we review de novo." McRae v. State Med. Bd. , 2014-Ohio-667, 9 N.E.3d 398, ¶ 36 (10th Dist.) ; see Gemmell v. Anthony , 2016-Ohio-2686, 51 N.E.3d 663, ¶ 27 (4th Dist.). See also In re Foreclosure of Liens , 11th Dist. Lake No. 2014-L-012, 2015-Ohio-1258, 2015 WL 1432504, ¶ 15 (questions of law are reviewed de novo).

{¶ 18} Puruczky's main argument as to this issue is that it was waived by Corsi below, since it was not raised in his February 14, 2017 motions. We find this argument unpersuasive. Those motions were filed just hours after the hearing that Corsi's counsel did not attend, presumably because he was unaware of the hearing or lacked sufficient notice to attend, as will be addressed below. Regardless, these filings related to vacating the previously-issued temporary restraining order and dismissal of the preliminary injunction count. The preliminary injunction had not yet been ruled upon by the trial court, which was granted a day later. The due process argument raised here relates solely to the contention that it was improper to grant a preliminary injunction without Corsi being able to attend the hearing. It would be illogical to raise such an argument before the injunction was even ruled upon, especially considering it would be moot if the ruling was favorable to Corsi. After the injunction was granted, Corsi immediately appealed, raising the due process argument. Although not presently before this court for review, Corsi filed a Motion to Vacate on the same date, also raising the due process argument. Since Corsi raised this argument at the first relevant opportunity, it was not waived and we will consider whether he was denied due process.

{¶ 19} "[T]he fundamental requisite of due process of law is the opportunity to be heard." (Citation omitted.) Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. , 28 Ohio St.3d 118, 124, 502 N.E.2d 599 (1986). In relation to preliminary injunctions, this court has found " Civ.R. 65 strongly implies that a hearing must be held before a preliminary injunction can be granted," also noting that an injunction cannot be granted without reasonable notice to the adverse party under Civ.R. 65(B)(1). Sea Lakes, Inc. v. Sea Lakes Camping, Inc. , 78 Ohio App.3d 472, 476, 605 N.E.2d 422 (11th Dist.1992) ; State ex rel. Fisher v. Nacelle Land and Mgt. Corp. , 90 Ohio App.3d 93, 99, 628 N.E.2d 67 (11th Dist.1993) ("[i]t is generally held that a hearing must be conducted prior to the issuance of a preliminary injunction"). This is due to the "fundamental constitutional principle" of providing the opposing party an opportunity to present evidence. (Citation omitted.) Sea Lakes at 476, 605 N.E.2d 422. "Since the opposing party will be enjoined from performing certain acts for a period usually much longer than that associated with a temporary restraining order, that party must be accorded a legitimate opportunity to oppose the injunction." Id. at 477, 605 N.E.2d 422. Federal courts have interpreted the similar federal rule to also require notice and a hearing for a preliminary injunction. Cty. Sec. Agency v. Ohio Dept. of Commerce , 296 F.3d 477, 484 (6th Cir.2002).

{¶ 20} "An elementary and fundamental requirement of due process in any proceeding * * * is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * *" Ohio Valley at 124, 502 N.E.2d 599, citing Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "[T]he right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' " (Citation omitted.) Fuentes v. Shevin , 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). "The determination of whether a certain form of notice violates due process must be made on a case-by-case basis." Nalbach v. Cacioppo , 11th Dist. Trumbull No. 2001-T-0062, 2002 WL 32704, *4 (Jan. 11, 2002).

{¶ 21} In the present matter, a consideration of all of the circumstances leads to the conclusion that Corsi was not given a reasonable notice of the hearing date which would provide him with meaningful time to prepare for the hearing. Corsi was not served with any notice of the present proceedings, even the Complaint, until four days, and only two business days, before the hearing for the preliminary injunction. The record also does not clearly indicate what documents were served on Corsi on that date and whether such documents included the notice of the hearing. There is no way of knowing what documents were served, aside from the Complaint. The service return does not specify what was served, with the summons stating only that the defendant was being served with a Complaint and had 28 days to respond with an answer. While the instructions for service filed separately do specify that the notice of hearing should be served, it is unclear whether this occurred, and the docket states only that the Complaint was served. Defense counsel's actions seemed to be consistent with the contention that he was unaware of the hearing, as he filed several motions on the date of the hearing, which did not acknowledge the hearing, and he did not appear.

{¶ 22} While in some instances constructive notice is considered sufficient by virtue of the hearing being included on the court docket, see Ohio Valley , 28 Ohio St.3d at 124, 502 N.E.2d 599, that principle would not apply here. Corsi could not be construed to have constructive notice in advance at the time of the docketing of the hearing date when he had not been served with the Complaint and thus was not yet an active participant in the proceedings. Again, even if he is considered to have had constructive notice as of the date of the service, this provided him only a few days to obtain counsel and prepare for the hearing.

{¶ 23} Even assuming Corsi was served with the notice of hearing, the summons document stated that he had 28 days to file an answer. As a non-lawyer, he would be placed in the unfair position of having to evaluate multiple documents and determine a hearing was set for only a few days in the future, while not yet having obtained the assistance of counsel. It is also unreasonable to believe that a client and counsel would be adequately prepared to appear at a hearing on an injunction within only two business days. A similar holding was reached by the Eighth District, where the court found that a notice of a dispositive hearing to modify an arbitrator's award totaling only two business days "was not 'reasonably calculated under the circumstances' to apprise appellant * * * of the pendency of the hearing so as to afford them ample opportunity to present their objections." (Emphasis omitted.) Cleveland Firefighters Local 93 v. Cleveland , 8th Dist. Cuyahoga No. 59319, 1991 WL 263713, *2 (Dec. 12, 1991).

{¶ 24} Any contention that two business days' notice was reasonable because this was a preliminary injunction hearing also lacks merit. As explained above, this court has emphasized the necessity of holding a hearing prior to granting a preliminary injunction. Sea Lakes , 78 Ohio App.3d at 476, 605 N.E.2d 422. A hearing for which a party is unprepared is meaningless. Further, the evidence also does not show that a delay of a few days would have harmed Puruczky, who presented no evidence that the letter at issue was actually sent to anyone other than himself. Importantly, Puruczky had received a temporary restraining order and an extension of such order, protecting him from alleged harm. Civ.R. 65 allows for a 14-day temporary restraining order and an additional extension "for one like period." The first temporary restraining order in this case was granted on January 23, 2017, and, thus, could have been extended until February 20, 2017, providing Corsi additional time to prepare while still protecting Puruczky.

{¶ 25} Given the significance of the injunction, which Corsi asserts acts as a prior restraint on his speech in violation of the First Amendment by essentially banning him from communicating with all entities that interact with Puruczky, as well as the public, allowing Corsi to appear and provide a defense was especially important and necessary. See State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas , 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, ¶ 21 (there is a "heavy presumption" against the constitutional validity of prior restraints).

{¶ 26} The third assignment of error is with merit.

{¶ 27} While the disposition of the third assignment of error requires remand, we will briefly address the first assignment of error for purposes of judicial economy. In the first assignment of error, Corsi alleges that the injunction acts as a prior restraint on his speech and, thus, violates his First Amendment rights.

{¶ 28} Generally, a "trial court's decision to grant or deny a preliminary injunction is reviewed for abuse of discretion." Avery Dennison Corp. v. TransAct Technologies, Inc. , 11th Dist. Lake No. 2012-L-132, 2013-Ohio-4551, 2013 WL 5635932, ¶ 13. Constitutional questions, including the application of the First Amendment, however, are reviewed under a de novo standard. Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ; State v. Baranski , 173 Ohio App.3d 410, 2007-Ohio-4072, 878 N.E.2d 1058, ¶ 6 (4th Dist.).

{¶ 29} "The term prior restraint is used 'to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' " (Citation omitted.) Seven Hills v. Aryan Nations , 76 Ohio St.3d 304, 307, 667 N.E.2d 942 (1996).

{¶ 30} "Although prior restraints are not unconstitutional per se, there is a heavy presumption against their constitutional validity." Toledo Blade , 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 21. "[P]rior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683. " 'Prior restraints are simply repugnant to the basic values of an open society' in that they 'tend to encourage indiscriminate censorship in a way that subsequent punishments do not.' " (Citation omitted.) Toledo Blade at ¶ 21.

{¶ 31} In the present case, the trial court's order prevents Corsi from "contacting in any manner any of the various businesses, individuals, charities, social organizations, clients, prospective clients, employers, government agencies, FINRA, State of Ohio, business partners, associates of Plaintiff and the general public until further order of this court." (Emphasis added.) Following that provision, the order states that it "specifically restrains and enjoins Defendant from engaging in malicious, defamatory, libel and tortious conduct against Plaintiff" within the United States. It appears that, at the least, Corsi cannot contact anyone about or in relation to Puruczky, although the order also prevents him from contacting "the general public," without specific reference to whether this relates to Puruczky. Either way, Corsi is totally prevented from exercising his right to free speech, without regard for what this speech may be.

{¶ 32} While Puruczky argues that libelous and false speech are not protected, it bears repeating that the order also prevents him from "contacting" various individuals, separate from the specific requirements preventing certain types of speech. Regardless, while it is accurate that some types of speech are not protected, prevention of such speech typically is permissible after the court has "regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Bose , 466 U.S. at 505, 104 S.Ct. 1949, 80 L.Ed.2d 502. As the Ohio Supreme Court has emphasized, "[t]he judicial determination that specific speech is defamatory must be made prior to any restraint." (Emphasis added.) O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). Here, the trial court did not make a specific finding that speech which had already taken place constituted libel or defamation and cannot assume that future speech will fall into such a category. Corsi is being improperly deprived of the right to speak before a substantive determination of the permissibility of his speech on the merits has been made by the court. The likelihood of success determination for a preliminary injunction does not meet that standard. Id.

{¶ 33} To the extent the lower court granted preliminary, injunctive relief prior to a final determination that Corsi's alleged letter is defamatory, the relief granted is improper. See O'Brien , supra .

{¶ 34} Further, the injunction prevents Corsi from essentially interacting with not only various entities but the public as a whole in relation to Puruczky. This is not a minor restriction on his speech but an all encompassing prohibition on expressing concerns "to the public" on a matter which Corsi views as of significant interest, Puruczky's alleged dishonest and improper conduct. It has been noted that an individual does not have an interest "in being free from public criticism of his business practices" by obtaining an injunction against an individual distributing leaflets or pamphlets criticizing the business. Org. for a Better Austin v. Keefe , 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Here, the broad limitations contained in the injunction would prohibit such conduct by Corsi.

{¶ 35} Since the trial court's order acts as a broad, prior restriction on Corsi's speech to the public and private entities, that portion of the injunction violates his First Amendment rights.

{¶ 36} The first assignment of error is with merit to the extent discussed above.

{¶ 37} In light of our ruling on assignments of error one and three, the second assignment of error is moot.

{¶ 38} Given the foregoing, the February 15, 2017 Order of the Court is reversed and this matter is remanded for the lower court to hold a hearing, pursuant to O'Brien, supra, on an injunction, excepting public speech, with proper and adequate notice of the hearing date to be provided to all parties.

{¶ 39} For the foregoing reasons, the February 15, 2017 Order of the Geauga County Court of Common Pleas is reversed and vacated. This matter is remanded for further proceedings consistent with this decision. Costs to be taxed against appellees.

THOMAS R. WRIGHT, P.J.

CYNTHIA WESTCOTT RICE, J.

concur.

      Corsi filed a Motion to Vacate Preliminary Injunction in the trial court on the same date.

      We note that the second temporary restraining order was actually issued by the court on January 30, 2017. Regardless, Corsi should not be subjected to a violation of his due process rights when there are mechanisms in place to protect his rights as well as those of the party seeking an injunction.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: L.R.R., Dependent Child
    NO. 2017-P-0047
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided April 16, 2018
    Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).
    Jonathan P. Jennings, 223 West Main Street, Ravenna, OH 44266 (For Appellant, Patricia Pierson).
   DIANE V. GRENDELL, J.

{¶ 1} Appellant, Patricia Pierson, appeals from the judgment of the Portage County Court of Common Pleas, Juvenile Division, granting legal custody of her grandson, L.R.R., to Stacey and Gregory Bond. The issue to be determined in this case is whether a court's custody decision is arbitrary when the court chooses one of two suitable custodians. For the following reasons, the judgment of the lower court is affirmed.

{¶ 2} Pierson is the paternal grandmother of L.R.R., born on March 3, 2015. L.R.R.'s father is Pierson's son, Kenneth Roosa, and his mother is Jerica Hixon.

{¶ 3} On August 12, 2015, appellee, Portage County Department of Job and Family Services (PCDJFS), filed a Complaint alleging that L.R.R. was abused, neglected, and dependent. The Complaint asserted that L.R.R. was present during a domestic violence incident between Roosa and Hixon, who were engaged. It also alleged that police officers had found the three living together in violation of a temporary protection order.

{¶ 4} Following an adjudicatory hearing, the court issued a September 21, 2015 Journal Entry finding L.R.R. to be dependent, based on concerns with mental health and substance abuse, family dynamics, and "failure to protect." L.R.R. was placed into the interim pre-dispositional custody of Hixon with protective supervision granted to PCDJFS. Following a dispositional hearing, the court continued the custody with supervision and a case plan was adopted.

{¶ 5} PCDJFS filed a Notice of Emergency Removal on November 4, 2015. Pursuant to the Notice, the Portage County Sheriff's Office ordered the removal of L.R.R. on November 3, 2015, following a report of domestic violence between Roosa and Hixon, at which time they both smelled strongly of alcohol. Roosa admitted to driving while intoxicated with L.R.R. in the vehicle. On November 6, 2015, a Motion to Modify Dispositional Order and Case Plan was filed. On February 18, 2016, the trial court issued a Journal Entry granting temporary custody to PCDJFS.

{¶ 6} PCDJFS filed a Motion for Six-Month Extension of Temporary Custody on July 7, 2016. On the same date, it filed a Motion for Adoption of Permanency Plan, seeking that legal custody be granted to L.R.R.'s relatives, Stacey and Gregory Bond, with whom he had been living since November 3, 2015.

{¶ 7} Roosa filed a Motion for Change of Custody on July 25, 2016. The court denied this request.

{¶ 8} On December 27, 2016, PCDJFS filed Motions for Change of Custody and to Terminate Case, requesting that legal custody of L.R.R. be granted to the Bonds.

{¶ 9} Pierson filed a Motion to Intervene and Motion for Legal Custody on February 13, 2017. The court granted the request to intervene and joined her as a party.

{¶ 10} A hearing was held before the court on April 14 and May 15, 2017, at which the following pertinent testimony was presented:

{¶ 11} Kaleigh Wallace was the caseworker for L.R.R. and his family. After L.R.R. was removed from Hixon's custody on November 3, 2015, he was placed with Stacey and Gregory Bond. Stacey is Hixon's cousin. L.R.R. had been with them for about 17 months at the time of the first date of the hearing. The Bonds have two biological children, aged one and two, who are bonded with L.R.R. The Bonds allowed Hixon, Roosa, and Pierson to visit with the child and facilitated their relationships. Wallace explained that the Bonds have a "beautiful home" and a large family support system.

{¶ 12} Wallace noted that Pierson was not considered as a placement in November 2015 since the violation of the temporary protection order took place at her home. Wallace also believed that Pierson had not initially taken PCDJFS' involvement "seriously." Wallace indicated that Pierson passed background checks necessary to be approved as a custodian, has a stable income, loves L.R.R., is bonded with him, and "does well during visitation," which occurred over weekends. Wallace did express concerns regarding Pierson's physical condition as well as past transportation issues.

{¶ 13} Wallace testified that Hixon had been unable to meet several of her goals under the case plan and Roosa had completed most goals, but she had concerns about his ability to maintain consistent employment and stable housing. Given her belief that L.R.R. could not be returned to their custody, Wallace recommended the Bonds be granted legal custody since L.R.R. is bonded with their family and is used to their home.

{¶ 14} Stacey Bond, a registered nurse, testified that L.R.R. has lived with her family since he was eight months old, she has bonded with him "very much" and he is "best friends" with her daughter. If granted custody, she would continue to facilitate visitation with the parents and Pierson. She expressed concern that Pierson said she would not allow visitation with the Bonds for a few months if she received custody, in order to "reestablish where [L.L.R.'s] home is." Gregory Bond, Stacey's husband, testified that L.R.R. is part of their family.

{¶ 15} Pierson testified that she exercises visitation with L.R.R. on the weekends, has a bedroom for him in her house, is bonded with and loves him, and attends family team meetings. L.R.R. has friends near her home and is able to visit with Roosa at her home. She wants L.R.R. to be able to spend time with other family members as well.

{¶ 16} Pierson testified that she has no health or other concerns that would prevent her from caring for L.R.R. If she was granted custody she would facilitate a relationship with the Bonds, with whom she has communicated well in the past. She expressed a desire to receive custody of L.R.R. when he was removed from Hixon in 2015 but was not permitted to do so because the protection order was violated at her house.

{¶ 17} Roosa testified that his mother would have no difficulties in caring for L.R.R. He believed L.R.R. should be with his family. He also noted that when it is time for L.R.R. to return to the Bonds following visitation, he wants to stay with Roosa and Pierson.

{¶ 18} In a Guardian Ad Litem Report filed on May 11, 2017, the GAL opined that it is in L.R.R.'s best interest to be placed in the legal custody of the Bonds, although he should continue his relationship and visitation with Roosa and Pierson.

{¶ 19} The court issued a Journal Entry on July 10, 2017, granting legal custody to the Bonds and providing visitation for the parents and Pierson. The court found that both the Bonds and Pierson had safe housing and a bond with the child. The court did not weigh against Pierson her presence in the home when the incident involving the violation of the protection order/"assault" occurred and found that she would be able to physically care for L.R.R. It determined that the R.C. 3109.04(F) best interest factors "are fairly equal between the parties," but noted that the GAL recommended L.R.R. be placed with the Bonds, that L.R.R. had bonded with their children, and had lived with them since November 2015.

{¶ 20} Pierson timely appeals and raises the following assignment of error:

{¶ 21} "The decision of the trial court to grant legal custody of L.R.R. to Gregory 'Adam' Bond and Stacey Bond was arbitrary and therefore an abuse of discretion."

{¶ 22} "[A]bsent an abuse of discretion, an appellate court will not reverse a trial court's determination in a child custody matter." (Citation omitted.)

In re A.C.B. , 11th Dist. Portage Nos. 2016-P-0065 and 2016-P-0067, 2017-Ohio-4127, 2017 WL 2427550, ¶ 57. "An abuse of discretion implies that the trial court acted in a way that was unreasonable, arbitrary, or unconscionable." In re Marriage of Kline , 11th Dist. Lake No. 2016-L-009, 2016-Ohio-7159, 2016 WL 5870983, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 23} Pursuant to R.C. 2151.353(A)(3), if a child is adjudicated dependent, the court can "[a]ward legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings."

{¶ 24} In determining custody under R.C. 2151.353, the juvenile court " 'should consider the totality of the circumstances, including, to the extent they are applicable, the best interest factors set forth in R.C. 3109.04(F).' " (Citation omitted.) In re Memic , 11th Dist. Lake Nos. 2006-L-049, et al., 2006-Ohio-6346, 2006 WL 3478421, ¶ 26. "However, there is 'no statutory mandate that they be expressly considered and balanced together before fashioning an award of custody under R.C. 2151.353(A)(3).' " In re Mitchell , 11th Dist. Lake Nos. 2002-L-078 and 2002-L-079, 2003-Ohio-4102, 2003 WL 21782611, ¶ 14, citing In re Pryor , 86 Ohio App.3d 327, 336, 620 N.E.2d 973 (4th Dist.1993).

{¶ 25} Pierson's sole argument is that the lower court's decision was arbitrary because it found that both the Bonds and Pierson were well-suited to be legal custodians for L.R.R. and did not provide justification for awarding custody to the Bonds rather than her.

{¶ 26} In the present matter, the trial court weighed and discussed the evidence, considered the necessary best interest factors under R.C. 3109.04(F), and concluded that the best interest factors between the Bonds and Pierson "are fairly equal." The court explained in its decision that both the Bonds and Pierson have safe and adequate housing and have bonded with L.R.R. The court noted that it placed no weight on the fact that an assault and/or violation of the restraining order occurred at Pierson's home. It also rejected testimony that Pierson was unable to physically care for L.R.R. The court emphasized that "L.R.R. is lucky to have two loving households available to him where he has bonded." There is nothing in the record to contradict the finding that both the Bonds and Pierson were proper and capable custodians.

{¶ 27} This, however, does not mean that the trial court's decision to choose the Bonds as legal custodians was arbitrary. Pierson cites no authority for the proposition that a trial court's choice between two suitable custodians is arbitrary by its very nature. It was ultimately necessary for the court to make a decision between Pierson and the Bonds for the purpose of determining custody.

{¶ 28} Importantly, the lower court did make a distinction between the Bonds and Pierson. Immediately prior to stating its order that L.R.R. be placed in the legal custody of the Bonds, the court noted that the GAL recommended the Bonds be granted custody and referenced the GAL's statement that L.R.R. had lived with them since November 2015. Assuming both Pierson and the Bonds can provide equally adequate homes for L.R.R., it is certainly relevant to consider as a best interest factor the impact of moving L.R.R. out of the home where he has been happily living for over a year and a half. R.C. 3109.04(F)(1)(d) (a best interest factor is "[t]he child's adjustment to the child's home, school, and community"). This provided a valid basis for the court's custody determination. See In re L.R.S. , 11th Dist. Portage Nos. 2016-P-0050 and 2016-P-0051, 2017-Ohio-2604, 2017 WL 1683715, ¶ 26-27 (finding no abuse of discretion where the trial court "had to choose the most suitable couple out of three capable options" and cited to slight differentiating factors to reach its decision); also Ferres v. Ferres , 6th Dist. Ottawa No. 90-OT-040, 1991 WL 355136, *3 (Aug. 30, 1991) (finding no abuse of discretion when the trial court awarded custody to the mother although both parents were "equally suitable to have custody").

{¶ 29} Based on the foregoing, we find no basis for a conclusion that the trial court abused its discretion when it chose what it believed to be the better of two good options for L.R.R. on the issue of custody, which is supported by the record.

{¶ 30} The sole assignment of error is without merit.

{¶ 31} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas, Juvenile Division, granting legal custody of L.R.R. to the Bonds, is affirmed. Cost to be taxed against appellant.

THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.


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

text:
    STATE of Ohio, EX REL. Devin BRANCH, et al., Relators v. Christopher PITTS, et al., Respondents
    No. 105400
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASE DATE: March 23, 2018
    Darryl E. Pittman, Darryl E. Pittman & Associates, 2490 Lee Road, Suite 316, Cleveland, Ohio 44118, Robert Smith, Law Offices of Robert Smith III, L.L.C., 3751 Prospect Avenue East, Third Floor, Cleveland, Ohio 44115, ATTORNEYS FOR RELATORS
    Willa M. Hemmons, 14340 Euclid Avenue, East Cleveland, Ohio 44112, ATTORNEY FOR RESPONDENTS
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} The relators, Devin Branch, Kelvin Erby, and Tracy Udrija-Peters, have filed a complaint for a writ of quo warranto. The complaint for quo warranto seeks: 1) the removal of the respondents, Earnest Smith and Christopher Pitts, from the positions of councilperson on the East Cleveland City Council ("Council"); 2) the seating of Branch and Erby as councilpersons on the Council; 3) the removal of respondent Khadijah Guy as clerk of the Council; and 4) the seating of Udrija-Peters as clerk of the Council. For the following reasons, we grant in part and deny in part the request for a writ of quo warranto.

I. THE FACTS

{¶ 2} On December 6, 2016, a special election was held in order to determine whether the mayor of the city of East Cleveland ("City") and the president of Council should be recalled. The mayor and the president of Council were recalled as certified by the Cuyahoga County Board of Elections. As a result of the certification of the recall election, the mayor and the president of the Council were removed from office. The vice president of the Council, Brandon King, was sworn in as mayor of the City on December 20, 2016, pursuant to § 114 of the East Cleveland City Charter ("Charter"). Two empty councilperson positions were created as a result of the recall and the elevation of King as the mayor of the City.

{¶ 3} On December 29, 2016, Nathaniel Martin, Barbara Thomas, and Joie Graham, the remaining members of the Council, convened a special closed-door executive session council meeting in order to interview potential candidates for the two empty councilperson positions. At the conclusion of the closed-door executive session, the Council meeting was continued as a public hearing, without the presence of Graham. Martin and Thomas then "appointed" Branch and Erby to fill the vacant councilperson seats. The newly formed Council then voted to remove Guy as Council clerk and appointed Udrija-Peters as the Council clerk.

{¶ 4} A dispute arose between Council members, the mayor, and the law director over the validity of Council's actions in filling the vacant councilperson vacancies and the termination of the Council clerk. On January 23, 2017, King appointed Smith and Pitts to the councilperson seats as previously filled by Branch and Erby. With the support of King, Hemmons, and other city employees, Smith and Pitts took the councilperson seats and excluded Branch and Erby. In addition, Udrija-Peters was removed as Council clerk and Guy was reinstated as the Council clerk through the actions of King, Hemmons, and other city employees. On January 25, 2017, the relators filed their complaint for a writ of quo warranto.

II. LEGAL ANALYSIS

{¶ 5} The Supreme Court of Ohio has firmly established that quo warrant is the sole remedy that may be employed to challenge the right of any person to hold a public office.

Quo warranto is the exclusive remedy to litigate the right of a person to hold a public office. State ex rel. Deiter v. McGuire , 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20 ; see also , State ex rel. Ebbing v. Ricketts , 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State ex rel. Johnson v. Richardson , 131 Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15. In quo warranto, judgment may be rendered on the right of the defendant to hold the contested office and the right of the person alleged to be entitled to hold the office "or only upon the right of the defendant, as justice requires." Deiter at ¶ 22.

State ex rel. Flanagan v. Lucas , 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135. See also State ex rel. Price v. Columbus, Delaware & Marion Elec. Co. , 104 Ohio St. 120, 135 N.E. 297 (1922) ; Sections 2 and 3 of Article IV of the Constitution of Ohio.

{¶ 6} Thus, this court is required to answer two questions in deciding whether a writ of quo warranto should issue: 1) the right of Smith and Pitts to hold the positions of councilperson; and 2) the right of Branch and Erby to assume the positions of councilperson.

A. The Appointments of Smith and Pitts to Council

{¶ 7} Section 100 of the Charter provides that:

When the office of a member of Council shall become vacant, the vacancy shall be filled by election for the unexpired term by a majority vote of all the remaining members of the Council. If the Council fails within 30 days to fill such a vacancy, the President of Council shall fill it by appointment.

{¶ 8} The language of Section 100 mirrors the language of R.C. 731.43, which deals with filling vacancies in the legislative body of a village, except that R.C. 731.43 provides that the power to fill a legislative vacancy falls to the mayor if Council does not act within 30 days of the creation of the vacancy. R.C. 733.31(C) provides that any vacancy in the legislative body of a city is to be filled as set forth in R.C. 731.43. We find that a conflict exists between the Charter and R.C. 731.43, because under the Charter only Council or the Council president may fill a vacancy in Council. Contrary to Section 100 of the Charter, a mayor may fill a vacancy in Council pursuant to R.C. 731.43 and 733.31(C).

{¶ 9} The Supreme Court of Ohio has determined that when a conflict exists between a city charter and statutory provisions governing the filling of a legislative vacancy, the charter takes precedence and must be followed to fill any legislative vacancy.

1. The portion of Section 731.43, Revised Code, authorizing the mayor of a municipal corporation to fill by appointment a vacancy in the office of a member of the legislative authority of such municipal corporation, conflicts with Section 5 of the Columbus City Charter providing that "vacancies in council shall be filled by the council for the remainder of the unexpired term."
2. The facts, that a vacancy occurs in the Columbus city council and that council fails for over 30 days to fill such vacancy, do not authorize the mayor of Columbus to fill such vacancy by appointment.

State ex rel. Devine v. Hoermle , 168 Ohio St. 461, 156 N.E.2d 131 (1959), paragraphs one and two of the syllabus.

{¶ 10} The Supreme Court of Ohio, in Hoermle , further stated that:

The adoption of provisions in a city's charter, relative to appointments to fill vacancies in the legislative body of such city, is authorized by the provisions of Sections 3 and 7 of Article XVIII of the Ohio Constitution granting authority to exercise all powers of local self-government. Where such charter provisions specify who shall make such appointments, statutory provisions authorizing an appointment by someone else cannot apply in the absence of their adoption by other provisions of the charter.

Id. at 462, 156 N.E.2d 131, citing State, ex rel. Bindas v. Andrish , 165 Ohio St. 441, 136 N.E.2d 43 (1956).

{¶ 11} The Supreme Court of Ohio, in Hoermle also stated that:

Section 5 of the [city] charter grants the power to fill vacancies to council and to no one else. Applying the doctrine of expressio unius est exclusio alterius , as we did in State ex rel. Bindas v. Andrish , supra , it is apparent that the charter denies such power to the mayor. It necessarily follows that the statute giving the mayor such power under certain circumstances conflicts with section 5 of the charter.

Id. at 463, 156 N.E.2d 131.

{¶ 12} This court, in Kanter v. Cleveland Hts. , 8th Dist. Cuyahoga, 2017-Ohio-1038, 86 N.E.3d 1022, examined the issues of local self-government, the Home Rule Amendment, and conflict with general laws, and held that:

Municipalities do not have to enact a charter to have the power over local self-government provided to them in the Ohio Constitution. N. Ohio Patrolmen's Benevolent Assn. v. Parma , 61 Ohio St.2d 375, 379-380, 402 N.E.2d 519 (1980). But municipalities exercise the powers of local self-government to the fullest by adopting a charter pursuant to Section 7, Article XVIII of the Ohio Constitution, which provides that "[a]ny municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."
The words "as are not in conflict with general laws" in Section 3, Article XVIII of the Ohio Constitution, have been universally construed to place a limitation on a municipality's power to "adopt and enforce * * * local police, sanitary and other similar regulations," but not on the power of local self-government. Hills & Dales, Inc. v. Wooster , 4 Ohio App.3d 240, 242, 4 Ohio B. 432, 448 N.E.2d 163 (9th Dist. 1982), citing State ex rel. Canada v. Phillips , 168 Ohio St. 191, 151 N.E.2d 722 (1958). "Police powers" encompass the areas of public health, safety, morals and general welfare. Hills & Dales at id.
In Mendenhall v. Akron , 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, the Ohio Supreme Court explained that courts use a three-part test to evaluate claims that a municipality has exceeded its powers under the Home Rule Amendment. First, courts must determine if the ordinance is an exercise of the city's "police power," rather than of local self-government. Id. at ¶ 17, citing Canton v. State , 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9. "If an allegedly conflicting city ordinance relates solely to self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction." Id. at ¶ 18, quoting Am. Fin. Servs. Assn. v. Cleveland , 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 23.

Kanter v. Cleveland Hts. , supra , ¶ 17-19.

{¶ 13} The right to determine who may fill a vacancy on Council relates solely to self-government and does not involve an exercise of any police power. Therefore, our analysis of whether the Charter or R.C. 731.43 controls ends, and we find that Section 100 of the Charter must be employed to fill any vacancy that exists in the Council. Simply stated, the charter provision controls over the state statute.

{¶ 14} The language of Section 100 of the Charter provides that the sole authority to fill a councilperson vacancy resides with Council. Even after 30 days, the Charter provides that the president of Council "shall fill [the vacancy] by appointment." Respondents argue that because there was no Council president, the mayor's appointments were appropriate. For the logic of the respondents argument to succeed, Section 100 of the East Cleveland Charter and R.C. 731.43 must not be in conflict. Because Section 100 of the Charter and R.C. 731.43 conflict, the mayor possesses no authority to fill any vacancy in Council. Compare State ex rel. Brown v. Reesman , 63 Ohio St.2d 130, 407 N.E.2d 14 (1980). In addition, we find that § 113(A) of the Charter does not provide the mayor with the power to fill a vacancy in Council, which provides that "[t]he Mayor shall supervise the administration of all the affairs of the City * * * except the Council and as otherwise provided by this Charter , * * *."

{¶ 15} That is not to say that in the absence of a Council president, no appointment could be made. Council could still act to fill the vacancy or Council could act to select a president. Rule 23(C) in the East Cleveland Codified Ordinances provides for the filling of vacancies in the office of president or vice president of Council. It states, "[w]hen a vacancy occurs in the office of President or Vice President, it shall be filled, by motion, by the vote of three-fifths of the members of Council." A vote of two of the remaining three members of Council would be sufficient given that two-thirds is greater than three-fifths.

{¶ 16} Therefore, Branch and Erby have demonstrated that Smith and Pitts were unauthorized to hold the office of councilperson by the mayor's appointment. We find that Smith and Pitts possessed no right, at the time of the filing of the complaint for a writ of quo warranto, to hold the appointed position of councilperson.

B. The Appointments of Branch and Erby to Council

{¶ 17} "[Q]uo warranto is employed to test the actual right to an office.

However before a party is entitled to maintain an action in quo warranto, he must not only show his own right to the office but also establish that another is actually holding office." (Citations omitted.) Parma v. Cleveland , 9 Ohio St.3d 109, 112, 459 N.E.2d 528 (1984), citing State ex rel. Mikus v. Chapla, 1 Ohio St. 2d 174, 205 N.E.2d 663 (1965) ; State ex rel. Heer v. Butterfield , 92 Ohio St. 428, 111 N.E. 279 (1915), paragraph one of the syllabus. A private citizen may maintain an action in quo warranto where the claim to office is made in good faith and on reasonable grounds. State ex rel. Halak v. Cebula , 49 Ohio St.2d 291, 293, 361 N.E.2d 244 (1977).

{¶ 18} Here, Branch and Erby were appointed by Council to serve as councilpersons. While the validity of those appointments will be analyzed below and ultimately rejected, this should not lead to the conclusion that Branch and Erby do not possess a good-faith belief based on reasonable grounds, that they are entitled to hold office as councilpersons. Branch and Erby submitted to interviews and were selected as a part of the official process to fill vacant councilperson seats. The Halak court held that a mere possibility of appointment was not sufficient to constitute a good-faith belief based on reasonable grounds. Id. Herein, Branch and Erby were actually appointed to fill seats by members of Council.

{¶ 19} Therefore, Branch and Erby have sufficiently satisfied the good faith requirement to maintain an action in quo warranto. That does not mean, however, that they are entitled to fill the councilperson positions:

This is not to say that a person who brings a quo warranto case in good faith and on reasonable grounds will automatically replace the incumbent if he or she is ousted. We have held that "a relator need not prove his own title beyond all doubt. He need only establish his claim 'in good faith and upon reasonable grounds.' "

State ex rel. Flanagan v. Lucas , 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135, ¶ 23, State ex rel. Hanley v. Roberts , 17 Ohio St.3d 1, 6, 476 N.E.2d 1019 (1985), quoting State ex rel. Ethell v. Hendricks , 165 Ohio St. 217, 135 N.E.2d 362 (1956), at paragraph three of the syllabus.

{¶ 20} Branch and Erby must still demonstrate their own right to the office. They must show that a vote of the majority of remaining councilpersons occurred to appoint them to fill the vacant seats.

{¶ 21} Section 100 of the Charter indicates that a majority vote of the remaining members of Council shall vote to fill any vacant seat. Therefore, a vote of two out of three remaining members could constitute a majority vote. State ex rel. Flanagan v. Lucas , 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135.

{¶ 22} Respondents contend that there was not a quorum necessary for such a vote.

{¶ 23} Section 105 of the Charter defines a quorum:

A majority of all the members elected to the Council shall constitute a quorum, but a less number may adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance. The Council shall legislatively act only by ordinance or resolution. The affirmative vote of at least three members shall be necessary to adopt any ordinance or resolution; and the vote upon the passage of all ordinances and resolutions shall be taken by "yeas" and "nays" and entered upon the journal.

{¶ 24} This provisions specifies that Council may only legislatively act by ordinance or resolution, but an act of filling a vacancy in Council is not a legislative act. "An election by council to fill a vacancy does not constitute the adoption of an ordinance or a resolution." State ex rel. Smith v. Nazor , 135 Ohio St. 364, 367, 21 N.E.2d 124 (1939). Therefore, a quorum of three members is not required because this section does not apply.

{¶ 25} Even if it did, because there were only three elected Council members at the point the meeting was called, two members may constitute a quorum. Further, Section 105 goes on to state that three affirmative votes are required to adopt an ordinance or resolution. The appointment of councilpersons to fill vacant seats is neither an ordinance nor a resolution. Therefore, three votes are not required. As the quorum requirement was inapplicable or was met in this case, a simple majority vote was all that was required to fill the vacant councilperson seats.

{¶ 26} Whether a vote actually occurred to fill the councilperson vacancies is a necessary question that must be answered in the affirmative for relators Branch and Erby to satisfy the requirements for the issuance of a writ of quo warranto in their favor.

{¶ 27} Section 105 of the Charter indicates that all ordinances and resolutions shall be passed by affirmative vote: "and the vote upon the passage of all ordinances and resolutions shall be taken by 'yeas' and 'nays' and entered upon the journal." The filling of vacancies is not required to be made by ordinance or resolution. Nazor , 135 Ohio St. at 367, 21 N.E.2d 124 ; see also R.C. 731.17(B) ("[a]ction by the legislative authority, not required by law to be by ordinance or resolution, may be taken by motion approved by at least a majority vote of the members present at the meeting when the action is taken").

{¶ 28} Further, Rule 20 set forth in East Cleveland Codified Ordinances, Section 113 provides,

[e]very member present, when a question is put, shall vote. However, a member expressing a conflict in any particular matter shall be excused and shall leave the meeting temporarily until the matter of conflict has been disposed of.
A "yea" and "nay" vote shall be taken for the passage or adoption of all ordinances and resolutions and shall be taken upon any other motion duly seconded . In taking the "yea" or "nay" vote, the Clerk shall first call the names of the regular members in their alphabetical order, saving the Vice President and President last in that order, and the "yea" and "nay" shall be entered on the Journal.

(Emphasis added.) The minutes of the meeting do not indicate a vote was ever called, motioned, or had.

{¶ 29} The meeting minutes provided in the record indicates that Martin and Thomas "proceeded to name the two new Council members and then vote on President and VP Council positions." The minutes do not indicate a vote occurred to fill the councilperson vacancies. Further, Joie Graham's affidavit indicates that a vote was not taken in closed-door executive session. Finally, Martin's affidavit, at paragraph seven, states, "[w]hen the executive session of the December 29 meeting reconvened as a public meeting, councilperson Joie Graham left the meeting. The remaining Council members proceeded to do business and appoint Devin Branch and Kelvin Erby to fill the vacant Council seats. I swore in Branch and Erby." (Emphasis added.) Conspicuously absent from this language is any mention of a motion or vote. In paragraph eight of the same affidavit, Martin indicated that Council voted to terminate Khadijah Guy. Therefore, relators Branch and Erby have not demonstrated entitlement to the office of councilperson.

{¶ 30} It must also be noted that the question of whether the special session of Council violated open meeting laws is immaterial to the quo warranto action because no vote occurred.

C. Quo Warranto is Moot as to Ward 3 Councilperson Seat

{¶ 31} The complaint for a writ of quo warranto is moot as it relates to the Ward 3 councilperson seat. The Council is composed of two at large seats and one for each of three wards. As the Answer Brief of the respondents indicates, a November 2017 elections resulted in the election of Smith to the Ward 3 Council seat. Brief filed Dec. 18, 2017, pg. 19. Therefore, Smith validly holds this seat independent of the mayor's appointment.

A quo warranto claim must be timely directed to challenge a current term of office rather than an expired one. See [State ex rel. Zeigler v. Zumbar ] 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 14 ; State ex rel. Devine v. Baxter (1959), 168 Ohio St. 559, 156 N.E.2d 746 (appeal from judgment denying writ of quo warranto to remove members of board of trustees of a cemetery association dismissed as moot when one-year terms to which members were elected had expired, and those members who continued to hold office as trustees did so by authority of their reelection to new terms of office); State ex rel. Paluf v. Feneli (1995), 100 Ohio App.3d 461, 654 N.E.2d 360 (appointee's quo warranto claim to the office of city law director was rendered moot by the expiration of the law director's term of office).

State ex rel. Varnau v. Wenninger , 131 Ohio St.3d 169, 2012-Ohio-224, 962 N.E.2d 790, ¶ 15.

{¶ 32} The claim as to the Ward 3 seat is moot. Unfortunately, nothing in the record indicates to which seats Branch and Erby were appointed. The oaths of office for Smith and Pitts are in the record, so it is clear that Pitts was appointed to a Council-at-large seat and Smith to the Ward 3 seat. Therefore, because it cannot be determined with specificity as to which Council seats Branch and Erby were appointed by Council, we find that it is not possible to determine whether Branch or Erby is entitled to fill the Council-at-large seat through quo warranto.

D. Quo Warranto not Applicable to Position of Clerk of Council

{¶ 33} As stated previously, the writ of quo warranto is treated as a civil action and is used chiefly to question the authority of a claimant asserting right and title to a public office. Price, 104 Ohio St. 120, 135 N.E. 297 ; Flanagan, 139 Ohio St.3d 559, 2014-Ohio-2588, 13 N.E.3d 1135. A public office, to properly come within the scope of a quo warranto, is defined as a public position, to which a portion of the sovereignty of the state, county, municipality or village, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the general public. State ex rel. Cain v. Kay , 38 Ohio St.2d 15, 309 N.E.2d 860 (1974). The clerk of Council is not an elected position nor does it constitute a public position to which a portion of the legislative, executive, or judicial authority attach. The clerk of the Council is hired and supervised by Council and is an employee of Council. § 102 of the Charter provides,

[t]he Council shall also choose or appoint a Clerk and such other officers and employees of the sitting Council as it deems necessary, to serve at the pleasure and during the term of the sitting Council. The Clerk shall keep the records of the Council and perform such other duties as may be required by this Charter or the Council but within the scope of the Council's daily business.

Therefore, Udrija-Peters possesses no standing to request a writ of quo warranto regarding the position of clerk of Council. State ex rel. E. Cleveland Fire Fighters Assn., Local 500 v. Jenkins , 96 Ohio St.3d 68, 2002-Ohio-3527, 771 N.E.2d 251.

E. Conclusion

{¶ 34} Accordingly, we grant a writ of quo warranto and deny a writ of quo warranto as follows:

1) Quo warranto, with regard to Earnest Smith is denied as moot. Smith was elected in the general election held in November 2017 and thus legitimately holds the position of councilperson of Ward 3;

2) Quo warranto with regard to Christopher Pitts is granted. The appointment of Pitts as a councilperson, by the mayor on January 23, 2017, was not permitted under the Est Cleveland Charter. Christopher Pitts is ordered to be immediately removed as councilperson at large. The vacancy of the councilperson at large seat is to be filled pursuant to Section 100 of the East Cleveland Charter;

3) Quo warranto with regard to Devin Branch and Kelvin Erby is denied. Branch and Erby have failed to establish that they are entitled to be seated as councilpersons in the East Cleveland Council;

4) Quo warranto with regard to Tracy Udrija-Peters is denied. Udrija-Peters possesses no standing to file a complaint for a writ of quo warranto with regard to the position of clerk of Council for the East Cleveland Council.

{¶ 35} Accordingly, a writ of quo warranto is granted in part and denied in part. Each party to bear their own 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).

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

MARY EILEEN KILBANE, P.J., and TIM McCORMACK, J., CONCUR

      The relators also seek an alternative writ of mandamus, a temporary restraining order, a preliminary injunction, and a permanent injunction. The request for mandamus is not well taken based upon our disposition of the complaint for a writ of quo warranto. In addition, the Ohio Constitution does not vest this court with original jurisdiction to issue either a declaratory judgment or injunctive relief. Section 2, Article IV, Ohio Constitution ; State ex rel. Pressley v. Indus. Comm ., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967).

      The complaint for a writ of quo warranto also names as respondents Brandon King, mayor of East Cleveland; Willa Hemmons, the law director of East Cleveland; Belinda Kyle, executive assistant to the mayor/human resources director; and Joie Graham, councilperson. The complaint for a writ of quo warranto fails to state any claims against King, Hemmons, Kyle, and Graham.


author: PRESTON, J.

text:
    IN RE: the ESTATE OF: William R. EISAMAN, Jr.
    [Linda L. Badgett-Appellant]
    NO. 5-17-30
    Court of Appeals of Ohio, Third District, Hancock County.
    Date of Decision: March 26, 2018
    Howard A. Elliott, Findlay, and Jeff Whitman, for Appellant
    Christie L. Ranzau, Findlay, for Appellee
   PRESTON, J.

{¶ 1} Petitioner-appellant, Linda L. Badgett ("Linda"), appeals the October 11, 2017 judgment entry of the Hancock County Common Pleas Court, Probate Division, denying her petition to disinter the remains of her brother, William R. Eisaman, Jr. ("William"). For the reasons that follow, we affirm.

{¶ 2} William died on December 15, 2016 and is survived by his wife, respondent-appellee, Charlene Eisaman ("Charlene"). (Doc. No. 3). On December 19, 2016, William was buried at Arcadia Cemetery in Arcadia, Ohio. (Id. ).

{¶ 3} On July 11, 2017, Linda sent a letter to Charlene's attorney informing Charlene that "the cemetery plot in Arcadia, Ohio, beside [William], is not available for [Charlene's] burial." (Doc. No. 54); (Respondent's Ex. A). The letter indicated that the deed to the family burial plot at Arcadia Cemetery was "being changed to read, 'The Badgett Family Trust' which excludes Charlene from being buried there." (Id. ).

{¶ 4} Charlene consulted with Coldren-Crates Funeral Home and her attorney to determine whether she could reinter William's remains in a different cemetery so that she could be buried beside him. (See Doc. No. 54). On August 9, 2017, William's remains were disinterred and reburied at a cemetery in Van Buren, Ohio. (Id. ).

{¶ 5} On August 30, 2017, Linda filed a petition with the trial court requesting that William's remains be disinterred from Van Buren and reinterred at Arcadia Cemetery. (Doc. No. 45). Charlene filed a memorandum in opposition to Linda's petition on September 25, 2017. (Doc No. 53).

{¶ 6} Following a bench trial on October 3, 2017, the trial court issued its judgment on October 11, 2017 denying Linda's petition. (Doc. No. 54).

{¶ 7} On November 1, 2017, Linda filed a notice of appeal. (Doc. No. 58). She raises one assignment of error.

Assignment of Error

The Hancock County Probate Court abused its discretion in failing to order the reinterment [sic] of the decedent where said decedent had previously been disinterred, contrary to the wishes of the decedent and the previously granted consent given by the widow to his original interment.

{¶ 8} In her sole assignment of error, Linda argues that the trial court erred by denying her petition to disinter William's remains. In particular, Linda contends that because William specifically desired to be buried at Arcadia Cemetery and because Charlene originally consented to interring William at Arcadia Cemetery, the trial court abused its discretion by denying her petition to exhume William's remains from Van Buren and reinter them at Arcadia Cemetery.

{¶ 9} " 'When reviewing a civil appeal from a bench trial, we apply a manifest weight standard of review.' " Lump v. Larson , 3d Dist. Logan No. 8-14-14, 2015-Ohio-469, 2015 WL 509674, ¶ 9, quoting San Allen, Inc. v. Buehrer , 2014-Ohio-2071, 11 N.E.3d 739, ¶ 89 (8th Dist.), citing Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp. , 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.). " '[A] civil judgment "supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." ' " Id. , quoting Warnecke v. Chaney , 194 Ohio App.3d 459, 2011-Ohio-3007, 956 N.E.2d 908, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 10} " ' "[W]hen reviewing a judgment under a manifest-weight-of-the-evidence standard, a court has an obligation to presume that the findings of the trier of fact are correct." ' " Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, 865 N.E.2d 1264. " 'The rationale for this presumption is that the trial court is in the best position to evaluate the evidence by viewing witnesses and observing their demeanor, voice inflection, and gestures.' " Id. , quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). " ' "A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court." ' " Id. , quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81, 461 N.E.2d 1273. " ' "A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." ' " Id. , quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81, 461 N.E.2d 1273.

{¶ 11} R.C. 517.23 and 517.24 govern the procedures for the disinterment and reinterment of human remains. R.C. 517.23, in relevant part, provides:

[T]he board of township trustees, the trustees or directors of a cemetery association, or the other officers having control and management of a cemetery or the officer of a municipal corporation who has control and management of a municipal cemetery shall disinter or grant permission to disinter any remains buried in the cemetery * * * [o]n order of a probate court issued under division (B) of section 517.24 of the Revised Code * * *.

R.C. 517.23(A)(2). Under R.C. 517.24(B)(1)

[a]ny person who is eighteen years of age or older and of sound mind, * * * and who wishes to obtain a court order for the disinterment of the remains of the decedent may file an application in the probate court of the county in which the decedent is buried requesting the court to issue an order for the disinterment of the remains of the decedent.

After the filing of an application for disinterment, the probate court must promptly

conduct a hearing to determine whether to issue an order for disinterment of the remains of the decedent. Except as otherwise provided in division (B)(3)(a) of this section, at the hearing, the court, in its discretion, may issue an order for disinterment of the decedent's remains if good cause for disinterment is shown.

R.C. 517.24(B)(3)(a).

{¶ 12} "Well-established public and legal policy has been that a person, once buried, should not be exhumed except for the most compelling reasons." In re Disinterment of Frobose , 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, ¶ 15 (6th Dist.), citing Spanich v. Reichelderfer , 90 Ohio App.3d 148, 155, 628 N.E.2d 102 (2d Dist.1993), citing Yome v. Gorman , 242 N.Y. 395, 152 N.E. 126 (1926). This general policy is exemplified in the requirement that good cause for disinterment must be demonstrated before the probate court may issue an order for disinterment. See R.C. 517.24(B)(3)(a).

{¶ 13} In determining contested requests for disinterment, Ohio courts of appeal apply a flexible, multifactor-equitable standard. See In re Disinterment of Swing , 2014-Ohio-5454, 26 N.E.3d 827, ¶ 16 (6th Dist.), citing Frobose at ¶ 16 ; Spanich at 152-155, 628 N.E.2d 102 ; In re Disinterment of Ervin , 4th Dist. Scioto No. 96 CA 2466, 1997 WL 156625, *2 (Mar. 31, 1997). These factors include:

(1) the degree of relationship that the party seeking reinterment bears to the decedent, (2) the degree of relationship that the party seeking to prevent reinterment bears to the decedent, (3) the desire of the decedent, (4) the conduct of the person seeking reinterment, especially as it may relate to the circumstances of the original interment, (5) the conduct of the person seeking to prevent reinterment, (6) the length of time that has elapsed since the original interment, and (7) the strength of the reasons offered both in favor of and in opposition to reinterment.

Frobose at ¶ 16, citing Spanich at 152-155, 628 N.E.2d 102, citing Novelli v. Carroll , 278 Pa.Super 141, 420 A.2d 469 (1980).

{¶ 14} "A probate court's decision regarding the request for disinterment may not be reversed absent an abuse of discretion." Frobose at ¶ 17, citing Ervin at *2. An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 15} The trial court summarized its decision to deny Linda's petition thusly: "After weighing the Frobose factors, acknowledging the public policy that a person's remains should not be exhumed except for the most compelling reasons, and in light of the clear preference in the law favoring the surviving spouse, the Court hereby DENIES Linda Badgett's request to have the remains of William Eisaman exhumed." (Emphasis sic.) (Doc. No. 54). The trial court's analysis centered on five of the equitable factors outlined in Frobose .

{¶ 16} First, the trial court assessed the first two factors identified in Frobose -the degree of relationship between the decedent and the party seeking reinterment and the degree of relationship between the decedent and the party opposing reinterment. The trial court found that Charlene was William's wife of 27 years, whereas Linda was William's biological sister. (Id. ). The trial court denied Linda's petition, in part, because of "the clear preference in the law favoring the surviving spouse." (Id. ).

{¶ 17} The trial court then evaluated the third Frobose factor-the desires of the decedent. The trial court found that there is no dispute that William specifically chose Arcadia Cemetery as his burial site. (Id. ). However, based on Charlene's testimony concerning William's wishes, the trial court found that William also had a strong desire to be buried alongside Charlene. (Id. ). The trial court emphasized that it is clear that "[William's] intention was to buried at Arcadia Cemetery next to his wife." (Id. ).

{¶ 18} Next, the trial court examined the fourth Frobose factor-the conduct of the party seeking reinterment. The trial court remarked that "it was the letter from Linda Badgett in July, 2017 that started this whole case in motion." (Id. ). The trial court also noted that Charlene did not take steps to disinter and rebury William's remains until she received the letter from Linda explaining that she could not be buried next to William in the family plot at Arcadia Cemetery. (Id. ). The trial court stated that it could not "ignore that had the July letter not been sent, William Eisaman would likely still be in his original resting place." (Id. ).

{¶ 19} Finally, the trial court considered the fifth Frobose factor-the conduct of the party opposing reinterment. The trial court observed that "[Charlene] had [William's] remains exhumed and reburied in Van Buren, Ohio so that at least they could be buried together." (Id. ).

{¶ 20} After reviewing the record, we conclude that the trial court's analysis of the factors described in Frobose is supported by some competent, credible evidence.

{¶ 21} As to the first and second Frobose factors, the record supports the trial court's conclusion that Charlene's relationship to William as his surviving spouse merited more weight than Linda's relationship to William as his sister. (See Oct. 3, 2017 Tr. at 8, 42). (See Petitioner's Ex. 1). " '[T]he interest of a surviving spouse * * * in reinterment is stronger in most cases than is the interest of someone less closely related * * *.' " Spanich , 90 Ohio App.3d at 153, 628 N.E.2d 102, quoting Novelli , 278 Pa.Super. at 148, 420 A.2d 469. However, the interests of a surviving spouse may not defeat the rights of another interested party in the disposition of a decedent's remains in every instance. See, e.g. , id. at 153, 420 A.2d 469 (noting that "if the husband and wife were separated before the decedent's death, the preference given to the surviving spouse may be weaker"), quoting Novelli at 148, 420 A.2d 469, citing Stackhouse v. Todisco , 370 Mass. 860, 346 N.E.2d 920 (1976). In this case, there is no competent, credible evidence in the record suggesting that William and Charlene's marriage was strained, that the two were on bad terms when William died, or that there is any other reason to deny Charlene the preference usually accorded to surviving spouses.

{¶ 22} The record also supports the trial court's conclusion that William strongly desired to be buried next to Charlene. Charlene testified that it was William's intent that they be buried next to one another. (See, e.g. , Oct. 3, 2017 Tr. at 29, 44-47). Because the trial court was in the best position to assess Charlene's credibility in testifying about William's desires, this court will not cast doubt on the trial court's decision to accept Charlene's testimony. See Seasons Coal Co. , 10 Ohio St.3d at 80, 461 N.E.2d 1273.

{¶ 23} Moreover, there is competent, credible evidence supporting the trial court's conclusion as to the fourth Frobose factor-that Linda's conduct weighed against disinterring William's remains. Linda's July 11, 2017 letter left no doubt that Charlene would not be allowed to be buried in the family plot next to William. (See Respondent's Ex. A). The letter claimed that, as of July 2017, title to the plot still remained in the name of William and Linda's deceased father and that a restriction in their father's will precluded their spouses from being buried in the plot. (See Respondent's Ex. A). (See also Oct. 3, 2017 Tr. at 22). Linda testified that she has since resolved the problem by titling the plot in the name of the "Badgett Family Trust" and that Charlene is now allowed to be buried there. (Oct. 3, 2017 Tr. at 20-24). Yet, the letter unambiguously states that Charlene was not allowed to be buried in the Arcadia Cemetery plot because it was going to be retitled in the name of the trust. (Respondent's Ex. A) ("[T]he deed is being changed to read, 'The Badgett Family Trust' which excludes Charlene from being buried there."). Linda also testified that she is not opposed to Charlene being buried in the family plot at Arcadia Cemetery. (Oct. 3, 2017 Tr. at 20-24). However, the trial court found that Linda's testimony concerning her change of heart was disingenuous and that her objection to Charlene's burial in the family plot at Arcadia Cemetery softened only in the face of litigation. (Doc. No. 54). As with Charlene's testimony, this court is not in a position to second guess the trial court's determination regarding Linda's sincerity. See Seasons Coal Co. at 80, 461 N.E.2d 1273. As such, there is competent, credible evidence supporting the trial court's conclusion that Linda's attempt to block Charlene from being buried in the family plot at Arcadia Cemetery weighed against disinterment. See Spanich at 154, 628 N.E.2d 102 (noting that a relative's position in disinterment proceedings may be very weak if the relative has " 'done something to frustrate the widow's desire to visit the gravesite or be buried there' "), quoting Novelli at 150, 420 A.2d 469.

{¶ 24} Lastly, the trial court's treatment of Charlene's conduct-the fifth Frobose factor-is supported by some competent, credible evidence. On appeal, Linda argues that because the evidence in the record weighs heavily in her favor regarding the fifth Frobose factor, the trial court erred by concluding that the Frobose factors weighed against disinterring William's remains. That is, Linda argues that three examples of Charlene's conduct weigh in favor of disinterring William's remains and returning them to Arcadia Cemetery.

{¶ 25} First, Linda points to the fact that there is no evidence in the record that Charlene submitted a written application for disinterment to the Arcadia Cemetery Board as required under R.C. 517.23 and 517.24. While the issue of whether Charlene complied with the proper procedures to disinter William's remains is relevant to whether Charlene's conduct weighs in favor of disinterment, the record reflects that Charlene undertook a good-faith effort to adhere to these procedures when she sought to disinter William's remains. Charlene testified that she consulted with Coldren-Crates Funeral Home and with her attorney about the steps she needed to take to disinter William's remains and that she "made the necessary arrangements" to do so. (Oct. 3, 2017 Tr. at 28-30, 47). Based on that evidence, the trial court found that Coldren-Crates Funeral Home had William's remains disinterred without providing Charlene with any "further information as to how that process was done." (Doc. No. 54). Thus, competent, credible evidence supports that Charlene did not deliberately skirt the prescribed procedures.

{¶ 26} Second, Linda points to the fact that Charlene did not notify Linda or any other member of William's family that William's remains were being exhumed and reburied in Van Buren. Ideally, Charlene would have informed Linda and William's family of her intentions. However, the trial court correctly noted that neither R.C. 517.23 nor 517.24 require a surviving spouse to notify anyone of their plans to disinter the remains of their deceased spouse. (See Doc. No. 54).

{¶ 27} Finally, Linda argues that Charlene consented to William's burial at Arcadia Cemetery and thus waived her rights to have him interred anywhere else. If the surviving spouse chooses or assents to the choice of the original burial site, " 'her later claim to a right of reinterment may be found to have been waived.' " Spanich , 90 Ohio App.3d at 154, 628 N.E.2d 102, quoting Novelli , 278 Pa.Super. at 149, 420 A.2d 469. Nonetheless, " 'if the consent to the original site was based upon the understanding that the site would be maintained so that the surviving spouse could also be buried there, and later events make it impractical to carry out that understanding, the consent to the original site may be vitiated.' " Id. , quoting Novelli at 150, 420 A.2d 469. Here, Charlene's consent to William's interment at Arcadia Cemetery was ostensibly conditioned on the understanding that, when she died, she would be buried next to William in the family plot, a condition which was effectively nullified by Linda's July 11, 2017 letter. (See Oct. 3, 2017 Tr. at 44-45, 59). Thus, it is unlikely that Charlene would have been barred from reinterring William's remains by operation of waiver.

{¶ 28} Although the trial court heard testimony and received evidence responsive to each of these three concerns about Charlene's conduct, it did not conclude that Charlene acted indecently or with ill-intent by reinterring William in Van Buren. (See Doc. No. 54). In sum, there is competent, credible evidence supporting the trial court's conclusion that Charlene did not act outside the bounds of acceptable conduct.

{¶ 29} In light of the foregoing, there is competent, credible evidence supporting the trial court's application of the factors described in Frobose . Therefore, the trial court's decision that those factors weighed against disinterring William's remains is not against the manifest weight of the evidence. Accordingly, the trial court did not abuse its discretion in denying Linda's petition.

{¶ 30} Linda's assignment of error is, therefore, overruled.

{¶ 31} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

      R.C. 517.24(A) provides that "[a]n application by a surviving spouse for disinterment under [R.C. 517.23 ] shall be in writing and shall state that the applicant is the surviving spouse of the decedent, that the applicant is eighteen years of age or older and of sound mind, the disease of which the decedent died, and the place at which the remains shall be reinterred. The application shall be subscribed and verified by oath."

      Because this appeal concerns whether the trial court properly denied Linda's petition to disinter William's remains from Van Buren and not whether Charlene followed the proper procedures to disinter William's remains in the first place, we do not rule on the question of whether the steps Charlene took to disinter William's remains from Arcadia will generally suffice under R.C. 517.23 and 517.24.