author: DORRIAN, J.

text:
    JOHNCOL, INC., d.b.a. Papa John's Pizza, Plaintiff-Appellee, v. CARDINAL CONCESSION SERVICES, L.L.C., d.b.a. Cardinal Concessions, Defendant-Appellant.
    No. 17AP-337
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 14, 2017
    On brief: Vorys, Sater, Seymour and Pease LLP, Columbus, Jacklyn J. Ford, and Damien C. Kitte, Columbus, for appellee. Argued: Damien C. Kitte.
    On brief: Soroka and Associates, LLC, Roger Soroka, Joshua Bedtelyon, Columbus, and Aaron Jones, for appellee. Argued: Aaron Jones.
    DECISION
   DORRIAN, J.

{¶ 1} Defendant-appellant, Cardinal Concession Services, L.L.C., doing business as Cardinal Concessions, appeals the January 24 and April 10, 2017 judgments of the Franklin County Court of Common Pleas which granted summary judgment and prejudgment interest in favor of plaintiff-appellee, Johncol, Inc., d.b.a. Papa John's Pizza. For the reasons that follow, we affirm in part and reverse in part.

I. Facts and Procedural History

{¶ 2} Appellant is a limited liability company operated by Scott Nail. Appellant operates concession stands. Appellee is a Kentucky corporation which operates Papa John's Pizza franchises. These franchises are operated by Charles Burris. Appellee delivered pizzas to swimming pool concession stands run by appellant. Appellant then sold pizza to its customers at an increased price. For pizzas delivered in 2013, appellant paid appellee $10,666.50 in June 2014. Appellee delivered pizzas to appellant in 2014 as well. The deliveries made from May 2014 to September 1, 2014 are the subject of this appeal.

{¶ 3} After making numerous unsuccessful attempts to secure payment, on January 29, 2016, appellee filed a complaint against appellant alleging appellant accepted but did not pay for pizzas delivered between May to September 1, 2014. The complaint included one count for an action on account and one count for unjust enrichment. Appellant filed an answer admitting pizzas were delivered but denying the amount appellee alleged was due, $25,079.25.

{¶ 4} On November 4, 2016, appellee filed a motion for summary judgment. Appellee alleged that the conduct of appellant and appellee established a contractual relationship between the parties, appellee had performed its obligations pursuant thereto by delivering pizza, and appellant had breached the contract for failing to pay for pizzas delivered between May and September 1, 2014. In the alternative, appellee alleged that in the absence of a contractual relationship, appellant was liable to appellee for payment of the pizzas pursuant to a theory of unjust enrichment. Appellee alleged it would be unjust for appellant to retain the products delivered without payment.

{¶ 5} Appellant filed a memorandum contra on November 18, 2016. Appellant conceded that appellee delivered pizzas and other food products during the alleged time period to appellant on account, but disputed there was a contract between the parties. Appellant stated that it "questions the accuracy of the accounts," "never explicitly admitted to owing $25,079.25 to [appellee], [and] [d]ue to the discrepancies with the accounts, invoices and receipts * * * has not paid the alleged total of $25,079.25." (Memo. Contra at 2.) Appellant argued the breach of contract claim failed because no contract existed and it was barred by the statute of frauds. Specifically, in this regard, appellant argued the statements of accounts and invoices provided by appellee did not contain a description of nor quantity of the products delivered. Appellant further argued the unjust enrichment claim failed because appellant was not aware of the benefit received. In this regard, appellant argued that appellee did not provide a proper account according to Brown v. Columbus Stamping & Mfg. Co. , 9 Ohio App.2d 123, 223 N.E.2d 373 (10th Dist.1967). Appellant finally stated that it "has taken the time to review the collection of receipts provided through the discovery process," that they "contain various names not recognizable to [appellant], illegible signatures with no printed name on some receipts, multiple signatures on some receipts, and what is most troubling, some receipts with absolutely no signatures or printed names. Thus, there are discrepancies of who signed the receipts and accepted the pizzas and/or food products when they were delivered from [appellee] to the area where [appellant] operates its concessions." (Memo. Contra at 8-9.) Appellant complains that appellee did not attach to its motion for summary judgment any of the receipts. However, appellant did not attach any of the allegedly deficient receipts to its memorandum contra.

{¶ 6} On January 24, 2017, the trial court filed a decision granting the motion for summary judgment in favor of appellee. The trial court found the evidence submitted by appellee adequately proves an account due and owing for $25,079.25. It further found appellant's response constituted "vague and unsupported statements" not sufficient to oppose summary judgment. (Decision at 3.) Finally, the court rejected appellant's statute of fraud's argument as this action did not involve a contract for the sale of goods for more than $500, but, rather, a series of smaller transactions between the parties, with no transaction totaling $500 or more. The court ordered appellee to submit a proposed judgment entry.

{¶ 7} Appellee submitted a proposed judgment entry and appellant objected to the same arguing that appellee's proposed date to begin calculating prejudgment interest, September 1, 2014, is not supported by the evidence presented, nor the prior business dealings between the parties. Appellant argued the interest should apply from the date on which the debt was due to be paid, not the day the debt was initially incurred. In support of this argument, appellant pointed to: (1) the nature of an action on account, which essentially requires payment at a later date, (2) the invoices presented by appellee which were dated September 30, 2016 and stated "payable upon receipt," (3) the past business dealings of the parties whereby appellant did not pay for pizzas received in 2013 until June 2014, and (4) receipts presented by appellee to appellant, some of which specified the payment was on account and some which stated the balance due at the time of delivery was $0. Appellant urged the court to consider the prior course of dealing between the parties and to make a determination "of when the Parties reasonably would have believed the debt to have become 'due and payable.' " (Objs. at 4.) Appellee filed a response arguing it was entitled to prejudgment interest, pursuant to R.C. 1343.03(A), and that it proposed September 1, 2014 as the accrual date to alleviate the need to calculate interest on hundreds of debts with start dates throughout summer 2014. Appellee also points out the statements of accounts list the due date as the date of delivery. Finally, appellee argued it is disingenuous for appellant to take advantage of its "courteous" gesture of receiving the payment for delivered 2013 pizzas one year later in June 2014 and that such gesture did not alter the date of payment for subsequent transactions. (Response at 3.)

{¶ 8} On April 10, 2017, the trial court filed a judgment entry granting judgment in favor of appellee for $25,079.25 and ordered appellant to pay appellee prejudgment interest "at the rate allowed by law calculated beginning on September 1, 2014, which represents the latest due date on the invoice statements attached as Exhibit A to [appellee's] Complaint." (Jgmt. Entry at 1.)

II. Assignments of Error

{¶ 9} Appellant appeals and assigns the following two assignments of error for our review:

[I.] THE TRIAL COURT ERRORED [sic] BY GRANTING SUMMARY JUDGMENT WHERE A GENUINE DISPUTE OF MATERIAL FACT REMAINS.
[II.] THE TRIAL COURT ERRORED [sic] BY ORDERING PREJUDGMENT INTEREST TO ACCURE [sic] BEGINNING ON SEPTEMBER 1, 2014.

III. Discussion

A. First Assignment of Error-Summary Judgment

{¶ 10} In its first assignment of error, appellant argues the trial court erred in granting summary judgment in favor of appellee because: (1) appellee's motion for summary judgment did not demonstrate all the essential elements of a breach of contract claim as is required for an action on account, and (2) because Nail's affidavit and evidence submitted in opposition to the motion for summary judgment were sufficient to meet the reciprocal burden.

{¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the non-moving party.

Harless v. Willis Day Warehousing Co., Inc. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). " 'The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law.' " Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), quoting Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Thus, the moving party may not fulfill its initial burden simply by making a conclusory assertion that the non-moving party has no evidence to prove its case. Dresher at 293, 662 N.E.2d 264.

{¶ 13} Rather, the moving party must support its motion by pointing to some evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the non-moving party has no evidence to support the non-moving party's claims. If the moving party has satisfied its initial burden under Civ.R. 56(C), then "the nonmoving party * * * has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Id.

{¶ 14} Civ.R. 56(E) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

{¶ 15} "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries, Inc. v. Applied Cos. , 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993), citing Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 604 N.E.2d 138 (1992). "Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion." Hannah v. Dayton Power & Light Co. , 82 Ohio St.3d 482, 485, 696 N.E.2d 1044 (1998), citing Turner v. Turner , 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993).

{¶ 16} "An account is an unsettled claim or demand by one person against another, based upon a transaction creating a debtor and creditor relation[ship] between the parties." (Internal quotations omitted.) Benchmark Contrs., Inc. v. Southgate Mgt., LLC , 10th Dist. No. 13AP-390, 2014-Ohio-1254, 2014 WL 1347740, ¶ 38, quoting Gray Printing Co. v. Blushing Brides, L.L.C. , 10th Dist. No. 05AP-646, 2006-Ohio-1656, 2006 WL 832587, ¶ 21, quoting Am. Sec. Serv., Inc. v. Baumann , 32 Ohio App.2d 237, 242, 289 N.E.2d 373 (10th Dist.1972). "[T]he cause of action exists only as to the balance that may be due one of the parties as a result of the series of transactions." (Internal quotations omitted.) Id. "An action on an account is 'founded upon contract' and constitutes a breach of contract claim." Id. , quoting Oxford Sys. Integration, Inc. v. Smith-Boughan Mechanical Servs. , 159 Ohio App.3d 533, 2005-Ohio-210, 824 N.E.2d 586, ¶ 16 (2d Dist.). "The purpose of an action on an account is to avoid the multiplicity of suits necessary if each transaction between the parties (or item on the account) would be construed as constituting a separate cause of action." (Internal quotations omitted.) Citibank, N.A. v. Hyslop , 10th Dist. No. 12AP-885, 2014-Ohio-844, 2014 WL 890942, ¶ 9, quoting Citibank (South Dakota), N.A. v. Lesnick , 11th Dist. No. 2005-L-013, 2006-Ohio-1448, 2006 WL 763078, ¶ 8, quoting Baumann at 242, 289 N.E.2d 373.

{¶ 17} The elements of a prima facie case for money owed on an account are as follows:

[T]he existence of an account, including that the account is in the name of the party charged, and it must also establish (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due.

Hyslop at ¶ 10, quoting Dept. Stores Natl. Bank v. McGee , 7th Dist. No. 12 MA 103, 2013-Ohio-894, 2013 WL 978914, ¶ 16.

{¶ 18} In Brown , this court stated that, to establish a prima facie case in an action to recover on an account, the following "fundamentals" must be present:

An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due.

Brown at 126, 223 N.E.2d 373. Since Brown , we have clarified the requirements to adequately plead and prove an account. In Hudson & Keyse, L.L.C. v. Carson , 10th Dist. No. 07AP-936, 2008-Ohio-2570, 2008 WL 2221968, we stated, "[i]t is not necessary that every transaction between the parties be included." Id. at ¶ 13, modifying Brown . See also Wolf Automotive v. Rally Auto Parts, Inc. , 95 Ohio App.3d 130, 641 N.E.2d 1195 (10th Dist.1994) (concluding that, although the account did not start at a zero balance, it showed debits and credits that allowed the court to determine the total claimed to be due and owing); Am. Express Travel Related Servs. v. Silverman , 10th Dist. No. 06AP-338, 2006-Ohio-6374, 2006 WL 3491741 (finding that four years of credit card statements, two affidavits, and a copy of the cardholder's agreement constituted adequate evidence to establish an account, since it was an "unreasonable burden" for the plaintiff to provide 30 years of statements). We have also stated a copy of a ledger sheet, or an accounts receivable record, will ordinarily meet the requirements of an account. Brown at 126, 223 N.E.2d 373.

{¶ 19} Appellant argues appellee did not establish its burden on summary judgment because it presented no evidence that delivery of pizza actually happened. Appellant points to the absence of signed receipts presented by appellee along with the motion. Appellant also suggests several different ways appellee could have presented evidence of delivery.

{¶ 20} Attached to appellee's motion for summary judgment is an affidavit of Charles Burris. (Ex. A.) Burris averred that beginning May 2014 to September 1, 2014, appellee delivered pizzas to appellant on account and appellant failed to pay for the products. Burris averred the exhibits attached to his affidavit were true and accurate copies of: (1) the statements of accounts (Ex. A2), (2) invoices sent from appellee to appellant (Ex. A3), and (3) correspondences between representatives of appellee and Nail regarding deliveries made from May to September 1, 2014, and the amount due of $25,079.25. Burris averred the information contained in exhibits A2 and A3 were kept in the course of a regularly conducted business activity and it was a regular practice of appellee to create records comprising the documents. Also attached to appellee's motion is a copy of appellant's responses to appellee's first set of requests for admission. (Ex. B.) In response to appellee's first set of requests for admission, appellant admitted, inter alia, to the following: (1) appellant received product "on account" from appellee from May to September 1, 2014, and (2) appellant has not paid for any products received from appellee after June 23, 2014. Appellant denied, inter alia, the following: (1) that the statements of accounts accurately describes deliveries to appellant of product on the dates specified in the statements of accounts, (2) that appellant owes $25,079.25, and (3) that appellant failed to pay for product delivered to it by appellee.

{¶ 21} Appellee's exhibit A2 consists of 11 documents titled "Customer Open Balance All Transactions." Each document is titled with the name of a different swimming pool. Each document has the date "10/02/15" in the upper left corner with a time of day which appears to indicate the date and time the document was printed or created. Each document is divided into seven columns titled as follows: type, date, number, memo, due date, open balance, and amount. In the type column, each entry states "invoice." In the date column, each entry lists a date between May 2014 and September 1, 2014. Some of the entries suggest that multiple deliveries were made on the same day. In the number column, each entry states a ten-digit number. There is no explanation on the document regarding what these ten-digit numbers represent. The memo column is entirely blank. In the due date column, each entry lists a date which corresponds to the same date in the date column. In the open balance column, each entry lists a dollar amount. In the amount column, each entry lists a dollar amount which is equal to the dollar amount in the open balance column. The open balance column does not begin with zero. Neither column has a running balance nor summarization of all the entries in the amount column. However, the final entry in both the open balance column and the amount column, designated "total," is the total amount that the particular swimming pool allegedly owes.

{¶ 22} Appellee's exhibit A3 consists of 11 invoices. Each invoice states "Bill to Cardinal Concessions Attn. Scott Nail" and lists the name of a different swimming pool. Each statement is dated "9/30/2016" and states "due on receipt," and each document indicates that the invoice is "over 90 days past due." Each invoice has four columns titled as follows: date, description, amount, and balance. The date column on each invoice contains one date: "8/31/2016." The description column on each invoice contains the statement "balance forward." The amount column on each statement is entirely blank. The balance column on each statement contains one amount which is equal to the "amount due" at the bottom of the column. The amount listed under amount due for each individual pool is equal to the total amount listed for the same pool on the statements contained in appellee's exhibit A2. These amounts totaled equal $25,079.25.

{¶ 23} We find appellee has established a prima facie case for money owed on an account. Appellant is correct that the statements of accounts and the invoices lack a description of the product delivered and accepted. The ten-digit numbers on the statements of accounts are not explained thereon and do not correspond to any numbers on the invoices included in exhibit A3. However, the Burris affidavit indicates the statements of accounts is for "pizzas and other products provided by Johncol to Cardinal from May of 2014 and continuing thereafter until September 1, 2014, for which Cardinal has not paid." (Burris Aff. at ¶ 8.) Furthermore, although the statements of accounts do not begin with zero or contain a summarization or running balance, the arrangement of the entries and the itemization permits the calculation of the total amount claimed to be due. The total amount claimed to be due is the same as that averred by Burris, stated on the statements of accounts and in the invoices. Appellee has met its initial burden on summary judgment.

{¶ 24} Appellant argues that if this court decides that appellee did meet its burden, then the trial court erred when it determined that appellant did not meet its reciprocal burden to defeat summary judgment and that Nail's affidavit, as well as the unsigned and unverified receipts presented by appellant, did not suffice. Appellant then argues again that appellee did not establish its burden because it presented no evidence that delivery actually happened and suggests several different ways appellee could have presented evidence of delivery. (See appellant's brief at 11: "Appellee could have presented testimony of delivery drivers who delivered the alleged orders, could have supplied the names of the drivers who delivered the orders, or provided the names of the individual who accepted the order on behalf of Appellant.") Appellant also argues the e-mail correspondence between the parties does not establish that appellant agreed on the amount of payment due.

{¶ 25} Appellant attached to the memorandum contra the affidavit of Scott Nail (Defendant's Ex. B) in which Nail averred the arguments outlined in the memorandum contra and the legal conclusion that the statements of accounts is "not a proper statement of account." (Nail Aff. at ¶ 6.) Nail generally averred that appellant "disputes the accuracy and validity of the transactions and invoices attached to [Appellee's] Motion for Summary Judgment." (Nail Aff. at ¶ 8.) Nail did not specifically dispute any of the transactions and, as noted above, he did not include any of the allegedly deficient receipts.

{¶ 26} In addition to these attachments, appellant attached copies of the complaint (Def.'s Ex. A) copies of the statements of accounts already submitted by appellee (Def.'s Ex. C), the invoices already submitted by appellee (Def.'s Ex. D) as well as a copy of appellee's second set of requests for admission partially completed by appellant (Def.'s Ex. E).

{¶ 27} We disagree with appellant that it met the reciprocal burden to defeat summary judgment. Nail's affidavit is not sufficient to establish a genuine issue of material fact. It contains general denials and conclusions of law but no specific or particular denial of the facts established by appellee. Furthermore, although appellant refers numerous times to the receipts provided in discovery, it did not present the same as part of its memorandum contra appellee's motion for summary judgment. Therefore, pursuant to Civ.R. 56(E), summary judgment shall be accorded to appellee.

{¶ 28} Accordingly, we overrule appellant's first assignment of error.

B. Second Assignment of Error-Prejudgment Interest

{¶ 29} In its second assignment of error, appellant argues that should this court determine summary judgment is appropriate, prejudgment interest should not begin to accrue on September 1, 2014. Appellant states: "Due is defined as 'owed or owing as a debt ... having reached the date at which payment is required." Appellant further states "payable is defined as, 'requiring to be paid ... specifying payment amount to a particular payee, at a specified time or occasion, or in a particular manner.' " (Appellant's Obj. to Prejudgment Interest at 2, citing RPM, Inc. v. Oatey Co. , 9th Dist. No. 3282, 2005-Ohio-1280, 2005 WL 663057, ¶ 68.)

{¶ 30} Appellant argues the interest should only be applied from the date on which the debt was due to be paid, not the date the debt was initially incurred. Appellant points out the invoices in appellee's exhibit A3 are dated August 31, 2016 and state debt is "payable upon receipt." Appellant argues it would defeat the purpose of making purchases on account if the amount owed was due on the date it was incurred. Appellant also argues that while the statements of accounts entries in appellee's exhibit A2 indicate the due date for each alleged transaction was the same day the transaction allegedly occurred, there is absolutely no evidence these account statements were sent to appellant at any point prior to commencement of litigation.

{¶ 31} In response, appellee argues it used September 1, 2014 as the start date for all prejudgment interest because it is the last date on which appellee provided appellant with pizza and, thus, the last possible date on which interest could have begun to accrue. In so doing, appellee suggests it has, thus, alleviated the need to calculate interest on hundreds of debts with start dates throughout summer 2014.

{¶ 32} The Supreme Court of Ohio has explained prejudgment interest "acts as compensation and serves ultimately to make the aggrieved party whole." Royal Elec. Constr. Corp. v. Ohio State Univ. , 73 Ohio St.3d 110, 117, 652 N.E.2d 687 (1995). R.C. 1343.03(A) provides, in part:

In cases other than those provided for in sections 1343.01 and 1343.02 of the Revised Code, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, * * * the creditor is entitled to interest at the rate per annum determined pursuant to section 5703.47 of the Revised Code, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract.

{¶ 33} Prejudgment interest compensates a plaintiff for the period of time between accrual of the claim and judgment, regardless of whether the judgment is based on a liquidated or unliquidated claim and even if the sum due was not capable of ascertainment until determined by the court. Royal Elec . at syllabus. Once a plaintiff receives judgment on a contract claim, the trial court has no discretion but to award prejudgment interest under R.C. 1343.03(A). First Bank of Marietta v. L.C. Ltd. , 10th Dist. No. 99AP-304, 1999 WL 1262058 (Dec. 28, 1999).

{¶ 34} The only issue for resolution by a trial court with respect to prejudgment interest under R.C. 1343.03(A) is how much interest is due. Zunshine v. Cott , 10th Dist. No. 06AP-868, 2007-Ohio-1475, 2007 WL 926969, ¶ 26, citing Dwyer Elec., Inc. v. Confederated Builders, Inc. , 3rd Dist. No. 3-98-18, 1998 WL 767442 (Oct. 29, 1998). The trial court must make factual determinations as to when interest commences to run, based on when the claim became due and payable, and as to what legal rate of interest applies. Id. Thus, although the right to prejudgment interest on a contract claim is a matter of law, pursuant to R.C. 1343.03(A), the amount awarded is based on the trial court's factual determinations of the accrual date of the plaintiff's claim and the applicable interest rate. First Bank of Marietta , citing Royal Elec. at 115, 652 N.E.2d 687. Courts of Appeals review such factual determinations under an abuse of discretion standard. Dwyer Elec . ; Miller v. Lindsay-Green, Inc. , 10th Dist. No. 04AP-848, 2005-Ohio-6366, 2005 WL 3220215, ¶ 107. Abuse of discretion implies that the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 35} " '[W]here money becomes due under a contract, interest accrues from the time that the money due should have been paid .' " (Emphasis sic.) Bell v. Teasley , 10th Dist. No. 10AP-850, 2011-Ohio-2744, 2011 WL 2201196, ¶ 27, quoting Gates v. Praul , 10th Dist. No. 10AP-784, 2011-Ohio-6230, 2011 WL 6036397, ¶ 2, citing Braverman v. Spriggs , 68 Ohio App.2d 58, 426 N.E.2d 526 (10th Dist.1980). However, the Supreme Court has "specifically and clearly declined to establish a bright-line rule regarding the accrual date of prejudgment interest but rather left such a determination to the trial courts on a case-by-case basis." Miller v. Gunckle , 96 Ohio St.3d 359, 2002-Ohio-4932, 775 N.E.2d 475, fn. 4, citing Landis v. Grange Mut. Ins. Co. , 82 Ohio St.3d 339, 695 N.E.2d 1140 (1998). See also Parrish v. Coles , 10th Dist. No. 06AP-696, 2007-Ohio-3229, 2007 WL 1821708, ¶ 69.

{¶ 36} In its judgment entry, the trial court stated it had reviewed appellant's objections to appellee's request for prejudgment interest and appellee's memorandum contra. The court then concluded, without making any specific findings, that "[u]pon review of these filings, the Court finds that [appellant's] objections are not well-taken, and are hereby DENIED ." (Emphasis sic.) (Jgmt. Entry at 1.) The court entered judgment in favor of appellee "plus pre-judgment interest at the rate allowed by law calculated beginning on September 1, 2014, which represents the latest due date on the invoice statements attached as Exhibit A to [appellee's] Complaint filed in this action." (Jgmt. Entry at 1.)

{¶ 37} The trial court did not provide an explanation as to how it arrived at the September 1, 2014 accrual date, nor make factual determinations regarding when the money for pizzas should have been paid. Without the benefit of any specific factual determinations set forth in the trial court's decision, we are unable to find that an award of prejudgment interest utilizing a September 1, 2014 accrual date is supported by the record. As a result, we find the trial court abused its discretion.

{¶ 38} Accordingly, we sustain appellant's second assignment of error. Although we find an award of prejudgment interest to be proper, on remand, the trial court must factually determine when the money was due and payable and, thus, when the prejudgment interest should begin to run.

IV. Conclusion

{¶ 39} For the foregoing reasons, we overrule appellant's first assignment of error and sustain its second assignment of error. We affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for further proceedings relating only to the issue of prejudgment interest, consistent with law and this decision.

Judgment affirmed in part, reversed in part, and cause remanded with instructions.

TYACK, P.J., and HORTON, J., concur.


source: Caselaw Access Project

author: SADLER, J.

license: Public Domain

text:
    HDV CLEVELAND, LLC, d.b.a. Larry Flynt's Hustler Club, Appellant-Appellant, v. OHIO LIQUOR CONTROL COMMISSION, Appellee-Appellee.
    No. 17AP-362
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 14, 2017
    On brief: Berkman, Gordon, Murray & DeVan, Cleveland, J. Michael Murray, and Steven D. Shafron, appellant. Argued: J. Michael Murray.
    On brief: Michael DeWine, Attorney General, and Charles E. Febus, Columbus, for appellee. Argued: Charles E. Febus.
    DECISION
   SADLER, J.

{¶ 1} Appellant-appellant, HDV Cleveland, LLC, d.b.a. Larry Flynt's Hustler Club, appeals from a judgment of the Franklin County Court of Common Pleas affirming orders of appellee-appellee, Ohio State Liquor Control Commission ("commission"), issued on September 9 and October 19, 2016 and April 25, 2017. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant operates an adult night club in Cleveland, Ohio. At all relevant times, appellant held a valid D-5 and D-6 liquor permit issued by the Ohio division of Liquor Control ("division"). According to appellant, the club operates a bar on the premises where patrons can sit and purchase alcoholic beverages. In addition to the bar area, the club contains a stage featuring female entertainers performing choreographed erotic dance. The club also contains a VIP area where entertainers can perform personal one-on-one dances for patrons who pay a fee.

{¶ 3} On August 29, 2015, liquor control agent Kevin J. Cesaratto entered the club posing as a patron, and he paid the required fee for a personal one-on-one dance in the VIP area. According to Cesaratto's September 3, 2015 investigation report, during the private dance, the female entertainer "expos[ed] her naked breasts, * * * rubbed her bare nipple over [his] lips * * * and pulled away the clothing exposing her vagina [and] exposing her anus." Liquor control agents subsequently cited appellant for two violations of Ohio Adm.Code 4301:1-1-52, otherwise known as "Rule 52." Agents cited appellant for prohibited conduct in knowingly or willfully allowing dancers to "[a]ppear in a state of nudity," in violation of Ohio Adm.Code 4301:1-1-52(B)(2), and to "[e]ngage in sexual activity," in violation of Ohio Adm.Code 4301:1-1-52(B)(3).

{¶ 4} The commission held a hearing on August 11, 2016 regarding the two charges stemming from the August 29, 2015 investigation, as well as two other charges arising out of a similar investigation on February 7, 2015. As a result of the hearing, appellant denied the August 29, 2015 charge alleging nudity but stipulated to the facts contained in agent Ceseratto's report. The commission dismissed the second charge of "sexual activity" arising from the August 29, 2015 investigation. The commission also dismissed the two charges arising out of the February 7, 2015 investigation.

{¶ 5} On August 25, 2016, the commission issued an order finding that appellant committed one violation of Rule 52 and imposing the following penalty:

It is the order of this Commission that the Permit Holder has the option to either pay a forfeiture in the amount of $100,000.00, or the permit will be REVOKED if the Permit Holder shall elect to pay the forfeiture, the Permit Holder has twenty-one (21) days after the date on which this order is sent to pay the full amount of the forfeiture.

(Order at 1.)

{¶ 6} The commission subsequently denied appellant's motion for reconsideration on October 19, 2016. On November 1, 2016, appellant filed a notice of appeal to the common pleas court pursuant to R.C. 119.12. The notice of appeal alleges the following errors by the commission:

The grounds for the appeal are that the decisions below are not supported by reliable, substantial and probative evidence; that the decisions below are contrary to law; that Regulation 4301:1-1-52 is unconstitutional on its face and as applied under Art. I, § 11 of the Ohio Constitution ; that the forfeiture imposed is excessive and far greater than forfeitures imposed on permit holders that are similarly situated or whose violations were more egregious and denies HDV equal protection of the laws, as well as procedural and substantive due process under the Fourteenth Amendment to the United States Constitution, and Art. I, §§ 1, 2 and 16 of the Ohio Constitution.

(Notice of Appeal at 1-2.)

{¶ 7} On November 4, 2016, the trial court stayed the commission's order pending appeal. On December 19, 2016, appellant moved the trial court to supplement the administrative record with evidence in support of its contention that Rule 52 is unconstitutional. On April 25, 2017, the trial court issued a decision and entry affirming the commission's order and denying appellant's motion to supplement the administrative record.

{¶ 8} Appellant timely appealed to this court from the trial court judgment.

II. ASSIGNMENTS OF ERROR

{¶ 9} Appellant sets forth the following three assignments of error:

1. Rule 52 is unconstitutional on its face and as applied under Art. I, § 11 of the Ohio Constitution, and the court below erred in concluding otherwise.
2. The court erred in sustaining the penalty imposed by the Commission that HDV pay $100,000 or have its license revoked because the penalty violated HDV's right to due process and equal protection under the United States and Ohio Constitutions and because it was not supported by substantial, reliable and probative evidence.
3. The Court erred in denying HDV the opportunity to supplement the administrative record at an evidentiary hearing on the issue of the unconstitutionality of Rule 52 on its face under Art. I, § 11 of the Ohio Constitution, and of the unconstitutionality of the penalty that it imposed.

III. STANDARD OF REVIEW

{¶ 10} "Under R.C. 119.12, a common pleas court, in reviewing an order of an administrative agency, must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and the order is in accordance with law." Yohannes Parkwood, Inc. v. Liquor Control Comm. , 2014-Ohio-2736, 15 N.E.3d 363, ¶ 9, citing Univ. of Cincinnati v. Conrad , 63 Ohio St.2d 108, 110-11, 407 N.E.2d 1265 (1980). "When a court of common pleas reviews an administrative determination such as that of the commission, its review is 'neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court "must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof." ' " (Emphasis sic.) Gemini, Inc. v. Liquor Control Comm. , 10th Dist. No. 07AP-112, 2007-Ohio-4518, 2007 WL 2473471, ¶ 6, quoting Big Bob's, Inc. v. Liquor Control Comm. , 151 Ohio App.3d 498, 2003-Ohio-418, 784 N.E.2d 753, ¶ 14 (10th Dist.), quoting Lies v. Veterinary Med. Bd. , 2 Ohio App.3d 204, 207, 441 N.E.2d 584 (1st Dist.1981). "[T]he common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive." Gemini at ¶ 6, citing Conrad at 111, 407 N.E.2d 1265. The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is "in accordance with law." Yohannes at ¶ 9, quoting Ohio Historical Soc. v. State Emp. Relations Bd. , 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993).

{¶ 11} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). "The appellate court reviews factual issues to determine whether the court of common pleas abused its discretion in determining that the administrative action either was or was not supported by reliable, probative and substantial evidence." Yohannes at ¶ 10, citing Alternative Residences, Two, Inc. v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 04AP-306, 2004-Ohio-6444, 2004 WL 2757848, ¶ 17. " '[A]buse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Yohannes at ¶ 10, quoting Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court." Yohannes at ¶ 10, citing Pons at 621, 614 N.E.2d 748. "An appellate court, however, has plenary review of purely legal questions." Yohannes at ¶ 10, citing Big Bob's at ¶ 15.

IV. LEGAL ANALYSIS

A. First Assignment of Error

{¶ 12} In appellant's first assignment of error, appellant contends the trial court erred when it concluded that Rule 52 does not violate Article I, Section 11 of the Ohio Constitution either on its face or as applied to appellant. We disagree.

{¶ 13} Rule 52 contains the following prohibition against improper conduct by permit holders:

(B) Prohibited activities; no permit holder, his agent, or employee shall knowingly or willfully allow in and upon his licensed permit premises any persons to:
* * *
(2) Appear in a state of nudity.

{¶ 14} Ohio Adm. Code 4301:1-1-52(A)(2) defines nudity as "the showing of the human male or female genital, pubic area or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple and/or areola."

{¶ 15} As noted above, appellant stipulated to the investigator's report, which sets forth sufficient facts to support the commission's finding that appellant committed a violation of Ohio Adm.Code 4301:1-1-52(B)(2). Appellant does not deny that conduct amounting to a violation of Rule 52 occurred. Rather, appellant challenges the constitutionality of Rule 52 on grounds that the rule violates appellant's right to freedom of expression guaranteed by Article I, Section 11 of the Ohio Constitution. According to appellant, Rule 52 is an unconstitutional prior restraint on appellant's freedom of expression both on its face and as applied to appellant.

1. Constitutionality of Rule 52 Under the United States Constitution

{¶ 16} Appellant concedes that Rule 52, in its current form, has previously withstood constitutional scrutiny under the First and Fourteenth Amendments to the United States Constitution. In WCI, Inc. v. Liquor Control Comm. , 2016-Ohio-4778, 68 N.E.3d 250, appellant, WCI, Inc., d.b.a. Cheeks, appealed a decision of the common pleas court affirming the commission's order requiring it to either pay a forfeiture of $25,000 or lose its liquor license due to a violation of Rule 52. In WCI , an investigator for the Department of Public Safety reported while he was posing as a customer, one of appellant's dancers knowingly touched him while nude or semi-nude and that she subsequently led the investigator to a table located at the entrance of the private area where she gave another employee an undetermined amount of money. Appellant was cited for a violation of Ohio Adm.Code 4301:1-1-52(B)(2), nudity.

{¶ 17} Appellant appealed the penalty imposed by the commission on several grounds, including the constitutionality of Rule 52 under the First and Fourteenth Amendments to the United States Constitution. The common pleas court found that Rule 52 was constitutional and the commission's order was supported by reliable, probative, and substantial evidence and was in accordance with law. In disposing of appellant's third assignment of error on appeal, this court noted that "[t]he question of whether Rule 52 violates the First and Fourteenth Amendment to the United States Constitution has already been settled." Id. at ¶ 24. This court discussed the prior jurisprudence on the issue as follows:

The United States Supreme Court held that content-neutral time, place and manner regulations of protected speech will survive constitutional scrutiny "so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." Renton v. Playtime Theatres , 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed. 2d 29 (1986). "[T]he constitutionally of regulations that purport to ameliorate the deleterious secondary effects of sexually oriented establishments under the intermediate-scrutiny standard announced in [ Renton ]." Entertainment Prods., Inc. v. Shelby Cnty. , 721 F.3d 729, 734 (6th Cir.2013).
"Rule 52 is a content-neutral regulation aimed at ameliorating the adverse secondary effects associated with nude dancing in an environment that sells liquor."
J.L. Spoons, Inc. v. Ohio Dep't of Pub. Safety , 31 F.Supp.3d 933, 938-39 (N.D.Ohio 2014), See Renton at 47 [106 S.Ct. 925] (finding that the Renton ordinance is content neutral because it "is aimed not at the content of the films shown at 'adult motion picture theaters,' but rather at the secondary effects of such theaters on the surrounding community"). (Emphasis sic.)
"Rule 52's requirement that dancers at establishments that serve alcohol wear, at a minimum, pasties, passes constitutional scrutiny." J.L. Spoons at 943,. "The evidence establishes that the State, when it promulgated Rule 52, had a reasonable evidentiary basis for concluding that nude dancing in adult cabarets leads to undesirable secondary effects." Id. at 951. J.L. Spoons clearly shows that Rule 52 passes constitutional scrutiny.

Id. at ¶ 25-27.

{¶ 18} In this court's previous decision in 34 N. Jefferson, LLC v. Liquor Control Comm. , 2012-Ohio-3231, 974 N.E.2d 774, we rejected appellant's contention that former Rule 52 violated the First Amendment to the United States Constitution on its face and as applied to appellant. In 34 N. Jefferson , the permit holder was cited for several Rule 52 violations when a male dancer at the club exposed his buttocks and genitals during a performance. The commission found that the permit holder committed a violation of Ohio Adm.Code 4301:1-1-52(B)(1) prohibiting disorderly conduct and Ohio Adm.Code 4301:1-1-52(B)(2) and (4) prohibiting public indecency. The commission ordered it to pay a forfeiture or serve a suspension order. The common pleas court upheld the violation for public indecency but not disorderly conduct. The permit holder appealed.

{¶ 19} On appeal, this court held that former Rule 52, as it pertained to "nudity," did not violate the First Amendment of the United States Constitution either on its face or as applied to appellant. With regard to the permit holder's contention that former Rule 52 was facially invalid due to overbreadth, this court set forth the relevant law as follows:

In order for a statute to be facially challenged on overbreadth grounds, " 'there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.' " 161 Dublin, [Inc. v. Liquor Control Comm. , 10th Dist. No. 01AP-134 [2001 WL 1651921] (Dec. 27, 2001) ], quoting Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed. 2d 772 (1984). Further, "particularly where conduct and not merely speech is involved, * * * the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Okla. , 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed. 2d 830 (1973). The "mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge." Members of City Council at 800 [104 S.Ct. 2118].
One federal court has noted that "the Supreme Court has 'vigorously enforced the requirement that a statute's overbreadth be substantial,' * * * and cautioned that invalidation for overbreadth be deployed sparingly and 'only as a last resort.' " Entertainment Prods., Inc. v. Shelby Cty., Tenn. , 588 F.3d 372, 379 (6th Cir. 2009), citing Broadrick at 613 [93 S.Ct. 2908]. Moreover, "[o]nly if a plaintiff demonstrates 'from the text of [the statute] and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally,' is facial invalidation on overbreadth grounds appropriate." Entertainment Prods. at 379,.

34 N. Jefferson at ¶ 28-29.

{¶ 20} In finding that the permit holder's overbreadth argument had no merit with regard to the prohibition on dancers appearing "in a state of nudity," the 34 N. Jefferson court concluded that "we are not persuaded that the rule [is] susceptible to 'a substantial number of impermissible applications.' " Id. at ¶ 32, quoting New York v. Ferber , 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

{¶ 21} The permit holder in 34 N. Jefferson also contended former Rule 52 was unconstitutional as applied to an expressive dance performance because it was a content-based prohibition on performances likely to offend the viewer. In holding that Rule 52 was not unconstitutional as applied to nude dancing, this court set forth the relevant legal principal as follows:

The United States Supreme Court has recognized that "nude dancing * * * is expressive conduct, although * * * it falls only within the outer ambit of the First Amendment's protection." Erie v. Pap's AM. , 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed. 2d 265 (2000). In Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed. 2d 504 (1991), the Supreme Court considered a public indecency statute as applied to nude dancing, and adopted the four-part test of United States v. O'Brien , 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed. 2d 672 (1968), in determining the constitutionality of a government rule or regulation proscribing protected expressive conduct. Under that test, a government regulation is sufficiently justified if it (1) is " 'within the constitutional power of the Government,' " (2) " 'furthers an important or substantial governmental interest,' " (3) " 'the governmental interest is unrelated to the suppression of free expression,' " and (4) " 'the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' " Barnes at 567 [111 S.Ct. 2456], quoting O'Brien at 377 [88 S.Ct. 1673].
The United States Supreme Court has recognized that "nude dancing * * * is expressive conduct, although * * * it falls only within the outer ambit of the First Amendment's protection." Erie v. Pap's AM. , 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed. 2d 265 (2000). In Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed. 2d 504 (1991), the Supreme Court considered a public indecency statute as applied to nude dancing, and adopted the four-part test of United States v. O'Brien , 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed. 2d 672 (1968), in determining the constitutionality of a government rule or regulation proscribing protected expressive conduct. Under that test, a government regulation is sufficiently justified if it (1) is " 'within the constitutional power of the Government,' " (2) " 'furthers an important or substantial governmental interest,' " (3) " 'the governmental interest is unrelated to the suppression of free expression,' " and (4) " 'the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' " Barnes at 567 [111 S.Ct. 2456], quoting O'Brien at 377 [88 S.Ct. 1673].

Id. at ¶ 20.

{¶ 22} This court disagreed with appellant's "as applied" argument, stating that "[i]n general, courts have recognized that [Rule 52] is a content-neutral regulation designed to address the negative secondary effects relating to adult establishments." Id. at ¶ 25, citing J.L. Spoons, Inc. v. Dragani , 538 F.3d 379, 382 (2008). This court reasoned that the "undesirable secondary effects" Rule 52 was designed to thwart included "prostitution, drug trafficking, and assault, associated with nude dancing in an environment serving alcohol." 34 N. Jefferson at ¶ 25, quoting J.L. Spoons at 382,; see also Junction 615, Inc. v. Liquor Control Comm. , 135 Ohio App.3d 33, 40, 732 N.E.2d 1025 (11th Dist.1999). This court found "no merit to appellant's claims that the regulation * * * represent[s] a content-based prohibition on expressive performances; nor do we find that the trial court erred in concluding appellant failed to establish the regulation is unconstitutional as applied to the facts herein." 34 N. Jefferson at ¶ 26.

2. Constitutionality of Rule 52 Under Article I, Section 11 of the Ohio Constitution

{¶ 23} Appellant does not dispute the United States Supreme Court and the Supreme Court of Ohio have applied the secondary-effects doctrine in upholding local government's regulation of brick-and-mortar purveyors of adult sexually explicit conduct. Appellant also concedes that 34 N. Jefferson , WCI , and J.L. Spoons have determined that the "state of nudity" provision of Rule 52 does not violate the First Amendment of the United States Constitution either on its face or as applied to establishments providing choreographed erotic dancing. Appellant argues, however, that no Ohio court has considered a challenge to Rule 52 under the analogous provisions of Article I, Section 11 of the Ohio Constitution. Article I, Section 11, provides as follows:

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.

{¶ 24} Appellant claims that expressive conduct receives greater protection from government regulation under the Ohio Constitution than it does under the United States Constitution. Accordingly, appellant argues the case law establishing the constitutionality of Rule 52 under the United States Constitution does not foreclose appellant's argument in this case that Rule 52 violates Article I, Section 11 of the Ohio Constitution both on its face and as applied to appellant. We disagree.

{¶ 25} Appellant cites the opinion of the Supreme Court of Ohio in Vail v. Plain Dealer Publishing Co. , 72 Ohio St.3d 279, 649 N.E.2d 182 (1995), in urging this court to hold that Rule 52 violates Article I, Section 11 of the Ohio Constitution. In Vail , the Plain Dealer Publishing Company ("Plain Dealer") published a column authored by appellant, Joe Dirck, concerning Vail's 1990 campaign for the Ohio Senate.

Vail sued the Plain Dealer and Dirck alleging defamation. The Plain Dealer and Dirck argued the alleged defamatory statements in the article were privileged statements of opinion rather than actionable statements of fact. The trial court dismissed Vail's defamation claim for failure to state a claim for relief after concluding the alleged defamatory statements were constitutionally protected opinions. The Eighth District Court of Appeals reversed, holding that the statements at issue were actionable because the statements were capable of being proven false.

{¶ 26} In Vail , the issue for the Supreme Court was whether, for purposes of determining if an alleged defamatory statement is a statement of fact or opinion, the court should follow the United States Supreme Court opinion in Milkovich v. Lorain Journal Co. , 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), or apply the four-part test earlier adopted by the Supreme Court of Ohio in Scott v. News-Herald , 25 Ohio St.3d 243, 496 N.E.2d 699 (1986). In Milkovich , the United States Supreme Court rejected the notion that an additional separate constitutional privilege for "opinion" is required to ensure the freedom of expression guaranteed by the First Amendment of the United States Constitution. Vail at 281, 649 N.E.2d 182, citing Milkovich at 21, 110 S.Ct. 2695.

{¶ 27} The Supreme Court of Ohio in Vail determined that "[r]egardless of the outcome in Milkovich , * * * [t]he Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press." Vail at 281, 649 N.E.2d 182. Accordingly, the Supreme Court in Vail concluded that guarantee of protection for opinions in Article I, Section 11 of the Ohio Constitution will apply to the benefit of a defamation defendant when the allegedly defamatory statements constitute statements of opinion under Scott' s four-part test. Vail at 280, 649 N.E.2d 182.

{¶ 28} Appellant contends that, pursuant to the reasoning Vail, this court should hold that the greater protections afforded to opinions under Article I, Section 11 of the Ohio Constitution should be extended to expressive conduct in the form of choreographed erotic dance. In making this argument, appellant notes that the Ohio Constitution includes the words "restrain or abridge," as opposed to simply the word "abridge."

{¶ 29} The holding in Vail speaks only to the Article I, Section 11 protection afforded "opinion" in defamation and libel cases. Id. at 281, 649 N.E.2d 182. See also Eastwood Mall, Inc. v. Slanco , 68 Ohio St.3d 221, 222, 626 N.E.2d 59 (1994) ("the free speech guarantees accorded by the Ohio Constitution are no broader than the First Amendment, and * * * the First Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio Constitution"), citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals , 63 Ohio St.3d 354, 362-63, 588 N.E.2d 116 (1992). The Supreme Court of Ohio has not extended the additional constitutional protections afforded to opinion defamation cases to any other form of speech. We find no merit in appellant's argument that the Ohio Constitution provides more protection to expressive conduct in the form of choreographed erotic dance simply because it includes the words "restrain or abridge," as opposed to simply the word "abridge." As previously noted, though nude dancing is recognized as a protected form of expressive conduct, "it falls only within the outer ambit of the First Amendment's protection." 34 N. Jefferson at ¶ 20, citing Erie v. Pap's AM. , 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Accordingly, we hold the free speech guarantees afforded choreographed nude dancing under the Ohio Constitution are no broader than the protections afforded by the First and Fourteenth Amendments to the United States Constitution.

3. Impact of Reed v. Gilbert

{¶ 30} Appellant contends that the opinion of the United States Supreme Court in Reed v. Gilbert , --- U.S. ----, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), requires this court to conduct a strict scrutiny analysis in determining whether Rule 52 is constitutionally overbroad because under Reed , Rule 52 can no longer be considered a content-neutral regulation. We disagree.

{¶ 31} In Reed , the Supreme Court addressed the validity of a sign code that banned the display of outdoor signs anywhere in town without a permit but exempted 23 classes of signs from this requirement. Id. at 2224. Under the Sign Code, signs that received varying levels of preferential treatment under the code included ideological signs, political signs, and temporary directional signs. Id. at 2224-25. Plaintiffs in the case challenged the less preferential treatment given to temporary directional signs. Id. at 2224. The Ninth Circuit Court of Appeals determined that the Sign Code was content neutral. That court declared "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed," and its "interests in regulat[ing] temporary signs [were] unrelated to the content of the sign." Id. at 2226.

{¶ 32} The United States Supreme Court reversed the Ninth Circuit, finding the "Sign Code is content based on its face" because the restrictions "depend entirely on the communicative content of the sign." Id. at 2227. The court held that a strict scrutiny analysis was appropriate, not intermediate scrutiny, and that it was error to look to the purpose of the Sign Code in determining the level of scrutiny that should be applied. Id. at 2228. In Reed , the United States Supreme Court instructed "[a] law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." Id. , quoting Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). "In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral." Reed at 2228.

{¶ 33} Appellant argues that the Reed case effectively overrules the secondary-effects doctrine because a court reviewing a claim that a regulation unlawfully restrains or abridges free speech may no longer consider the purpose of the regulation in determining the level of scrutiny that should be applied. We disagree.

{¶ 34} In Flanigan's Ents. v. Sandy Springs , 703 Fed.Appx. 929 (2017), the Eleventh Circuit Court of Appeals recently addressed the question whether Reed abrogated the secondary-effects doctrine as applied to businesses that offer sexually explicit entertainment. In Flanigan's , two adult-oriented businesses challenged city zoning ordinances banning the sale of liquor in establishments that feature nude dancing. The Eleventh Circuit upheld the district court decision granting summary judgment in favor of the city as to the First Amendment claims. In concluding that Reed did not abrogate the secondary-effects doctrine, the Eleventh Circuit made the following observations:

There is no question that Reed has called into question the reasoning undergirding the secondary-effects doctrine. The secondary-effects doctrine allows a content-based, adult-entertainment-related law to be subjected to less than strict scrutiny as long as the law can be justified by a legitimate interest in combating the harmful secondary effects of adult entertainment. The majority opinion in Reed , of course, rejected the lower court's reliance on the sign code's justification in conducting content-neutrality analysis; the Court also declared that content-based laws should be subjected to strict scrutiny.
But significantly, the majority opinion in Reed did not address the secondary-effects doctrine. For this reason alone, we cannot read Reed as abrogating either the Supreme Court's or this Circuit's secondary-effects precedents.

Id. See also Free Speech Coalition, Inc. v. Atty. Gen. United States , 825 F.3d 149 (3d Cir.2016) (if the secondary-effects doctrine survives Reed, case law counsels against expanding its application beyond regulations affecting physical purveyors of adult sexually explicit content); " Q" Lungian Ents. v. Windsor Locks , D.Conn. No. 3:13-cv-01285, 272 F.Supp.3d 289, 2017 WL 4127898 (Sept. 18, 2017) (declining to conclude that Reed repudiates prior decision of the United States Supreme Court applying the secondary-effects doctrine in ruling that the regulation of adult-oriented businesses is content-neutral regulation that warrants the application of intermediate scrutiny).

{¶ 35} Because Reed did not expressly abrogate the secondary-effects doctrine as it applies to local government regulation of brick-and-mortar purveyors of adult sexually explicit conduct, this court need not apply a strict scrutiny analysis in determining the constitutionality of Rule 52 under Article I, Section 11 of the Ohio Constitution. Furthermore, because this court has previously determined the provision of Rule 52 at issue in this case does not violate the First and Fourteenth Amendments of the United States Constitution, either on its face or as applied to adult-oriented establishments, and because Article I, Section 11 of the Ohio Constitution does not provide broader protections to such establishments, we hold that Ohio Adm.Code 4301:1-1-52(B)(2) does not violate Article I, Section 11 of the Ohio Constitution either on its face or as applied to appellant.

{¶ 36} For the foregoing reasons, appellant's first assignment of error is overruled.

B. Second Assignment of Error

{¶ 37} In appellant's second assignment of error, appellant argues the trial court erred in affirming the commission because the record does not contain substantial, reliable, and probative evidence in support of the commission's decision. More particularly, appellant contends that the evidence in the record does not support a forfeiture order of $100,000.

{¶ 38} Pursuant to R.C. 4301.25(A), "[t]he liquor control commission may suspend or revoke any permit issued under this chapter or Chapter 4303. of the Revised Code for the violation of any * * * lawful rule of the commission." Similarly, R.C. 4301.252 permits the commission to order forfeiture in lieu of revocation. This court has held that, under the relevant statutory language, the commission may revoke a permit based on one violation. If there is reliable, probative, and substantial evidence supporting the order, the court of common pleas has no authority to reverse an order on the basis that the penalty is harsh and an abuse of discretion. DKA, Inc. v. Liquor Control Comm. , 10th Dist. No. 03AP-316, 2004-Ohio-837, 2004 WL 344034, ¶ 13, citing Tolbert v. Liquor Control Comm. (In re Tolbert ), 10th Dist. No. 98AP-285, 1998 WL 832127 (Dec. 3, 1998).

{¶ 39} In WCI , appellant challenged the $25,000 forfeiture imposed by the commission for violations of Rule 52 as being unsupported by the evidence. In holding that substantial, reliable, and probative evidence supported the commission's decision, this court noted the following relevant facts:

WCI did stipulate to certain facts in the investigator's report but the hearing brought to light other facts that support a forfeiture of $25,000 or revocation of the liquor license. (Tr. at 6.) There were cameras that were supposed to be monitoring the private dance rooms. (Tr. at 17.) WCI could not determine what the cameras were supposed to show. Either the cameras were malfunctioning or were not being monitored. Id. The investigator's report stated that at the end of the private dance the performer led the investigator to a table that was located at the entrance of the private area where she gave another employee an undetermined amount of money. (Public Safety Report at 2.)
The Commission also noted at the hearing that WCI was recently before them for actions that occurred on January 3, 2013 in which WCI's liquor license would have been revoked unless they paid a $10,000 forfeiture. (Tr. at 19.) The evidence indicates that the Commission has required substantial forfeitures from WCI before for similar violations. The Commission chose to impose an increased forfeiture of $25,000 rather than a $10,000 forfeiture that was imposed less than one year before.

Id. at ¶ 13-14.

{¶ 40} The facts are similar in this case. Here, as in WCI , appellant stipulated to the facts contained in the investigation report. Appellant does not deny one of its dancers appeared in a state of nudity while providing a one-on-one dance for Cesaratto in the club's VIP area. Appellant does not deny such conduct violated Ohio Adm.Code 4301:1-1-52(B)(2) prohibiting appellant from knowingly or willfully allowing dancers to "[a]ppear in a state of nudity." Though the commission found appellant guilty of only one violation, the unrefuted information contained in Cesaratto's investigation report establishes that additional conduct occurred on appellant's premises that arguably supported a finding of further Rule 52 violations. For example, Cesaratto's investigation report establishes that appellant's dancer engaged in the following conduct: repeatedly "straddled his legs, sat on [his] groin and rubbed back and forth simulating a sexual act"; "started gyrating her hips in a circular motion * * * simulating a sexual act"; rubbed her exposed nipple on his lips; rubbed her finger on her clothed anus and vagina; went to her knees in front of Cesaratto and proceeded to rub her lips over his clothed penis while "humming to make a vibrating sensation"; and rubbed her head on his clothed penis. (Sept. 1, 2015 Investigation Report at 1.) After performing these activities during two songs, the dancer asked for $60, which Cesarrato paid. Such conduct is far well beyond simply allowing a dancer to "[a]ppear in a state of nudity," and it involved sexual touching.

{¶ 41} The record also contains evidence appellant has been cited for four Rule 52 violations in the past four years. In addition to the two citations issued by the division arising from the August 2015 investigation, an investigation in February 2015 resulted in two citations, one for nudity and the other for sexual activity. Though the commission did not find appellant guilty of those violations, the fact remains the division cited appellant for similar Rule 52 violations roughly seven months prior to the violation at issue. Additionally, the record shows the division issued citations to appellant for Rule 52 violations on June 14, July 17, and October 24, 2014. Appellant acknowledges the three separate violations were consolidated for purposes of punishment, and appellant paid a forfeiture amount of $10,000 in lieu of revocation.

{¶ 42} In the administrative hearing on the Rule 52 violation arising from the February investigation, appellant maintained it had taken steps following the 2014 violations to educate staff and to increase surveillance of the VIP area to ensure compliance with the relevant regulations. According to appellant's manager, Jadranko Cvetovac, there are real-time cameras monitoring virtually the entire club, including the VIP area, but the cameras do not record. Cvetovac testified that prior to the violations in 2014, a single employee monitored all the cameras from inside the camera room. In response to the chairperson's question regarding any additional measures taken subsequent to the 2014 violations, Cvetovac stated that one additional employee had been assigned to monitor the cameras from an iPad. Our review of the hearing transcript reveals, however, that appellant allows staff monitoring those cameras to receive tips from the dancers for referring customers. Neither of the two employees monitoring the cameras on August 29, 2015, recalled having observed the nudity violation detailed in Cesaratto's investigation report, even though the conduct described in the report occurred over the space of two song tracks.

{¶ 43} Based on the foregoing, we find that substantial, reliable, and probative evidence supports the commission's decision to revoke appellant's liquor permit or, in lieu of revocation, forfeiture. We acknowledge that the $100,000 forfeiture in this case is much steeper than the $10,000 forfeiture previously imposed by the commission for appellant's prior Rule 52 violations and the $25,000 forfeiture imposed by the commission for the Rule 52 violations in WCI . However, the decision of the Supreme Court of Ohio in Henry's Cafe, Inc. v. Bd. of Liquor Control , 170 Ohio St. 233, 163 N.E.2d 678 (1959), provides as follows:

2. On appeal from an order of an agency (as defined in Section 119.01, Revised Code ) to the Court of Common Pleas, the power of the court to modify such order is limited to the ground set forth in Section 119.12, Revised Code, i.e., the absence of a finding that the order is supported by reliable, probative, and substantial evidence.
3. On such appeal, the Court of Common Pleas has no authority to modify a penalty that the agency was authorized to and did impose, on the ground that the agency abused its discretion.

Id. at paragraphs two and three of the syllabus. Followed by Aida Ents., Inc. v. Liquor Control Comm. , 10th Dist. No. 01AP-1178, 2002-Ohio-2764, 2002 WL 1067240, appeal not allowed , 96 Ohio St.3d 1533, 2002-Ohio-5351, 776 N.E.2d 112 ; Goldfinger Ents., Inc. v. Liquor Control Comm. , 10th Dist. No. 01AP-1172, 2002-Ohio-2770, 2002 WL 1067226 ; Lindner v. Liquor Control Comm. , 10th Dist. No. 00AP-1430, 2001 WL 579808 (May 31, 2001).

{¶ 44} Appellant acknowledges that Henry's Cafe precludes this court from conducting an abuse of discretion analysis in reviewing the sanction imposed by the commission where we find that the commission's order is supported by substantial, reliable, and probative evidence and is in accordance with law. Appellant also acknowledges that the commission had the right to revoke its liquor permit based on a single Rule 52 violation, rather than providing appellant with the option to pay forfeiture. We note that R.C. 4301.252 imposes no monetary limit on the amount of forfeiture in lieu of revocation. Nevertheless, appellant asks this court to review the severity of the forfeiture under the due process and equal protection clauses of the United States and Ohio Constitutions.

{¶ 45} Appellant argues that this court, in reviewing the size of a forfeiture order issued by the commission, should apply the test courts apply when reviewing the validity of punitive damage awards in a civil proceeding. See BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) ; Cooper Industries, Inc. v. Leatherman Tool Group, Inc. , 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). Appellant also contends that the forfeiture in this case violates equal protection because the amount of the forfeiture is out of proportion to forfeitures imposed on other similarly situated permit holders for Rule 52 violations. Appellant asks us to compare the size of the forfeiture in this case to other forfeiture orders issued by the commission.

{¶ 46} In Lindner , the commission revoked the permit holder's liquor permit because gambling had occurred on the premises. The permit holder admitted the violation but appealed to the common pleas court arguing that the sanction was excessive given the fact that the permit holder had no prior violations. The common pleas court found that substantial, reliable, and probative evidence supported the commission's order.

{¶ 47} In her appeal to this court, the permit holder argued that the penalty of revocation was too severe. In rejecting appellant's argument, this court made the following observations:

Having properly found the commission's order was supported by reliable, probative and substantial evidence, the common pleas court had no authority to modify the penalty lawfully imposed by the commission.
* * *
As a practical matter, courts have no power to review penalties meted out by the commission. Thus, we have little or no ability to review a penalty even if it seems on the surface to be unreasonable or unduly harsh. Though she had no prior violations, appellant had her liquor license revoked, not suspended for a period of time. Perhaps the time to reconsider Henry's Cafe has arrived, but the Supreme Court of Ohio must be the court to do that reconsideration. We, as an intermediate appellate court, are required to follow the syllabus of Henry's Cafe unless or until such reconsideration occurs.

Lindner .

{¶ 48} The Supreme Court of Ohio has not reconsidered the rule of law set forth in Henry's Cafe . Appellant's due process and equal protection arguments in this case are a thinly veiled attempt to circumvent the holding of the Supreme Court in Henry's Cafe . As an intermediate appellate court, this court is required to follow the syllabus of Henry's Cafe unless or until such reconsideration occurs. Lindner. Accordingly, we find that appellant's due process and equal protection challenges to the amount of the forfeiture are without merit.

{¶ 49} Because we have found that the trial court did not abuse its discretion when it determined that the commission's order was supported by substantial, reliable, and probative evidence and because the commission's order is in accordance with law, we overrule appellant's second assignment of error.

C. Third Assignment of Error

{¶ 50} In appellant's third assignment of error, appellant argues the trial court erred by denying appellant's motion to supplement the administrative record with evidence in support of its contention that Rule 52 is unconstitutionally overbroad. More particularly, appellant sought leave to submit evidence there are approximately 2,400 permit holders in Ohio and only about 1 percent of those permit holders operate adult-oriented businesses. According to appellant, some of those permit holders include theaters and opera houses that occasionally feature performances containing nudity. Appellant argues Rule 52 might be impermissibly applied to suppress speech of great artistic merit.

{¶ 51} This is precisely the argument this court considered and rejected in 34 N. Jefferson. As we previously noted in 34 N. Jefferson , "the Supreme Court has vigorously enforced the requirement that a statute's overbreadth be substantial, * * * and cautioned that invalidation for overbreadth be deployed sparingly and only as a last resort. * * * [O]nly if a plaintiff demonstrates from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally, is facial invalidation on overbreadth grounds appropriate." (Internal citations and quotations omitted.) Id. at ¶ 29. In 34 N. Jefferson , this court agreed with the commission that the "ability to conceive of arguably impermissible applications of the rule or statute to constitutionally protected expression does not amount to real or substantial overbreadth." Id. at ¶ 31.

{¶ 52} For the reasons set forth in 34 N. Jefferson , we hold the trial court did not err when it denied appellant's motion to supplement the administrative record. Accordingly, appellant's third assignment of error is overruled.

V. CONCLUSION

{¶ 53} Having overruled appellant's three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and BRUNNER, JJ., concur.

      Brunner, J., concurred as to the majority's resolution of appellant's first, third, and fourth assignments of error but dissented, in part, as to appellant's second assignment of error regarding the property rights of permit holders.

      This court did find that the provision in former Ohio Adm.Code 4301:1-1-52 pertaining to "lewd activities" was unconstitutionally overbroad. Though Rule 52 was subsequently amended to remove the offending provisions, the specific prohibition against persons "[a]ppear[ing] in a state of nudity" remains part of Rule 52.

      Pursuant to Scott , a court should consider the specific language at issue, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. Id. at syllabus.

      Reed v. Gilbert , 707 F.3d 1057, 1072 (9th Cir.2013).

      We express no opinion whether Rule 52 would pass muster under the strict scrutiny test.

      In deciding whether an award of punitive damages violates due process, courts have focused on the same three criteria: (1) the degree of the defendant's reprehensibility or culpability; (2) the relationship between the penalty and the harm to the victim caused by the defendant's actions; and (3) the sanctions imposed in other cases for comparable misconduct. Gore at 575-85, 116 S.Ct. 1589.


author: MELODY J. STEWART, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Shuaib A. Haji MOHAMED, Defendant-Appellant
    Nos. 102398 103602
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 14, 2017
    Mark A. Stanton, Cuyahoga County Public Defender, Erika B. Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, OH 44113, Marcus S. Sidoti, Jordan & Sidoti L.L.P., 50 Public Square, Suite 1900, Cleveland, OH 44113, Joseph V. Pagano, P.O. Box 16869, Rocky River, OH 44116, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, Kelly N. Mason, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Stewart, P.J., Boyle, J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, P.J.:

{¶ 1} This appeal is before us on remand from the Ohio Supreme Court. See State v. Mohamed , 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935 (" Mohamed II ").

{¶ 2} A jury found defendant-appellant Shuaib A. Haji Mohamed guilty of gross sexual imposition, attempted gross sexual imposition, two counts of kidnapping, and one count of attempted rape. On direct appeal, we overruled six assignments of error, but reversed the conviction for kidnapping and ordered a new trial. State v. Mohamed , 8th Dist. Cuyahoga Nos. 102398 and 103602, 2016-Ohio-1116, 2016 WL 1071454 (" Mohamed I "). We held that the jury should have been instructed on R.C. 2905.01(C)(1), which states that a conviction for kidnapping shall be lowered by one degree if the victim is released in a safe place unharmed, because the evidence showed that the victim was released in a safe place and suffered no physical harm. We noted case law finding that psychological harm is not the type of harm considered for purposes of the statutory analysis. Id. at ¶ 36. With there being no evidence that the victim suffered physical harm, we concluded that the defense was ineffective for failing to seek a jury instruction and that the trial court committed plain error by not giving the instruction for the jury to consider. Id. at ¶ 37. Because the reversal on the kidnapping count required a new trial, we found it mooted consideration of Mohamed's eighth assignment of error that the court erred by ordering consecutive service of the sentences imposed for kidnapping and attempted rape. Id. at ¶ 46.

{¶ 3} The Supreme Court reversed in Mohamed II. It held that the word "harm" under R.C. 2905.01(C)(1) is not limited to physical harm, therefore psychological harm is contemplated by the statute. Mohamed II , at ¶ 13-15. It then concluded that trial counsel's failure to request a safe-place-unharmed instruction was trial strategy. Id. at ¶ 25. It also found that the trial court did not commit plain error by failing to provide the jury instruction on its own initiative. Id. at ¶ 28. It reinstated the conviction for kidnapping and remanded the case to this court for consideration of Mohamed's eighth assignment of error relating to consecutive sentences. Id. at ¶ 30.

{¶ 4} In his eighth of assignment of error, Mohamed complains that the court erred by ordering consecutive service of the ten-year sentence for kidnapping and the five-year sentence for attempted rape. Mohamed concedes that the court made the required findings in support of consecutive sentences, but argues that (1) the court erred by considering "six arrests involving alcohol" to be a criminal record, and (2) the length of his sentence is disproportionate to his conduct given that both the state and the victim agreed prior to sentencing that they would recommend a five-year sentence in exchange for Mohamed waiving his right to appeal.

{¶ 5} To order consecutive service of sentences, the court must make three separate findings under R.C. 2929.14(C)(4). The first two findings are common to all consecutive sentences-that (1) consecutive service is necessary to protect the public from future crime or to punish the offender, and (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. See R.C. 2929.14(C)(4). The third finding varies from case-to-case: (a) the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense; (b) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct; or (c) the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 6} Mohamed argues that the record does not support a finding that his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime that he might commit. He maintains that when defense counsel told the court that Mohamed had "no criminal background whatsoever," the court took issue with that statement, telling Mohamed that "in fact, you do have a criminal record. One[,] two, three, four, five, six arrests involving alcohol; some of them involving driving. That it's clear that, you know, you're a danger to the community." This record of arrests caused the court to conclude that Mohamed was a "danger to the community." Tr. at 1290. Mohamed argues that alcohol-related arrests do not make him a danger to the public.

{¶ 7} Mohamed fails to recognize that the court did not impose consecutive sentences because of his history of criminal conduct-it imposed consecutive sentences because at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of Mohamed's conduct. The court clearly stated this on the record: "The harm occasioned on the victim is so great and unusual, in this case, and I heard all the facts of the case. That a single term would not adequately punish you." Mohamed's argument about his alcohol-related arrests is irrelevant to the court's actual findings.

{¶ 8} Mohamed next claims that a 15-year sentence is "clearly disproportionate to sentences imposed on similarly situated offenders." This argument erroneously conflates the proportionality requirement of R.C. 2929.14(C)(4) with sentencing consistency under R.C. 2929.11(B) (a sentence should be "consistent with sentences imposed for similar crimes committed by similar offenders."). See State v. Carson , 8th Dist. Cuyahoga No. 102424, 2015-Ohio-4183, 2015 WL 5865225, ¶ 7. " R.C. 2929.14(C)(4) does not direct the trial court to compare sentences between similarly situated offenders in making the required proportionality analysis." State v. Dennison , 10th Dist. Franklin No. 14AP-486, 2015-Ohio-1135, 2015 WL 1373197, ¶ 20.

{¶ 9} Finally, Mohamed argues that his 15-year sentence failed to take into account the state's willingness to accept a far lower sentence: a pretrial offer by the state would have had Mohamed plead guilty to a fourth-degree gross sexual imposition and third-degree count of abduction with "a presumption of probation" and a post-trial offer would have had Mohamed agree to waive his appellate rights in exchange for a five-year sentence.

{¶ 10} The court had no obligation to sentence Mohamed consistent with the terms of a pretrial plea offer because he rejected the offer. State v. Rahab , 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 15. In addition, the court made it clear to Mohamed before trial that any sentence it imposed if Mohamed were to be tried and found guilty would be based on additional details about the case. Mohamed thus has no argument that the court was somehow bound to sentence him within the parameters of a rejected plea offer. State v. Paul , 8th Dist. Cuyahoga No. 79596, 2002 WL 228848, *15 (Feb. 14, 2002) ("It would be counterintuitive to think that the court is somehow bound to the sentence limits discussed in the plea negotiations, even though [the plea offer] had been rejected by the accused.").

{¶ 11} There was no agreement to a post-trial sentencing offer to recommend a five-year sentence. At sentencing, defense counsel told the court that he and the state discussed potential sentences with the hope that the victim would agree to a recommended sentence. Defense counsel told the court that those discussions resulted in the state agreeing to recommend a five-year sentence. The state agreed that it discussed a post-trial sentencing deal in which Mohamed would accept a five-year sentence and waive his right to appeal so that the victim would not have to go through another trial. The state told the court that the victim was "okay" with the offer. That offer, however, was rejected by the victim when she submitted a letter asking the court to impose the "max sentence" on Mohamed. The court noted that the victim's decision to submit a letter in which she asked the court to impose the maximum sentence "clearly indicated what she felt about the case and there's clearly been no agreement with respect to a recommended sentence." The court had no obligation to sentence Mohamed consistent with the terms of a post-trial agreement that did not exist.

{¶ 12} Judgment affirmed.

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

      There were actually two counts of kidnapping that would have been affected by our decision.