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

text:
    STATE of Ohio, Plaintiff-Appellant v. James VARHOLICK, Defendant-Appellee
    No. 105905
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Gregory J. Ochocki, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    James Varholick, pro se, 9122 Flagstick Lane, Hudson, Florida 34667, FOR APPELLEE.
    BEFORE: Jones, J., McCormack, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.

{¶ 2} Plaintiff-appellant, the state of Ohio, appeals the trial court's decision to restore driving privileges to defendant-appellee, James Varholick. We reverse.

{¶ 3} In 2009, Varholick pleaded guilty to operation while under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1). The offense was a third-degree felony pursuant to R.C. 4511.19(G)(1)(e) because Varholick had multiple prior OVI convictions. The trial court sentenced Varholick to four years in prison to run consecutive to another OVI case and imposed a lifetime driver's license suspension. This court affirmed his conviction. State v. Varholick , 8th Dist. Cuyahoga No. 94187, 2010-Ohio-5132, 2010 WL 4149269.

{¶ 4} In April 2016, the trial court granted Varholick limited driving privileges over the state's objection and limited his driving privileges to work and medical appointments. In December 2016, Varholick petitioned the trial court to reinstate his license without restrictions, pursuant to R.C. 4510.028, which the state opposed. The trial court did not hold a hearing on the matter but reinstated Varholick's driving privileges in May 2017.

{¶ 5} The state moved for leave to appeal, which this court granted. The state assigns two errors for our review:

I. The trial court erred when it granted the termination of a lifetime driver's license suspension pursuant to R.C. 4510.038 when the suspension was imposed pursuant to R.C. 4511.19(G)(1)(e)(iv).
II. The trial court erred when it granted appellee's motion to modify or terminate his lifetime driver's license suspension before the fifteen year waiting period set forth in R.C. 4510.54 had elapsed and without first holding a hearing.

{¶ 6} In the first assignment of error, the state claims that the trial court erred when it terminated Varholick's previously imposed lifetime driver's license suspension pursuant to R.C. 4510.038.

{¶ 7} Varholick moved to have his license reinstated under R.C. 4510.038, the statute that governs the conditions for the return of full driving privileges and provides that an offender whose driver's license has been suspended, or , any offender who is granted limited driving privileges under R.C. 4510.37, 4511.19 or 4510.07, is not eligible to have his or her driving privileges reinstated until that person has (1) successfully completed a course of remedial driving instruction approved by the director of public safety; (2) been examined in the manner provided for by R.C. 4507.20 and found by the registrar of motor vehicles to be qualified to operate a motor vehicle, and (3) demonstrated proof of financial responsibility, in accordance with R.C. 4509.45.

{¶ 8} The trial court originally suspended Varholick's license pursuant to R.C. 4511.19(G)(1)(e)(iv), which provides that the court shall sentence the offender to "in all cases, a class two license suspension of the offender's driver's license * * * from the range specified in [ R.C. 4510.02(A)(2) ]. The court may grant limited driving privileges relative to the suspension under [ R.C. 4510.021 and 4510.13 ]." The range specified by statute for a class two suspension is a definite period of three years to life. R.C. 4510.02(A)(2).

{¶ 9} The state does not argue that Varholick failed to comply with the requirements as set forth in R.C. 4510.038. Instead, the state claims that the trial court erred because it reinstated Varholick's license thinking that his license had been suspended pursuant to R.C. 4510.37, 4511.19, or 4510.07, three sections of the revised code that are not related to felony OVI convictions. The state is incorrect.

{¶ 10} R.C. 4510.038(A) plainly reads that

Any person whose driver's or commercial driver's license or permit is suspended or who is granted limited driving privileges under section 4510.037, under division (H) of section 4511.19, or under section 4510.07 of the Revised Code for a violation of a municipal ordinance that is substantially equivalent to division (B) of section 4511.19 of the Revised Code is not eligible to retain the license, or to have the driving privileges reinstated, until each of the following has occurred * * *.

(Emphasis added.)

{¶ 11} Thus, the trial court may not reinstate the driving privileges of a person with a suspended license until that person complies with certain requirements. The trial court may also not reinstate the driving privileges of a person who has been granted limited driving privileges under R.C. 4510.37, 4511.19, or 4510.07 until that person complies with certain requirements. While its true that Varholick did not have his license suspended or limited driving privileges pursuant to R.C 4510.37, 4511.19, or 4510.07, because he had previously had his driver's license suspended, R.C. 4510.038 and its conditions applied to him. Thus, the trial court did not err in applying the statute to Varholick and the first assignment of error is overruled.

{¶ 12} Our analysis in not complete, however, because even though the trial court did not err in applying R.C. 4510.038 to this case, the trial court did err in reinstating Varholick's driver's license as argued by the state in the second assignment of error. In this assignment of error, the state contends that the trial court erroneously reinstated Varholick's license before the 15-year waiting period in R.C. 4510.54 had elapsed. The state further argues that the court was mandated to hold a hearing on the motion.

{¶ 13} "[T]he General Assembly has carved out two procedures by which drivers under license suspensions may seek to drive and has given them distinct labels. One procedure allows limited driving privileges. R.C. 4510.021 and related statutes. The other allows termination or modification of the suspension. R.C. 4510.54." State v. Manocchio , 138 Ohio St.3d 292, 2014-Ohio-785, 6 N.E.3d 47, ¶ 18.

{¶ 14} R.C. 4510.021 gives trial courts the discretion to grant limited driving privileges during any suspension, so long as the court specifies "the purposes, times, and places of the privileges." The court may also "impose any other reasonable conditions on the person's driving of a motor vehicle." Id. Limited driving privileges can be for any of these purposes: (1) occupational, educational, vocational, or medical purposes; or (2) taking the driver's or commercial driver's license examination. Id.

{¶ 15} R.C. 4510.54(A) sets forth the process by which an offender who is under a lifetime driver's license suspension can seek reinstatement. If the offender had his or her license suspended under a class two suspension, he or she may file a motion with the sentencing court for modification or termination of the suspension. But R.C. 4510.54(A)(1)(a) specifies that if the license was suspended as a result of the offender pleading guilty to or being convicted of a felony, the offender must demonstrate that at least 15 years has elapsed since the suspension began.

{¶ 16} R.C. 4510.021(A) allows for limited driving privileges, and the Ohio Supreme Court has held that such privileges do not amount to a modification of a lifetime suspension within the meaning of R.C. 4501.54(A). Manocchio at ¶ 21 (decided under an analogous statute). But a trial court is prohibited from modifying a lifetime suspension until 15 years has elapsed from the time the suspension was imposed. See id. at ¶ 5.

{¶ 17} In addition, the statute requires the court to schedule a hearing on a petitioner's motion if the court is going to grant the motion: "The court may deny the motion without a hearing but shall not grant the motion without a hearing." R.C. 4501.54(B).

{¶ 18} Thus, in this case, the trial court was within its authority to grant limited driving privileges to Varholick but erred when it reinstated his driver's license because 15 years had not elapsed since his suspension began.

{¶ 19} The second assignment of error is sustained. The trial court is hereby ordered to reinstate Varholick's lifetime driver's license suspension.

{¶ 20} Case is reversed and remanded for proceedings consistent with this opinion.

TIM McCORMACK, P.J., and EILEEN T. GALLAGHER, J., CONCUR


source: Caselaw Access Project

author: MARY J. BOYLE, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant v. Reginald TOLBERT, Defendant-Appellee
    No. 105326
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Brett Hammond, Katherine Mullin, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Timothy Young, Ohio Public Defender, BY: Allen Vender, Andrew David Hartman, Assistant State Public Defenders, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEE.
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} This court granted plaintiff-appellant state of Ohio leave to appeal this case after the trial court vacated defendant-appellee Reginald Tolbert's postrelease control. The state raises two assignments of error for our review:

1. The trial court erred when it granted defendant's motion to vacate postrelease control. To impose valid postrelease control, the language in the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the postrelease control sections of the Ohio Revised Code and do not need to repeat what was said during the sentencing hearing.
2. The requirement that a trial court must journalize the specific requirements of postrelease control is based upon legal precedent that should not be retroactively applied in this case.

{¶ 2} In this appeal, the state acknowledges that under current precedent in the Eighth District, the postrelease-control notification was invalid because the trial court did not include the "specific consequences of violating postrelease control in the sentencing journal entry." The state contends, however, that this precedent was decided in error and should be overruled.

{¶ 3} Finding no merit to the state's appeal, we affirm the judgment of the trial court.

I. Procedural History

{¶ 4} In late 2007, Tolbert was sentenced to six years in prison for three separate cases: Cuyahoga C.P. No CR-07-498281-A, Cuyahoga C.P. No. CR-07-498417-A, and Cuyahoga C.P. No. CR-07-501690-B. In each of these cases, the trial court stated the following in the sentencing entries regarding postrelease control:

Postrelease control is part of this prison sentence for 3 years for the above felony(s) under R.C. 2967.28.

{¶ 5} Tolbert was released from prison in these cases on May 13, 2013. At that time, he was placed on three years of postrelease control.

{¶ 6} On December 13, 2013, Tolbert was convicted of receiving stolen property in Cuyahoga C.P. No. CR-13-577719-A. He was sentenced to six months in prison and advised that upon his release, he may be placed on postrelease control for up to three years.

{¶ 7} Tolbert was released from prison in CR-13-577719-A on May 15, 2014. Upon his release, the Adult Parole Authority ("APA") chose not to place him on postrelease control for this case. Instead, the APA placed Tolbert on postrelease control for the time remaining in his 2007 cases, which was 2.44 years. When Tolbert filed his motion to vacate postrelease control, he was "serving a prison sanction for violating" the terms of his 2007 postrelease control.

{¶ 8} When Tolbert filed his motion to vacate postrelease control, the state and Tolbert filed a joint statement of justiciability with the trial court along with Tolbert's motion to vacate because Tolbert had previously filed a motion to vacate postrelease control that the state opposed, believing that Tolbert was on postrelease control from his 2013 case. When the state learned that Tolbert was actually on postrelease control from his 2007 cases, it conceded that the issue was not moot and joined with Tolbert to file the statement of justiciability. The state further acknowledged to the trial court "that current binding precedent in the Eighth District Court of Appeals supports Tolbert's arguments." But the state opposed Tolbert's motion "for purposes of further appellate review."

{¶ 9} After the trial court granted Tolbert's motion to vacate his postrelease control, the state moved this court for leave to appeal, asserting that the appeal "presents this court with a question of public and general interest." The state further explained that "this exact proposition of law" was currently under review by the Ohio Supreme Court in State v. Grimes , Supreme Court Case No. 2016-0215, and that " Grimes will be dispositive of the substantive issue in the instant case." Because the state believed that Grimes would be dispositive of the issues in this appeal, it requested this court "to accept jurisdiction in this case until the Supreme Court of Ohio render[ed] its decision in Grimes ." This court granted the state leave to appeal and held the case until the Ohio Supreme Court issued its decision in Grimes , which it did so on May 24, 2017. See State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700.

{¶ 10} Because the state and Tolbert filed their briefs with this court before the Supreme Court decided Grimes , this court sua sponte issued an order asking Tolbert "to determine whether the recently announced decision [in Grimes ] is applicable to this appeal and further determine whether the appellee concedes assignment of error one." If Tolbert conceded the error, we ordered him to file a notice of conceded error by a date certain.

{¶ 11} Tolbert complied with our order and filed a supplemental memorandum, informing this court that Grimes was applicable but that he was not conceding assignment of error one. Tolbert explained that Grimes was applicable because it established what information a trial court must include in a sentencing entry to validly impose postrelease control when the court orally provided all of the required advisements at the sentencing hearing. But Tolbert maintained that even under Grimes , the trial court's advisement in his 2007 cases was invalid for two reasons: (1) it was not clear whether his postrelease control was discretionary or mandatory, and (2) the sentencing entry gave no indication at all that there were consequences for violating postrelease control.

{¶ 12} We now turn to the state's assigned errors.

II. Motion to Vacate Postrelease Control

{¶ 13} In its first assignment of error, the state argues that although the trial court followed Eighth District precedent when it vacated Tolbert's postrelease control-because the trial court failed to journalize "the specific consequences of violating postrelease control in Tolbert's 2007 cases"-the state maintains that the prior Eighth District "decisions were wrongly decided" and should be overruled.

A. Prior Eighth District Law

{¶ 14} In granting Tolbert's motion, the trial court relied on our unanimous en banc decision in State v. Mace , 8th Dist. Cuyahoga No. 100779, 2014-Ohio-5036, 2014 WL 6065663. In Mace , we were asked: "whether a sentencing journal entry that states that the appellant is subject to postrelease control for the 'maximum period allowed' for that felony is void, even if the court informed the defendant at the sentencing hearing of the specific period of postrelease control imposed." This court unanimously answered that the appellant's postrelease control was void. Id. at ¶ 1.

{¶ 15} This court has repeatedly followed Mace , finding that when a trial court failed to set forth the specific consequences for violating postrelease control (that the parole board could impose a maximum prison term of up to one-half of the prison term originally imposed) in a sentencing entry and the defendant completed his sentence, the term of postrelease control was void and should be terminated. See State v. Smith , 8th Dist. Cuyahoga No. 104632, 2016-Ohio-7898, 2016 WL 6906716 ; State v. Bryant , 8th Dist. Cuyahoga No. 102650, 2015-Ohio-3678, 2015 WL 5270713, discretionary appeal not allowed , State v. Bryant , 144 Ohio St.3d 1505, 2016-Ohio-652, 45 N.E.3d 1050 ; State v. Martin , 8th Dist. Cuyahoga No. 102336, 2015-Ohio-2865, 2015 WL 4386623 ; State v. Love , 8th Dist. Cuyahoga No. 102058, 2015-Ohio-1461, 2015 WL 1737948.

{¶ 16} But we must now consider this viability of this precedent in light of the Supreme Court's recent decision in Grimes .

B. State v. Grimes

{¶ 17} In Grimes , the Ohio Supreme Court accepted the state's discretionary appeal to address the following proposition of law:

To impose valid post release control, the language in the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the post release control sections of the Ohio Revised Code and do not need to repeat what was said during the sentencing hearing.

Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, at ¶ 7.

{¶ 18} The trial court in Grimes orally provided all of the required advisements to the offender at the sentencing hearing. The sentencing entry, however, only stated:

The Court further notified the Defendant that "Post Release Control" is mandatory in this case for three (03) years as well as the consequences for violating conditions of post release control imposed by Parole Board under Revised Code § 2967.28. The Defendant is ordered to serve as part of this sentence any term for violation of that post release control.

Id. at ¶ 2.

{¶ 19} Grimes appealed to the Fifth District when the trial court denied his motion to vacate postrelease control. State v. Grimes , 5th Dist. Muskingum No. CT2015-0026, 2015-Ohio-3497, 2015 WL 5050650, ¶ 13. The Fifth District held that the trial court's August 2011 sentencing entry was "silent as to the consequences of violating postrelease control" because the court "failed to inform [Grimes] if he violated his supervision or a condition of post-release control, the parole board could impose a maximum prison term of up to one-half of the prison term originally imposed." Id. at ¶ 12.

{¶ 20} The Supreme Court first reviewed the statutory requirements for postrelease control notifications that a trial court is required to give an offender at the sentencing hearing. It stated:

The court at a sentencing hearing must notify the offender that he or she "will" or "may" "be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for" a felony. R.C. 2929.19(B)(2)(c) and (d). The offender "will" be supervised if the offender has been convicted of a felony subject to mandatory postrelease control. R.C. 2929.19(B)(2)(c) and 2967.28(B). The offender "may" be supervised if the offender has been convicted of a less serious felony for which the APA has discretion to impose postrelease control. R.C. 2929.19(B)(2)(d) and 2967.28(C). The postrelease-control law also designates the term of supervision for each degree of felony. R.C. 2967.28(B) and (C). Additionally, the court, at the sentencing hearing, must notify the offender that if he or she "violates that supervision * * *, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender." R.C. 2929.19(B)(2)(e).

Id. at ¶ 9.

{¶ 21} The Supreme Court explained that although it had held in State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, that in order to validly impose postrelease control the notice given at the sentencing hearing must be incorporated into the sentencing entry, it had never "decided whether-and if so, how-notice of the consequences of violating a condition of postrelease control must also be incorporated into the sentencing entry." Grimes at ¶ 11, citing Jordan at ¶ 17.

{¶ 22} The Supreme Court held that to validly impose postrelease control when the court orally provides all the required advisements at the sentencing hearing, the "minimally compliant" sentencing entry must contain the following information:

(1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a statement to the effect that the APA will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute.

Id. at ¶ 1, 13.

{¶ 23} The Supreme Court explained that " 'our main focus in interpreting the sentencing statutes regarding postrelease control has always been on the notification itself and not on the sentencing entry.' " Id. at ¶ 14, quoting State v. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. The court further explained that "we have deemed the 'preeminent purpose' of R.C. 2967.28 to be that 'offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences.' " (Emphasis sic.) Id. , quoting Watkins v. Collins , 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78.

{¶ 24} "A sentencing entry's silence on postrelease control, however," would be invalid "because it is the sentencing entry that 'empowers the executive branch of government to exercise its discretion[.]' " Id. at ¶ 15, quoting Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. Essentially, the Supreme Court made clear that "a minimally compliant" sentencing entry "must provide the APA the information it needs to execute the postrelease-control portion of the sentence." Id. at ¶ 17. The Supreme Court explained that the entry in Grimes incorporated all the notifications necessary for the APA to perform its job. Id. Specifically, "[b]y specifying that Grimes was subject to mandatory supervision for three years, the entry informed the APA that it lacked discretion as to whether to impose postrelease control or for how long." Id. And because the entry also informed the APA that Grimes had been advised that if he violated any of the conditions of postrelease control there would be consequences, up to and including prison time, as described in R.C. 2967.28(D)(1), "the APA could review R.C. 2967.28 for necessary information about its authority to impose postrelease control and to punish Grimes for any violations." Id. at ¶ 18.

C. Grimes Applied

{¶ 25} The state argued in its motion for leave to appeal that Grimes would be dispositive of the issues in this case. When reviewing the trial court's postrelease control advisement in the sentencing entry in this case, there is no question that the trial court informed Tolbert of the duration of postrelease control-three years. With respect to the remaining requirements, however, Tolbert raises two arguments, which we address below.

1. Discretionary or Mandatory

{¶ 26} Tolbert first argues that the trial court's sentencing entry was invalid under Grimes because the trial court did not specifically use the word "mandatory." We disagree.

{¶ 27} The trial court's statement that "[p]ostrelease control is part of this prison sentence for 3 years" conveyed to Tolbert that his supervision would be mandatory for three years. See State v. McGee , 8th Dist. Cuyahoga No. 101307, 2014-Ohio-5289, 2014 WL 6679603 (court's sentencing entry, which stated: "postrelease control is part of this prison sentence for 5 years for the above felony(s) under R.C. 2967.28," provided the defendant with notice that he would be subject to mandatory postrelease control); State v. Rucker , 1st Dist. Hamilton No. C-150434, 2016-Ohio-5111, 2016 WL 4063866, ¶ 6 (court's statement to defendant that "you'll be on a period of supervision" was sufficient to notify him of the mandatory nature of his postrelease control).

2. Consequences for Violating Postrelease Control

{¶ 28} Tolbert next argues that the trial court's sentencing entry was invalid under Grimes because it did not give any "indication that there are consequences for violating postrelease control." We agree with this argument.

{¶ 29} In Grimes , the Supreme Court held that a trial court need not specifically spell out the consequences for violating postrelease control in the sentencing entry as long as it did so at the sentencing hearing. But it held that the sentencing entry must still contain an advisement "that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in the statute." Here, the sentencing entry says nothing about Tolbert being subject to any consequences for violating the terms of his postrelease control. Accordingly, we hold that even under Grimes , the trial court's sentencing entry was not sufficient to validly impose postrelease control.

{¶ 30} Thus, after reviewing Grimes's applicability to prior Eighth District cases, we find that they are overruled by Grimes to the extent that these cases found postrelease control to be invalid when the sentencing entry did not spell out the specific consequences for violating postrelease control. But we note that a trial court must still advise an offender that he or she will be subject to consequences under R.C. 2967.28. Grimes at ¶ 1.

{¶ 31} We need not address the state's remaining arguments within its first assignment of error because they are moot in light of Grimes , which the state acknowledged in its motion for leave to appeal and in its appellate brief.

{¶ 32} The state's first assignment of error is overruled.

III. Retroactivity

{¶ 33} In its second assignment of error, the state maintains that when the trial court announced Tolbert's sentences in 2007, the postrelease control advisement was sufficient under Eighth District law at that time. Subsequent to Tolbert's sentence, however, the Eighth District "announced a new rule of law when it held that in order to impose postrelease control sanctions, the sentencing journal entry must specifically state that if the offender violates postrelease control, he could be subject up to an additional prison term of up to one-half of the originally stated prison term." The state maintains that this "new" rule of law should not have been applied retroactively. We disagree.

{¶ 34} It is well established that when postrelease control is not properly imposed, the sentence is void and must be set aside. See State v. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958 (providing a history of Supreme Court cases on void postrelease control). Further, a void sentence can be attacked at any time. See State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus (a sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time).

{¶ 35} Because the portion of Tolbert's sentence entry that improperly advised him of postrelease control is void, the state's argument that Eighth District law should not be retroactively applied is without merit.

{¶ 36} The state's second assignment of error is overruled.

{¶ 37} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and

ANITA LASTER MAYS, J., CONCUR

      The Ohio Supreme Court accepted the state's discretionary appeal of an intra-district conflict in the Fifth District after the Fifth District issued an en banc decision in the case stating that "a majority of the full-time judges of the appellate district is unable to concur in a decision."


author: KLATT, J. TYACK, P.J., dissenting.

text:
    Janelle HARRIGILL, Plaintiff-Appellant, v. THOMPSON CONCRETE, LTD., Defendant-Appellee.
    No. 17AP-451
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Schiff & Associates Co., LPA, and Terry V. Hummel, Columbus, for appellant. Argued: Terry V. Hummel, Columbus.
    On brief: Lavell O. Payne and Kevin W. Popham, Columbus, for appellee. Argued: Lavell O. Payne.
    DECISION
   KLATT, J.

{¶ 1} Plaintiff-appellant, Janelle Harrigill, appeals the judgment of the Franklin County Court of Common Pleas that granted summary judgment for defendant-appellee, Thompson Concrete, Ltd. Because Thompson has established that there are no issues of material fact and that it is entitled to judgment as a matter of law, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On June 28, 2013, Harrigill was on her way to attend the state Special Olympics games at Ohio Stadium on the campus of The Ohio State University ("OSU") with her daughter and two young grandchildren. The weather was sunny, clear, and dry. After parking her car, Harrigill and her daughter and grandchildren began walking down the sidewalk on West 11th Avenue when they encountered a marked construction site at the intersection of West 11th Avenue and Hunter Avenue. OSU was renovating the south high rise dormitory and adjacent areas near that intersection. This large renovation project involved a number of contractors, including Thompson. Thompson was renovating the sidewalks in the area. The sidewalk renovation was not yet completed. A several-inch deep channel remained to be filled where the curbs would be installed. To facilitate foot traffic to the event, Thompson installed two-by-four inch boards in the channel to create a level temporary pedestrian walkway. The channel and crosswalk were then marked off with orange barrels to guide pedestrians as they crossed the street.

{¶ 3} As Harrigill approached the intersection of West 11th Avenue and Hunter Avenue, she encountered a plywood board that had been laid over the two-by-four inch boards to create a ramp from the road to the sidewalk. Nothing obstructed her view of the plywood board and she admits that she saw it. As Harrigill attempted to step over/onto the plywood board, she caught her left toe on the edge of the board causing her to trip and fall. Harrigill broke her femur. She admits that nothing distracted her before she tripped.

{¶ 4} Apparently, the plywood board was not present at the site the previous evening, but was placed there by unknown persons sometime prior to Harrigill's fall. There were no Thompson employees performing any work at the construction site on the day of this accident. Nor were any Thompson employees on site at the time of the accident.

{¶ 5} Harrigill filed a complaint against Thompson asserting a negligence claim. Harrigill dismissed that action without prejudice. On July 6, 2016, Harrigill refiled her complaint against Thompson, again alleging a negligence claim. On November 21, 2016, Thompson filed a motion for summary judgment, which the trial court granted.

{¶ 6} Harrigill appeals assigning the following error:

The Trial Court Erred in Granting Defendant's Motion for Summary Judgment.

LEGAL ANALYSIS

{¶ 7} Summary judgment is appropriate under Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion when viewing the evidence most strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29 ; Sinnott v. Aqua-Chem, Inc. , 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. Appellate review of a trial court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an independent review, without deference to the trial court's determination. Zurz v. 770 W. Broad AGA, LLC , 192 Ohio App.3d 521, 2011-Ohio-832, 949 N.E.2d 595, ¶ 5 (10th Dist.) ; White v. Westfall , 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, ¶ 6 (10th Dist.).

{¶ 8} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrates the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party had no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party cannot prevail on its claim. Id. If the moving party meets its burden, then the nonmoving party has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E) ; Dresher at 293, 662 N.E.2d 264. If the nonmoving party does not respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

{¶ 9} In an action for negligence, a plaintiff must prove: (1) the defendant owed plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury. Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984) ; Blain v. Cigna Corp. , 10th No. 02AP-1442, 2003-Ohio-4022, 2003 WL 21743484, ¶ 7.

{¶ 10} In her sole assignment of error, Harrigill argues the trial court erred when it granted Thompson summary judgment because there are issues of fact regarding whether: (1) Thompson breached a duty to maintain the walkway in a reasonably safe condition for pedestrians; and (2) whether there were attendant circumstances present to preclude the application of the "two-inch rule." We need only address Harrigill's second argument because it involves an issue that is dispositive of this appeal.

{¶ 11} Generally, landowners are not liable as a matter of law for minor defects in sidewalks and other walkways because these are commonly encountered and pedestrians should expect such variations in the walkways. Stockhauser v. Archdiocese of Cincinnati , 97 Ohio App.3d 29, 32, 646 N.E.2d 198 (2d Dist.1994). A pedestrian using a public sidewalk is under a duty to care for their own safety as those of ordinary carefulness and prudence would observe, but is not required to look constantly downward. Grossnickle v. Germantown , 3 Ohio St.2d 96, 104, 209 N.E.2d 442 (1965). In Kimball v. Cincinnati , 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Supreme Court of Ohio promulgated what has now come to be known as the "two-inch rule," which provides that a difference in elevation in a sidewalk or walkway, which is less than two inches, is insubstantial as a matter of law to support a negligence claim. Id. ; Stockhauser at 33, 646 N.E.2d 198. (A difference in elevation between adjoining portions of a sidewalk or walkway that is two inches or less in height is considered insubstantial as a matter of law and does not present a jury question on the issue of negligence.)

{¶ 12} However, in Cash v. Cincinnati , 66 Ohio St.2d 319, 324, 421 N.E.2d 1275 (1981), the Supreme Court modified the two-inch rule, stating that when determining a business owner's liability for defects in a sidewalk, the court should consider any attendant circumstance that would render the defect substantial. "Thus, Cash established a rebuttable presumption that height differences of two inches or less are insubstantial as a matter of law. The presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial." Stockhauser at 33, 646 N.E.2d 198 ; Blain at ¶ 8.

{¶ 13} The rebuttable presumption created by the two-inch rule also applies to an independent contractor, like Thompson, which owes a general duty of care towards a business invitee. Tomlin v. Natl. City Corp. , 11th Dist. No. 2003-T-0158, 2004-Ohio-6938, 2004 WL 2937399, ¶ 29-31. Here, it is undisputed that Harrigill tripped on the edge of a plywood board that bridged a height differential between the street and sidewalk. It is also undisputed that the height/thickness of the plywood board was one inch or less. Therefore, in the absence of attendant circumstances, Harrigill's negligence claim fails as a matter of law. Kimball ; Stockhauser ; Cash ; Blain ; Tomlin . Harrigill contends that there is evidence in the record that would permit a reasonable jury to find sufficient attendant circumstances to elevate what would otherwise be a minor nonactionable defect into a substantial risk of injury. We disagree.

{¶ 14} In order for an attendant circumstance to elevate a minor defect into a substantial defect, the circumstance must be significant enough to divert the attention of the individual and significantly enhance the danger of the hazard and, thus, contribute to the fall. Blain at ¶ 10 ; Jenkins v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 12AP-787, 2013-Ohio-5106, 2013 WL 6095878, ¶ 16. The attendant circumstance must be so abnormal that it would unreasonably increase the normal risk of harm or reduce the degree of care an ordinary person would exercise. Id. The attendant circumstances, taken together, must divert the pedestrian's attention, significantly enhance the danger of the hazard, and contribute to the fall. Id. Although not an exhaustive list, attendant circumstances can include the following: "poor lighting, a large volume of pedestrian traffic, the visibility of the defect, the overall condition of the walkway, and whether the nature of the site is such that one's attention would be easily distracted." Id. , citing Humphries v. C.B. Richard Ellis, Inc. , 10th Dist. No. 05AP-483, 2005-Ohio-6105, 2005 WL 3073697, ¶ 20.

{¶ 15} Harrigill contends that there is evidence in the record that would permit a reasonable jury to find sufficient attendant circumstances to elevate what would otherwise be a minor nonactionable defect into a substantial risk of injury. Her own testimony, however, undercuts that contention. Harrigill testified that the weather was beautiful at the time of her fall. It was sunny, clear, and dry. Nothing obstructed her view of the plywood board. Harrigill admits she saw the plywood board and as she stepped over it her left toe caught the edge of the board causing her to trip and fall. Significantly, she also admitted that nothing distracted her before she tripped. She simply tripped on the edge of the plywood board that she admits she saw as she was walking. Given this testimony, no reasonable jury could conclude that there were attendant circumstances present that would render the defect substantial.

{¶ 16} In her appellate brief, the only factors Harrigill contends are attendant circumstances are the fact that she was holding her daughter's volleyball bag and her granddaughter's hand at the time she tripped. These are not attendant circumstances because they are circumstances that Harrigill created herself. An attendant circumstance is a factor that contributes to the fall and is beyond the control of the injured party. Benton v. Cracker Barrel Old Country Store, Inc. , 10th Dist. No. 02AP-1211, 2003-Ohio-2890, 2003 WL 21291040, ¶ 17 (attendant circumstances examined in the context of "open and obvious doctrine").

{¶ 17} Due to the absence of attendant circumstances, Harrigill's negligence claim fails as a matter of law based upon the application of the two-inch rule. Therefore, we overrule her assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., dissents.

SADLER, J., concurs.

TYACK, P.J., dissenting.

{¶ 18} I respectfully dissent.

{¶ 19} We are reviewing this case in the context of whether summary judgment should have been granted by the trial court. For summary judgment to have been appropriate there must have been no genuine issues of material fact. I think there were genuine issues of material fact.

{¶ 20} In June 2013, Ms. Harrigill fell when she stepped on a plywood board lying across a sidewalk. She broke her femur as a result of the fall. She filed suit against Thompson Concrete, Ltd. ("Thompson Concrete") who she alleged was responsible for placing the board on the sidewalk, thereby creating a hazardous condition. Counsel for Thompson Concrete responded to the lawsuit arguing that it had not been negligent in creating the condition because it owed no duty of care to Ms. Harrigill. Counsel argued also that the company was not liable due to a potential application of the so-called two inch rule in slip and fall cases.

{¶ 21} Thompson Concrete has denied placing the plywood on top of the other boards in place to create a temporary crosswalk near Hunter and 11th Avenues in the Ohio State University area. However, there seems to be no doubt that the plywood was there and that Thompson Concrete was responsible for work on the sidewalks in the area. As a result, for purposes of a summary judgment motion, Thompson Concrete should be deemed the entity which was responsible for placing the plywood and/or the placement of the plywood. Thompson renovated the sidewalk at the intersection and placed wooden inlay board on the sidewalk. There was no indication that any other entity or individual was responsible for creating a temporary passage at that place and at that point in time. The trial court judge should have viewed the placement of the plywood as involving a genuine issue of material fact which should have been resolved in favor of the nonmoving party, Ms. Harrigill.

{¶ 22} The trial court also granted summary judgment based on a finding that it was not foreseeable that someone would be injured while traversing a piece of plywood that had an exposed edge of less than one inch. The trial court also found that the plywood was discoverable on ordinary inspection and readily appreciable by an ordinary person.

{¶ 23} The problem with the trial court's analysis is that Ms. Harrigill really had no choice but to go over the plywood. The crosswalk in the normal sense did not exist. Nothing was done to taper the edge of the plywood. A person who needs to cross had to cope with a sudden obstruction apparently three or more feet in length. Ms. Harrigill tried to step over the raised edge but her left toe got caught, resulting in her body being thrown forward. I view the length of the obstruction and the necessity to traverse it as attendant circumstances which did not automatically free Thompson Concrete from liability and responsibility for the fall.

{¶ 24} Since the majority of the panel upholds the trial court's granting of summary judgment, I respectfully dissent.


author: PER CURIAM.

text:
    533 SHORT NORTH LLC et al., Plaintiffs-Appellants, v. Victoria Marie ZWERIN et al., Defendants-Appellees.
    No. 16AP-490
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Law Offices of James P. Connors, and James P. Connors, Columbus, for appellants. Argued: James P. Connors.
    On brief: James E. Arnold & Associates, LPA, Gerhardt A. Gosnell, II, James E. Arnold, Columbus, and Julia A. Davis, for appellees. Argued: Gerhardt A. Gosnell, II.
    DECISION
   PER CURIAM.

{¶ 1} Plaintiffs-appellants, 533 Short North LLC ("533 Short North LLC"), Christopher J. Corso, Michael Gallicchio, and Jennifer Pepper, appeal a judgment of the Franklin County Court of Common Pleas that granted the motion to dismiss filed by defendants-appellees, Victoria Marie Zwerin, Grant William Dziak, Michael Quinn, Sarah L. Loveridge, Ashley F. Evans, Joseph Michael Harvey, Brett Fidram, Scott Hetrick, Savannah Lennon, Brenda L. Winters, Lisa A. DeVine, Joseph A. Shuster, Tiffany Rae Good, James Curtis VanMeter, Frank Parrish, Andrew R. Frisch, and Morgan & Morgan PA.

{¶ 2} We previously set forth the facts of this protracted litigation in detail in 533 Short North, LLC v. Zwerin , 10th Dist. No. 14AP-1016, 2015-Ohio-4040, 2015 WL 5771924 (" 533 Short N. "), and the following factual summary includes a slightly abbreviated version of the facts from that decision. 533 Short North LLC is the owner of a chain of bars in Columbus, Ohio. Zwerin is a former employee of 533 Short North LLC. In 2010, Zwerin filed an action in the United States District Court for the Southern District of Ohio against 533 Short North LLC and individuals who either worked for or had an interest in 533 Short North LLC (hereinafter collectively referred to as "533 Short North"), alleging that 533 Short North's tipping practices violated federal and state wage and hour laws. Frisch, an attorney with Morgan & Morgan, PA, represented Zwerin. Subsequently, some of Zwerin's co-employees opted into the collective action sought by Zwerin.

{¶ 3} In late 2011, the parties entered into a monetary settlement that included a confidentiality provision that precluded Zwerin from disclosing the terms of the settlement.

{¶ 4} On May 25, 2012, Zwerin electronically filed a motion seeking the district court's approval of the settlement agreement. Zwerin appended to her motion a copy of the parties' settlement agreement. 533 Short North immediately objected to the filing of the settlement agreement on the publicly accessible docket system. Zwerin withdrew the motion and exhibits, but the motion was not removed from the database until four days later due to an intervening weekend and holiday. The district court subsequently approved the settlement agreement.

{¶ 5} On May 30, 2012, the Columbus Dispatch published on its website an article about Zwerin's claims and the settlement. The same article appeared in the print version of the Columbus Dispatch the next day. The article included statements attributed to Frisch and two opt-in plaintiffs that included information that appellees believed violated the confidentiality agreement. On the same day the Columbus Dispatch published the print version of the article, the website "Breakinglawsuitnews.com" posted a story about the parties' settlement that included much of the same information as the Columbus Dispatch article. Approximately two weeks later, the website "Openforum.com" posted an article that reported information that appellees believe violated the confidentiality agreement. Frisch also described Zwerin's suit and posted a link to the Columbus Dispatch article on a blog that he maintains.

{¶ 6} On August 24, 2012, Zwerin filed a motion for certification of the settlement class and final approval of the settlement. 533 Short North did not oppose the motion and did not raise any objections at the hearing on the motion. On August 31, 2012, the district court granted Zwerin's motion, certified the settlement class, approved the settlement agreement, and dismissed the case.

{¶ 7} After failing to make the settlement payment due September 10, 2012, 533 Short North filed a motion seeking dismissal of the action with prejudice and imposition of sanctions against Zwerin and the settlement class based on alleged confidentiality agreement breaches. On September 27, 2012, the class plaintiffs filed a memorandum in opposition to 533 Short North's motion to dismiss, to which they attached the settlement agreement as an exhibit. The alleged breaches in 533 Short North's motion to dismiss included: (1) the May 25, 2012 filing of the settlement agreement as an exhibit to the motion seeking preliminary approval of the agreement, (2) the Columbus Dispatch article, and (3) the September 27, 2012 filing of the settlement agreement as an exhibit to the class plaintiffs' memorandum in opposition to 533 Short North's motion to dismiss.

{¶ 8} On November 2, 2012, the district court denied 533 Short North's motion and ordered 533 Short North to comply with the settlement agreement, finding that, with regard to the first two breaches, 533 Short North waived any right to invoke the court's action related to them based on estoppel by acquiescence due to the failure of 533 Short North to object to the breaches prior to the court's approval of the parties' confidential settlement agreement in August 2012, three months after the alleged breaches. With regard to the third breach, the court found the class plaintiffs had filed the settlement agreement mistakenly believing it was no longer confidential because it had become the subject of further litigation and, regardless, the clerk removed the settlement agreement from the docket and placed it under seal.

{¶ 9} 533 Short North continued to withhold the settlement payment, claiming the class plaintiffs had breached the confidentiality agreements, and the class plaintiffs moved to compel payment. On November 20, 2012, the district court found it had already held in the November 2, 2012 order that 533 Short North waived any right it had to its breach claims. 533 Short North appealed to the Sixth Circuit Court of Appeals.

{¶ 10} While that appeal was pending, 533 Short North filed the present action, seeking damages, as well as injunctive and declaratory relief, based on the alleged breaches of the confidentiality agreement. Appellees filed a Civ.R. 12(B)(6) motion to dismiss, arguing the doctrine of issue preclusion precluded the action because the district court had already found 533 Short North had waived its right to relief for any breaches of confidentiality that occurred prior to final approval of the settlement agreement. The trial court agreed, and it converted appellees' motion to dismiss into a motion for summary judgment.

{¶ 11} On June 10, 2014, the Sixth Circuit Court of Appeals affirmed the district court's decision, finding 533 Short North failed to alert the district court to the first two alleged breaches, and, with regard to the third alleged breach, the district court did not abuse its discretion by providing tailored relief in the form of an order to the clerk to remove the document from the docket and place it under seal. The Sixth Circuit further concluded that, because 533 Short North could pursue a state court action for breach of the settlement agreement's confidential provisions, the district court was not required to set aside its judgment.

{¶ 12} On November 10, 2014, the trial court granted appellees' converted motion for summary judgment. The trial court found the issue of whether 533 Short North waived its right to object to appellees' alleged breaches of the confidentiality agreements had been litigated and determined by the federal district and appellate courts, and the issue could not be relitigated.

{¶ 13} 533 Short North appealed the judgment, and this court affirmed in part and reversed in part the trial court's decision in 533 Short N. We found the trial court properly found issue preclusion barred the relitigation of whether 533 Short North waived its right to relief for alleged breaches of confidentiality that occurred prior to the final approval of a settlement agreement, but to the extent that any alleged breaches happened after the approval of the settlement agreement, collateral estoppel did not apply. Therefore, we remanded the matter to the trial court to determine whether-in addition to the post-settlement agreement breach in the September 27, 2012 electronic court filing-there were alleged breaches that occurred after the settlement agreement.

{¶ 14} On remand, on December 9, 2015, the trial court held a status conference, and, on December 11, 2015, the court issued an entry journalizing the status conference. In the entry, the trial court ordered mediation. The court also ordered that if the matter was not resolved through mediation "[533 Short North] will file an Amended Complaint narrowing the issues remaining to be litigated," within 30 days of the mediation date, December 23, 2015. The matter did not settle, but 533 Short North failed to file an amended complaint.

{¶ 15} On January 27, 2016, the trial court issued another entry, in which it quoted the language of the December 11, 2015 entry and noted that 533 Short North had not yet filed an amended complaint. The court ordered that "[p]laintiffs shall have 14 days from the date of this Order within which to file their Amended Complaint." (Emphasis sic.) 533 Short North again failed to file an amended complaint within the time given by the trial court.

{¶ 16} On March 25, 2016, 533 Short North filed a motion for default judgment, asserting no defendants had filed an answer to the original complaint.

{¶ 17} On April 4, 2016, appellees filed a motion to dismiss, arguing that 533 Short North had failed to comply with the court's two orders to file an amended complaint. On April 6, 2016, 533 Short North filed a memorandum contra motion to dismiss in which it claimed that neither of the trial court's entries ordered or required it to file an amended complaint but merely provided it an opportunity to file an amended complaint should it choose to do so, but 533 Short North saw no need to amend its complaint.

{¶ 18} On April 19, 2016, the parties attended a status conference at which 533 Short North again indicated that it did not see a need to amend its complaint and was not going to amend its complaint. The trial court issued a journal entry on that date, indicating the parties shall have seven days from the date of the entry to file any additional responses or memoranda to the pending motions.

{¶ 19} On April 20, 2016, 533 Short North filed a motion for leave to amend the complaint instanter. 533 Short North acknowledged it did not believe it needed to amend its complaint but was doing so to move the case forward. Attached to the memorandum in support of the motion for leave to amend was an affidavit submitted by counsel for 533 Short North, in which he detailed his refusal to amend the complaint, claimed the court orders never actually ordered him to amend the complaint, and explained he never requested to amend the complaint.

{¶ 20} On July 1, 2016, the trial court issued a decision and entry denying 533 Short North's March 25, 2016 motion for default judgment; granting appellees' April 4, 2016 motion to dismiss, and denying 533 Short North's April 20, 2016 motion for leave to amend complaint instanter. The trial court found 533 Short North intentionally defied the two orders to file an amended complaint narrowing down the issues to remain litigated, and the amended complaint submitted with the motion for leave actually expanded and added to the original complaint allegations that did not identify when the other alleged breaches took place. The court also took issue with 533 Short North's filing of the motion for default judgment with regard to the original complaint, when the trial court had clearly ordered 533 Short North to file an amended complaint. The court rejected 533 Short North's contention that it could not narrow the issues until appellees provided an answer or discovery, given 533 Short North filed the complaint and should be aware of when the other alleged breaches raised in the complaint occurred. The court concluded that dismissal with prejudice, pursuant to Civ.R. 41(B), was appropriate given 533 Short North's deliberate and dilatory actions. 533 Short North appeals the judgment of the trial court, asserting the following assignments of error:

[I.] The trial court erred by granting defendants' Motion to Dismiss pursuant to Civ.R. 41(B) on remand from the first appeal in 533 Short North LLC v. Zwerin , 2015-Ohio-4040 [2015 WL 5771924], 14AP-1016 for failing to obey a court order.
[II.] The trial court erred by denying plaintiffs' Motion for Leave to Amend Complaint Instanter.
[III.] The trial court erred by denying plaintiffs' Motion for Default Judgment.

{¶ 21} We address all of 533 Short North's assignments of error together. 533 Short North argues in its first assignment of error the trial court erred when it granted appellees' motion to dismiss, pursuant to Civ.R. 41(B)(1), on remand from the first appeal for failing to obey a court order. 533 Short North argues in its second assignment of error the trial court erred when it denied its motion for leave to amend complaint instanter. 533 Short North argues in its third assignment of error the trial court erred when it denied its motion for default judgment. A dismissal under Civ.R. 41(B)(1)"operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies." Civ.R. 41(B)(3). In reviewing a dismissal, pursuant to Civ.R. 41(B)(1), the Supreme Court of Ohio has found: "The decision to dismiss a complaint for failure to prosecute is within the sound discretion of the trial court, and an appellate court's review of such a dismissal is confined solely to the question of whether the trial court abused its discretion." Jones v. Hartranft , 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997), citing Pembaur v. Leis , 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982). The court cautioned that "although reviewing courts espouse an ordinary 'abuse of discretion' standard of review for dismissals with prejudice, that standard is actually heightened when reviewing decisions that forever deny a plaintiff a review of a claim's merits." Id. Proper factors for consideration in a Civ.R. 41(B)(1) dismissal with prejudice include the drawn-out history of the litigation and evidence that a plaintiff is deliberately proceeding in dilatory fashion." Id. Thus, "[w]hile a heightened scrutiny is utilized when reviewing a dismissal with prejudice, the action of the trial court will be affirmed when the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order." (Internal quotations and citations omitted.) Harris v. Harris , 10th Dist. No. 98AP-1077, 1999 WL 418102 (June 24, 1999).

{¶ 22} As explained above, Civ.R. 41(B)(1) allows for dismissal "after notice to the plaintiff's counsel." "The purpose of notice is to give the party who is in jeopardy of having his or her action or claim dismissed one last chance to comply with the order or to explain the default." Sazima v. Chalko , 86 Ohio St.3d 151, 158, 712 N.E.2d 729 (1999). The notice given pursuant to Civ.R. 41(B)(1) need not be actual notice. Id. at 155-56, 712 N.E.2d 729. Rather, notice will be implied when counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal. Quonset Hut, Inc. v. Ford Motor Co. , 80 Ohio St.3d 46, 684 N.E.2d 319 (1997), syllabus. Thus, appellate review of a dismissal for failure to prosecute involves two assessments: first, whether the plaintiff was provided with sufficient notice prior to the dismissal, and second, whether the dismissal constituted an abuse of discretion. Williams v. RPA Dev. Corp. , 10th Dist. No. 07AP-881, 2008-Ohio-2695, 2008 WL 2308822, ¶ 8.

{¶ 23} In the present case, 533 Short North first argues it was not until the April 19, 2016 status conference that it became apparent the trial court wanted it to file an amended complaint, and it immediately responded by filing an amended complaint on April 20, 2016. 533 Short North asserts the trial court was upset with this court's decision in 533 Short N. , and such was not a reasonable basis to dismiss the case on remand. 533 Short North claims it did not disobey any court orders and fully complied once the court notified it what it wanted. It then claims there was nothing for it to modify in terms of its complaint because those allegations constituted the extent of its knowledge at the time, and its efforts to explain this to the trial court fell on "deaf ears." 533 Short North claims there were less drastic remedies available instead of dismissal, including reprimand, contempt, barring the attorney from representing the party, and dismissal without prejudice. 533 Short North contends the trial court gave it no notice of what was necessary to avoid dismissal.

{¶ 24} Even considering our heightened abuse-of-discretion standard, we find the trial court did not abuse its discretion. 533 Short North's contentions are unconvincing. As recited above, in the trial court's December 11, 2015 entry journalizing status conference, the court ordered that if the matter was not resolved through mediation, "[533 Short North] will file an Amended Complaint narrowing the issues remaining to be litigated," within 30 days of the mediation date, December 23, 2015. This language is explicit and clear. On January 27, 2016, the trial court issued another entry, in which it quoted the above explicit language from the December 11, 2015 entry and ordered that "[p]laintiffs shall have 14 days from the date of this Order within which to file their Amended Complaint." (Emphasis sic.) When the language of the December 11, 2015 and January 27, 2016 entries are read separately and together, it is unmistakable that the trial court was ordering 533 Short North to file an amended complaint. 533 Short North's claim in its April 6, 2016 memorandum contra motion to dismiss that neither of the trial court's entries required it to file an amended complaint was unsupportable in light of the clear language utilized.

{¶ 25} Perhaps more telling as to 533 Short North's true state of mind was the belief it espoused in its memorandum contra that it saw no need to amend its complaint. This same posture was reiterated to the trial court at the April 19, 2016 status conference, and, in fact, 533 Short North indicated to the trial court it would not amend the complaint. Similarly, in 533 Short North's April 20, 2016 motion for leave to amend the complaint instanter, 533 Short North again stated it did not believe it needed to amend its complaint but was doing so to move the case forward. To further drive home its belief, in the memorandum in support of the motion for leave to amend, counsel for 533 Short North submitted an affidavit, in which he detailed his refusal to amend the complaint and reiterated the claim that court orders never actually ordered him to amend the complaint. Thus, it appears 533 Short North failed to amend its complaint not because it did not believe it was ordered to do so but, instead, because it did not believe there was a need to do so. However, 533 Short North's belief was irrelevant, given the trial court's clear mandate to file an amended complaint.

{¶ 26} Although 533 Short North contends dismissal was harsh and extreme-claiming the trial court was upset with this court for reversing its earlier judgment-our reading of the record, instead, suggests the trial court was frustrated by 533 Short North's repeated refusal to file an amended complaint narrowing the issues remaining before the court despite two orders to do so. The trial court noted in its July 1, 2016 judgment that, although 533 Short North indicated at the status conference it saw no need to amend the complaint and would not do so, in the interest of fairness, it issued the April 19, 2016 entry giving the parties an additional seven days to respond to pending motions. 533 Short North then filed a motion for leave to amend complaint on April 20, 2016, but the trial court found the proposed amended complaint was deficient. The court found the proposed amended complaint did not narrow the issues but, instead, reiterated nearly all of the same language from the original complaint and then added new allegations. The court believed 533 Short North's four-month refusal to abide by court orders, while also attempting to file an amended complaint that disregarded the court's order to narrow the issues remaining to be litigated, demonstrated deliberate dilatory behavior. The trial court's findings, in this respect, are clear and we find they were not an abuse of discretion.

{¶ 27} Furthermore, 533 Short North argues if the trial court was confused about what claims remained on remand, a less drastic resolution could have been reached other than dismissal, such as allowing additional motions or holding a status conference. This argument is without merit. Status conferences were held. Entries were issued. Appellees filed a motion to dismiss. The trial court was explicit about what it wanted clarified in an amended complaint. The trial court explained this court reversed its prior decision because there was a lack of information in the complaint about the timing of some of the alleged breaches, and the trial court wanted 533 Short North to amend the complaint to identify any alleged breaches that occurred after the approval of the settlement agreement. Despite the status conferences, the court entries, and appellees' motion to dismiss, 533 Short North still refused to amend its complaint. In its judgment, the trial court acknowledged the harshness of dismissal and noted the long-standing Ohio precedent that establishes a preference for resolving matters on their merits but determined 533 Short North's persistent refusal to obey the court's order and deliberate dilatory actions constituted substantial grounds for dismissal with prejudice. We find no error, and reject 533 Short North's argument in this respect.

{¶ 28} With regard to 533 Short North's third assignment of error that asserts the trial court erred when it denied its motion for default judgment, it must be apparent at this juncture that we find no error in the trial court's denial of the motion. Although 533 Short North contends the trial court did not discuss the merits of the motion in its judgment, the trial court did, in fact, address the motion. The court indicated in its judgment:

For over four months, Plaintiffs refused to file an Amended Complaint and represented to the Court that they did not feel that an amendment was needed. They went so far as to file a Motion for Default Judgment, arguing such relief was appropriate because Defendants had not yet answered Plaintiffs['] original Complaint, when the Court's orders made it clear that Plaintiffs needed to first file an Amended Complaint and then Defendants would file an Answer to the Amended Complaint.
Plaintiffs' argument that they could not narrow down the issues to be litigated when there has been no Answer and no discovery is not well taken. Plaintiffs are the ones bringing this suit * * *. [I]t is Plaintiffs who would possess that information as to when those alleged breaches took place, and there is no need for Defendants to first file an Answer or even engage in discovery for Plaintiffs to identify when those alleged breaches took place.

Thus, the court's reason for denying 533 Short North's motion for default judgment was clear: The court found default for failure to file an answer was improper because 533 Short North had failed to file an amended complaint in conformity with the court's prior demands. Therefore, we find this argument without merit. For all the foregoing reasons, we overrule 533 Short North's first, second, and third assignments of error.

{¶ 29} Accordingly, 533 Short North's three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed .

BROWN, DORRIAN, and LUPER SCHUSTER, JJ., concur.