author: MARY EILEEN KILBANE, P.J.:

text:
    Gloria WESOLOWSKI, Plaintiff-Appellee v. PLANNING COMMISSION, City of Broadview Heights, et al., Defendants-Appellants
    No. 105697
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 5, 2018
    R. Todd Hunt, Aimee W. Lane, Walter & Haverfield, L.L.P., The Tower at Erieview, 1301 East 9th Street-Suite 3500, Cleveland, Ohio 44114, Vince Ruffa, Director of Law, City of Broadview Heights, Richard Pignatiello, Joseph Grandinetti, Assistant Directors of Law, 9543 Broadview Road, Broadview Heights, Ohio 44146, ATTORNEYS FOR APPELLANTS
    Benjamin J. Ockner, Majeed G. Makhlouf, Berns, Ocknew & Greenberger, L.L.C., 3733 Park East Drive-Suite 200, Beachwood, Ohio 44122, ALSO LISTED, For Cuyahoga County Fiscal Officer, Robert J. Triozzi, Cuyahoga County Director of Law, BY: Robin M. Wilson, Assistant Director of Law, 2079 East 9th Street, 7th Floor, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE
    BEFORE: Kilbane, P.J., McCormack, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendants-appellants, the city of Broadview Heights Planning Commission and the city of Broadview Heights (collectively referred to as "the City"), appeal from the trial court's decision granting partial summary judgment in favor of plaintiff-appellee, Gloria Wesolowski ("Wesolowski"), on her claim for declaratory judgment. For the reasons set forth below, we affirm.

{¶ 2} This instant appeal arises from the City's denial of Wesolowski's plan to subdivide her approximately 3.42 acres of land into three additional residential lots. Wesolowski has owned the property, which is located in Broadview Heights, since 2006. Between 1988 and 2007, the City levied a special assessment on the property for sanitary sewer improvements on the determination that the assessment would benefit the houses that could be built on the rectangular-shaped property.

{¶ 3} Currently, the property has one single-family home on its eastern end toward Broadview Road. The new homes were proposed to be built on the portion extending westward behind the existing home. In early 2015, Wesolowski submitted the first of three applications for approval to create additional lots on her property. The plan included additional land adjacent to one of Wesolowski's parcels that she was going to purchase from her neighbor, Andrew Alai ("Alai"). The City conditionally approved her first proposed subdivision layout in May 2015. The approval was conditioned on Wesolowski's agreement to donate one of the newly subdivided lots to the City for use in managing area storm water. Ultimately, the City denied approval in January 2016.

{¶ 4} In February 2016, Wesolowski reapplied for approval with an amendment to her initial proposal. The amended proposal contained a total of four lots, with no donation to the City. The second proposal also incorporated the area of property Wesolowski had under contract with Alai. With this additional land, the three newly created lots would be 30,000 square feet, which was the City's minimum lot size. Alai rescinded the purchase offer on March 9, 2016, the same day of the Planning Commission's meeting. The Planning Commission then determined that Wesolowski's plan needed to be corrected and resubmitted before it could be considered.

{¶ 5} On March 30, 2016, Wesolowski submitted a revised third version of the proposed subdivision. The third revision contained redrawn property lines and additional information addressing comments from the City and neighboring residents (the size, style, and values of the proposed new homes along with those in the neighborhood). This amended proposal was denied at the April 13, 2016 Planning Commission meeting.

{¶ 6} On May 17, 2016, Wesolowski's counsel made a formal written demand to the Planning Commission under R.C. 711.09(C) for a "certificate in lieu of endorsement of approval" of her proposed subdivision. On May 31, 2016, the City's Assistant Law Director replied to Wesolowski in a letter in which he stated that he was just recently able to compile a summary of reasons for the Planning Commission's denial of her minor subdivision because the meeting minutes did not become available until May 18, 2016. The Planning Commission denied the proposed subdivision because the layout is unsatisfactory and the proposal did not comply with the City's Zoning Code, including Section 1246.05-Lot Design. The letter goes on to state that Wesolowski does not have enough property to have an approvable subdivision.

{¶ 7} Also in May 2016, Wesolowski filed two separate cases in the Cuyahoga County Court of Common Pleas. In Cuyahoga C.P. No. CV-16-863151, she filed a petition for approval of lot-split under R.C. 711.09(C). In Cuyahoga C.P. No. CV-16-863175, she filed an administrative appeal from the Planning Commission's April 13, 2016 decision. The trial court consolidated the two cases in July 2016.

{¶ 8} In August 2016, Wesolowski filed an amended petition. In her amended petition, Wesolowski sought approval of her amended subdivision plan under R.C. 711.09 and a peremptory or alternative writ of mandamus, or in the alternative, a complaint for declaratory relief. Wesolowski alleges that she has no administrative remedy to compel the City to perform the duty R.C. 711.09(C) imposes on the Planning Commission to issue the demanded certificate in lieu of a written endorsement of approval for the amended subdivision plan.

{¶ 9} More specifically, she alleges that the City failed to comply with R.C. 711.09(C) and the Broadview Heights Codified Ordinances 1244.03(d) ("B.H.C.O. 1244.03(d)"), which provides:

Rejection. If the Commission determines that [the sketch plan] is a major subdivision, or the sketch plan is not approved for other reasons, the Commission shall state the conditions to be complied with before it will be approved and return the sketch to the developer with reasons specified.

R.C. 711.09(C) imposes a 30-day time frame to deny an application for plat approval. She alleges that as of May 2, 2016, the 33rd day following her March 30, 2016 sketch plan, the City failed to: (1) return the plan; (2) provide an endorsement reflecting its refusal to approve it; (3) adopt a statement of the grounds for refusing the sketch plan; and (4) provide a statement of the conditions to be complied with before the sketch plan would be approved. She further alleges that on May 17, 2016, 48 days after the submission of her sketch plan, she sent the City a formal demand under R.C. 711.09(C) for the required "certificate in lieu of endorsement of approval," which the City never issued. As a result, Wesolowski contends she is entitled to a declaratory judgment that her amended sketch plan is deemed approved, and the City must issue her the certificate in lieu of written endorsement of approval.

{¶ 10} In September 2016, Wesolowski filed a motion for partial summary judgment as to the mandamus and declaratory judgment claims. The City opposed, arguing that: (1) R.C. 711.09(C) does not apply because, by its plain language, the statute only applies to village planning commissions; (2) the City has its own subdivision regulations under its home rule powers; and (3) Wesolowski has an adequate administrative remedy at law-her R.C. Chapter 2506 appeal. The trial court denied Wesolowski's motion with respect to her mandamus claim, but granted Wesolowski's summary judgment as to the declaratory judgment claim. The trial court stated:

[Wesolowski] is hereby granted a declaratory judgment pursuant to [ R.C. 2721.03 ]. The [ R.C. 711.09(C) ] conditions to [Wesolowski's] entitlement to the demanded certificate of approval have been satisfied, and the City is required by the statute to issue that certificate to [Wesolowski] forthwith. [The City] has not complied with the procedural standards and timeframes of [ R.C. 711.09(C) ] and [Wesolowski's] right to a certificate of approval as provided for in [ R.C. 711.09(C) ] has matured. [Wesolowski's] R.C. Chapter 2506 appeal and all other pending claims are hereby stayed. Pursuant to Civ.R. 54(B) there is no just reason for delay.

{¶ 11} It is from this order that the City appeals, raising the following single assignment of error for review:

Assignment of Error
The trial court erred in granting summary judgment to [Wesolowski] with respect to her declaratory judgment claim and ordering [the City] to issue a certificate to [Wesolowski] pursuant to the subdivision procedures set forth in R.C. 711.09(C) because being a city planning commission, rather than a village commission, this statute does not apply to [the City] and the subdivision of property in the City is governed by the subdivision regulations adopted by City Council pursuant to the home rule powers granted to municipal corporations by Article XVIII, Section 3 of the Ohio Constitution.

Standard of Review-Summary Judgment

{¶ 12} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) ; Zemcik v. LaPine Truck Sales & Equip. Co. , 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), the Ohio Supreme Court set forth the appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (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 and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.

{¶ 13} Once the moving party satisfies its burden, the nonmoving 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." Civ.R. 56(E) ; Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

Declaratory Judgment

{¶ 14} The purpose of a declaratory judgment action is " 'to serve the useful end of disposing of uncertain or disputed obligations quickly and conclusively.' " Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 46 quoting Ohio Farmers Indemn. Co. v. Chames , 170 Ohio St. 209, 213, 163 N.E.2d 367 (1959). Issues of statutory interpretation can be properly presented in a complaint for declaratory judgment. R.C. 2721.03.

{¶ 15} In order to obtain declaratory judgment relief, a party must establish: (1) a real controversy exists between the parties; (2) the controversy is justiciable; and (3) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Ohio Liquor Control Comm. , 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973), citing American Life & Acc. Ins. Co. v. Jones , 152 Ohio St. 287, 89 N.E.2d 301 (1949).

{¶ 16} With these principles in mind, we now turn to the following issues the City raises in its assignment of error: (1) whether the provisions of R.C. 711.09(C) are inapplicable to the City; (2) whether the City's ordinances, as a "home rule" municipality, prevail over the provisions in R.C. 711.09(C) ; and (3) whether Wesolowski has an adequate administrative remedy to obtain the relief sought in her case through her R.C. Chapter 2506 administrative appeal.

R.C. 711.09

{¶ 17} The City argues that R.C. 711.09(C) is inapplicable to it because the statute applies only to village planning commissions. Alternatively, the City argues that even if R.C. 711.09(C) is applicable to it, the City's subdivision regulations prevail under the "home rule."

{¶ 18} R.C. 711.09 governs "planning commission or legislative approval of plat; petition for recording; and village subdivision regulation[.]" It provides in relevant part:

(A)(1) Except as otherwise provided in division (A)(2) of this section, when a city planning commission adopts a plan for the major streets or thoroughfares and for the parks and other open public grounds of a city or any part of it, or for the unincorporated territory within three miles of the corporate limits of a city or any part of it, then no plat of a subdivision of land within that city or territory shall be recorded until it has been approved by the city planning commission and that approval endorsed in writing on the plat.
* * *
(B)(1) Except as otherwise provided in division (B)(2) of this section, when a village planning commission , a platting commissioner, or, if there is no commission or commissioner, the legislative authority of a village, adopts a plan for the major streets or thoroughfares and for the parks and other public grounds of a village or any part of it, then no plat of a subdivision of land within that village shall be recorded until it has been approved by the village commission, commissioner, or legislative authority and that approval endorsed in writing on the plat.
* * *
(C) The approval of the planning commission, the platting commissioner, or the legislative authority of a village required by this section, or the refusal to approve, shall be endorsed on the plat within thirty days after the submission of the plat for approval or within such further time as the applying party may agree to; otherwise that plat is deemed approved, and the certificate of the planning commission, the platting commissioner, or the clerk of the legislative authority , as to the date of the submission of the plat for approval and the failure to take action on it within that time, shall be issued on demand and shall be sufficient in lieu of the written endorsement or other evidence of approval required by this section. The planning commission, platting commissioner, or legislative authority of a village shall not require a person submitting a plat to alter the plat or any part of it as a condition for approval, as long as the plat is in accordance with the general rules governing plats and subdivisions of land, adopted as provided in this section, in effect at the time the plat was submitted. The ground of refusal or approval of any plat submitted, including citation of or reference to the rule violated by the plat, shall be stated upon the record of the commission, commissioner, or legislative authority. Within sixty days after refusal, the person submitting any plat that the commission, commissioner, or legislative authority refuses to approve may file a petition in the court of common pleas of the proper county, in which the person shall be named plaintiff. * * * The court shall hear the matter upon such evidence as is introduced by either party and the planning authority may introduce as a part of its case a complete transcript of any proceedings had before it. * * * If the court finds that the prayer for the recording of the plat or any modification of it as may be agreed to or proposed by the plaintiff, is supported by a preponderance of the evidence, it shall enter an order directed to the recorder to record the plat as originally submitted or as agreed to be modified. Otherwise, the petition shall be dismissed. * * * The judgment or order of the court may be appealed by either party on questions of law as in other civil cases.
* * *
In the exercise of any power over or concerning the platting and subdivision of land or the recording of plats of subdivisions by a city, county, regional, or other planning commission pursuant to any other section of the Revised Code, the provisions of this section with respect to appeals from a decision of a planning commission apply to the decision of any such commission in the exercise of any power of that kind granted by any other section of the Revised Code in addition to any other remedy of appeal granted by the Revised Code.

(Emphasis added.)

{¶ 19} The City contends that the plain reading of the statute mandates that R.C. 711.09(A) only applies to city planning commissions and R.C. 711.09(B) and (C) only apply to village planning commissions.

{¶ 20} We note that a court's primary goal in statutory interpretation is to give effect to the legislature's intent. Christe v. GMS Mgt. Co. , 88 Ohio St.3d 376, 377, 726 N.E.2d 497 (2000). As the Ohio Supreme Court stated in Simpkins v. Grace Brethren Church of Delaware , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 53 :

In determining that intent, the court first looks to and gives effect to the statutory language without deleting words used or inserting words not used. Bailey v. Republic Engineered Steels, Inc. , 91 Ohio St.3d 38, 39-40, 2001-Ohio-236, 741 N.E.2d 121 (2001), citing Provident Bank v. Wood , 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973) and Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus. If the meaning of the statute is unambiguous, we must apply it as written. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 1996-Ohio-291, 660 N.E.2d 463 (1996).

{¶ 21} In the instant case, a plain reading of the statute reveals the legislature intended that the remedial procedures in R.C. 711.09 apply to both cities and villages. In fact, the first sentence of R.C. 711.09(C) provides that the "approval of the planning commission, the platting commissioner, or the legislative authority of a village required by this section , or the refusal to approve, shall be endorsed on the plat within thirty days after the submission of the plat for approval[.]" (Emphasis added.) On its face, R.C. 711.09(C) applies to "approvals" by the "planning commission" (a city's planning commission) required by "this section" ( R.C. 711.09 ). When reading R.C. 711.09 as a whole, it explicitly states where it intends to restrict its operation to only "village planning commissions" in R.C. 711.09(B)(1) and the third paragraph of 711.09(C). Therefore, R.C. 711.09(C)'s general reference to "planning commission," without the qualifier, refers to all "planning commissions" referenced in section R.C. 711.09, just as R.C. 711.09(C)'s first sentence specifies.

{¶ 22} In support of its argument, the City relies on State ex rel. Hillside Park Estates, Inc., v. Cotner , 4 Ohio St.2d 25, 211 N.E.2d 832 (1965). We note that in Hillside , the Ohio Supreme Court discussed an earlier version of R.C. 711.09 that did not contain any mention of "planning commission" or "platting commissioner." In C & D Partnership v. Gahanna , 10th Dist. Franklin No. 82AP-919, 1983 WL 3718 (Oct. 6, 1983), the concurring opinion addresses the legislative history of R.C. 711.09 and its applicability to city and village planning commissions. The opinion states:

R.C. 711.09 applies to city as well as village planning commissions. [This] is clear from the legislative history, any confusion resulting solely from the substitution of the words 'legislative authority of a village' from the original words 'village council' made by the 1953 Code Revision * * * did not change the meaning of the statute.

Id. at 5, fn.1. Thus, based on the foregoing, a plain reading of R.C. 711.09 provides that the remedial provisions of R.C. 711.09(C) apply to both cities and villages.

{¶ 23} The City next argues that even if R.C. 711.09(C) could be construed to be applicable, the adoption of local subdivision regulations by a "home rule municipal corporation," such as the City, is an exercise of the power of local self-government. As a result, the City maintains that its subdivision regulations, found in its planning and zone code (Chapter 1244), prevail over state law, specifically, the procedural remedies set forth in R.C. 711.09(C).

{¶ 24} The City, however, mischaracterizes local subdivision regulations as an exercise of its municipal "power of self-government." Rather, the City's exercise of local subdivision regulations is an exercise of "police powers." Both powers comprise the "home rule" power conferred on Ohio municipalities in Article XVIII, Section 3, of the Ohio Constitution, which provides that: "[m]unicipalities shall have authority to exercise all powers of local self-government to adopt and enforce within their limit such local police, sanitary and other similar regulations, as are not in conflict with general laws." Under this section, "municipal charter and ordinance provisions enacted under the power of local self-government prevail over state statutes, and only municipal regulations enacted pursuant to a city's police powers are subject to the general laws of the state." Ohio Assn. of Pub. School Emps. v. Twinsburg , 36 Ohio St.3d 180, 182, 522 N.E.2d 532 (1988), citing State ex rel. Canada v. Phillips , 168 Ohio St. 191, 151 N.E.2d 722 (1958).

{¶ 25} In State ex rel. Kearns v. Ohio Power Co. , 163 Ohio St. 451, 460, 127 N.E.2d 394 (1955), the Ohio Supreme Court included "planning" in its definition of police power. The court stated that planning "embraces the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly included within the police power." Id. , citing 1 Yokley's Zoning Law and Practice 2, 3, Section 1 (2d Ed.); Mansfield & Swett, Inc. v. Town of West Orange , 120 N.J.L. 145, 149, 198 A. 225 (1938) ; Mills v. Baton Rouge , 210 La. 830, 839, 28 So.2d 447 (1946).

{¶ 26} In the instant case, because the City's subdivision planning ordinances are an exercise of "local police power," the ordinances must be reconciled with the "general laws" of the state and may not conflict with it. The Ohio Supreme Court has established a three-part test to determine whether a municipal ordinance must yield to the provisions of a state statute: "[a] state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law." Canton v. State , 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9, citing Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted , 65 Ohio St.3d 242, 602 N.E.2d 1147 (1992), citing Auxter v. Toledo , 173 Ohio St. 444, 183 N.E.2d 920 (1962).

{¶ 27} We note that in certain circumstances, the Ohio Supreme Court has deviated from the above test and applied a "conflict-by-implication test." Am. Fin. Servs. Assn. v. Cleveland , 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776. This "test considers whether an ordinance prohibits that which a statute implicitly permits or, presumably, whether an ordinance allows that which a statute implicitly prohibits." Viola Park, LTD v. Pickerington , 5th Dist. Fairfield Nos. 2006 CA 00017, 2006 CA 00030, 2007-Ohio-2900, 2007 WL 1696969, ¶ 41. Indeed, "[s]uch test has been applied in situations when, even though a statute does not expressly address conduct regulated by an ordinance, the ordinance interferes with the uniform application of the statutory scheme." Id.

{¶ 28} Relevant to this appeal, B.H.C.O. 1244.03-Minor Subdivision; Sketch Plan-provides in pertinent part:

(e) Approval. If the Commission determines that the proposed division of land is a minor subdivision and that:
(1) All the contiguous land owned by the developer will therein be completely subdivided;
(2) It is properly integrated with adjoining subdivisions or could be properly coordinated with the subdivision;
(3) It complies with the planning principles and other sections of these Regulations, the Zoning Code and other codes and plans of the City; and
(4) The layout is satisfactory, then the minor subdivision shall be approved. A notation to that effect shall be made on the sketch plan by the Chairman and Secretary of the Commission and one copy shall be returned to the developer. The developer shall be informed if a metes and bounds deed description or a plat map will be required. The Secretary of the Planning Commission shall refer the second copy of the sketch to the City Engineer.
(d) Rejection. If the Commission determines that it is a major subdivision, or the sketch plan is not approved for other reasons, the Commission shall state the conditions to be complied with before it will be approved and return the sketch to the developer with reasons specified.

{¶ 29} R.C. 711.09(C) provides for a 30-day time frame for the planning commission to either approve or deny the subdivision sketch. Thus, R.C. 711.09(C) imposes a 30-day time limit, whereas the City's codified ordinances are silent as to the time frame. In such circumstances, the application of the "conflict by implication" test is appropriate.

{¶ 30} We find P.H. English, Inc. v. Koster , 61 Ohio St.2d 17, 399 N.E.2d 72 (1980), instructive. In that case, the Ohio Supreme Court considered whether Geauga County subdivision regulations conflicted with R.C. 711.10, which provides that once a plat was submitted, the approval of the " 'planning commission or the refusal to approve shall be endorsed on the plat within thirty days after the submission of the plat for approval * * *; otherwise such plat is deemed approved[.]' " Koster at 18, 399 N.E.2d 72, quoting R.C. 711.10. The Geauga County regulations provided for a two-step process governing plats. The regulations gave the planning commission 30 days to act upon the preliminary plat, and another 30 days to approve or disapprove the final plat. Id. In holding that the Geauga County regulations conflicted with R.C. 711.10, the Ohio Supreme Court held:

The Supreme Court of Connecticut was faced with a similar controversy in Finn v. Planning & Zoning Comm. of Seymour (1968), 156 Conn. 540, 244 A.2d 391. The controlling statute there required commission_ action on a submitted subdivision application within 60 days, but the regulations provided for a two-step submission of preliminary and final plans, with the commission having 60 days to consider each. The court therein, at page 544 [244 A.2d 391], determined that the purpose of the statutory default provision was to "ensure prompt and expeditious action on subdivision applications for the protection of the subdivider. * * * To the extent that the regulations increased the time beyond the permissible period of sixty days from the submission of the application to the decision of the commission, such regulations are invalid."
We too must conclude that the 30-day limitation in R.C. 711.10 is designed to ensure prompt action to protect the developer from bureaucratic obstructionism. If the commission fails to act within that time, the plat is deemed approved and prime for recordation. _
Appellant attempts to circumvent this default provision by creating a two-step approval process, each with a 30-day consideration period. Under these regulations, approval of a preliminary plat is not sufficient for recordation purposes, _and a subdivider proceeds at his own risk in developing the property without waiting another 30 days to ensure approval of his final plat. As stated in State ex rel. Wollett v. Oestreicher (Ohio Com.Pl.1953), 121 N.E.2d 454, 456, 68 Ohio Law Abs. 51, 53, "the * * * Planning Commission cannot by rules and regulations limit or extend the terms of the statute. The only remedy of the commission is to refuse to approve the plat if it does not comply with the rules and regulations of the commission."
To the extent that Sections 307 and 308 of the subdivision regulations allow for more than 30 days, from the date a plat is filed with the commission staff until it is finally approved or disapproved, those regulations are invalid as conflicting with R.C. 711.10. The planning commission may still require preliminary and final submissions, as long as the entire process, from filing of the preliminary plat to approval or disapproval of the final plat, is completed within 30 days.

(Emphasis sic.) Id. at 19-20, 399 N.E.2d 72.

{¶ 31} The lack of a time frame in B.H.C.O. 1244.03 impermissibly conflicts with the procedures set forth in R.C. 711.09(C). B.H.C.O. 1244.03 regulates how to approve the proposed division of land, which is what R.C. 711.09 addresses. Like in Koster , to the extent that B.H.C.O. 1244.03 allows for more than 30 days to approve or disapprove the proposed division land, that regulation is invalid as conflicting with R.C. 711.09(C). As a result, the remedial procedures set forth in R.C. 711.09(C) are applicable to the City.

Adequate Administrative Remedy

{¶ 32} Lastly, the City argues that Wesolowski has an adequate administrative remedy through her R.C. Chapter 2506 appeal. As a result, it contends that the trial court's grant of her declaratory judgment claim should be reversed.

{¶ 33} In support of its argument, the City relies on Donnelly v. Fairview Park , 13 Ohio St.2d 1, 233 N.E.2d 500 (1968). In Donnelly , Fairview Park City Council declined to act on the city planning commission's recommendation that the subdivision plat be approved. The plaintiffs then appealed under R.C. Chapter 2506 to the court of common pleas for the city's failure to comply with its zoning code. The common pleas court found in favor of the plaintiffs, and the city appealed. On appeal, this court reversed the judgment of the common pleas court and entered judgment for the city, reasoning that " 'the order appealed from was a legislative act of the Council of the City of Fairview Park, Ohio, acting in its legislative capacity, and therefore said order was not appealable [to the common pleas court] under Chapter 2506 of the Ohio Revised Code.' " Id. at 2, 233 N.E.2d 500.

{¶ 34} The issue before the Ohio Supreme Court was

whether the action of a municipal council, in refusing or failing to approve the recommendation of a municipal planning commission as to a resubdivision of real estate which is authorized and sanctioned by a zoning ordinance, is legislative and nonappealable under Chapter 2506, Revised Code, or administrative and appealable under that Chapter.

Id. at 3, 233 N.E.2d 500.

{¶ 35} The court concluded that the

failure or refusal of a municipal council to approve a plan for the resubdivision of land which meets the terms of a zoning ordinance already adopted and in existence is an administrative act, and an appeal from such failure or refusal to approve lies to the Court of Common Pleas under Chapter 2506, Revised Code.

Id. at paragraph three of the syllabus. In reaching its decision, the court stated: "the test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence." Id. at paragraph two of the syllabus.

{¶ 36} We find Donnelly , 13 Ohio St.2d 1, 233 N.E.2d 500, distinguishable from the instant case. Here, Wesolowski is seeking a declaratory judgment based on its demand for the City to issue a "certificate in lieu of endorsement of approval" under R.C. 711.09(C). Whereas in Donnelly , the plaintiff sought administrative relief for the City's failure to act upon a municipal regulation. R.C. 711.09(C) specifically sets forth the remedy for the city's refusal. It provides that

[w]ithin sixty days after refusal, the person submitting any plat that the commission, commissioner, or legislative authority refuses to approve may file a petition in the court of common pleas of the proper county, in which the person shall be named plaintiff. The petition shall contain a copy of the plat sought to be recorded, a statement of the facts justifying the propriety and reasonableness of the proposed subdivision, and a prayer for an order directed to the recorder to record the plat and may include a statement of facts to support a claim that the rules of the planning authority under which it refused to approve the plat are unreasonable or unlawful.

Id.

{¶ 37} Unlike in Donnelly , where the relief was an administrative appeal for the city's failure to act upon a municipal regulation, in the instant case, R.C. 711.09(C) specifically sets forth the plaintiff's remedy, which is a petition in the court of common pleas. Thus, any remedy Wesolowski may have in her R.C. Chapter 2506 appeal does not preclude her from obtaining a declaratory judgment on the basis of R.C. 711.09(C).

{¶ 38} Accordingly, the trial court properly granted summary judgment as to Wesolowski's declaratory judgment claim. The sole assignment of error is overruled.

{¶ 39} Judgment is affirmed.

TIM McCORMACK, J., and ANITA LASTER MAYS, J., CONCUR

      From 2006-2010 Wesolowski owned the property with her brother. Wesolowski became the sole owner of the property in 2010.

      R.C. 711.09(C) provides in relevant part:
      The approval of the planning commission, the platting commissioner, or the legislative authority of a village required by this section, or the refusal to approve, shall be endorsed on the plat within thirty days after the submission of the plat for approval or within such further time as the applying party may agree to; otherwise that plat is deemed approved, and the certificate of the planning commission, the platting commissioner, or the clerk of the legislative authority, as to the date of the submission of the plat for approval and the failure to take action on it within that time, shall be issued on demand and shall be sufficient in lieu of the written endorsement or other evidence of approval required by this section.


source: Caselaw Access Project

author: EILEEN T. GALLAGHER, J.:

license: Public Domain

text:
    Dominic J. VANNUCCI, Plaintiff-Appellee v. Donna SCHNEIDER, Defendant-Appellant
    No. 105577
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 5, 2018
    Donna Schneider, pro se, 10600 Shale Brook Way, Strongsville, Ohio 44149, FOR APPELLANT
    Dominic J. Vannucci, pro se, 22649 Lorain Road, Fairview Park, Ohio 44126, FOR APPELLEE
    BEFORE: E.T. Gallagher, J., Keough, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Donna Schneider, pro se, appeals from the judgment of the Berea Municipal Court, Small Claims Division, finding in favor of plaintiff-appellee, Dominic Vannucci, on his complaint for unpaid attorney fees. She raises the following assignments of error for review:

1. During the independent review of February 28, 2017, the trial court committed prejudicial reversible error by adopting the magistrate's findings pursuant to Civ.R. 53.
2. Many misdirection or illegal testimony or evidence on points material to the issues is presumed to have influenced the trial court, and is therefore reversible error.
3. During the independent review of February 28, 2017, the trial court committed prejudicial reversible error by not reviewing all of the appellant's objections, and also the transcript of proceedings before the magistrate. All of which the trial court had instructed the appellant in the journal entry dated February 3, 2017, to comply within 30 days of receipt of said instructions. Appellant did comply in less than 30 days. A misdirection or illegal evidence on points material is presumed to have influenced the trial court, and is therefore reversible error.

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

I. Procedural History and Factual Background

{¶ 3} In January 2016, Vannucci filed a complaint against Schneider and her son, Travis Garner, alleging that "defendants have failed and refused to pay the balance due to plaintiff in the amount of $2,675.00 for legal services rendered, despite repeated demands for payment." The matter proceeded to a hearing before a magistrate, where the following testimony was adduced.

{¶ 4} Vannucci testified that he was contacted by Schneider in an effort to assist her son, Garner, in filing a paternity action in the Cuyahoga County Juvenile Court. According to Vannucci, Schneider indicated that she and Garner each sought visitation rights. Thus, Vannucci testified that he represented both Schneider and Garner during the juvenile action.

{¶ 5} Prior to initiating the juvenile case, Vannucci sent Schneider and Garner a letter outlining the terms of his representation. The representation letter was admitted into evidence and provided, in relevant part:

Dear Travis and Donna:
We are now scheduled for December 19, 2014 at 10:00 a.m. for a pretrial. The Court will then review your situation and receive input from the GAL.
At this time, we must document our fee arrangement. As you recall, I advised that I would charge an hourly rate of $250 per hour. All time spent on your matter will be billed at that rate including time away from my office. The break down on my invoice will be in tenths of an hour.
I requested a retainer of $1,500 but agreed to accept $1,000 which has been paid. Enclosed you will find a current invoice from the time spent to date. This is due and payable.
Please sign and return the enclosed copy of this letter assenting to this attorney/client relationship going forward.

{¶ 6} Although the letter contained signature blocks for Schneider and Garner, a signed copy of the letter was never returned to Vannucci. However, Vannucci testified that Schneider paid him a retainer fee, via a personal check, in the amount of $1,000, and later paid him an additional $300 for a portion of the legal services rendered.

{¶ 7} Vannucci testified that Schneider actively participated in the visitation proceedings and that the majority of the communications relating to the visitation case occurred between Vannucci and Schneider. In support of his testimony, Vannucci submitted a handwritten visitation schedule and witness list that Schneider prepared for Vannucci to use during the visitation hearing. In addition, Vannucci submitted several letters addressed to Schneider and Garner that were sent to Schneider's mailing address.

{¶ 8} After working on the case for approximately one year, Schneider and Garner refused to make any further payments for legal services and refused to communicate with Vannucci. As a result, Vannucci withdrew as counsel and filed the instant complaint for unpaid legal fees.

{¶ 9} Garner testified that he did not believe he was obligated to pay Vannucci the balance of his legal fees because he did not believe Vannucci provided him with effective assistance of counsel. He admitted that Schneider paid Vannucci $1,300 and that Schneider was involved in the decision to terminate Vannucci.

{¶ 10} Throughout the hearing, Schneider denied hiring Vannucci to represent her as counsel. She testified that she did not seek "grandparents rights," and that Vannucci was only hired to seek visitation rights for Garner. While she admitted that she paid Vannucci a total of $1,300, she maintained that she borrowed money from her own mother to make the payments.

Schneider stated that she did not sign any document expressing her desire to have legal representation, and that she did not actively participate in, or appear at, the visitation hearings. Schneider did, however, admit that she prepared the handwritten visitation schedule and witness list that was used by Vannucci during the visitation case.

{¶ 11} At the conclusion of the hearing, the magistrate entered judgment in favor of Vannucci and against Schneider and Garner, joint and severally. In response, Schneider filed a motion requesting the magistrate to issue findings of fact and conclusions of law.

{¶ 12} In April 2016, the magistrate issued findings of fact and conclusions of law. The magistrate made the following findings of fact:

Defendant, Donna Schneider, contacted the Plaintiff, an Ohio Licenced Attorney, regarding representation of her family in a Cuyahoga County Juvenile Court case involving a custody/visitation issue involving her son, Travis Garner, and her minor grandchild.
Defendant, Donna Schneider retained the Plaintiff and did in fact give him a retainer, with her money, in the sum of $1,300.
Both Defendants and the Plaintiff testified that the great majority of communication was between the Plaintiff and Defendant, Donna Schneider. In fact, Defendant Donna Schneider testified that "90% of the time I spoke to Dominic about the matter." Defendant, Donna Schneider, also testified that she prepared the visitation schedule and the witness list that was to be used by the Plaintiff in the juvenile case. Defendant, Travis Garner admitted that he would not return Plaintiff's phone calls.
Plaintiff presented evidence that but for Defendant, Donna Schneider's presence, he would of not have accepted the case since Travis Garner had no true residence and no means of paying him.

{¶ 13} Following its summarization of the relevant facts, the magistrate made the following conclusions of law:

1. Defendant, Donna Schneider, hired and retained Plaintiff, Attorney, Dominic J. Vannucci, to represent her family in a Cuyahoga County Juvenile Court case involving her son's custody/visitation issues with her son's, defendant, Travis Garner's minor child.
2. An attorney-client relationship was in fact created by and between Attorney, Dominic J. Vannucci, and defendants Travis Garner and Donna Schneider.
3. The attorney-plaintiff properly conducted his representation of the clients. However, he could not communicate with Travis Garner, and relied on his communications with defendant, Donna Schneider.
4. It is clear to this Court, that both defendants, Donna Schneider and Travis Garner, retained the plaintiff, Dominic Vannucci, and but for Donna Schneider's initial retainer, presence, and constant involvement in the case that the plaintiff would not [have] agreed to said representation or continuance of the representation in this matter. To say the least, the plaintiff relied on defendant, Donna Schneider's total involvement in the case both in terms of representation and financial payment.
5. The plaintiff's fee was supported, very reasonable and basically uncontested.

{¶ 14} Based on the foregoing, the magistrate recommended finding in favor of Vannucci and against both Garner and Schneider in the amount of $2,675, plus three percent interest from June 29, 2015, as well as costs.

{¶ 15} Following the magistrate's decision, Schneider timely filed objections to the magistrate's decision. In challenging the magistrate's decision, Schneider argued that she never retained or asked Vannucci to represent her, never entered into an oral or written agreement with Vannucci, and was not part of the visitation proceedings filed by Garner.

{¶ 16} In May 2016, the trial court overruled Schneider's objections, approved the magistrate's decision in its entirety, and entered judgment in favor of Vannucci in the amount of $2,675, plus three percent interest from June 29, 2015, and costs. The trial court found that Schneider failed to file a transcript of the magistrate's proceedings and, therefore, it could not consider her objections. However, the trial court noted that in overruling her objections, it reviewed the case file, magistrate's notes and findings of fact and conclusions of law, the exhibits presented at trial, Schneider's objections and affidavit, and Vannucci's brief in opposition.

{¶ 17} Schneider filed a direct appeal from the trial court's judgment in Vannucci v. Schneider , 8th Dist. Cuyahoga No. 104598, 2017-Ohio-192, 2017 WL 237831. This court reversed the trial court's judgment, finding that "the trial court acted unreasonably and abused its discretion because it overruled Schneider's objections due to lack of a transcript before 30 days had passed from the time the magistrate's decision was filed." Id. at ¶ 24. We explained that "[u]nder Civ.R. 53(D)(3)(b)(iii), Schneider had 30 days to file the transcript" and, therefore, "the trial court acted unreasonably and abused its discretion in overruling Schneider's objections and adopting the magistrate's decision before the 30-day time period [expired]." Id. at ¶ 25. We instructed the trial court on remand "to consider the transcript and follow the required 'action on objections' set forth in Civ.R. 53(D)(4)(d)," which provides:

If one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

{¶ 18} On remand, the trial court considered the filed transcript and once again overruled Schneider's objections, approved the magistrate's decision in its entirety, and entered judgment in favor of Vannucci in the amount of $2,675, plus three percent interest from June 29, 2015, and costs. The judgment stated, in pertinent part:

Upon Defendant's objection, submitted a second time following remand from the 8th District Court of Appeals, and this time containing the full transcript of the Magistrate's hearing, the Court makes the following findings:
1. This Court has independently reviewed the objected matters including the transcript of testimony, the exhibits, briefs and affidavits and all other evidence.
2. This Court finds that the need to hear additional evidence, i.e.: conduct a trial de novo, does not exist in this case because Defendant did not demonstrate that any evidence produced at a trial de novo could not with reasonable diligence have been produced before the Magistrate at the original Magistrate hearing.
3. Magistrate Decision herein was both factually and legally sound and justified by the evidence. Therefore, objection overruled. Judgment for the Plaintiff in sum of $2,675.00, 3% interest from 6/29/15 and costs.

{¶ 19} Schneider now appeals the trial court's judgment.

II. Law and Analysis

{¶ 20} For the purposes of judicial clarity, we address Schneider's assignments of error together. Within her assigned errors, Schneider argues the trial court erred in adopting the magistrate's decision because Vannucci failed to support his claim with adequate evidence at the trial level.

{¶ 21} The standard of review for proceedings in small claims court is abuse of discretion. Video Discovery, Inc. v. Passov , 8th Dist. Cuyahoga No. 86445, 2006-Ohio-1070, 2006 WL 562148, ¶ 7 ; Feinstein v. Habitat Wallpaper & Blinds , 8th Dist. Cuyahoga No. 67419, 1994 WL 716345 (Dec. 22, 1994). We also review a trial court's adoption of a magistrate's decision under an abuse of discretion standard of review. Abbey v. Peavy , 8th Dist. Cuyahoga No. 100893, 2014-Ohio-3921, 2014 WL 4460381, ¶ 13, citing Lindhorst v. Elkadi , 8th Dist. Cuyahoga No. 80162, 2002-Ohio-2385, 2002 WL 999315.

{¶ 22} When applying an abuse of discretion standard, we cannot substitute our judgment for that of the trial court. A trial court abuses its discretion only if its decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). " 'A decision is unreasonable if there is no sound reasoning process that would support that decision.' " Ockunzzi v. Smith , 8th Dist. Cuyahoga No. 102347, 2015-Ohio-2708, 2015 WL 4049089, ¶ 9, quoting AAAA Ents. Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of discretion may also be found where the trial court " 'applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.' " Ockunzzi at ¶ 9, quoting Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

{¶ 23} In challenging the trial court's judgment, Schneider collectively argues that Vannucci was not entitled to recover attorney fees from her because (1) she cannot be held liable for her adult son's debts, (2) she was not Vannucci's client because she never signed a contract, (3) the trial court failed to acknowledge "the fact that each of [Vannucci's] invoices [for attorney fees] are addressed to Travis Garner and only Travis Garner," (4) she did not participate in or benefit from Garner's visitation action, and (5) the money used to pay Vannucci during the visitation action derived from a loan Schneider received from her own mother. Schneider cites no legal authority to support her arguments, but contends that her "conviction for liability of attorney fees is against the manifest weight of the testimony, evidence, and lack of evidence."

{¶ 24} We note that while Schneider's assigned errors utilize the "manifest weight of the evidence" language, this court has reiterated that "the proper standard of review for a trial court judgment that adopts a magistrate's decision is abuse of discretion, and the instant appeal will be properly reviewed under this standard." Agnew v. Muhammad , 8th Dist. Cuyahoga No. 100599, 2014-Ohio-3419, 2014 WL 3866149, ¶ 16.

{¶ 25} The Ohio Supreme Court has held that "an attorney-client relationship need not be formed by an express written contract or by the full payment of a retainer."

Cuyahoga Cty. Bar Assn. v. Hardiman , 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, ¶ 8. "Instead, * * * an attorney-client relationship may be created by implication based upon the conduct of the parties and the reasonable expectations of the persons seeking representation." Id.

{¶ 26} After careful review of the transcript and exhibits, we are unable to conclude that the trial court abused its discretion by concluding that the magistrate's decision was supported by the evidence adduced at trial. We find Vannucci's testimony before the magistrate reasonably established that Schneider "hired and retained [Vannucci] to represent her family in a Cuyahoga County Juvenile Court case involving her son's custody/visitation issues with her son's minor child." Significantly, Vannucci testified that he represented Schneider and Garner and that Schneider sought grandparent visitation rights. In an effort to corroborate his testimony, Vannucci submitted a handwritten proposed witness list that Schneider sent to him via facsimile during the pendency of the underlying custody case. In the fax, Schneider provided a list of potential witnesses she believed Vannucci should contact and explained, in relevant part:

I'm trying to have visitation so [the minor child] can be with [Garner] * * * and his brother and sister. (Emphasis added.)

{¶ 27} Simply stated, we find the court reasonably determined that Schneider secured the services of Vannucci for her own benefit and not merely for Garner. See Drake, Phillips, Kuenzli, & Clark v. Skundor, 27 Ohio App.3d 337, 339-340, 501 N.E.2d 88 (3d Dist. 1986) ("[A] parent is bound to a contract and liable for the debt of the child, even on an oral contract, if it can be determined that the parent secured the services of the attorney for his or her own benefit, and not merely for their child.").

{¶ 28} While the record reflects that Schneider never returned a signed copy of the representation agreement to Vannucci, the testimony established that she subsequently acquiesced to his continued representation, as evidenced by her personal payment of $1,300 in legal fees and her active presence and participation in the juvenile court case. Whether Schneider borrowed the money from a family member to retain Vannucci's legal services is irrelevant. Thus, the trial court properly relied on Schneider's conduct to conclude that an attorney-client relationship was formed by implication. Although Schneider correctly argues that Vannucci should have taken the necessary steps to ensure that he obtained the parties' signature on a written fee agreement in accordance with the stated preference of Prof.Cond.R. 1.5(b), the record reflects, at the very least, that the parties orally agreed to the fee arrangement and even negotiated to reduce Vannucci's retainer fee from $1,500 to $1,000.

{¶ 29} Under these circumstances, we find the trial court did not arbitrarily conclude that Schneider and Garner had a legal obligation to compensate Vannucci for unpaid legal services. Accordingly, the trial court did not abuse its discretion by overruling Schneider's objections and adopting the magistrate's decision in its entirety.

{¶ 30} Schneider's first, second, and third assignments of error are overruled.

{¶ 31} Judgment affirmed.

KATHLEEN ANN KEOUGH, P.J., DISSENTS WITH SEPARATE OPINION

MELODY J. STEWART, J., CONCURS;

{¶ 32} I would find merit to the appeal and reverse the trial court's decision entering judgment against Donna Schneider. Absent an expressed agreement that Schneider would be responsible for her son's legal fees or evidence of an expectation that Vannucci was also representing Schneider in the juvenile matter, I would find that Schneider had no legal obligation to compensate Vannucci for unpaid legal services. Accordingly, I respectfully dissent.

{¶ 33} The Supreme Court of Ohio has said that "[w]hile it is true that an attorney-client relationship may be formed by the express terms of a contract, it 'can also be formed by implication based on conduct of the lawyer and expectations of the client.' " (Citations omitted.) Cuyahoga Cty. Bar Assn. v. Hardiman , 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, ¶ 10. "The determination of whether an attorney-client relationship was created turns largely on the reasonable belief of the prospective client." Id.

{¶ 34} In this case, no signed fee agreement was submitted into evidence. In fact, it is undisputed that the engagement letter sent to Garner and Schneider was not returned. Accordingly, no contract or agreement exists holding Schneider liable for Vannucci's unpaid legal services.

{¶ 35} I would also find Schneider's involvement with her son's case did not create an attorney-client relationship. The fax sent by Schneider does not prove that an attorney-client relationship existed between Schneider and Vannucci. It only reveals that she wanted visitation to allow her grandson to spend more time with her son and family. My reading of the entire content of the fax is that this was just another attempt to help assist her son in his visitation case. Moreover, although Vannucci testified that Schneider was seeking grandparent visitation, no court documentation or filings were presented at trial evidencing that Vannucci ever filed anything on Schneider's behalf requesting such visitation.

{¶ 36} Additionally, all filings that were submitted into evidence show that Vannucci was "Attorney for Travis Garner." Finally, when Vannucci formally withdrew as counsel in the juvenile matter, he was withdrawing as counsel for Garner. Accordingly, Vannucci did not engage in any conduct that created an expectation by Schneider that he represented her in the juvenile matter or that she had a reasonable belief that she was a client.

{¶ 37} Moreover, no evidence was presented that implied that Schneider would be legally responsible for Vannucci's unpaid legal fees. The exhibits submitted at trial evidence that Vannucci's fee bills were only sent to Garner, thus creating an inference that payment of services was solely Garner's responsibility. The evidence submitted at trial only established that Schneider paid Vannucci the initial retainer on behalf of her son and then submitted an additional payment to Vannucci on behalf of her son. Financial assistance does not create a contractual obligation for unpaid services.

{¶ 38} Additionally, I would find that the magistrate's conclusions of law are not supported by the record. Vannucci did not testify to and no evidence supports the conclusion that but for Schneider's involvement with case, Vannucci would not have agreed to and continue the representation. Supporting the decision to hold Schneider financially responsible for the unpaid fees, the magistrate concluded that Vannucci relied on Schneider's "involvement in the case in terms of both representation and financial payment." However, Vannucci's reliance on Schneider does not create an implied obligation of Schneider to Vannucci.

{¶ 39} Rather, the record clearly shows that a mother was financially helping her son secure legal representation for a custody matter and that she communicated with Vannucci to assist in this representation. These actions, in my opinion, do not equate to being legally responsible for her son's unpaid legal fees.

      Prof.Cond.R. 1.5(b) provides, in relevant part:
      The nature and scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, unless the lawyer will charge a client whom the lawyer has regularly represented on the same basis as previously charged.

      What is interesting to note, however, is that the engagement letter sent by Vannucci only mentioned the receipt of a retainer and his hourly rate. The letter did not set forth the scope of representation, an explanation of fees and expenses, billing practices, or payment terms. Testimony was presented that only Garner signed a document during the initial meeting with Vannucci in his office. However, that document was not submitted into evidence and no testimony was given about the content of that document.


author: DONOVAN, J.

text:
    CITY OF DAYTON, Plaintiff-Appellee v. Robert KING, Defendant-Appellant
    NO.: 27777
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered April 6, 2018
    BARBARA DOSECK, Atty. Reg. No. 79159, 101 West Third Street, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    MARTIN BEYER, Atty. Reg. No. 60078, 204 S. Ludlow Street, Suite 204, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} This matter is before the Court on the October 19, 2017 Notice of Appeal of Robert King. King appeals from his October 4, 2017 Judgment of Conviction in the Dayton Municipal Court, following a bench trial, for failure to maintain exterior premises, in violation of R.C.G.O. 93.46(E), a minor misdemeanor. We hereby reverse and vacate the judgment of the municipal court.

{¶ 2} King received a citation on September 7, 2017, which provides: "you did unlawfully cause/commit failure to maintain exterior premises free of objects, materials, or conditions which create a health, safety, fire hazard, or public nuisance, to wit: trash and debris throughout yard, trash and debris on rear porch."

{¶ 3} On September 20, 2017, King pled not guilty, and the bench trial occurred on October 4, 2017. At the start thereof, the prosecutor advised the court that "the conditions are abated and we still tend [sic] to proceed given that Mister King has prior violations."

{¶ 4} Kenneth Jackson testified that he is a conservation specialist with the City of Dayton, having been so employed for almost six months. Jackson stated that in the course of his employment, he performs exterior inspections "for environmental violations, as well as * * * structural violations." He stated that on September 7, 2017, he wrote a citation to King at the address of 218/220 Rockwood Avenue for a violation of R.C.G.O. 93.46(E). Jackson stated that he had received a complaint about the trash and debris at the property, and that when he proceeded to the address, he observed "a couple of dirty diapers that had been shredded. I went to the back, there was trash and debris throughout the back. I believe there was trash and debris that was on the rear porch, as I said, of two twenty." Jackson stated that the "trash and debris put on the rear porch posed * * * a serious life safety issue because it could, technically block the egress during a fire or such," as well as hinder the police or fire department from entering the building in an emergency. Jackson stated that trash and debris "can attract rodents, cause rodent infestation."

{¶ 5} Jackson stated that King is the legal owner of the property, and King so stipulated. Jackson identified four photographs taken by him of the property. Exhibit 4 depicts the rear porch of the property, and trash and a box spring are depicted thereon. Jackson testified that Exhibit 5 depicts "trash and debris within the bushes of the house," and that Exhibit 6 "is also a picture of trash and debris along the fence line * * * in the trees." Finally, he stated that Exhibit 7 depicts trash and debris, as well as dirty diapers, in the front yard of the residence. Jackson stated that the photos accurately depict the conditions at the property on September 7, 2017.

{¶ 6} The following exchange occurred on cross-examination:

Q. Do you recall me leaving a voicemail with you on September seventh?
A. Yes.
Q. Do you recall me within that voicemail telling you that Mister Wetzel had a copy of that lease in question for that particular property and that if you needed to get it directly from me, I would be willing to email that to you[?]
A. Yes.
Q. Did you respond to my questions about if you needed any further information?
A. No sir. I did not understand your phone number on my voicemail.

{¶ 7} On re-direct, the following exchange occurred:

Q. The Defendant made reference to a phone call that he made to you regarding another inspector[']s inspection of his property, is that fair to say?
A. That is correct.
Q. * * * Is it also fair to say that that phone call gave you notice that Mister King had been involved, that this property had been an issue for housing inspection before?
A. Yes.

{¶ 8} On re-cross examination, when asked by King why he did not ask the other housing inspector involved with the previous inspection for King's phone number and email address, Jackson responded, "I did not think to do that."

{¶ 9} King testified that he leases the property at issue to Thaddeus Earl. He provided a copy of the lease, the term of which is December 15, 2016 to the last day of November, 2017, and he testified that it requires Earl to abide by all housing code regulations. King testified as follows:

* * * In the past, I've been here two previous times and that has been deemed an actionable defense in both of those cases and they weren't, they did not go to trial. So, I'm wondering whether the law has changed or why that is not still a valid defense and why the people committing the actions or the offenses are not the ones being issued the tickets. I've had these conversations with Mister Wetzel and I've tried to have that conversation with Mister Jackson, to try and have these citations issued to the people responsible for the offenses. In my opinion, that is the only way that these, that the people that are committing the offenses are going to change their way of behavior. For them to issue the tickets to me, the property owner, the one not committing the offenses, I agree that I would be responsible for housing code violations that are part of the property, paint, gutters, roofing, those kinds of things that are directly responsible for the owner of the property. Offenses such as trash, debris * * * or storing their personal property outside, particularly in this case, when I'm not able to remove their personal property without eviction and a bailiff coming out with a writ served, I can't touch any personal property of a tenant so I'm at a loss to do anything about it. I don't know why, in this particular case, the prosecuting attorney chose to bring this to trial since herself and the previous prosecutor deemed this an actionable defense in the past.

{¶ 10} On cross-examination, the following exchange occurred:

Q. * * * Reviewing the rental agreement that you gave me before court, is it fair to say that this rental agreement authorizes you or gives you leave to file an eviction, if your alleged tenant does not comply with the terms of the lease?
A. Yes.
Q. What is the case number for your eviction against a tenant?
A. A three-day notice was served yesterday.
Q. * * * So, when this was filed initially, when you originally received notice of this, of this case, did you file an eviction?
A. No.
* * *
Q. At this point you've taken steps?
A. Yes.
* * *
Q. And this is not the first issue you've had with Thaddeus, is it? * * *
A. No.
* * *
Q. As a matter of fact, you made reference to it yourself. You've dealt * * * with another inspector regarding issues at this property.
A. Yes.
Q. Okay and at that point and time, what steps did you take to evict Thaddeus?
A. None.

{¶ 11} When asked if he "had any response based on the questions posed * * * by the prosecutor," King responded as follows:

* * * The reason no action was taken against Thaddeus Earl previously when David Wetzel issued the ticket to me previously, was I was under the understanding that with my discussions that occurred during court on that day, that they were going to issue the ticket to Thaddeus Earl. They excused me from the case and I was under the impression that Thaddeus Earl would receive the ticket. Obviously, that didn't happen since I got another ticket from Ken Jackson approximately four weeks later. So, I was, I was under the impression that when the case was dismissed because I had an actionable defense with the lease, that they would issue the ticket to Thaddeus Earl, which is what I wanted to happen. * * * I don't have a lot of leverage other than eviction to get someone to do these kinds of, what I call, common sense maintenance issues of picking up their own trash and storing their items inside. Now, since then, I talked to Mister Earl yesterday and he received the three-day notice. Bulk waste is scheduled to come out today and remove the mattress and some other items he may have had and he agreed to police the yard. Whether that happens or not I'm not sure, since the ticket was issued to me and he doesn't think he's responsible for anything, which leaves me with no leverage to have someone maintain the property like a normal person would of picking up their own trash and debris and not storing items outside. So because of other items, he's back on his rent and failure to maintain the property in the proper sense of picking up trash, which would be a simple item and some noise complaints, I did issue the three-day notice yesterday. * * *

{¶ 12} The following exchange occurred between King and the court:

THE COURT: I'm looking at this lease agreement. What this agreement is and I'm looking at the second page and Mister King, I'm assuming that this part that's [highlighted] in yellow, you [highlighted] that and that's the part you want me to look at.
THE DEFENDANT: I do.
THE COURT: That's the part that you believe supports that the tenant is responsible for cleanup.
THE DEFENDANT: I think that's the primary part that supports that, yes.
THE COURT: Okay. So, that part says use and occupancy and it is the second paragraph. It says, the resident agrees to use and occupy the premises in a safe, proper, and sanitary manner. The resident shall not use any part of the * * * premises for any noisy, disorderly, unlawful, or immoral purpose or in any manner offensive to the neighbors, or for any purpose deemed hazardous by the owner. The resident [further] agrees to comply * * * with all applicable state and local housing health and safety codes and any other laws or ordinances or insurance regulations, in or about the premises. And so, as I read this his agreement is to comply with those. His agreement is not that he is going to be responsible for anything. I also read it in conjunction with the resident's responsibilities, number seven, I mean, I'm sorry number twelve, which is to keep the lawn cut and trimmed as required to maintain a neat appearance. There is nothing else in this lease that talks about * * * how this property should be maintained. Yeah, I think it is common sense that it should be maintained neat, a neat appearance but you want me to take it a step further. You want me to look at the [highlighted] areas and read that there is something in writing where he assumes responsibility for maintaining the facilities and all exterior premises free from objects, materials, or conditions which would create a health, safety and this lease doesn't do that. * * *
THE DEFENDANT: May I-
THE COURT: So I, nope. I find that this lease doesn't do that. I * * * have a couple of problems. This ordinance, to me, it looks like it is written that there is an affirmative defense created in the ordinance. The City basically agrees with that and they have to show that there is no affirmative defense. You have, by preponderance of the evidence, to show that there is. I don't think that this lease does that. I want to be clear. I do not believe that this lease does what you testified that it does and absent some other evidence, your affirmative defense has not been proved and so I am going to make a finding of guilty in this matter.
* * *
THE COURT: Sir, is there anything you'd like to say regarding sentencing before I sentence?
THE DEFENDANT: In regard to sentencing, I have taken steps to remove, what I consider, the offensive tenant from the property with the three-day notice that has been served, bulk pickup has been contracted. They are supposed to be there today-
* * *
THE DEFENDANT: [-] to remove the items. The tenant agreed with me on the phone yesterday that he would clean up whatever trash and debris is on the exterior of the property. I will go by today and confirm that that happens.

{¶ 13} The court imposed a fine of $150.00 and suspended $75.00 thereof, as well as court costs. King asserts a sole assignment of error herein as follows:

THE TRIAL COURT ERRED IN CONVICTING DEFENDANT ROBERT KING OF FAILING TO MAINTAIN REAL ESTATE.

{¶ 14} King argues that the City erroneously convicted him of violating R.C.G.O. 93.46(E). According to King, the City improperly prosecuted him and should have prosecuted Earl. King asserts that "the tenant assumed responsibility for maintaining the premises when he executed the Lease. The Lease specifically reflects that the tenant must comply with all housing codes, which necessarily includes R.C.G.O. 93.46(E)." According to King, "the City previously dismissed its prior case against King based for [sic] the same property and conditions and based on the same Lease. Double jeopardy, anyone?" Citing R.C.G.O. 93.02, King asserts that an "Owner" is defined in part as a "lessee, or other person, firm, or corporation in control of a building," and that "the City should have cited the tenant."

{¶ 15} The City responds that as "the owner of the subject property, Mr. King had an obligation to maintain its exterior unless the occupant had undertaken that duty." According to the City, "Mr. King wants to rely on the lease provisions to shift responsibility to Mr. Earl but conveniently ignores the provision that allowed him to enforce the lease against his tenant." The City argues that "Mr. King's position is that if he submits his lease as a 'get out of jail free card' he can endlessly ignore his tenant's failure to undertake responsibility." The City asserts that "a great deal of Mr. King's testimony also established that he was both aware and indifferent to the fact that the maintenance responsibilities had not been assumed by his tenant." According to the City, King's "awareness that the responsibilities detailed in his written agreement had not actually been assumed in over four months-if at all-undercuts any affirmative defense to the City's statute."

{¶ 16} In reply, King asserts that he "had the burden of proof, by a preponderance of evidence, of producing a written agreement reflecting that the tenant assumed responsibility to maintain the property. He did that." King argues that "the tenant assumed responsibility for maintaining the premises when he executed the Lease. The Lease specifically states that the tenant must comply with all housing codes, which necessarily includes R.C.G.O. 93.46(E)." King asserts that the "ordinance requires only a 'written agreement.' The Lease is a written agreement. Case closed."

{¶ 17} R.C.G.O. 93.46 provides:

Every owner of a dwelling shall be responsible for the provision of all facilities, utilities, services, or conditions required by this chapter for dwelling or rooming units and premises, except where such responsibility is assumed by an * * * occupant by written agreement . Such responsibility shall include, but not be limited to, the following:
* * *
(E) Maintaining driveways, terrace steps, yard walks, fences, yard cisterns, and all exterior premises free of objects, materials, or conditions which create a health, safety, or fire hazard or which is a public nuisance.

{¶ 18} R.C.G.O. 93.02 defines an occupant as "[a]ny person living, sleeping, cooking or eating in or having possession or use of a dwelling unit or rooming unit." We conclude that Thaddeus is an "occupant" within the meaning of R.C.G.O. 93.46.

{¶ 19} The lease provides, as noted above, that the "Resident further agrees to comply with all applicable * * * local housing, health and safety codes." We conclude that in entering into the lease, Thaddeus assumed the responsibility to comply with R.C.G.O. 93.46(E).

{¶ 20} The City appears to have relied on the following section of the lease:

OWNER'S RIGHT TO RECOVER. If the rent is not received on the date specified in Paragraph # 2 of this Agreement, or if the Resident violates any of the terms and conditions of this Agreement, or any addendums thereof, including any community guidelines herein or hereafter adopted by the Owner, then the Owner may at any time begin eviction proceedings, enter and take possession of the premises, sue for and recover all the rent and damages occasioned by such violation along with any other damages or costs to which the Owner may be entitled by law, and re-rent for the remainder of the term at the best rent obtainable.

{¶ 21} We agree that the trial court erred in finding King guilty. We initially note that the trial court's analysis was inconsistent. At first the court appeared to concede that Thaddeus Earl assumed the responsibility of complying with local housing codes, such as R.C.G.O. 93.46(E), noting, "as I read this[,] his agreement is to comply with those." In the following sentence, however, the court indicated, "[h]is agreement is not that he is going to be responsible for anything." The above paragraph provides that "the Owner may at any time begin eviction proceedings," and we cannot conclude that King was required to initiate eviction proceedings upon receipt of the citation or assume liability, as the City appears to suggest.

{¶ 22} This conclusion is further supported by a review of Chapter 5321 of the Ohio Revised Code, which governs landlords and tenants. R.C. 5321.06 provides that a "landlord and a tenant may include in a rental agreement any terms and conditions * * * and any other provisions governing the rights and obligations of the parties that are not inconsistent with or prohibited by Chapter 5321 of the Revised Code or any other rule of law," such as a requirement that a tenant comply with all housing codes. R.C. 5321.05 (A) governs the obligations of a tenant and provides that a "tenant who is a party to a rental agreement shall do all of the following: (1) Keep that part of the premises that he occupies and uses safe and sanitary," and "(2) Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner," and "(5) Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes." R.C. 5321.05(C)(1) provides that "[i]f the tenant violates any provision of this section, * * * the landlord may recover any actual damages that result from the violation together with reasonable attorney's fees. This remedy is in addition to any right of the landlord to terminate the rental agreement [See R.C. 5321.11 ], [or] to maintain an action for the possession of the premises * * *."

{¶ 23} Since Earl was required by law to keep the premises safe and sanitary, and dispose of waste in a sanitary manner, and since he further assumed the responsibility of complying with R.C.G.O. 93.46(E), the trial court erred in convicting King for the violation of R.C.G.O. 93.46. Accordingly, King's assignment of error is sustained, and the judgment of the municipal court is reversed and vacated.

FROELICH, J. and TUCKER, J., concur.


author: TUCKER, J.

text:
    Sanwr IBRAHIM, Plaintiff-Appellant v. CITY OF DAYTON, et al., Defendants-Appellees
    No. 27699
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered April 6, 2018
    EDWARD C. YIM, Atty. Reg. No. 0067168, 130 West Second Street, Suite 2000, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
    MARTIN W. GEHRES, Atty. Reg. No. 0096711, and JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45402, Attorneys for Defendants-Appellees
   TUCKER, J.

{¶ 1} Plaintiff-appellant, Sanwr Ibrahim, appeals from the trial court's decision of July 19, 2017, in which the court granted summary judgment in favor of Defendants-appellees, the City of Dayton and Officer Walter Evans of the Dayton Police Department. Presenting three assignments of error, Ibrahim argues that the trial court received insufficient evidence to support its determination that Appellees are entitled to immunity under R.C. Chapter 2744. We find that the record supports the trial court's determination, and therefore, we affirm.

I. Facts and Procedural History

{¶ 2} On August 20, 2014, Officer Evans was dispatched to a location in the vicinity of the Reibold Building at 117 South Main Street, Dayton, in response to a report of "a large crowd," possibly armed, "yelling and shouting." Decision, Order & Entry Sustaining Defs.' Mot. for Summ. J. 1, July 19, 2017; Aff. of Walter Evans ¶ 3-6, Apr. 28, 2017. As Officer Evans drove past in his marked police vehicle, a man emerged from the Reibold Building and waved in the officer's direction. Id. at ¶ 7-8. Officer Evans interpreted the gesture to mean that the man, whom he took for a security guard, had information about the disturbance to which he was responding, so he "placed [his] vehicle in reverse [gear] and backed up at just a few miles per hour," intending to ask about the disturbance. Id. at ¶ 8-9. His vehicle moved "two to three feet" backwards and then struck Ibrahim's vehicle. Id. at ¶ 10; Dep. of Walter Evans 45:2-45:5, May 31, 2017.

{¶ 3} By Officer Evans's account, the accident caused "very minor damage to [his] police [vehicle] and only minor damage to [Ibrahim]'s vehicle." Evans Aff. ¶ 12. Ibrahim herself has not testified, but in his deposition, Officer Evans testified that Ibrahim told him she was unharmed and indicated that she preferred to leave rather than wait for his supervisor to arrive and begin an accident investigation. Evans Dep. 56:15-57:8.

{¶ 4} On August 11, 2016, Ibrahim filed a complaint against the City of Dayton and Officer Evans, claiming that Officer Evans's "negligence" caused her "severe and permanent injuries"; "great pain and suffering, both physical and emotional"; "loss of ability to perform usual functions"; "future pain and suffering, both physical and emotional"; "future loss of ability to perform usual functions"; "reasonable and necessary medical expenses in an amount to be determined"; "future reasonable and necessary medical expenses in an amount to be determined"; "loss of wages and earnings in an amount to be determined"; "future loss of wages and earnings in an amount to be determined"; and "property damage in an amount to be determined." Compl. ¶ 5 and 13. Appellees filed a motion for summary judgment on May 1, 2017, to which Ibrahim responded with a memorandum in opposition on May 31, 2017.

{¶ 5} On July 19, 2017, the trial court issued its decision sustaining Appellees' motion. Ibrahim timely filed her notice of appeal on August 17, 2017.

II. Analysis

{¶ 6} For her first assignment of error, Ibrahim argues that:

THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S [sic] MOTION FOR SUMMARY JUDGMENT [by] FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER OR NOT OFFICER WALTERS [sic] WAS RESPONDING TO AN EMERGENCY CALL AT THE TIME OF THE ACCIDENT.

{¶ 7} Ibrahim grounds this argument on citations to the record purportedly demonstrating that "at the time of the collision[,] the disturbance [to which Officer Evans was dispatched] had dissipated, and he had reentered the traffic pattern and beg[u]n [a] routine patrol." Appellant's Br. 14. Relying on these assumptions, Ibrahim requests that her case be remanded to the trial court for a redetermination of whether the disturbance ended before the accident happened. See id.

{¶ 8} Under Civ.R. 56, summary judgment is proper when: (1) the case presents no genuine dispute as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) construing the evidence most strongly in favor of the non-moving party, reasonable minds can reach only one conclusion, which is adverse to the non-moving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) ; Dalzell v. Rudy Mosketti, L.L.C. , 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-3197, 2016 WL 3032733, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The substantive law of the claim or claims being litigated determines whether a fact is "material." Herres v. Millwood Homeowners Ass'n, Inc. , 2d Dist. Montgomery No. 23552, 2010-Ohio-3533, 2010 WL 2990731, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶ 9} Initially, the movant bears the burden of establishing the absence of any genuine issues of material fact. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). The movant may rely only on evidence of the kinds listed in Civ.R. 56(C) for this purpose. Dalzell , 2016-Ohio-3197, 2016 WL 3032733, ¶ 5, citing Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears a reciprocal burden to establish, as set forth in Civ.R. 56(E), that the case presents one or more genuine issues of fact to be tried. Id. at ¶ 6. The non-moving party, in satisfying this requirement, may not rely merely upon the allegations or denials offered in the pleadings, but like the movant, "must be able to point to evidentiary materials of the type listed in Civ.R. 56(C)." Dresher , 75 Ohio St.3d at 293, 662 N.E.2d 264, quoting Civ.R. 56(E) ; Dalzell , 2016-Ohio-3197, 2016 WL 3032733, ¶ 6. On appeal, a trial court's ruling on a motion for summary judgment is reviewed de novo. Dalzell , 2016-Ohio-3197, 2016 WL 3032733, ¶ 6, citing Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42.

{¶ 10} Ibrahim's contention that Officer Evans was not responding to an emergency call at the time of the accident implicates the provisions of R.C. 2744.02(B)(1)(a), which establishes that a municipal corporation has a "full defense[ ]" to liability arising from "the negligent operation of any motor vehicle" by a police officer "responding to an emergency call," so long as "the operation of the vehicle [does] not constitute willful or wanton misconduct." The term "emergency call," according to R.C. 2744.01(A), means a "call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer." Of this nonexhaustive list of examples, "only the third * * * refers to [imminent hazards], thereby indicating that the other listed examples need not involve * * * inherently dangerous situation[s]." Colbert v. City of Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 14, citing R.C. 2744.01(A), and State v. Thompson , 92 Ohio St.3d 584, 588, 752 N.E.2d 276 (2001). The "phrase 'inherently dangerous situations' " thus "places no limitation on the term 'call to duty.' " Id. , quoting R.C. 2744.01(A) ; see also , e.g. , Seege v. Smith , 2d Dist. Montgomery No. 26210, 2014-Ohio-5450, 2014 WL 7004810, ¶ 14-18 and 25-27.

{¶ 11} In attempting to demonstrate that Officer Evans was not responding to an "emergency call" as defined by R.C. 2744.01(A), Ibrahim mischaracterizes the record. For instance, citing the trial court's decision and the transcript of Officer Evans's testimony, Ibrahim claims that when the accident occurred, the disturbance that Officer Evans was dispatched to investigate "had [already] dissipated." Appellant's Br. 13, citing Decision, Order & Entry Sustaining Defs.' Mot. for Summ. J. 2, and Evans Dep. 13:1-22:25. The trial court, however, expressly found the opposite, remarking that Officer Evans's "affidavit[ ] [and] deposition, [along with] the dispatch records[,] all establish that [he] was dispatched to and was responding to a disturbance call at the time the accident occurred." (Emphasis added.) Decision, Order & Entry Sustaining Defs.' Mot. for Summ. J. 4. Officer Evans, for that matter, testified unambiguously that the disturbance had not ended when he saw the security guard emerge from the Reibold Building. Evans Dep. 29:12-36:7; see also Evans Aff. ¶ 8-9. Asked what the group of people causing the disturbance was doing "[a]t the time [he] saw the security guard," Officer Evans answered that they were "a usual group" who were "always very loud, always causing some kind of a disturbance[,] and that's what they were doing then." Evans Dep. 36:1-36:7.

{¶ 12} Ibrahim has not shown that this case presents a genuine dispute of material fact on the question of whether, at the time the accident occurred, Officer Evans was responding to an emergency call. Officer Evans's affidavit and deposition testimony consistently indicate that the accident occurred almost simultaneously with his arrival at the scene of the disturbance, and Ibrahim has not provided any summary judgment evidence to the contrary. At the moment his police vehicle struck Ibrahim's vehicle, Officer Evans was, in fact, actively investigating the situation by attempting to make contact with a person whom he reasonably believed to have information about the disturbance. Although the record also suggests that the disturbance did not pose any inherent danger, an "emergency call" for purposes of R.C. 2744.01(A) need not be inherently dangerous. Ibrahim's first assignment of error is overruled.

{¶ 13} For her second assignment of error, Ibrahim argues that:

THE TRIAL COURT ERRED IN GRANTING THE CITY OF DAYTON IMMUNITY UNDER [ ]R.C[.] * * * 2744.02(A).

{¶ 14} Ibrahim posits that because the evidence on record gives rise to a "genuine issue of material fact as to whether Officer Evans['s] [actions] constituted willful, wanton, or reckless conduct," the trial court should not have held that the City of Dayton is entitled to immunity pursuant to R.C. 2744.02(A)(1). Appellant's Br. 14. This argument implicates the exception to municipal immunity established by R.C. 2744.02(B)(1)(a), under which a municipal corporation is not liable for injury to person or property allegedly caused by any act or omission of a "member of [its] police department * * * operating a motor vehicle while responding to an emergency call," unless the "operation of the vehicle * * * constitute[s] willful or wanton misconduct."

{¶ 15} Determining "whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis." Colbert v. City of Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7, citing Greene County Agric. Soc'y v. Liming , 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). The first tier "is the general rule that a political subdivision is immune from liability incurred in performing either a governmental * * * [or] proprietary function." Id. , citing R.C. 2744.02(A)(1), and Greene County Agric. Soc'y , 89 Ohio St.3d at 556-557, 733 N.E.2d 1141. The second tier "of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply." (Citation omitted.) Id. at ¶ 8. If the subdivision would be liable under R.C. 2744.02(B), then the third tier of the analysis requires a review of the defenses to liability set forth in R.C. 2744.03. See id. at ¶ 9. Here, Officer Evans was performing a "governmental function" as that term is defined by R.C. 2744.01(C)(2). The City of Dayton would thus be liable to Ibrahim under R.C. 2744.02(B)(1)(a) if Officer Evans's conduct were "willful or wanton."

{¶ 16} The terms "willful" and "wanton" delineate "distinct degrees of care and are not interchangeable." Anderson v. City of Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 31. Willful misconduct "implies an intentional deviation from a clear duty or from a definite rule of conduct," a "deliberate purpose not to discharge some duty necessary to safety," or a purpose to engage in "wrongful acts with knowledge or appreciation of the likelihood of resulting injury." Id. at paragraph two of the syllabus. Wanton misconduct, on the other hand, "is the failure to exercise any care [for] those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." Id. at paragraph three of the syllabus.

{¶ 17} Ibrahim concedes that Officer Evans's actions did "not rise to the level of willful misconduct," instead maintaining that his actions amount to wanton misconduct because he "did not use any care in the operation of his police [vehicle] at the time of the accident," faulting him specifically for reversing his vehicle "without checking his mirrors or activating [the vehicle's] lights or siren." Appellant's Br. 17. Yet, the only evidence on record shows that Officer Evans reversed his vehicle "at just a few miles per hour" and drove backwards merely "two to three feet" when the accident occurred. Under the circumstances, we cannot conclude that this presented a great probability of harm to others, and the low speed at which the officer reversed his vehicle represents at least a modicum of care. Evans Aff. ¶ 8-9; Evans Dep. 45:2-45:5; compare with Seege v. Smith , 2d Dist. Montgomery No. 26210, 2014-Ohio-5450, 2014 WL 7004810, ¶ 29-30.

{¶ 18} Ibrahim suggests that Officer Evans "was only traveling at such a low [speed] because he had just abruptly changed directions," implying that he would have driven faster if he had had sufficient space, but this is nothing more than speculation. Appellant's Br. 17-18. The record includes no evidence contradicting Officer Evans's sworn testimony that he reversed his vehicle for a very short distance at a very low speed, and we find accordingly that the record does not give rise to any genuine dispute of material fact on the question of whether Officer Evans's operation of his vehicle was willful or wanton. Given that we have already determined the officer was responding to an emergency call at the time of the accident, we find further that the trial court did not err by holding that the City of Dayton is entitled to immunity pursuant to R.C. 2744.02(B)(1)(a). Ibrahim's second assignment of error is overruled.

{¶ 19} For her third assignment of error, Ibrahim argues that:

THE TRIAL COURT ERRED IN FINDING THAT OFFICER EVANS IS ENTITLED TO IMMUNITY UNDER [ ] R.C. * * * 2744.03(A).

{¶ 20} Finally, Ibrahim contends that Officer Evans's actions "constituted wanton and reckless conduct," subjecting him to personal liability. Appellant's Br. 18. This contention implicates the provisions of R.C. 2744.03(A)(6)(b), under which an employee of a political subdivision "is immune from liability unless * * * [t]he employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." For individual employees, this statute controls the immunity analysis, and the foregoing three-tiered analysis is inapplicable. Rankin v. Cuyahoga County Dep't of Children and Family Servs. , 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 36.

{¶ 21} The term "wanton," as noted above, means a "failure to exercise any care [for] those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." Anderson v. City of Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph three of the syllabus; see also Rankin , 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 36-37. Similarly, the term "reckless" refers to a "conscious disregard of[,] or indifference to[,] a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially [more remiss] than negligent conduct." See Anderson , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 34 ; see also Rankin , 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 36-37.

{¶ 22} We have already found that Officer Evans's operation of his police vehicle at the time of the accident did not constitute wanton conduct. In light of the "high standard" required to make a showing of recklessness, we hold likewise that Officer Evans did not act recklessly. Rankin , 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 37. Arguably, Officer Evans consciously disregarded the obvious risk that he would back into another vehicle behind his own-which is exactly what happened. Nevertheless, at very low speed, an accident of this sort did not present a "risk of harm to another that [was] unreasonable under the circumstances," and the officer's likely failure to check his rear-view mirrors, though hardly above criticism, was not so egregious that it can fairly be said to be "substantially [worse] than negligen[ce]." Anderson , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 34 ; see also Argabrite v. Neer , 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 7-8.

{¶ 23} Ibrahim has not demonstrated that this case presents a genuine dispute of material fact on the question of whether Officer Evans operated his police vehicle wantonly or recklessly at the time of the accident. Hence, the trial court did not err by holding that Officer Evans is entitled to immunity under R.C. 2744.03(A)(6)(a). Ibrahim's third assignment of error is overruled.

III. Conclusion

{¶ 24} On our de novo review, we find that Ibrahim has not met her burden to show that this case presents a genuine issue of material fact on the questions of whether Officer Evans was responding to an emergency call at the time of the accident, or whether Officer Evans's operation of his police vehicle was willful, wanton or reckless. Therefore, Ibrahim's assignments of error are overruled, and the trial court's decision of July 19, 2017, is affirmed.

WELBAUM, P.J. and HALL, J., concur.

      The trial court identified Appellant as "Snoor Ibrahim, formerly known as Sanwr Ibrahim," having been prompted by a statement to the same effect made by Appellant herself in her memorandum in opposition to Appellees' motion for summary judgment. Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. 1, May 31, 2017; Decision, Order & Entry Sustaining Defs.' Mot. for Summ. J. 1, July 19, 2017. Appellant has referred to herself exclusively as "Sanwr Ibrahim" in her filings before this court, however, and has not requested that the caption be changed.

      The trial court did not cite the correct date in its decision. Officer Evans submitted his affidavit as an attachment to Appellees' motion for summary judgment of May 1, 2017.

      Ibrahim attached a transcript of Officer Evans's deposition as an unlabeled exhibit to her memorandum in opposition to Appellees' motion for summary judgment. Arguably, the deposition should have been stricken because Ibrahim did not comply with Civ.R. 30(E)-(F) and 31(C), or with Mont. Co. C.P.R. 1.27(A), and Officer Evans neither signed the deposition nor waived signing. See e.g. Bank of New York Mellon Trust Co. v. Unger , 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, 2012 WL 1567192, ¶ 40 and 43-46. Nevertheless, Appellees did not move to have the deposition stricken, and any objections to its admission have been waived. See Civ.R. 32(D).

      The memorandum in opposition is captioned as a "Motion and Memorandum Contra," but the document includes no motion for summary judgment on Ibrahim's behalf.

      Ibrahim uses a non-standard citation format based on "Page ID" numbers. These citations are problematic because the cited references do not obviously correspond to the assertions they are presumably intended to support. Page 2 of the trial court's decision, for example, would seem to be irrelevant or directly contradictory to the point for which Ibrahim cited it. The citation to Officer Evans's testimony, which is "RE: Evans Depo., Page ID # 34; 13-22," is likewise inapposite. Neither the testimony given by Officer Evans between Pages 13 and 22, nor the testimony given by the officer on Page 34, offers any insight into whether the disturbance ended before or after he arrived at the Reibold Building. See Evans Dep. 12:18-22:25 and 34:1-34:25.

      Officer Evans testified that he could not remember whether he checked his rear-view mirrors before reversing his vehicle, but he also testified that he would not have reversed his vehicle had he seen anything behind it. Evans Dep. 45:6-46:12; see also Evans Aff. ¶ 10.