author: SHAW, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Shane A. NARDIELLO, Defendant-Appellant.
    NO. 13-17-21
    Court of Appeals of Ohio, Third District, Seneca County.
    Date of Decision: December 11, 2017
    David L. Doughten, Cleveland, for Appellant
    Charles R. Hall, Jr., for Appellee
   SHAW, J.

{¶ 1} Defendant-appellant Shane A. Nardiello ("Nardiello") appeals the June 15, 2017 judgment of the Tiffin-Fostoria Municipal Court overruling his motion to withdraw his no contest plea. Nardiello assigns as error the trial court's failure to give him the proper advisement pursuant to R.C. 2943.031(A) for a non-citizen prior to entering his no contest plea.

Facts and Procedural History

{¶ 2} Nardiello is a citizen of the United Kingdom, legally residing in the United States. On February 16, 2011, a complaint was filed alleging that, during a traffic stop, Nardiello was found to be in possession of anabolic steroids, in violation of R.C. 4729.51(C)(3), a misdemeanor of the first degree. The record indicates that Nardiello was stopped for speeding in the Village of Republic in Seneca County, Ohio. After he was issued a citation, Nardiello gave law enforcement written consent to search his vehicle. One glass vial of 9.1 grams of Testosterone Propionate was found in the glove compartment along with $6,000 of cash. Nardiello was issued a copy of the complaint and was summoned to appear before the Tiffin-Fostoria Municipal Court on February 23, 2011.

{¶ 3} On February 16, 2011, Nardiello's counsel filed a notice of appearance. Nardiello's counsel also entered a written not guilty plea on his behalf and a waiver of his speedy trial rights. Counsel further requested that a pre-trial be scheduled for the matter. The trial court granted the request and scheduled the first pre-trial in the case for March 23, 2011.

{¶ 4} On March 23, 2011, Nardiello's counsel appeared for the first pre-trial. The trial court's journal entry indicates that Nardiello was not present at this pre-trial. The case was continued for a second pre-trial in order for discovery to be completed.

{¶ 5} On July 28, 2011, Nardiello appeared in court for a change of plea hearing, where he entered a plea of no contest to the charge alleged in the complaint. The trial court accepted Nardiello's no contest plea and found him guilty. The trial court sentenced Nardiello to a suspended sentence of 30 days in jail, a $250 fine, one-year probation, and a six-month license suspension.

{¶ 6} Nearly six years later, on March 20, 2017, Nardiello filed a motion to withdraw his 2011 no contest plea. Nardiello argued that he was entitled to withdraw his no contest plea because the trial court failed to advise him of the possible adverse immigration consequences of his conviction prior to accepting his no contest plea as required by R.C. 2943.031(A). Nardiello attached his own affidavit to the motion claiming that the trial court did not give him the statutory advisement prior to accepting his no contest plea, and further claiming that he had just recently been advised by "immigration attorneys" that his 2011 misdemeanor drug offense would preclude him from obtaining a green card and becoming a citizen of the United States. Nardiello averred that he would not have entered the no contest plea had he known his conviction would jeopardize him obtaining United States citizenship in the future. Nardiello further explained that he was now married to a United States Citizen.

{¶ 7} After conducting two hearings, the trial court summarily overruled Nardiello's motion to withdraw his no contest plea in a general "check box" journal entry. Specifically, in the section reading "In addition, the Court orders" the trial court simply wrote "Motion to withdraw plea denied." (Doc. No. 20). However, we note that a review of the transcript from the second hearing held on Nardiello's motion reveals that the trial court concluded that the motion should be overruled based upon the untimeliness of its filing and Nardiello's failure to establish that he had suffered any prejudice-i.e., any actual adverse immigration consequences-as a result of his 2011 misdemeanor conviction. (See Doc. No. 28 at 10).

{¶ 8} Nardiello filed this appeal asserting the following assignment of error.

THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE APPELLANT'S MOTION TO WITHDRAW FROM AN INVALID PLEA.

Relevant Law: R.C. 2943.031

{¶ 9} Section 2943.031(A) of the Revised Code requires a trial court to give the following advisement to defendants entering either a guilty plea or a plea of no contest, unless the defendant indicates that he is a citizen, in accordance with R.C. 2943.031(B) :

(A) Except as provided in division (B) of this section, prior to accepting a plea of guilty or a plea of no contest to an indictment, information, or complaint charging a felony or a misdemeanor other than a minor misdemeanor if the defendant previously has not been convicted of or pleaded guilty to a minor misdemeanor, the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."

{¶ 10} Section 2943.031(D) of the Revised Code specifies the remedy for a trial court's failure to advise as required under R.C. 2943.031(A). State v. Yuen , 10th Dist. Franklin No. 01AP-1410, 2002-Ohio-5083, 2002 WL 31124023, ¶ 18. "Under R.C. 2943.031(D), a defendant who has not received the advisement required by R.C. 2943.031(A) may move to set aside the judgment and withdraw his guilty plea. This motion and an appeal from the denial of the motion provide the exclusive remedies for an alleged violation of R.C. 2943.031(A)." State ex rel. White v. Suster , 101 Ohio St.3d 212, 2004-Ohio-719, 803 N.E.2d 813, ¶ 7.

{¶ 11} Section 2943.031(D) of the Revised Code reads in relevant part as follows:

Upon motion of the defendant, the court shall set aside the judgment and permit the defendant to withdraw a plea of guilty or no contest and enter a plea of not guilty or not guilty by reason of insanity, if, after the effective date of this section, the court fails to provide the defendant the advisement described in division (A) of this section, the advisement is required by that division, and the defendant shows that he is not a citizen of the United States and that the conviction of the offense to which he pleaded guilty or no contest may result in his being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

{¶ 12} Under R.C. 2943.031(E), the absence of a record showing that the court gave the advisement required by R.C. 2943.031(A) creates a presumption that the advisement was not given. State v. Alonzo , 3d Dist. No. 13-15-26, 2016-Ohio-160, 2016 WL 229439, ¶ 15 citing Mayfield Hts. v. Grigoryan , 8th Dist. Cuyahoga No. 101498, 2015-Ohio-607, 27 N.E.3d 578, ¶ 19.

{¶ 13} The record establishes that on May 22, 2017, the trial court held a hearing on Nardiello's motion to withdraw his no contest plea. Nardiello's counsel argued that the June 28, 2011 change of plea transcript did not evince that the non-citizen advisement in R.C. 2943.031(A) was given to Nardiello before he entered his no contest plea.

{¶ 14} The trial court informed Nardiello's counsel that the R.C. 2943.031(A) non-citizen advisement is "typically done at the arraignment." (Doc. No. 27 at 3). The trial court further explained that "[i]t is generally not done at a change of plea, whether they're a citizen or not a citizen, in particular, Mr. Nardiello, when you have an attorney." (Id. at 4).

{¶ 15} Nardiello's counsel inquired further into the trial court's explanation, which appeared to make a distinction regarding the trial court's obligation to give the statutorily mandated advisement based upon whether the defendant was represented by counsel. The trial court reiterated, "It's done at the arraignment for everyone, whether you're a citizen or not. Everybody gets the advisement at the arraignment. And I'm quite certain that your client did, because I do it multiple times every day." (Id.).

{¶ 16} Nardiello's counsel requested a continuance so that he could listen to the audiotape from the date Nardiello's arraignment was scheduled to take place according the citation and summons issued to him.

{¶ 17} On June 14, 2017, Nardiello filed a supplement to his motion to withdraw his plea. Nardiello's counsel asserted that the trial court's docket lacked any indicia that Nardiello was even present at the arraignment, let alone that he had received the non-citizen advisement at the February 23, 2011 arraignment. Counsel further noted that the record contained a February 16, 2011 notice from Nardiello's previous counsel indicating that a week prior to the scheduled arraignment counsel had filed a written not guilty plea on his behalf, waived his speedy trial rights, and requested a pre-trial date. Counsel also requested in the February 16, 2011 notice to "please contact me with the hearing date so that I may notify my client." (Doc. No. 2).

{¶ 18} Because the record does not establish that Nardiello was present at the February 23, 2011 arraignment, and there is no other indication in the record that the trial court gave him the non-citizen advisement, we must presume under R.C. 2943.031(E) that the advisement was not given. In these circumstances, the statute is clear that the remedy to be provided is a mandatory withdrawal of the plea, which in this instance, would require reversal of the trial court's judgment and remand of the case to the trial court for that purpose.

{¶ 19} We note that we have previously expressed reservations with this particular trial court's practice of giving the R.C. 2943.031(A) non-citizen advisement at arraignment only and not at the change of plea hearing. See State v. Aryee , 3d Dist. Seneca No. 13-16-18, 2016-Ohio-8405, 2016 WL 7626210, ¶ 18 (noting that "the better practice, and in our view the practice clearly contemplated under the statute, would be to personally address the defendant at the time of the change of plea hearing"). The language of the statute is explicit and unambiguous: "the court shall address the defendant personally , provide the following advisement to the defendant that shall be entered in the record of the court , and determine that the defendant understands the advisement ." R.C. 2943.031(A) (emphasis added). As such, this case presents a prime example of the peril created by the trial court's practice to exclusively give the R.C. 2943.031(A) non-citizen advisement at the arraignment, and more specifically, the peril of doing so only in a group format to those assembled in the courtroom prior to their individual arraignments.

{¶ 20} Moreover, we do not endorse the trial court's attempt to mitigate its failure to give the statutorily mandated advisement by placing the onus on defense counsel to inform Nardiello of the potential immigration consequences prior to entering his change of plea. We recognize that there is a corresponding duty of defense counsel to inform his or her non-citizen client of certain adverse immigration consequences. See Padilla v. Kentucky , 559 U.S. 356, 364-74, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (wherein the United States Supreme Court held that the Sixth Amendment imposes upon counsel, in negotiating a guilty or no-contest plea, the duty to accurately advise a non-citizen client concerning the removal consequence of his conviction). However, counsel's duty is independent and does not relieve the trial court of its statutory duty to give the advisement under R.C. 2943.031(A).

{¶ 21} Notwithstanding all of this, we also acknowledge that the case law analyzing R.C. 2943.031 has held that the trial court retains some discretion in considering whether to grant a motion to withdraw a plea, despite the statutory language of R.C. 2943.031(D) stating that a court "shall set aside the judgment and permit the defendant to withdraw a plea. " The court's discretion is generally premised upon the consideration of additional factors such as timeliness of the motion and prejudice to the State due to the defendant's unreasonable delay in filing the motion which are dictated by the particular facts of the case. See State v. Francis , 104 Ohio St. 3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 40-42.

{¶ 22} More importantly, however, R.C. 2943.031(D) also requires that the defendant must show that the no contest plea and resulting conviction "may result in his being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States" in order to invoke the statutory right to mandatory withdrawal of the plea by the trial court set forth in the statute. Here, Nardiello stated in a self-serving affidavit accompanying the motion to withdraw under R.C. 2943.031(D) that, "Recently I have been advised by immigration attorneys that my plea to the misdemeanor drug offense would preclude me from obtaining a green card, becoming a citizen or even staying in this country." (Doc. No. 14 at ¶ 5). However, nothing more was submitted in support of the motion to withdrawal his plea.

{¶ 23} It is our determination that this single statement in his own affidavit is not a sufficient showing to invoke the mandatory remedy of withdrawal of his plea under R.C. 2943.031(D), especially in light of the nearly six-year delay in filing the motion. We further note the record at the change of plea hearing clearly indicates that Nardiello had some apprisal of the "citizenship implications" prior to entering his no contest plea. Specifically, the transcript of the change of plea hearing reveals the following:

Trial Court: [Defense Counsel], upon further recommendation of the prosecutor, have you had an opportunity to speak with your client about this proposed change of plea?
Defense Counsel: Yes, I have, Your Honor, and-I'm sorry. Yes, I have.
Trial Court: And do you believe he understands the implications of a change of plea here today?
Defense Counsel: He does, Your Honor. He's not a U.S. Citizen, and that was one of the reasons that we had the delay in change of plea.
Trial Court: Mr. Nardiello, do you need more time to speak with [Defense Counsel] about this?
Nardiello: No, Your Honor.
Trial Court: Is this what you want to do?
Nardiello: Yes, Your Honor.
Trial Court: Do you understand I'm not bound by that recommendation? I can impose a greater or lesser penalty, as I deem appropriate.
Nardiello: Yes, Your Honor.
Trial Court: And are you satisfied with the plea?
Nardiello: Yes, Your Honor.
Trial Court: Are you satisfied with [Defense Counsel's] representation?
Nardiello: Yes, Your Honor.
Trial Court: And, [Defense Counsel], how does your client propose to plea?
Defense Counsel: He would enter a plea of no contest with a stipulation of the finding of guilt at this time.
Trial Court: And you understand, Mr. Nardiello, by entering a plea of no contest, you're admitting to the truth of the facts as alleged on the face of the complaint.
Nardiello: Yes, Your Honor.
Trial Court: And you understand what the maximum possible penalties are.
Nardiello: Yes, Your Honor.
Trial Court: At this time, I'll accept your plea of no contest. [Defense Counsel], anything you want to say about the facts about what happened?
Defense Counsel: Your Honor, Mr. Nardiello, he accepts full responsibility for the contents in his car. He graduated from Heidelberg College. He's no longer here. He's a resident of Cuyahoga County. Again, he has-he's here on a visa, so he just obtained employment. He's got citizenship implications.
* * *
Trial Court: Based upon my review of the case and this citation, the officer's report, and your plea of no contest, there will be a finding of guilt. Mr. Nardiello, is there anything you'd like to say? Anything you think the Court should take into consideration with regard to the penalty?
Defense Counsel: Your Honor, I have had an opportunity to speak at length with the prosecutor and I would appreciate if the Court would accept the prosecutor's recommendation. Again, Mr. Nardiello is not a U.S. citizen, so these court implications are additional to whatever implications he has with the United States of America. He understands he committed a crime, committed a wrong, and wishes the Court's indulgence, again, to give him some leniency.

(July 28, 2011 Trans. at 3-7).

{¶ 24} Albeit coming from defense counsel and not the trial court, the transcript excerpts above nevertheless indicate that, prior to the change of plea, defense counsel and Nardiello were clearly aware and likely had discussed the possibility that entering a no contest plea could affect his immigration status-and that the "citizenship implications" were compelling enough to delay the plea proceedings. (July 28, 2011 Trans. at 3-7). This is not to say that, defense counsel's discussions with Nardiello or comments on the record, relieved the trial court of its duty under R.C. 2943.031(A) to give the non-citizen advisement. However, we find Nardiello's apprisal of immigration consequences at the time of his plea to be significant when reviewing the credibility of his self-serving affidavit accompanying the motion to withdraw, and in particular Nardiello's representation that he would not have entered the plea had he been aware of the admonitions contained in the R.C. 2943.031(A) advisement.

{¶ 25} In sum, Nardiello's lack of sufficient evidence of pending or imminent immigration consequences to invoke the mandatory remedy of withdrawal of the plea under R.C. 2943.031(D), the clear indication of his apprisal of some possible immigration consequences at the plea hearing, and the unreasonable delay of six years before filing the motion to withdraw all constitute factors which support the exercise of the trial court's discretion in deciding Nardiello's motion. And, in these circumstances, we cannot find an abuse of that discretion in the trial court's decision to deny the motion. Accordingly, we overrule the assignment of error and affirm the judgment of the trial court.

Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

      Nardiello also attempts to argue on appeal that his no contest plea did not comply with Crim.R. 11 and therefore he should be permitted to withdraw his plea pursuant to Crim.R. 32.1, which is an independent basis from R.C. 2943.031. However, the record reveals that the motion filed by Nardiello with the trial court to withdrawal his plea was premised solely upon R.C. 2943.031 and made no arguments pertaining to Crim.R. 32.1. Accordingly, we will only review the arguments Nardiello made before the trial court with respect to the motion to withdraw his plea under R.C. 2943.031.


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    STATE of Ohio, BY AND THROUGH Jerry WRAY, Director, Ohio Department of Transportation, et al., Plaintiff-Appellants v. KARL R. ROHRER ASSOCIATES, INC., Defendant-Appellee
    No. 2017AP030008
    Court of Appeals of Ohio, Fifth District, Tuscarawas County.
    DATE OF JUDGMENT ENTRY: January 8, 2018
    MICHAEL DEWINE, Ohio Attorney General, CRAIG D. BARCLAY, WILLIAM C. BECKER, Assistant Attorneys General, Court of Claims Defense Section, 150 E. Gay Street, 18th Floor, Columbus, OH 43215, For Plaintiff-Appellants.
    BRIAN T. WINCHESTER, PATRICK J. GUMP, McNeal Schick Archibald & Biro Co., LPA, 123 West Prospect Avenue, Suite 250, Cleveland, OH 44115, For Defendant-Appellee.
    LUTHER L. LIGGETT, JR., Graff and McGovern LPA, 604 E. Rich Street, Columbus, OH 43215, For Amicus Curiae, AIA Ohio.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
   Hoffman, J.

{¶ 1} Appellants State of Ohio, by and through Jerry Wray, Director, Ohio Department of Transportation and Ohio Department of Administrative Services, n/k/a Ohio Facilities Construction Commission, appeal the directed verdict entered by the Tuscarawas County Common Pleas Court dismissing their breach of contract action against Appellee Karl R. Rohrer Associates Inc.

STATEMENT OF THE FACTS AND CASE

{¶ 2} In 1992, and 1993, Appellee submitted two proposals to provide engineering services for the construction of the Ohio Department of Transportation (hereinafter "ODOT") District 11 garage in New Philadelphia, Ohio. Appellee signed an agreement with the Ohio Department of Administrative Services (hereinafter "ODAS") to provide design services related to structural engineering and related supervision for the construction of the garage. Structural designs for the project were provided by the State Architect's Office (hereinafter "SAO").

{¶ 3} In 1997, the SAO became aware of issues with the brick around five windows of the completed building. Appellee paid ODAS $68,000.00 to remediate the issue around the windows.

{¶ 4} Appellants later claimed all windows showed some degree of impermissible rotation of the steel supporting the brick, causing the brick around the windows to crumble and/or crack. Appellants further claimed the two-plus-story garage walls of the facility were not adequately supported. Appellants filed the instant action on March 3, 2015, for negligence, breach of contract, and declaratory judgment.

{¶ 5} On September 28, 2015, Appellee filed a motion for judgment on the pleadings, arguing Appellants' complaint was barred by Ohio's statute of repose, R.C. 2305.131. The trial overruled the motion on December 31, 2015, finding R.C. 2305.131 is generally worded and does not say it applies to the State, and Appellants were exempt from operation of the statute by the doctrine of nullum tempus.

{¶ 6} The case proceeded to jury trial on February 22 and 23, 2017. Prior to trial, Appellants dismissed their claims for negligence and for declaratory judgment.

{¶ 7} At the close of the presentation of Appellants' case at trial, Appellee moved for directed verdict on various grounds, again arguing the action was barred by R.C. 2305.131. Tr. 445. The trial court directed a verdict as follows:

Based upon evidence illicited [sic] by the Plaintiffs from Defendant's principal, the Agreement was acknowledged, the Defendant stated that the work was performed, and the Defendant affirmed that it was paid upon completion of the work.
Based upon the evidence presented by Plaintiffs' expert, the claims for damage were proximately caused by inadequate design, regarding the standard of care for engineering.
The Complaint, Pre-trial Statement, and finally, the evidence at trial, presented a claim in tort. See Crowninshield/Old Town Cmty. Urban Redevelopment Corp. v. Campeon Roofing & Waterproofing , 1st Dist. Hamilton Nos. C-940731, C-940748 (Apr. 17, 1996) [1996 WL 181374]. The claims and opinions demonstrate a belief that the Defendant failed in its rendering of services in the practice of a profession to exercise that degree of skill and learning normally applied by members of that profession in similar circumstances. See Illinois National Insurance Co., v. Wiles, Boyle, Burkholder & Bringardner Co., LPA , 10th Dist. Franklin No. 10AP-290, 2010-Ohio-5872 [2010 WL 4926572].
Therefore, the Court found that the evidence presented in support of the breach of contract sounds in tort, and that the Plaintiffs failed to present any evidence that the Defendant breached the contract. Judgment Entry, February 28, 2017.

{¶ 8} From this entry Appellants prosecute their appeal, assigning as error:

"THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR DIRECTED VERDICT AND FINDING THAT THE STATE OF OHIO'S CASE 'SOUNDED IN TORT' AND THAT THE STATE COULD ONLY SUE IN TORT DESPITE IT HAVING A CONTRACT WITH A DESIGN ENGINEER AND THEN GOING ON TO INCONSISTENTLY HOLD THAT THE STATE
OF OHIO FAILED TO PROVE A BREACH OF CONTRACT CLAIM (AS THOUGH THE CASE ALSO 'SOUNDED IN CONTRACT')."

{¶ 9} Appellee assigns the following cross-assignments of error to the judgment of the trial court:

"I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION FOR RECONSIDERATION, AND MOTION FOR DIRECTED VERDICT THAT PLAINTIFFS' CLAIMS WERE BARRED BY THE STATUTE OF REPOSE.
"II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS TO PLAINTIFF OHIO DEPARTMENT OF TRANSPORTATION'S LACK OF CONTRACTUAL PRIVITY WITH THE DEFENDANT.
"III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS TO PLAINTIFF OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES' LACK OF STANDING.
"IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO PRESENT EVIDENCE THAT IT SUBSTANTIALLY PERFORMED THE APPLICABLE CONTRACT.
"V. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE AN AMENDED ANSWER OR TO ALLOW ITS ANSWER TO CONFORM TO THE EVIDENCE.
"VI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS PLAINTIFFS' CLAIMS WERE BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION.
"VII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AS THE PLAINTIFFS FAILED TO PRESENT ANY EVIDENCE AS TO THE DIMINUTION IN VALUE OF THE SUBJECT PROPERTY."

Cross-Assignment I.

{¶ 10} We address Appellee's first cross-assignment of error first, as we find it dispositive of the entire appeal. Appellee argues the trial court erred in denying its motion for judgment on the pleadings, motion for reconsideration of its decision on the motion for judgment on the pleadings, and motion for directed verdict, asserting Appellants' cause of action is barred by the statute of repose. We agree.

{¶11} Civ. R. 12(C) provides, "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The standard of review of the grant of a motion for judgment on the pleadings is the same as the standard of review for a Civ. R. 12(B)(6) motion. As the reviewing court, our review of a dismissal of a complaint based upon a judgment on the pleadings requires us to independently review the complaint and determine if the dismissal was appropriate. Rich v. Erie County Department of Human Resources , 106 Ohio App.3d 88, 91, 665 N.E.2d 278 (1995). A reviewing court need not defer to the trial court's decision in such cases. Id.

{¶ 12} A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C), presents only questions of law. Peterson v. Teodosio , 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973). The determination of a motion under Civ. R. 12(C) is restricted solely to the allegations in the pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson , 1 Ohio App.2d 133, 135, 204 N.E.2d 100 (1964). In considering such a motion, one must look only to the face of the complaint. Nelson v. Pleasant , 73 Ohio App.3d 479, 597 N.E.2d 1137 (1991).

{¶ 13} A trial court's decision on a motion for directed verdict presents a question of law, which an appellate court reviews de novo. Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170. Civil Rule 50 provides a motion for directed verdict may be made at the opening statement of the opponent, at the close of opponent's evidence, or at the close of all the evidence. Upon receiving the motion, the trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. Civil Rule 50(A)(4). If the trial court finds on any determinative issue reasonable minds could come but to one conclusion on the evidence submitted, then the court shall sustain the motion and direct the verdict as to such issue. A directed verdict is appropriate where a plaintiff fails to present evidence from which reasonable minds could find in plaintiff's favor. See Hargrove v. Tanner , 66 Ohio App.3d 693, 586 N.E.2d 141 (9th Dist. Summit 1990).

{¶ 14} On September 28, 2015, Appellee filed a motion for judgment on the pleadings, arguing Appellants' complaint was barred by Ohio's statute of repose, R.C. The trial overruled the motion on December 31, 2015, finding R.C. 2305.131 is generally worded and does not say it applies to the State, and Appellants were exempt from operation of the statute by the doctrine of nullum tempus.

{¶ 15} At the close of the presentation of Appellants' case at trial, Appellee moved for directed verdict, again arguing the action was barred by R.C. 2305.131. Tr. 445. The trial court granted directed verdict on other grounds.

{¶ 16} R.C. 2305.131, Ohio's statute of repose, provides:

(A)(1) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code and except as otherwise provided in divisions (A)(2), (A)(3), (C), and (D) of this section, no cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property and no cause of action for contribution or indemnity for damages sustained as a result of bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property shall accrue against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.
(2) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code, a claimant who discovers a defective and unsafe condition of an improvement to real property during the ten-year period specified in division (A)(1) of this section but less than two years prior to the expiration of that period may commence a civil action to recover damages as described in that division within two years from the date of the discovery of that defective and unsafe condition.
(3) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code, if a cause of action that arises out of a defective and unsafe condition of an improvement to real property accrues during the ten-year period specified in division (A)(1) of this section and the plaintiff cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, the plaintiff may commence a civil action to recover damages as described in that division within two years from the removal of that disability.
(B) Division (A) of this section does not apply to a civil action commenced against a person who is an owner of, tenant of, landlord of, or other person in possession and control of an improvement to real property and who is in actual possession and control of the improvement to real property at the time that the defective and unsafe condition of the improvement to real property constitutes the proximate cause of the bodily injury, injury to real or personal property, or wrongful death that is the subject matter of the civil action.
(C) Division (A)(1) of this section is not available as an affirmative defense to a defendant in a civil action described in that division if the defendant engages in fraud in regard to furnishing the design, planning, supervision of construction, or construction of an improvement to real property or in regard to any relevant fact or other information that pertains to the act or omission constituting the alleged basis of the bodily injury, injury to real or personal property, or wrongful death or to the defective and unsafe condition of the improvement to real property.
(D) Division (A)(1) of this section does not prohibit the commencement of a civil action for damages against a person who has expressly warranted or guaranteed an improvement to real property for a period longer than the period described in division (A)(1) of this section and whose warranty or guarantee has not expired as of the time of the alleged bodily injury, injury to real or personal property, or wrongful death in accordance with the terms of that warranty or guarantee.
(E) This section does not create a new cause of action or substantive legal right against any person resulting from the design, planning, supervision of construction, or construction of an improvement to real property.
(F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this section.
(G) As used in this section, "substantial completion" means the date the improvement to real property is first used by the owner or tenant of the real property or when the real property is first available for use after having the improvement completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.

{¶ 17} It is undisputed Appellants filed the instant action more than ten years after the building was substantially complete. Therefore, the only issue before us is whether the statute applies to Appellants' breach of contract claim against Appellee.

{¶ 18} Appellants argue R.C. 2305.131 does not apply to breach of contract actions, citing Kocisko v. Charles Shutrump & Sons Co. , 21 Ohio St. 3d 98, 488 N.E.2d 171 (1986). In Kocisko the Ohio Supreme Court found a prior version of R.C. 2305.131 applies only to actions which sound in tort. Id. at syllabus. Actions in contract are governed by the fifteen-year statute of limitations set forth in R.C. 2305.06. Id.

{¶ 19} In so holding, the Ohio Supreme Court referred to the prior version of R.C. 2305.131 as a ten-year statute of limitations. Id. at 99, 488 N.E.2d at 172. The statute in effect at the time provided in pertinent part:

No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction (emphasis added).

{¶ 20} The court concluded this ten-year statute of limitations did not apply to contract actions, which were governed by the fifteen-year statute of limitations found in R.C. 2305.06.

{¶ 21} Further, the court in Kocisko found the complaint did not allege an injury to person or property arising out of a defective and unsafe improvement to real property. Rather, the plaintiff sought recovery for damages flowing from the installation of a leaky roof in breach of their various contracts. Id. Thus, while holding generally R.C. 2305.131 did not apply to breach of contract actions, the court looked at the complaint to determine what type of injury the plaintiff alleged.

{¶ 22} The dissenting justices found the plain language of the statute, stating "no actions" for certain types of injuries shall be brought more than ten years after the cause of action arose, did not distinguish between contract, tort, or other forms of actions. Id. at 100, 488 N.E.2d at 173. The dissenting opinion further looked to the intention of the legislature in adopting the statute to support its position the statute was not limited to tort actions:

The parties agree that R.C. 2305.131 was adopted to protect architects and builders when the demise of the privity of contract doctrine broadly extended their potential liability to third parties. Almost every state, including Ohio, enacted this type of statute, recognizing that architects and builders were exposed to liability for an indefinite time due to the longevity of buildings. Over such a long time, evidence becomes stale and intervening negligence could and does occur. I find unpersuasive the argument that the legislature would have passed such legislation intending it to apply only to tort claims but not to contract claims that allege the same type of injury. If the legislature intended to restrict the limitations period to a particular form of action, it could have done so explicitly. Id.

{¶ 23} In Hedges v. Nationwide Mut. Ins. Co. , 109 Ohio St.3d 70, 2006-Ohio-1926, 846 N.E.2d 16, ¶¶ 24-25 (2006), the Ohio Supreme Court held changes to the statutory language in the area of uninsured/underinsured motorist law cured the ambiguity that concerned the court in a prior case interpreting the statute, and therefore the prior holding of the court did not apply to the new version of the statute. In the instant case, the current statute is clearly not a statute of limitations as the Kocisko court characterized the prior version of R.C. 2305.131. Rather than limiting the time in which the action may be brought, the current statute prevents the cause of action from accruing after ten years has passed, stating "no cause of action shall accrue" later than ten years from the date the project was substantially completed.

{¶ 24} In addition, R.C. 2305.131 states:

(F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant , regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state , but shall not be construed to apply to any civil action pending prior to the effective date of this section (emphasis added).

{¶ 25} The statute itself sets forth the legislature's intention it apply to any civil action in which it is relevant, regardless of any prior rule of law of this state, presumably including case law based on the prior version of the statute and/or any common law precedent.

{¶ 26} Therefore, we find Kocisko is not binding authority on this Court in interpreting the current version of the statute.

{¶ 27} The legislature set forth its purposes for reenactment of the statute of repose following the Ohio Supreme Court's declaration the prior version was unconstitutional:

In enacting section 2305.131 of the Revised Code in this act, it is the intent of the General Assembly to do all of the following:
(1) To declare that the ten-year statute of repose prescribed by section 2305.131 of the Revised Code, as enacted by this act, is a specific provision intended to promote a greater interest than the interest underlying the general four-year statute of limitations prescribed by section 2305.09 of the Revised Code, the general two-year statute of limitations prescribed by section 2305.10 of the Revised Code, and other general statutes of limitation prescribed by the Revised Code;
(2) To recognize that, subsequent to the completion of the construction of an improvement to real property, all of the following generally apply to the persons who provided services for the improvement or who furnished the design, planning, supervision of construction, or construction of the improvement:
(a) They lack control over the improvement, the ability to make determinations with respect to the improvement, and the opportunity or responsibility to maintain or undertake the maintenance of the improvement;
(b) They lack control over other forces, uses, and intervening causes that may cause stress, strain, or wear and tear to the improvement.
(c) They have no right or opportunity to be made aware of, to evaluate the effect of, or to take action to overcome the effect of the forces, uses, and intervening causes described in division (E)(5)(b) of this section.
(3) To recognize that, more than ten years after the completion of the construction of an improvement to real property, the availability of relevant evidence pertaining to the improvement and the availability of witnesses knowledgeable with respect to the improvement is problematic;
(4) To recognize that maintaining records and other documentation pertaining to services provided for an improvement to real property or the design, planning, supervision of construction, or construction of an improvement to real property for a reasonable period of time is appropriate and to recognize that, because the useful life of an improvement to real property may be substantially longer than ten years after the completion of the construction of the improvement, it is an unacceptable burden to require the maintenance of those types of records and other documentation for a period in excess of ten years after that completion;
(5) To declare that section 2305.131 of the Revised Code, as enacted by this act, strikes a rational balance between the rights of prospective claimants and the rights of design professionals, construction contractors, and construction subcontractors and to declare that the ten-year statute of repose prescribed in that section is a rational period of repose intended to preclude the pitfalls of stale litigation but not to affect civil actions against those in actual control and possession of an improvement to real property at the time that a defective and unsafe condition of that improvement causes an injury to real or personal property, bodily injury, or wrongful death. 2004 SB 80 § 3, eff. 4-7-05.

{¶ 28} We find the stated concerns underlying enactment of the statute apply to actions brought against design professionals for injury to person or property caused by a defective or unsafe improvement to real property, whether such action sounds in tort or contract.

{¶ 29} In addition, the legislative history quoted above reflects an intent to promote a greater interest than the "four-year statute of limitations prescribed by section 2305.09 of the Revised Code, the general two-year statute of limitations prescribed by section 2305.10 of the Revised Code, and other general statutes of limitation prescribed by the Revised Code. " The inclusion of other statutes of limitations beyond R.C. 2305.09 (certain torts) and R.C. 2305.10 (products liability) implies the statute applies to non-tort actions which allege the type of injury set forth in the statute.

{¶ 30} It matters not whether the action is brought in tort or contract, if the resultant damages are injury to property of the type set forth in R.C. 2305.131, the statute applies.

{¶ 31} In its complaint, Appellants state in their introduction:

6. Defendant Rohrer failed to perform and otherwise breached its contract, breached its standard of care, failed to identify defective work for correction and otherwise failed to comply with the requirements of the Contract Documents.
7. Said breaches of contract and negligence included but were not limited to: failure to design, advise, and properly monitor construction of brick and steel lintels over long-span window openings, forty-five in all, causing window displacement, and corresponding cracking of brick with related leakage; failure to design, advise and properly monitor construction of walls and footer/foundation throughout, especially in high wall areas-all violating basic engineering standards.

{¶ 32} In its prayer for relief for breach of contract, Appellants' complaint states:

14. As a direct and proximate result of Rohrer's breach of contract, ODOT has incurred and will incur additional costs and damages to repair and replace defective and non-complying structural design, workmanship, and materials in an amount in excess of $1.5 million plus prejudgment interest, and other compensatory and consequential damages in an amount to be proven at trial.

{¶ 33} Appellants' claim for negligence sets forth a nearly-identical prayer for damages:

17. As a direct and proximate result of the negligence of Defendant Rohrer, the Plaintiffs have incurred and will incur additional costs and damages to repair and replace defective and non-complying designs, work and materials in an amount in excess of $1.5 million, plus prejudgment interest, and other compensatory and consequential damages, to be proven at trial.

{¶ 34} We find the instant action is an action for damages to property caused by defective design to an improvement to real property, and as such R.C. 2305.131 applies.

{¶ 35} The trial court found R.C. 2305.131 did not apply to Appellants based on the maxim nullum tempus occurrit regi (time does not run against the king). Based on the doctrine of nullum tempus , the state of Ohio is not subject to general requirements of statutes of limitations unless the statute in question has specifically included the government. State, Dept. of Transp. v. Sullivan , 38 Ohio St.3d 137, 139, 527 N.E.2d 798, 799 (1988). We reiterate the present version is not a statute of limitations but rather a declaration of when a cause of action no longer exists. One reason for the vitality of the doctrine in a time when royal privilege no longer exists is found in the public policy of preserving the public rights, revenues, and property from injury and loss from the negligence of public officials in failing to bring suit in a timely fashion. Id. The rule is justified on the basis the same active vigilance cannot be expected of the State as characterizes a private person in protecting his or her own rights. Id., citing Heddleston v. Hendricks , 52 Ohio St. 460, 465, 40 N.E. 408, 409 (1895).

{¶ 36} The trial court relied on City of Chicago ex rel. Scachitti v. Prudential Securities, Inc. , 332 Ill.App. 3d 353, 265 Ill.Dec. 535, 772 N.E.2d 906 (2002). In that case, the Illinois court first undertook an analysis of the application of nullum tempus to the statute of limitations, as in Illinois the test for its applicability is whether the right the State seeks to assert is a right belonging to the general public, or whether it belongs only to the government or a small subsection of the public at large. Id. at 361, 265 Ill.Dec. 535, 772 N.E.2d 906. After determining the right was one belonging to the general public and the statute of limitations did not apply based on the doctrine of nullum tempus , the court then found the statute of repose also did not bar the action, citing People v. Asbestospray Corp. , 247 Ill.App.3d 258, 186 Ill.Dec. 462, 616 N.E.2d 652 (1993).

{¶ 37} In Asbestospray , the court concluded despite differences between the two, statutes of repose are essentially time limitations and therefore subject to the doctrine of nullum tempus , citing cases from the states of Washington and North Carolina. Id. at 262, 186 Ill.Dec. 462, 616 N.E.2d 652. However, the Illinois statute in question in Asbestospray differed from the Ohio statute. Unlike R.C. 2305.131 which prevents the cause of action from accruing, the Illinois statute provides no product liability action based on strict liability "shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale...." Id. at 260, 186 Ill.Dec. 462, 616 N.E.2d 652.

{¶ 38} We find the City of Chicago case unpersuasive in the instant appeal. The Illinois statutory language is more similar to a statute of limitations than the language in the Ohio statute. Further, Illinois requires consideration of whether the government is engaged in a public function prior to applying the doctrine of nullum tempus. Ohio has no such requirement, and thus application of the doctrine to the statute of repose would provide a sweeping application to all actions brought by the State. Unlike City of Chicago where the right asserted belonged to the general public, we find the right asserted here belongs to the government. In addition, we note a split of authority among states as to the applicability of the doctrine to statutes of repose. See, e.g, Com. v. Owens-Corning Fiberglas Corp. , 238 Va. 595, 385 S.E.2d 865 (1989) ; Altoona Area School Dist. v. Campbell , 152 Pa. Cmwlth. 131, 618 A.2d 1129 (1992) ; Shasta View Irrigation Dist. v. Amoco Chemicals Corp. 329 Or. 151, 986 P.2d 536 (1999).

{¶ 39} We find the trial court erred in finding the doctrine of nullum tempus barred application of the statute of repose against the State. The doctrine nullum tempus occurrit regi translates "time does not run against the king." Because the statute of repose prevents a cause of action from accruing, application of the doctrine to the statute of repose would not stop time from running against the king, but rather would give the king a cause of action where otherwise one would not exist. The Supreme Court of Oregon held in Shasta View, supra , at 164, 986 P.2d 536 :

ORS 30.905(1), by contrast, reflects a legislative judgment that an injury occurring eight years after a defective product first enters the stream of commerce is not legally cognizable because, after that time, all claims are extinguished. Sealey [By and Through Sealey v. Hicks ], 309 Or. [387] at 392, 788 P.2d 435 [ (1990) ]. Unlike a statute of limitations, the eight-year ultimate repose period prescribed by that statute begins to run on the date on which a product first is purchased for use or consumption, not on the date on which a purchaser knows or should have known of an injury caused by the product. The eight-year statute of ultimate repose runs whether or not a public official or any other plaintiff fails to assert a claim in a timely manner. The public policy for exempting governments from statutes of limitations therefore does not apply to statutes of ultimate repose. That is so, because the expiration of ultimate repose periods extinguishes all claims irrespective of whether the injured plaintiff was negligent in failing to assert claims in a timely manner.

{¶ 40} As in Oregon, the policy underlying the continued application of nullum tempus in Ohio is premised on protecting the public interest from the negligence of public officials who fail to bring a claim in a timely fashion. Sullivan, supra. Such underpinning does not apply to R.C. 2305.131, which extinguishes all claims ten years after completion of the project irrespective of whether the plaintiff has filed a complaint in a timely manner.

{¶ 41} Further, the language of the statute specifically states it applies notwithstanding common law to the contrary:

(F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state , but shall not be construed to apply to any civil action pending prior to the effective date of this section. R.C. 2305.131(F) (emphasis added).

{¶ 42} The language of the statute itself suggests the doctrine of nullum tempus , a "prior rule of law of this state," shall not prevent application of the statute.

{¶ 43} For the foregoing reasons, we find the instant action, filed more than ten years after substantial completion of the project, is barred by R.C. 2305.131. The assignment of error is sustained.

{¶ 44} The assignment of error on direct appeal and the remaining cross-assignments of error are rendered moot by our disposition of the first cross-assignment of error.

{¶ 45} The judgment of the Tuscarawas County Common Pleas Court is affirmed.

Gwin, P.J. and Wise, Earle, J. concur

      Appellants' claims for negligence and declaratory judgment were dismissed prior to trial.

      In City of Chicago , the action was brought to recover overcharges incurred by yield burning on the part of the defendants in advanced-refunding of city bonds. The court held the recovery of $1.4 million in overcharges benefitted the general public. 332 Ill.App.3d 353, 265 Ill.Dec. 535, 772 N.E.2d at 918.


text:
    Kristen WITTENBROOK, Plaintiff-Appellee v. ELECTRONICS RECYCLING SERVICES, INC., et al., Defendants-Appellant
    NO. 16 BE 0023
    Court of Appeals of Ohio, Seventh District, Belmont County.
    Dated: January 8, 2018
    Attorney Patrick Cassidy, The First State Capital, 1413 Eoff Street, Wheeling, West Virginia 26003, For Plaintiff-Appellee
    Attorney Paul Flowers, Attorney Timothy Cogan, Terminal Tower, Suite 1910, 50 Public Square, Canfield, Ohio 44113, For Defendant-Appellant, JJS Developments, Ltd.
    Attorney Bradley Shafer, 1233 Main Street, Suite 1000, Wheeling, West Virginia 26003, For Defendants, Electronics Recycling Services, Inc. and Dan Brown
   JUDGES: Hon. Mary DeGenaro, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

OPINION

DeGENARO, J.

{¶ 1} Defendant-Appellant, JJS Developments, Ltd., appeals the judgment of the trial court entering a jury verdict against it and in favor of Plaintiff-Appellee, Kristen Wittenbrook, on her sexual harassment/hostile work environment and retaliatory discharge claims. JJS argues the trial court's jury interrogatories as to joint employer liability were erroneous and that the trial court erred by overruling JJS's motions for directed verdict on the issue of whether it was liable as a joint employer. Finally, JJS asserts that the trial court committed plain error by failing to sua sponte address allegedly improper comments made by Wittenbrook's counsel during closing arguments. For the following reasons, JJS's assignments of error are meritless and the judgment of the trial court is affirmed.

Facts and Procedural History

{¶ 2} Wittenbrook began working in marketing at Defendant Electronic Recycling Services Inc. (ERS Ohio) in May 2012. Several months later, Wittenbrook claimed that a coworker sexually harassed her and intimidated her. She reported the incident; however, she claimed that management-specifically, senior vice president of operations at ERS Ohio, Defendant Daniel Brown-failed to investigate and deal with the allegations, instead mocking her by displaying sexual harassment posters and portraying her as a drama queen to other employees. Brown then disciplined Wittenbrook for including a non-employee consultant on an email referencing the harassment, and ultimately terminated her from her position at the company.

{¶ 3} This appeal does not center on the facts of the underlying sexual harassment and retaliatory discharge allegations, but rather on ERS Ohio's corporate relationship to Defendant-Appellant JJS.

{¶ 4} ERS Ohio was an Ohio corporation doing business in Bellaire, Ohio. Specifically, it was a recycling facility that would accept recyclable materials, store them and then resell them. Wittenbrook initially worked in a marketing position, then as an assistant to the general manager, and finally as part of the R2 compliance group. ERS Ohio was pursuing its R2 certification, which demonstrates a level of environmentally-responsible recycling; it ensures that the facility is disposing of materials properly. An R2 certification can make the recycling company more marketable to companies who do business with it.

{¶ 5} The owners of ERS Ohio were Sam Kazemeini, a company called Molam, and Brown. Kazemeini was president of ERS Ohio even though he worked out of Toronto exclusively. Brown was senior vice president for operations, Jim Johnston was the general manager or head of operations, and Zak Bobek, served as acting general manager for ERS Ohio when Johnston was working in the Chicago facility and Brown was out of town.

{¶ 6} JJS was located in Scarborough, Ontario, Canada, which is a suburb of Toronto. Kazemeini had an ownership interest in JJS and was also its president. JJS had a number of other facilities like ERS Ohio that were either operating, or in development, in the United States, such as Chicago and Indianapolis, and throughout the world, such as Mexico, China and the Bahamas.

{¶ 7} Wittenbrook entered into a non-competition, non-solicitation and confidentiality agreement prior to commencing her employment at ERS Ohio. The non-compete agreement, dated May 10, 2012, states that it is entered into between "Electronics Recycling Services Ltd., with a head office at 2450 Lawrence Avenue East, Unit # 3-15, Scarborough, Ontario, M1P 2R7 ('The Employer')" and "Kristin Lee Wittenbrook ('The Employee')" The non-compete agreement provides that it "will be construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein." While at least one defense witness attempted to distance Electronics Recycling Services Ltd. from JJS, it is undisputed that JJS did business under a number of names, including "ERS International." A defense witness referred to "ERS International," under which JJS operated, "as our main office."

{¶ 8} According to Dilan Patel, who was the chief financial officer of JJS, ERS Ohio received nearly all of its funding for start-up and operational costs from JJS. Paula Pronesti, who was the global financial controller for JJS, prepared profit and loss statements for ERS Ohio. She explained that "being part of the global team, we were able to access all of the other locations." She said she assisted Patel with managing the budgets for various locations.

{¶ 9} Brown testified he was in contact with JJS daily on a variety of matters, "[e]verything from current market prices for metals, to what the procedures were, to employee issues from a perspective of payroll amounts and things like that." Brown was also in contact with JJS regarding compliance issues. Patel testified that when ERS Ohio had major contract opportunities, JJS would first review them.

{¶ 10} Alfea Principe, global director of compliance for JJS, testified she was in charge of managing ERS Ohio, among other JJS locations, from a compliance perspective. Principe took on additional managerial functions with respect to ERS Ohio. For example, JJS and ERS employees all used the same email domain name: ers-international.com, and Brown asked Principe to make email address and password changes for three ERS Ohio employees. Further, when Brown barred Wittenbrook from returning to her building to work, Principe ordered that Brown permit her back inside. Wittenbrook testified that, thereafter, she was placed under Principe's direct supervision. That testimony is supported by an email where Wittenbrook identifies Principe as her supervisor and in her reply Principe fails to dispute this.

{¶ 11} Wittenbrook testified that Principe also discussed promotion opportunities with her; specifically, that Wittenbrook could move on to manage the R2 certification process for other JJS facilities in the United States and abroad since she had been part of the first team to lead a JJS facility through a successful R2 certification process.

{¶ 12} With regard to JJS's involvement in dealing with the sexual harassment allegations, JJS was apprised of Wittenbrook's complaint according to Dilan Patel, the CFO of JJS. Patel worked in the Toronto location of JJS, which he called the global operations center. In addition, Brown was concerned that the sexual harassment allegations would bring negative scrutiny by JJS upon ERS Ohio. Principe testified that the decision to fire Wittenbrook was made by Brown and Kazemeini, who, as mentioned, had an ownership interest in both ERS Ohio and JJS.

{¶ 13} Additional evidence of the interrelatedness of the two companies can be seen by JJS's response to a fire that destroyed part of the ERS Ohio facility. The check for the insurance proceeds paid for the damages from the fire was made out to JJS. When the facility later resumed some business operations after the fire, JJS sent someone to manage that undertaking and report back to JJS. Ultimately, JJS closed many of its facilities outside of Canada, including ERS Ohio.

{¶ 14} In May 2013, Wittenbrook filed the instant suit against ERS Ohio and Daniel Brown. She later added JJS as a defendant in July 2015. The amended complaint alleged that JJS and ERS Ohio were Wittenbrook's joint employers and raised sexual harassment, retaliatory discharge and tortious interference with employment claims.

{¶ 15} JJS filed a summary judgment motion arguing there was no evidence that its own employees and agents had engaged in any of the harassment or abuse that Wittenbrook had claimed to suffer at ERS Ohio. Wittenbrook countered that JJS and ERS Ohio were so integrated that JJS should be liable under a joint employer theory. In its reply brief, JJS objected to Wittenbrook's allegation that it was a joint employer, claiming it was not properly pled in the amended complaint. Alternatively, JJS sought a continuance to allow for discovery and retention of expert witnesses on that issue. JJS's motion for summary judgment was denied immediately before trial.

{¶ 16} The matter proceeded to a jury trial on April 12, 2016. At the close of Wittenbrook's case, JJS moved for a directed verdict of no liability on the grounds of insufficient evidence that it was a joint employer with ERS Ohio. Wittenbrook countered she had made out a prima facie case and the trial court overruled JJS's motion. At the close of the Defendants' case, the motion was renewed and overruled.

{¶ 17} JJS objected to the jury instructions on joint employer liability, along with the form of the interrogatories, which were overruled by the trial court.

{¶ 18} Only the claims of retaliatory discharge and hostile work environment were submitted to the jury, which found in favor of Wittenbrook on both claims and that ERS and JJS were joint employers of Wittenbrook. The jury awarded Wittenbrook $700,000 in economic damages and $250,000 in general damages. It also awarded her $1 in punitive damages against each of the three defendants.

{¶ 19} Only JJS appealed. JJS does not challenge the verdicts on the substantive claims of retaliatory discharge and a hostile work environment; instead, it attacks the judgment primarily as to the joint employer theory of liability.

{¶ 20} At the time the appeal was filed, several post-judgment motions were pending in the trial court, and the appeal was stayed. On June 7, 2016, the trial court issued an order resolving all outstanding issues.

Denial of Motion for Directed Verdict

{¶ 21} In its first of three assignments of error, JJS asserts:

The trial judge erred, as a matter of law, by denying the motions for directed verdict as to JJS.

{¶ 22} JJS first argues that the trial court erred by allowing the jury to consider the issue of joint employer liability. JJS claims Wittenbrook failed to properly plead this claim in her amended complaint, stating the claim for the first time in her opposition brief to JJS's summary judgment motion. A claim for relief is stated if the complaint contains a short, plain statement of the claim showing the party is entitled to relief and a demand for judgment. Civ.R. 8(A). "A complaint alleges the elements of the claim with sufficient particularity if it gives reasonable notice of the claim to opposing parties." Bahen v. Diocese of Steubenville , 7th Dist. No. 11 JE 34, 2013-Ohio-2168, 2013 WL 2316640, ¶ 11. Wittenbrook's amended complaint states as follows:

Defendant JJS Developments ("315"), is a foreign corporation with a principal place of business at 2450 Lawrence Avenue East Unit 3-15, Scarborough, Ontario, MI P 2R7 and is the parent corporation of ERS and has at all times relevant herein been a "Joint-Employer " of Plaintiff, is in the business of collecting, recycling, and selling electronic devices and metals recovered from them. ERS [Ohio] and JJS are "the ERS Defendants."

(Emphasis added.)

{¶ 23} The Amended Complaint further states: "The conduct of the ERS Defendants amounts to retaliation against Plaintiff for her complaints."

{¶ 24} Thus, the amended complaint gives reasonable notice to JJS that Wittenbrook alleges it is liable as a joint employer theory.

{¶ 25} A trial court's decision granting a motion for directed verdict presents a question of law, which an appellate court reviews de novo. Carter v. R & B Pizza Co., Inc. , 7th Dist. No. 09JE34, 2010-Ohio-5937, 2010 WL 4926742, ¶ 15.

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

Civ.R. 50(A)(4).

{¶ 26} A motion for directed verdict tests the sufficiency of the evidence at trial, not the weight of such evidence or the credibility of witnesses. Sayavich v. Creatore , 7th Dist. No. 07-MA-217, 2009-Ohio-5270, 2009 WL 3165555, ¶ 44. "[T]he court is confronted solely with a question of law: Was there sufficient material evidence presented at trial on this issue to create a factual question for the jury?" One Step Further Physical Therapy, Inc. v. CTW Dev. Corp. , 7th Dist. No. 11 MA 66, 2012-Ohio-6137, 2012 WL 6727190, ¶ 35.

{¶ 27} The concept of joint employer liability has not been discussed at length in Ohio case law. As a general matter, it is a judicially-created doctrine that can be used to impose liability on one business enterprise for the employment actions of a related or subsidiary enterprise. As explained in greater detail in federal employment law jurisprudence, there are several sub-species of this doctrine that allow for liability on the part of the parent company. See Swallows v. Barnes & Noble Book Stores, Inc. , 128 F.3d 990, 993 (6th Cir.1997) (explaining the three different approaches courts use to impose employer liability on a parent company or related entity.)

{¶ 28} As the Eighth District has explained: "[T]wo entities may be considered a single joint employer if, upon review of their intercorporate relationship, one exercises a degree of control that exceeds the control normally exercised by a parent corporation over its separate and distinct subsidiary corporation." Wilmot v. Forest City Auto Parts , 8th Dist. No. 75945, 2000 WL 804616, *3, citing Armbruster v. Quinn , 711 F.2d 1332, 1337-1338 (6th Cir.1983). "Relevant considerations include:

(1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control." Id. , citing Armbruster . The jury was instructed as to this four-factor test.

{¶ 29} JJS asserts there was insufficient evidence presented at trial to demonstrate its liability under this theory and that the trial court therefore erred in denying its motion for directed verdict. It bears repeating that for the purposes of this analysis, the evidence presented at trial must be viewed in the light most favorable to Wittenbrook. Thus, purported evidentiary conflicts are not before us.

{¶ 30} Regarding the first factor, interrelations of operation, JJS cites Howard v. Bobby D. Thompson, Inc. , 2d Dist. No. 24357, 2011-Ohio-3503, 2011 WL 2739623, for the proposition that when determining the interrelation between the operations of two companies, factors to be taken into account include common offices and equipment, record keeping and bank accounts. Id. at ¶ 29. Alfea Principe of JJS stated that she managed ERS Ohio from a compliance perspective and provided form documents to ERS Ohio and other JJS facilities that could be used for the R2 certification process. There is a global financial controller for JJS, who kept records relating to the finances of both JJS and ERS Ohio and helped manage the budgets of the various JJS locations. At times, Johnston, general manager for ERS Ohio, worked in the ERS Chicago facility. He continued to assume a management role at ERS Ohio while he was in Chicago. Brown testified he was in contact with JJS daily on a variety of matters, "[e]verything from current market prices for metals, to what the procedures were, to employee issues from a perspective of payroll amounts and things like that." Brown was also in contact with JJS regarding compliance issues. Patel testified that when ERS Ohio was presented with major contract opportunities, JJS would first review them.

{¶ 31} After a fire destroyed part of the ERS Ohio facility and it later resumed some business operations, JJS sent someone to manage that undertaking and report back to JJS. When asked why an attempt was made to reopen it at all given its financial problems, Patel the CFO of JJS, explained that "losing a location isn't very good for our company's image."

{¶ 32} Regarding the second factor, common management, Kazemeini was the president of both companies. Although standing alone, this might not impose liability on JJS as a joint employer, there was additional evidence that JJS managers oversaw business operations at ERS Ohio. JJS had a global compliance manager and a global financial controller who managed aspects of the ERS Ohio business.

{¶ 33} Regarding the third factor, centralized control of labor relations, although there was testimony that ERS Ohio was fairly autonomous regarding day-to-day management of employees, Wittenbrook testified that Principe discussed a potential raise and promotion with her. Wittenbrook further testified that Principe of JJS assumed a supervisory role over her after conflicts arose between Wittenbrook and Brown. Principe testified that the decision to fire Wittenbrook was made by Brown and Kazemeini, who has an ownership interest in both companies and is president of both. The non-compete agreement Wittenbrook entered into upon her hire stated it was made between her and Electronic Recycling Services Ltd., with its main office in Scarborough, Ontario, Canada; it further specified that Canadian law would govern.

{¶ 34} Regarding the fourth factor, common ownership and financial control, ERS Ohio was entirely dependent on JJS for funding. When a fire destroyed part of the ERS Ohio facility, the insurance check was made to JJS. Kazemeini had ownership interests in both companies as well, but worked in Canada. JJS's CFO and global financial controller worked to manage ERS Ohio's budget.

{¶ 35} Based on the totality of the circumstances, there was sufficient evidence presented that JJS was acting as a single joint employer with ERS Ohio. Accordingly, JJS's first assignment of error is meritless.

Jury Interrogatories

{¶ 36} JJS's second of three assignments of error asserts:

The trial judge erred, as a matter of law, in its instructions relating to joint employer liability.

{¶ 37} JJS specifically takes issue with the jury interrogatories used at trial, contending they were erroneous in ways that prejudiced JJS and denied it a fair trial. Civ.R. 49(B) governs jury interrogatories and provides, in pertinent part:

The court shall submit written interrogatories to the jury, * * * upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law.

{¶ 38} Thus, "[f]ollowing a timely request by a party, a mandatory duty arises to submit written interrogatories to the jury, provided they are in the form the court approves." Cincinnati Riverfront Coliseum, Inc. v. McNulty, Co. , 28 Ohio St.3d 333, 336, 504 N.E.2d 415 (1986). The rule does not mandate that the trial court act as a mere conduit and submit all proposed interrogatories to the jury under all circumstances. Ramage v. Cent. Ohio Emergency Serv., Inc. , 64 Ohio St.3d 97, 107, 592 N.E.2d 828 (1992). "[T]he trial court has limited discretion to reject interrogatories if they do not refer to a determinative issue or if they are ambiguous, confusing, incomplete, redundant or otherwise legally objectionable." Davis v. Georgopoulos , 7th Dist. No. 08 MA 85, 2008-Ohio-6368, 2008 WL 5124431, ¶ 11, citing Ramage at 107-108, 592 N.E.2d 828.

{¶ 39} "The standard under which we review a trial court's decision whether to submit a proposed interrogatory is abuse of discretion." Freeman v. Norfolk & Western Ry. Co. , 69 Ohio St.3d 611, 614, 635 N.E.2d 310 (1994). An abuse of discretion means the trial court's decision is unreasonable based upon the record; that the appellate court may have reached a different result is not enough to warrant reversal. Downie v. Montgomery , 7th Dist. No. 12 CO 43, 2013-Ohio-5552, 2013 WL 6687239, ¶ 50.

{¶ 40} JJS first argues that the jury interrogatories failed to separate out questions of liability between each defendant, making it impossible for the jury to find liability on behalf of any one defendant without finding liability on behalf of all. Second, JJS asserts the jury interrogatories were not sufficiently detailed on the issue of joint employer liability to truly determine whether the jury found that JJS and ERS Ohio were joint employers of Wittenbrook.

{¶ 41} To Interrogatory No. 1, the jury answered affirmatively: "We the jury find in favor of the Plaintiff, and against Defendants, on her claim of retaliatory discharge." Interrogatory No. 2, which the jury also answered in the affirmative, provides, "Do you find that Kristin Wittenbrook has proven, by a preponderance of the evidence, that both Defendant Electronic Recycling Services and the Defendant JJS Developments were joint-employers of Kristin Wittenbrook."

{¶ 42} At trial, JJS objected to the interrogatories, stating: "To the extent that the defendants were not separated into ERS Ohio, Defendant JJS and Defendant Dan Brown, I object." JJS also objected to the interrogatories and verdict form regarding the joint employer liability theory. ("My objection to the jury instructions also carry over to the jury interrogatories and the verdict form on the joint employer and not separating out of the defendants."). The trial court overruled the objections.

{¶ 43} While the interrogatories could have been more specific as to the liability of each defendant, they did not cause prejudice to JJS so as to warrant reversal for new trial. Had the jury answered no on the joint employer interrogatory this would have relieved JJS from liability even if the jury had found in favor of Wittenbrook and against defendants on the other interrogatory form that addressed the retaliatory discharge claim.

{¶ 44} "[T]he main purpose of jury interrogatories is to test the correctness of a general verdict by asking the jury to disclose its opinion on the determinative issues in a case based upon the trial evidence." Davis v. Georgopoulos , 7th Dist. No. 85-2006, 2008-Ohio-6368, 2008 WL 5124431, ¶ 10, citing Cincinnati Riverfront Coliseum, Inc. v. McNulty, Inc. , 28 Ohio St.3d 333, 336-337, 504 N.E.2d 415 (1986). The interrogatories in this case do just that. They are not ambiguous, confusing, incomplete, redundant or otherwise legally objectionable; thus the trial court did not abuse its discretion by failing to reject them. Accordingly, JJS's second assignment of error is meritless.

Plain Error in Closing Arguments

{¶ 45} In its third and final assignment of error, JJS asserts:

Plaintiff counsel [sic] committed reversible misconduct in closing argument, and the trial court erred by failing to sua sponte act to address the misconduct and limit the prejudice.

{¶ 46} JJS takes issue with statements made by Wittenbrook's counsel during his closing, but made no objection to these statements during trial. Accordingly, this argument is subject to plain error review. "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at paragraph one of the syllabus.

{¶ 47} In Goldfuss , the Court explained that the doctrine shall only be applied in extremely unusual circumstances where the error complained of, if left uncorrected, would have a material adverse effect on the character of and public confidence in judicial proceedings. Id. at 121, 679 N.E.2d 1099. The Court concluded that the public's confidence is rarely upset merely by forcing civil litigants to live with the errors they themselves or the attorney chosen by them committed at trial. Id. at 121-122, 679 N.E.2d 1099.

{¶ 48} JJS argues that Wittenbrook's counsel improperly alleged during his closing that JJS was playing a "corporate shell game," further comparing JJS's actions to those of large coal companies he had dealt with in practice. It is helpful to put these remarks into the context of the overall argument being made at that point of the closing which was as follows:

And that's probably one of the big issues in this case, because in a verdict form, you're going to have to find whether or not JJS was a joint employer of Kristen Wittenbrook, along with ERS Bellaire. And we think the evidence is overwhelmingly that it was or that she was or they were a joint employer [sic]. Sam [Kazemeini, of both JJS and ERS] was involved in the decision to terminate her.
She signed the agreement [the non-compete] with the Canadian company, yet another name though, remember. When we go through the exhibits, the name they use there was Electronics Recycling Services International Limited from Ontario. That's the agreement she signed. We were told yesterday that, Well, that's different from JJS. That's just the name we do business for JJS.
Ladies and Gentlemen of the Jury, the Court just told you in its instruction, don't give up your common experience. They play a shell game, defendants in this case. Oh, ERS Bellaire, not making any money. JJS makes money, but we don't employ her, that's Bellaire. And you've heard it before, your common experience.
We see it in representing employees all the time in the coal industry where the subsidiaries go bankrupt and get out of all their obligations to their employees and the parent company's doing just fine. But they set up a subsidiary separate company and says, Oh, sorry, we got to file bankruptcy and get out of our obligations. It's a corporate shell game is what JJS played with Kristin Wittenbrook, and the evidence is overwhelmingly [sic] on that.

{¶ 49} The trial court's failure to sua sponte address these comments and provide curative instructions to the jury do not amount to plain error. "Closing arguments are not evidence, and it is generally presumed the jury followed the court's instructions as to this topic." Cosgrove v. Omni Manor , 2016-Ohio-8481, 78 N.E.3d 223, ¶ 56 (7th Dist.) Further, "[c]ounsel generally has wide latitude in closing arguments." West v. Curtis , 7th Dist. No. 08 BE 28, 2009-Ohio-3050, 2009 WL 1813798, ¶ 89, citing Pang v. Minch , 53 Ohio St.3d 186, 194, 559 N.E.2d 1313 (1990). There was evidence presented that ERS Ohio was totally dependent upon JJS for funding, to the point where, when a fire destroyed much of the ERS Ohio facility, the insurance check was made out directly to JJS. ERS Ohio did business under the name ERS International, but yet JJS's position was that it was not a party to the non-compete entered into between "Electronic Recycling Services Limited," and Wittenbrook. The shell game comments were merely intended to highlight these issues.

{¶ 50} JJS cites a number of Florida cases in support of this assignment of error, which this court is not bound to follow. The Ohio Supreme Court case JJS cites, Pesek v. University Neurologists Assn., Inc. , 87 Ohio St.3d 495, 721 N.E.2d 1011 (2000), is factually distinguishable. In Pesek , the Court held that personal attacks on plaintiff's counsel and her expert during closing were grounds for reversal, even under a plain error review. Specifically, in his closing argument, defendant's counsel accused plaintiff's counsel of "half-truths,"

"untruths," and "the threatening of witnesses, [and] the suppression of evidence," and called patient's expert witness a "second-class expert" who "bought his way into pediatric neurology." Id. at 501-503, 721 N.E.2d 1011. The Court noted that under those circumstances, " 'where gross and abusive conduct occurs, the trial court is bound, sua sponte, to correct the prejudicial effect of counsel's misconduct.' " (Emphasis deleted.) Id. at 501, 721 N.E.2d 1011, quoting Snyder v. Stanford , 15 Ohio St.2d 31, 37, 238 N.E.2d 563 (1968).

{¶ 51} Here, in contrast, counsel's comments in closing about JJS playing a corporate shell game, do not constitute gross and abusive conduct, nor do they seriously affect the basic fairness, integrity, or public reputation of the judicial process. Thus, they do not rise to the level of plain error. Accordingly, JJS's third assignment of error is also meritless.

{¶ 52} In sum, all of JJS's assignments of error are meritless and the judgment of the trial court is affirmed.

Robb, P.J., concurs.

Waite, J., concurs.

      Interrogatory 3, the hostile work environment/sexual harassment jury interrogatory was answered in the affirmative, avoids these issues in that it simply states: "We the jury find on behalf of the Plaintiff, Kristen Wittenbrook, on her claim of hostile work environment." However, it does not say "against the Defendants" like the retaliation interrogatory does.


author: TIM McCORMACK, J.:

text:
    STATE of Ohio, EX REL. William L. ALLEN, Relator-Appellant v. VILLAGE OF WALTON HILLS, Respondent-Appellee
    No. 105608
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Alyssa M. Allen, P.O. Box 39631, Solon, OH 44139, Warner Mendenhall, 190 N. Union St., Suite 201, Akron, OH 44304, ATTORNEYS FOR APPELLANT
    James A. Climer, Jeffrey T. Kay, Frank Scialdone, Mazanec, Raskin & Ryder Co. L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, OH 44139, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, E.A. Gallagher, A.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, J.:

{¶ 1} In this taxpayer action, relator-appellant William Allen ("Allen") appeals from the decision of the trial court granting summary judgment for the respondents-appellees. For the reasons that follow, we reverse.

Procedural and Substantive History

{¶ 2} On July 23, 2014, Allen filed a complaint for declaratory judgment and injunctive relief against the village of Walton Hills ("the Village"), six individuals in their capacity as Walton Hills council members, and Kevin Hurst ("Hurst") in his capacity as mayor of Walton Hills.

{¶ 3} The underlying action surrounds two village ordinances related to compensating the mayor when he or she serves as a magistrate for the mayor's court of Walton Hills. On February 19, 2002, the Village passed an ordinance, codified as Walton Hills Code § 290.01, which established the part-time position of magistrate of mayor's court of Walton Hills. The ordinance stated that the mayor would receive no additional compensation for officiating at mayor's court, and further stated that if the Village hired a qualified magistrate, he or she would be compensated $295 for each regular session of mayor's court.

{¶ 4} On July 25, 2011, the Village passed Ordinance 2011-18, codified as Walton Hills Code § 230.031, which changed the rate of pay for a mayor's court magistrate and authorized compensation of $400 per regular session to the mayor for officiating at mayor's court. Walton Hills Code § 290.01 was not repealed. On November 8, 2011, Hurst was elected as mayor of Walton Hills.

{¶ 5} In 2014, the state auditor's office notified the Village of the conflicting ordinances. In response, the Village passed another ordinance, amending § 290.01 to remove the language precluding compensating the mayor for presiding over the mayor's court. This new ordinance did not apply retroactively. Because the new ordinance was not retroactive, Allen argues that all compensation paid to Hurst during the period of conflict was improper.

{¶ 6} Allen's complaint sought a declaratory judgment stating that Village Ordinance 2011-18 was illegally enacted. The complaint also requested that Hurst reimburse the Village for the compensation he received for presiding over the mayor's court.

{¶ 7} On May 11, 2015, the Village filed a motion for summary judgment in which it asserted that the action was time-barred by the statute of limitations under R.C. 733.60.

{¶ 8} On March 1, 2017, the trial court granted the Village's motion for summary judgment and entered the following order:

The Court finds that Relator's action challenging Village Ordinance 2011-18 is time-barred by the one-year statute of limitations set forth in O.R.C. 733.60. See City of Cuyahoga Falls v. Robart (1991) 58 Ohio St.3d 1 [567 N.E.2d 987]. Ordinance 2011-18 was enacted on 7/25/2011. It is undisputed that Relator filed this action on 7/23/2014. The Court finds unconvincing the Relator's argument that his action challenges other ordinances-the only ordinance mentioned in his Complaint is Ordinance 2011-18. It is so ordered. There is no just cause for delay. Relator's motion for partial summary judgment is denied.

{¶ 9} Allen appeals from this decision of the trial court.

Summary Judgment Review

{¶ 10} We review the trial court's summary judgment de novo, applying the same standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

{¶ 11} Under Civ.R. 56(C), 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) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C).

{¶ 12} In the instant case, Allen does not present any genuine issues of material fact for our review. Instead, he argues that the trial court's decision was improper as a matter of law.

Law and Analysis

{¶ 13} In his first assignment of error, Allen argues that the trial court erred in applying R.C. 733.60's statute of limitations to this case because there is no contract at issue. R.C. 733.60 states:

No action to enjoin the performance of a contract entered into or the payment of any bonds issued by a municipal corporation shall be brought or maintained unless commenced within one year from the date of such contract or bonds.

{¶ 14} Allen instituted a taxpayer action pursuant to R.C. 733.56 and R.C. 733.59. The former relates to an application for injunction "to restrain the misapplication of funds of [a] municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation." R.C. 733.56. The latter relates to a taxpayer's suit generally.

{¶ 15} In granting summary judgment for respondents-appellees, the trial court cited a case in which the Supreme Court of Ohio stated that "[i]t is well-settled that 'any action predicated upon R.C. 733.56 and 733.59 must be instituted within the limitation period prescribed by R.C. 733.60.' " Cuyahoga Falls v. Robart , 58 Ohio St.3d 1, 3, 567 N.E.2d 987 (1991), quoting Westbrook v. Prudential Ins. Co. of Am. , 37 Ohio St.3d 166, 169, 524 N.E.2d 485 (1988).

{¶ 16} Further, although R.C. 733.60 does not expressly cover misapplication of funds, the law is also well-settled that the one-year limitation period applies "when the purported misapplication of funds is the result of an illegal contract." Robart at 3, 567 N.E.2d 987, citing Dehmer v. Campbell , 127 Ohio St. 285, 286, 188 N.E. 6 (1933).

{¶ 17} Allen does not dispute any of the foregoing law; rather, he asserts that because the compensation at issue is for a public official, there is no contractual employment relationship analogous to that in Robart . In support of this argument, Allen cites case law from this court for the proposition that no contractual relationship exists between a public officer and the government. Berea ex rel. Ward v. Trupo , 141 Ohio App.3d 772, 776, 753 N.E.2d 286 (8th Dist. 2001), citing Lordstown ex rel. Kibler v. Craigo , 11th Dist. Trumbull No. 93-T-4919, 1994 WL 321109, 1 (June 30, 1994).

{¶ 18} Although the language from Westbrook is broad, referring to "any action predicated upon R.C. 733.56 and 733.59," the court in that case did not address whether R.C. 733.60 applies to an action that does not involve a contractual relationship. Further, the court in Robart , 58 Ohio St.3d 1, 567 N.E.2d 987, found that R.C. 733.60 applied to bar that case precisely because the alleged misapplication of funds in that case was a consequence of an illegal contract. Unlike Robart , the alleged misapplication of funds in this case was not the consequence of a contract, illegal or otherwise. We therefore find that the one-year limitation in R.C. 733.60 does not apply to this case because there is no underlying contract at issue.

{¶ 19} Therefore, we reverse the decision of the trial court granting summary judgment for respondents-appellees and remand this case to the trial court for further proceedings consistent with this opinion.

{¶ 20} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

EILEEN A. GALLAGHER, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR