text:
    The STATE EX REL. ARNOLD, Appellant, v. GALLAGHER, Judge, et al., Appellees.
    No. 2017-0830
    Supreme Court of Ohio.
    Submitted December 5, 2017 Decided July 10, 2018
    Martice Arnold, pro se.
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellees.
   Per Curiam.

{¶ 1} Appellant, Martice Arnold, appeals from the judgment of the Eighth District Court of Appeals denying his request for writs of mandamus and/or procedendo against appellee Cuyahoga County Court of Common Pleas Judge Hollie L. Gallagher. During the pendency of this case, Arnold filed numerous motions. We deny all the motions and affirm the judgment of the court of appeals.

BACKGROUND

{¶ 2} On October 27, 1994, the Cuyahoga County Grand Jury returned an eight-count indictment against Arnold, charging him with two counts of aggravated murder (Counts 1 and 2, each with four capital specifications), three counts of attempted murder (Counts 3, 4, and 5), one count of aggravated robbery (Count 6), and two counts of kidnapping (Counts 7 and 8). Each of the eight counts included a firearm specification.

{¶ 3} On March 29, 1995, the parties appeared before Cuyahoga County Court of Common Pleas Judge Thomas J. Pokorny. Arnold pleaded guilty to the charge of aggravated murder in Count 2, with all the capital specifications removed and only the gun specification remaining. He also pleaded guilty to Counts 3, 4, 5, and 7, with a gun specification attached to each. The state dismissed Counts 1, 6, and 8.

{¶ 4} That same day, Judge Pokorny filed an entry memorializing the in-court proceedings. Consistently with the state's representations, the court noted in the entry that Count 2 had been amended to delete the four capital specifications. But the entry then indicates that Arnold pleaded guilty to "Amended Ct 1." The court noted in the entry that Arnold pleaded guilty to three counts of attempted murder with firearm specifications and one count of kidnapping with a firearm specification and that all "remaining counts" were dismissed.

{¶ 5} The entry's reference to Arnold's guilty plea to "Amended Ct 1" appears to be a typographical error. As noted, the court amended Count 2, not Count 1, to dismiss the capital specifications.

{¶ 6} Judge Pokorny later journalized a separate sentencing entry, imposing a prison term of 20 years to life, plus an aggregate term of 6 years on the gun specifications. The sentencing entry correctly states that Arnold had pleaded guilty to aggravated murder under amended Count 2.

{¶ 7} On January 10, 2017, Arnold filed an original action in the Eighth District Court of Appeals against Judge Gallagher (as successor to Judge Pokorny) and appellee Cuyahoga County Clerk of Courts Nailah Byrd. He alleged that his 1995 sentencing entry was void because it was not journalized within 30 days of his guilty plea (as required by former Sup.R. 13 ), did not dismiss Count 1, did not indicate that he had waived his constitutional rights, did not state that he had pleaded guilty to amended Count 2, and misstated the sentencing date. He also argued that Judge Pokorny miscalculated the aggregate term imposed for the firearm specifications by running two of the three-year terms consecutively. He sought writs of mandamus and/or procedendo to compel Judge Gallagher to conduct a de novo resentencing and issue a new final, appealable order and to compel Byrd to journalize the new sentencing entry once it was created.

{¶ 8} Judge Gallagher and Byrd filed a joint motion for summary judgment, to which Arnold responded. On May 26, 2017, the court of appeals granted summary judgment in favor of Judge Gallagher and Byrd.

{¶ 9} Arnold timely appealed and filed a motion for appointment of counsel. Arnold later filed four motions to supplement the record, which we denied. 150 Ohio St.3d 1415, 2017-Ohio-7040, 79 N.E.3d 568. Thereafter, the parties filed merit briefs. And in September and October 2017, Arnold filed nine pleadings in this court; Judge Gallagher and Byrd have not responded to any of these filings.

LEGAL ANALYSIS

Issues Raised by Arnold on Appeal

Proposition of law Nos. 1 and 7

{¶ 10} Arnold appeared in court to enter his plea orally on March 29, 1995. He alleges, "The record is silent from this March 29, 1995 hearing until May 16, 1995. * * * No journal entry had been entered or filed reflecting that a hearing had taken place * * *." In support of proposition of law No. 1, he argues that former Sup.R. 13 (now Sup.R. 7 ) required the trial court to file an entry within 30 days of his guilty plea and that a writ of mandamus should issue to compel Judge Gallagher to issue a new entry. And in proposition of law No. 7, he asserts that the alleged failure to issue an entry within 30 days of his guilty plea violated his constitutional rights.

{¶ 11} The evidence in the record does not support these claims. Arnold relies on the Appearance and Execution Criminal Docket, which contains handwritten entries for March 29, and April 28, 1995. This document is not part of the record in Arnold's case, and even if it were, Arnold misunderstands its significance.

{¶ 12} As its name suggests, the Appearance and Execution Criminal Docket records only court appearances by the defendant. For a complete record of entries filed in the case, one must refer to the clerk's docket sheet, which is attached to Arnold's complaint. The docket sheet shows that the trial court filed an entry memorializing the March 29 plea hearing the same day as the hearing and filed the sentencing entry on April 28, exactly 30 days later. Therefore, no violation of former Sup.R. 13 or Arnold's constitutional rights occurred.

{¶ 13} We reject proposition of law Nos. 1 and 7.

Proposition of law Nos. 2 and 8

{¶ 14} Proposition of law Nos. 2 and 8 arise from the trial court's alleged failure to dismiss Count 1. As shown above, the reference to Arnold's guilty plea to "Amended Ct 1" in the March 29, 1995 entry was a typographical error, which the court remedied in its sentencing order. Because the March 29 entry should have indicated a guilty plea to Count 2, Count 1 was included in the "remaining counts" that were dismissed by the state at that time.

{¶ 15} Nevertheless, Arnold claims that he is entitled to a writ of mandamus to compel resentencing. But Arnold could have challenged the March 29, 1995 entry on direct appeal. Therefore, he had an adequate remedy by way of appeal. State ex rel. Nelson v. Russo , 131 Ohio St.3d 51, 2011-Ohio-6552, 960 N.E.2d 448. We reject proposition of law Nos. 2 and 8.

Proposition of law Nos. 3 and 5

{¶ 16} In proposition of law Nos. 3 and 5, Arnold challenges Judge Gallagher's authority to issue two nunc pro tunc entries. Proposition of law No. 3 asserts that the judge lacked jurisdiction to issue the entries because the case had already been heard on appeal. And proposition of law No. 5 attacks the validity of the entries on separation-of-powers grounds.

{¶ 17} Judge Gallagher issued two nunc pro tunc orders on March 1, 2017. The first order corrected the error in the March 1995 plea entry to indicate that Arnold had pleaded guilty to amended Count 2 rather than amended Count 1. The second order corrected and clarified the sentences imposed on each offense and specification. Trial courts in criminal matters "retain continuing jurisdiction to correct clerical errors in judgments by nunc pro tunc entry to reflect what the court actually decided." State ex rel. Womack v. Marsh , 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13.

{¶ 18} Arnold has not demonstrated any defect in Judge Gallagher's jurisdiction to correct the two entries issued in 1995, and he offers no coherent separation-of-powers argument. We therefore reject proposition of law Nos. 3 and 5.

Proposition of law No. 4

{¶ 19} Proposition of law No. 4 asserts that the court of appeals improperly granted summary judgment in the face of disputed material facts. But Arnold does not identify any additional facts that should have precluded summary judgment. We reject proposition of law No. 4.

Proposition of law No. 6

{¶ 20} Proposition of law No. 6 asserts that Arnold's sentence, as set forth in the nunc pro tunc sentencing entry, is void because it does not reflect the law in effect at the time of his crimes. But he does not explain how Judge Gallagher supposedly deviated from the statutory requirements in force at the time of the offenses. We reject proposition of law No. 6.

Arnold's Procedural Filings

Motions for appointment of counsel

{¶ 21} On June 16, 2017, along with his notice of appeal, Arnold filed a motion asking this court to appoint counsel to represent him in this appeal, pursuant to the Rules for Appointment of Counsel in Capital Cases. More recently, on October 25, 2017, he filed a second motion for appointment of counsel, this time specifically citing Appt.Coun.R. 5.03 and 28 U.S.C. 1915.

{¶ 22} Under Appt.Coun.R. 1.04(A), the Rules for Appointment of Counsel in Capital Cases are applicable whenever an indigent defendant has been charged with aggravated murder and the indictment includes one or more capital specifications under R.C. 2929.04(A). Even assuming that Arnold's case is still a capital case (as noted above, the capital specifications were dismissed), he is still not entitled to appointment of counsel. The rules provide for only two types of appointment: (1) trial counsel to defend an indigent defendant from capital charges, Appt.Coun.R. 5.02(A), and (2) appellate counsel when the trial court has imposed a sentence of death, Appt.Coun.R. 5.03(A). The rules do not provide for appointed counsel for a collateral proceeding, which is consistent with the principle that "[i]ndigent criminal defendants, prior to conviction, have the constitutional right to appointed counsel, but that right does not necessarily extend to postconviction pleadings such as motions for delayed appeals or applications to reopen appeals * * *," Disciplinary Counsel v. Cotton , 115 Ohio St.3d 113, 2007-Ohio-4481, 873 N.E.2d 1240, ¶ 15, fn. 6 (plurality opinion).

{¶ 23} Arnold's reliance on 28 U.S.C. 1915 is equally unavailing. Section 1915 governs suits by prisoners in "any court of the United States." 28 U.S.C. 1915(a)(1). The statutory phrase "court of the United States" refers to Article III courts and certain federal courts created by act of Congress but does not include state courts. See 28 U.S.C. 451 ; Harris v. Mangum , 863 F.3d 1133, 1140 (9th Cir.2017) ; Wheeler v. Ulisny , 482 Fed.Appx. 665, 667-668 (3d Cir.2012).

{¶ 24} We deny the motions for appointment of counsel.

Discovery motions

{¶ 25} On September 1, 2017, Arnold filed four pleadings to compel different forms of discovery: (1) a Civ.R. 26 motion to compel the production of certain documents, (2) a Civ.R. 34 motion to permit inspection of certain documents, (3) a Civ.R. 37 motion to compel Judge Gallagher to submit to an oral deposition, and (4) a Civ.R. 33(A) motion for leave to serve interrogatories by ordinary mail only. These motions are all denied.

{¶ 26} The Rules of Civil Procedure supplement this court's rules in original actions before this court. S.Ct.Prac.R. 12.01(A)(2)(b). However, the Rules of Practice of this court make no provision for discovery during an appeal as of right. Nor are we inclined to order discovery as a matter of discretion, given that Arnold's motions do not explain why the information he seeks is relevant, much less necessary. We deny the four discovery-related motions.

Motion to change venue

{¶ 27} On September 12, 2017, Arnold filed a motion for a change of venue pursuant to Civ.R. 3(C)(4). The motion asks that in the event that we order a new sentencing hearing, we transfer the case out of Cuyahoga County. A venue change is necessary, he argues, due to media attention in Cuyahoga County to his underlying case and also because he fears that Judge Gallagher will seek retribution for his filing an affidavit of disqualification against her, which was denied on September 28, 2017. See In re Disqualification of Gallagher , Supreme Court case No. 17-AP-101. Because we are not remanding the case for a new sentencing hearing, this motion is moot.

Jury demand

{¶ 28} On September 12, 2017, Arnold filed a jury demand, pursuant to Civ.R. 38(B). Civ.R. 38(B) provides that any party "may demand a trial by jury on any issue triable of right by a jury." Issues raised in a mandamus action are not "triable of right" by a jury. Freeman v. Wilkinson , 65 Ohio St.3d 307, 309, 603 N.E.2d 993 (1992). We deny Arnold's jury demand.

Requests for judicial notice and opportunity to be heard

{¶ 29} There are two rules pertaining to judicial notice. Civ.R. 44.1"pertains to judicial notice of domestic and foreign laws." Daloia v. Franciscan Health Sys. of Cent. Ohio, Inc. , 79 Ohio St.3d 98, 108, 679 N.E.2d 1084 (1997). And Evid.R. 201 permits a court to take judicial notice of "adjudicative facts; i.e., the facts of the case." Evid.R. 201(A). On September 27, 2017, Arnold filed a request for judicial notice under Civ.R. 44.1, and on October 17, 2017, he filed a request for an opportunity to be heard pursuant to Evid.R. 201(E).

{¶ 30} Under Evid.R. 201(E), a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice. Arnold availed himself of the opportunity to be heard on the issue when he filed his request for judicial notice. See State ex rel. Bell v. Pfeiffer , 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 15 ("Bell was given the opportunity to be heard on this issue when he raised it in his objections to the magistrate's decision. No oral hearing was required"). We deny Arnold's Evid.R. 201(E) request.

{¶ 31} We also deny Arnold's request for judicial notice under both the Civil Rules and the Rules of Evidence. His request asks this court to take judicial notice of numerous disputed facts (e.g., that his sentencing entry and judgments of conviction "are incorrect, inconsistent with the transcripts of proceedings and invalid") and legal conclusions (e.g., that the court of appeals lacked jurisdiction over his direct appeal). Judicial findings under Civ.R. 44.1(A)(1) are restricted to "the rules of the supreme court of this state and of the decisional, constitutional, and public statutory law of this state." And the "facts" Arnold has identified are not proper "adjudicative facts" under the Rules of Evidence. The only facts subject to judicial notice are those that are "not subject to reasonable dispute." Evid.R. 201(B) ; State v. Murphy , 10th Dist. Franklin No. 12AP-952, 2013-Ohio-5599, 2013 WL 6726913, ¶ 24 (declining to take judicial notice of alleged prosecutorial misconduct, discovery violations, and error by the trial court).

Judgment affirmed.

O'Connor, C.J., and Kennedy, French, Fischer, and DeWine, JJ., concur.

O'Donnell, J., concurs in judgment only.

DeGenaro, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    DISCIPLINARY COUNSEL v. MANEY.
    No. 2016-1494
    Supreme Court of Ohio.
    Submitted July 12, 2018 Decided July 13, 2018
    {¶ 1} This cause came on for further consideration upon the filing of an application for reinstatement by respondent, Thomas Patrick Maney Jr., Attorney Registration No. 0029042, last known business address in Columbus, Ohio.
    {¶ 2} The court coming now to consider its order of December 6, 2017, in which the court, pursuant to Gov.Bar R. V(12)(A)(3), suspended respondent from the practice of law for a period of one year with six months stayed on conditions, finds that respondent has substantially complied with that order and with the provisions of Gov.Bar R. V(24).
    {¶ 3} Therefore, it is ordered by this court that respondent is reinstated to the practice of law in the state of Ohio.
    {¶ 4} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).
    {¶ 5} For earlier case, see Disciplinary Counsel v. Maney , 152 Ohio St.3d 201, 2017-Ohio-8799, 94 N.E.3d 533.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    TRIA ADELPHIA, INC. v. SUMMIT CTY. BD. OF REVISION
    2017-1368
    Supreme Court of Ohio.
    July 27, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On joint motion to remand to the Board of Tax Appeals to implement a settlement. Motion granted.


text:
    OHIO RENAL ASSN. v. KIDNEY DIALYSIS PATIENT PROTECTION AMENDMENT COMMT.
    2018-1047
    Supreme Court of Ohio.
    July 26, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Miscellaneous case. This cause originated in this court upon the filing of a challenge invoking this court's original jurisdiction under Article II, Section 1g of the Ohio Constitution. This case shall proceed as provided for in S.Ct.Prac.R. 14.01, and the clerk shall serve a summons and copy of the challenge on all respondents listed on the challenge. Respondents shall file a response to the challenge within five days of service of the summons and challenge, and motions to dismiss or motions for judgment on the pleadings shall not be filed in this case. The following schedule is set for the filing of briefs and evidence: The parties shall file any evidence they intend to present within seven days from the filing date of the answer, relators shall file a brief within seven days of the filing of the evidence, respondents shall file a brief within seven days after the filing of relators' brief, and relators may file a reply brief within three days after the filing of respondents' brief. No requests or stipulations for extension of time shall be filed, and the clerk shall refuse to file any requests or stipulations for extension of time. All documents filed in this case shall be served as specified by S.Ct.Prac.R. 12.08(C).


author: DeGenaro, J., not participating.

text:
    DISCIPLINARY COUNSEL v. MOORE
    2018-0402
    Supreme Court of Ohio.
    July 26, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent's motion for leave to file an answer. Motion granted. This matter is remanded to the Board of Professional Conduct for further proceedings under Gov.Bar R. V(12). The interim default suspension imposed against respondent on April 16, 2018, shall remain in place while this matter is pending before the board.
   DeGenaro, J., not participating.


author: Kennedy, J., dissents.

text:
    OHIO STATE BAR ASSN. v. NAUMOV
    2018-0870
    Supreme Court of Ohio.
    July 26, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On final report of the Board on the Unauthorized Practice of Law.
    Proposed consent decree rejected. Pursuant to Gov.Bar R. VII(5b)(F)(1), cause remanded to the board for further proceedings in order to include the requirement that respondent have an attorney seek to vacate any outstanding money judgments and dismiss those cases within 60 days of the final order in this case.
   Kennedy, J., dissents.


text:
    STATE EX REL. KARVO COS., INC. v. MAKOWSKI
    2018-0134
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    In Mandamus.
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The respondents in each case shall file a response to the complaint within 21 days.


text:
    DAYTON BAR ASSN. v. STRAHORN
    2017-0799
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent application for reinstatement. Application denied.


text:
    DISCIPLINARY COUNSEL v. BROWN
    2017-1232
    Supreme Court of Ohio.
    July 27, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Thomas Christopher Brown, Attorney Registration No. 0024054, last known business address in Geneva, Ohio, found in contempt for failure to file an affidavit of compliance on or before June 13, 2018.


text:
    DISCIPLINARY COUNSEL v. BENNETT
    2018-0527
    Supreme Court of Ohio.
    July 27, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Daniel Lee Bennett, Attorney Registration No. 0071965, last known business address in Springfield, Ohio, found in contempt for failure to file an affidavit of compliance on or before June 13, 2018.


text:
    STATE EX REL. PACHECO v. INDUS. COMM.
    2018-0099
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    STATE EX REL. PACHECO v. INDUS. COMM.
    2018-0118
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    STATE EX REL. COSENO v. INDUS. COMM.
    2018-0128
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    Pursuant to R.C. 2710.06(B)(1), the court has been notified that the parties in the following case have reached a settlement. The case is returned to the regular docket under S.Ct.Prac.R. 19.01. Within 60 days, the appellant shall file either an application for dismissal or a merit brief in accordance with the Supreme Court Rules of Practice. The case will be dismissed for want of prosecution if an application for dismissal or a merit brief is not filed within 60 days.


text:
    STATE EX REL. HUNTER v. MAHONING CTY. DEMOCRATIC PARTY CENT. COMMT.
    2018-0907
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    In Mandamus. On relator's application for dismissal. Application granted. Cause dismissed.


text:
    CLEMENTE v. WASHBURN
    2018-0935
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    In Mandamus.
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    STATE EX REL. DIGIACINTO v. INDUS. COMM.
    2018-0953
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    SUMMERS v. FOX
    2018-0959
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    In Mandamus.
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    STATE EX REL. VONDERHEIDE v. MULTI-COLOR CORP.
    2018-0832
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    DE LONG v. ROBERSON
    2017-0943
    Supreme Court of Ohio.
    July 31, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    In Mandamus.
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The respondents in each case shall file a response to the complaint within 21 days.


text:
    KNUCKLES v. STATE
    2018-0730
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX. REL. FREED v. DISCIPLINARY COUNSEL
    2018-0609
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss. Motion granted. Cause dismissed. Relator's motion to refer counsel and motion to accept amended affidavit denied as moot.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. CLEMONS v. KASICH
    2018-0701
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed. On relator's motion to strike motion to dismiss, request for preliminary hearing, and motion to seal. Motions denied.
    O'Connor, C.J., and O'Donnell, Kennedy, Fischer, DeWine, and DeGenaro, JJ., concur.
    French, J., concurs in part and dissents in part and would grant relator's motion to seal exhibits.


author: Fischer, J., not participating.

text:
    PENLAND v. DINKELACKER
    2018-0754
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, DeWine, and DeGenaro, JJ., concur.
   Fischer, J., not participating.


text:
    STATE EX REL. FHIARAS v. GAUL
    2018-0574
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


author: O'Connor, C.J., not participating.

text:
    STATE EX REL. SNYDER v. BUTLER
    2018-0647
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondents' motions to dismiss. Motions granted. Cause dismissed. On relator's motion to strike. Motion denied. On motion of amicus curiae for leave to file a memorandum in support of relator's opposition to respondents' joint motion to dismiss. Motion denied.
    O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.
   O'Connor, C.J., not participating.


text:
    STATE EX REL. GIANT PETROLEUM, INC. v. E. CLEVELAND
    2018-0648
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On S.Ct.Prac.R. 12.04 determination. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. PHILLIPS v. ZMUDA
    2018-0653
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's amended motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. MONTGOMERY v. BRANSTOOL
    2018-0718
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. YANASAK v. BAIRD
    2018-0643
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Procedendo. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    VELEZ v. ALLEN CORR. INST. CASHIER
    2018-0662
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion for judgment on pleadings. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. MCBROOM v. FRANKLIN CTY. COURT OF APPEALS
    2018-0666
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. GRIFFIN v. TYACK
    2018-0676
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. CARTER
    2018-0764
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion granted. Appellant shall file a memorandum in support of jurisdiction within 30 days.


text:
    STATE v. ST. THOMAS
    2018-0785
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.


text:
    WASHINGTON v. DEPT. OF REHAB. & CORR.
    2018-0763
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    WOODARD v. EPPINGER
    2018-0849
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. JACKSON
    2002-1604
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's amended motion for stay of execution. Motion denied as moot.


text:
    STATE v. THOMAS
    2018-0759
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Kennedy, J., dissents.


text:
    STATE v. PRATER
    2018-0766
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Kennedy and DeGenaro, JJ., dissent.


text:
    STATE v. HILL
    2018-0768
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.


text:
    STATE v. RIEVES
    2018-0770
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion granted. Appellant shall file a memorandum in support of jurisdiction within 30 days.

O'Donnell and French, JJ., dissent.


text:
    GILBERT v. FRANKLIN CTY. CHILD SUPPORT ENFORCEMENT AGENCY
    2018-0867
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. VICTOR
    2018-0276
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for objection and to strike memorandum in response to jurisdiction. Motion denied.


text:
    BALDWIN v. CINCINNATI
    2018-0783
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    Miscellaneous case. On S.Ct.Prac.R. 12.04 determination. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    BEY v. NEIL
    2018-0853
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. WOGENSTAHL
    1995-0042
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for order or relief pursuant to S.C.Prac.R. 4.01. Motion denied.

O'Connor, C.J., and O'Donnell, Kennedy, Carr, Gallagher, and DeGenaro, JJ., concur.

French, J., concurs and would state that S.Ct.Prac.R. 4.01(A)(1) offers no basis for filing this motion.

Donna J. Carr, J., of the Ninth District Court of Appeals, sitting for Fischer, J.

Eileen T. Gallagher, J., of the Eighth District Court of Appeals, sitting for DeWine, J.


text:
    STATE v. MYERS
    2018-0200
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for leave of court to certify a question of law.

Motion denied.


text:
    CURRY v. MANSFIELD
    2018-0211
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's amended motion for reversal and for other relief. Motion denied.


text:
    CURRY v. MANSFIELD
    2018-0212
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for reversal and for other relief. Motion denied.


text:
    STATE v. HOWARD
    2018-0376
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for release on bail. Motion denied. On appellant's motion for stay of sentence pending appeal. Motion denied.


text:
    STATE v. ERCOLI
    2018-0675
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. DUNN
    2018-0860
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    WINKLE v. KROGER GROCERY STORE #519
    2018-0386
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    STATE v. MYERS
    2014-1862
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
    Cynthia W. Rice, J., of the Eleventh District Court of Appeals, sitting for O'Neill, J.


text:
    MCCONNELL v. DUDLEY
    2018-0377
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted on proposition of law No. I. Cross-appeal not accepted.
    Kennedy and DeWine, JJ., would accept the appeal on all propositions of law.
    Fischer, J., would also accept proposition of law No. II and would accept the cross-appeal.
    O'Connor, C.J., and O'Donnell, J., dissent.
   DeGenaro, J., not participating.


text:
    WESOLOWSKI v. BROADVIEW HTS. PLANNING COMM.
    2018-0711
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted on proposition of law Nos. I and II.
    Kennedy, French, and DeWine, JJ., would accept the cause on all propositions of law.
    O'Connor, C.J., and O'Donnell and Fischer, JJ., dissent.


text:
    BEVERAGE HOLDINGS, L.L.C. v. 5701 LOMBARDO, L.L.C.
    2018-0616
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. MAKIN
    2018-0650
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. EVANS
    2018-0741
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    LOWE'S HOME CTRS., INC. v. WASHINGTON CTY. BD. OF REVISION
    2015-2109
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    STATE v. DIXON
    2018-0279
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    JOHNSON v. CELEBREZZE
    2018-0473
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration.
    Motion denied.


text:
    KISLING, NESTICO & REDICK, L.L.C. v. PROGRESSIVE MAX INS. CO.
    2018-0682
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
   O'Donnell, J., would accept the appeal on proposition of law No. II only.

O'Connor, C.J., dissents.


text:
    STATE v. ALLEN
    2018-0705
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    O'Connor, C.J., and DeGenaro, J., dissent.


text:
    HOWARD v. HCR MANORCARE, INC.
    2018-0626
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted on proposition of law No. I.
   Kennedy, J., would accept the cause on all propositions of law.

O'Connor, C.J., and DeWine, J., dissent.


text:
    STATE v. MONFORD
    2018-0693
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. YEE
    2018-0708
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HAWKINS
    2018-0722
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the appeal on proposition of law No. I.


text:
    STATE v. LLOYD
    2018-0724
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    OMOYOSI v. MONTGOMERY CTY. DEPT. OF JOB & FAMILY SERVS.
    2018-0727
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JANES
    2018-0739
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the appeal on proposition of law Nos. I and II.


author: Fischer, J., dissents.

text:
    STATE v. WILLIAMS
    2018-0752
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., dissents.


text:
    STATE v. HORN
    2018-0743
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted on proposition of law No. II.
    French, J., would also accept proposition of law Nos. I and III.
   Fischer, J., would also accept proposition of law No. IV.

O'Donnell, Kennedy, and DeWine, JJ., dissent.


text:
    STATE v. KOPCHAK
    2018-0640
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BLANTON
    2018-0655
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    CAMERON v. UNIV. OF TOLEDO
    2018-0592
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appeal and cross-appeal not accepted.
    O'Donnell, J., dissents and would accept the cross-appeal on proposition of law No. II.
    Kennedy and DeWine, JJ., dissent and would accept the appeal.
   Fischer, J, dissents and would accept the cross-appeal.


text:
    DAWSON v. RICHMOND HTS.
    2018-0706
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    ROWE v. ROWE
    2018-0642
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    STATE v. CRAWFORD
    2018-0654
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    JDS SO CAL, LTD. v. DEPT. OF NATURAL RESOURCES
    2018-0688
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    TANGLER v. CARROLLTON
    2018-0707
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BUELL
    2018-0715
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HILL
    2018-0735
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HUDDLESTON
    2018-0646
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. RINEHART
    2018-0656
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for relief or order pursuant to S.Ct.Prac.R. 4.01 denied. Appellee's motion to strike appellant's motion for relief or order denied.
    Kennedy and DeGenaro, JJ., would deny both motions as moot.
   DeWine, J., would deny appellee's motion to strike as moot.


text:
    BARTON v. CUYAHOGA CTY.
    2018-0659
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    ARMATAS v. HAWS
    2018-0660
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: O'Donnell, J., dissents.

text:
    HUNTINGTON NATL. BANK v. CPW PROPERTIES, LTD.
    2018-0667
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.

Kennedy, J., dissents and would accept the appeal and consolidate the cause with 2018-0668, Huntington Natl. Bank v. CPW Properties, Ltd.


text:
    HUNTINGTON NATL. BANK v. CPW PROPERTIES, LTD.
    2018-0668
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.

Kennedy, J., dissents and would accept the appeal and consolidate the cause with 2018-0667, Huntington Natl. Bank v. CPW Properties, Ltd.


text:
    STATE v. CLEVELAND
    2018-0677
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    PALLONE v. PALLONE
    2018-0692
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SMITH
    2018-0845
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BEARD
    2018-0802
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. FLAGG
    2018-0846
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., dissents.


text:
    OHIO RENAL ASSN. v. KIDNEY DIALYSIS PATIENT PROTECTION AMENDMENT COMMT.
    2018-1047
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Miscellaneous case. On joint emergency motion to clarify or to modify and expedite scheduling order. Motion granted in part. The following revised schedule is set for the filing of briefs and evidence: Relators shall file their brief and evidence no later than 5:00 p.m. on Friday, August 3, 2018, respondents shall file their brief and evidence no later than 5:00 p.m. on Monday, August 6, 2018, and relators may file a reply brief no later than 5:00 p.m. on Tuesday, August 7, 2018.


text:
    STATE EX REL. WASHINGTON v. NEIL
    2018-1010
    Supreme Court of Ohio.
    August 2, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On July 23, 2018, this case was initiated by the filing of a notice of appeal that indicated it was filed by "Achashverosh Adnah Ammiyhuwd, Constitutional Attorney-In-Fact for Oscar Washington, Jr." S.Ct.Prac.R. 2.01(A)(1)(b) states that "[o]nly persons who are attorneys qualified pursuant to division (A)(1)(a) of this rule may file documents on behalf of another person or entity." The records of the Office of Attorney Services of the Supreme

Court reveal that there is no Ohio registered attorney named Achashverosh Adnah Ammiyhuwd, nor is there an out-of-state attorney registered for pro hac vice status with the name Achashverosh Adnah Ammiyhuwd.

Sua sponte, that the name Achashverosh Adnah Ammiyhuwd is stricken from all documents filed in case No. 2018-1010. Achashverosh Adnah Ammiyhuwd is prohibited from filing any documents in this case or any other case on behalf of Oscar Washington, Jr. or any other person or entity. The clerk's office shall forward copies of the documents in this case to the Board of Unauthorized Practice of Law for investigation and review as it deems appropriate.

Appellant, Oscar Washington, Jr., shall file an amended notice of appeal, either pro se or with the assistance of an attorney qualified pursuant to S.Ct.Prac.R. 2.01(A)(1)(a), within 30 days or this case shall be dismissed.


text:
    STATE v. PUCKETT
    2018-0771
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    IN RE ADOPTION OF L.R.B.
    2018-0779
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: French, J., not participating.

text:
    STATE v. WHITE
    2018-0790
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., not participating.


text:
    STATE v. LUSANE
    2018-0806
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SYED
    2018-0756
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    MESSER v. SUMMA HEALTH SYS.
    2018-0762
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    HSBC MTGE. SERVS., INC. v. BARNEY
    2018-0780
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for immediate stay of proceedings denied.
    O'Connor, C.J., would deny appellant's motion for immediate stay as moot.


text:
    STATE v. YOUNG
    2018-0789
    Supreme Court of Ohio.
    August 1, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BRADEN
    2017-1579
    Supreme Court of Ohio.
    August 6, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for admission pro hac vice of R. Orion Danjuma. Motion granted. Pursuant to Gov.Bar R. XII(4), counsel shall file a notice of permission with the Supreme Court's Office of Attorney Services within 30 days.


text:
    STATE v. BRADEN
    2017-1609
    Supreme Court of Ohio.
    August 6, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for admission pro hac vice of R. Orion Danjuma. Motion granted. Pursuant to Gov.Bar R. XII(4), counsel shall file a notice of permission with the Supreme Court's Office of Attorney Services within 30 days.


text:
    STATE v. WEBB
    1993-1374
    Supreme Court of Ohio.
    August 3, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion to set an execution date. Motion granted. Michael D. Webb's sentence shall be carried into execution by the warden of the Southern Ohio Correctional Facility or, in his absence, by the deputy warden on Wednesday, July 19, 2023, in accordance with the statutes so provided.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    BALDWIN v. CINCINNATI
    2018-0783
    Supreme Court of Ohio.
    August 3, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Miscellaneous case. On relator's motion and second motion to amend complaint. Motions denied as moot.


text:
    OHIO STATE BAR ASSN. v. COHEN
    2018-0703
    Supreme Court of Ohio.
    August 3, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS ORDERS
    On final report of the Board on the Unauthorized Practice of Law. Sua sponte, the parties shall supplement the record with a waiver of notice of hearing executed by respondent, Matthew Cohen, as required by Gov.Bar R. VII(5b).


text:
    DISCIPLINARY COUNSEL v. THOMAS
    2018-0553
    Supreme Court of Ohio.
    August 2, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Mark Alan Thomas, Attorney Registration No. 0037922, last known business address in St. Clairsville, Ohio, found in contempt for failure to file an affidavit of compliance on or before June 29, 2018.


text:
    STATE EX REL. JENKINS v. INDUS. COMM.
    2017-1593
    Supreme Court of Ohio.
    August 2, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    On appellant's application for dismissal. Application granted. Cause dismissed.


text:
    CURTIS v. WAINWRIGHT
    2018-1084
    Supreme Court of Ohio.
    August 8, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's memorandum in support of jurisdiction. This cause originated in the court of appeals and, therefore, should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. The clerk shall issue an order for the transmission of the record from the Court of Appeals for Marion County, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.


text:
    STATE EX REL. CITIZENS FOR RESPONSIBLE GREEN GOVT. v. GREEN
    2018-1091
    Supreme Court of Ohio.
    August 8, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. This case shall not proceed pursuant to S.Ct.Prac.R. 12.04 but shall instead proceed as an expedited election case pursuant to S.Ct.Prac.R. 12.08. Respondents shall file their answer to the complaint within five days, and the parties shall otherwise comply with S.Ct.Prac.R. 12.08. All documents filed in this case shall be served as specified by S.Ct.Prac.R. 12.08(C).


text:
    STATE v. WHITAKER
    2018-0638
    Supreme Court of Ohio.
    August 7, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for extension of time to transmit the record. Motion granted. The record shall be filed no later than September 6, 2018.


text:
    GERSTON v. PARMA VTA, L.L.C.
    2018-1025
    Supreme Court of Ohio.
    August 7, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for admission pro hac vice of William M. Hensley. Motion granted. Pursuant to Gov.Bar R. XII(4), counsel shall file a notice of permission to appear pro hac vice with the Supreme Court's Office of Attorney Services within 30 days.


text:
    WARREN CTY. BAR ASSN. v. BRENNER
    2018-0822
    Supreme Court of Ohio.
    August 7, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent's objections to the certification of default. Objections sustained in part and respondent granted leave to file his answer with the Board of Professional Conduct. Matter remanded to the board for further proceedings under Gov.Bar R. V(12). The court further orders that the interim default suspension imposed against respondent on this date shall remain in place while this matter is pending before the board. Proceedings before this court in this case are stayed until further order of this court.


text:
    AYERS v. CLEVELAND
    2018-0852
    Supreme Court of Ohio.
    August 6, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Upon review of appellant's memorandum in support of jurisdiction, the court has determined that the memorandum fails to comply with the mechanical requirements of S.Ct.Prac.R. 3.09. Therefore, it is ordered by the court that appellant shall file an amended memorandum in support of jurisdiction no later than 5:00 p.m. on Friday, August 10, 2018, that fully complies with all the mechanical requirements imposed by S.Ct.Prac.R. 3.09. Specifically, the text of the document, excluding footnotes and quotations, shall be double-spaced, and the typeface must comply with S.Ct.Prac.R. 3.09(B)(1).


text:
    DAYTON BAR ASSN. v. GREENBERG
    2012-2066
    Supreme Court of Ohio.
    August 8, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent's motion to withdraw petition. Motion granted.


text:
    STATE EX REL. LENEGHAN v. HUSTED
    2018-0866
    Supreme Court of Ohio.
    August 8, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. Sua sponte, parties ordered to file a response, if any, to relators' motion to expedite and motion for an order pursuant to Civ.R. 65 for temporary injunctive relief no later than 5:00 p.m. on Friday, August 10, 2018.


author: MAYLE, P.J.

text:
    STATE, EX REL. Donald KENNEY, Jr., et al., Appellees/Cross-Appellants v. CITY OF TOLEDO, Appellant/Cross-Appellee
    No. L-17-1149
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: May 4, 2018
    Catherine H. Killam, and R. Kevin Greenfield, Toledo, for appellees/cross-appellants.
    Dale R. Emch, Law Director, Toledo, and Adam W. Loukx, for appellant/cross-appellee.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Appellant/cross-appellee, the city of Toledo, appeals the May 23, 2017 judgment of the Lucas County Court of Common Pleas denying the city's motion for summary judgment, granting summary judgment to appellees/cross-appellants, Donald Kenney Jr., Michael Murphy, Derrick Diggs, George Taylor, and Diana Ruiz Krause (collectively "relators"), on their claim that they are entitled to payments for pension pick-ups, and issuing a writ of mandamus ordering the city to pay relators' pension pickups. Relators filed a cross-appeal of the trial court's denial of their motion for summary judgment and denial of a writ of mandamus on their claim that they are entitled to payments for health insurance premiums. For the following reasons, we affirm.

I. Background and Facts

{¶ 2} Relators were Deputy Police Chiefs with the Toledo Police Department during the period from September 3, 2009, to March 15, 2012. Unlike Police Captains and other command officers, Deputy Police Chiefs are not represented by the Toledo Police Command Officers' Association ("TPCOA").

{¶ 3} During that same time period, a collective bargaining agreement ("CBA") between Toledo and the TPCOA required the city to make two payments relevant to this appeal: (1) the CBA required Toledo to pay (i.e., to "pick up") the entire employee portion (10 percent) of Police Captains' pension contribution to the Ohio Police & Fireman's Disability and Pension Fund, and (2) the CBA required Toledo to pay specified portions of Police Captains' health insurance premiums.

{¶ 4} Under Toledo Municipal Code 2101.70(a), "Police Deputy Chiefs shall automatically receive any pension pick-ups, lump sums, and allowances on the same basis as those provided to Police Captains as part of the Captains' total compensation." Essentially, this dispute centers on whether Toledo Municipal Code 2101.70(a) requires Toledo to pay relators, as Deputy Police Chiefs, the same pension pick-ups and health insurance premiums that were owed to Police Captains under the CBA during the relevant time period.

{¶ 5} Until September 3, 2009, Toledo paid the entire 10 percent share of pension pick-ups for both relators and Police Captains. The city reduced its pension pick-ups for relators to 3 percent beginning on September 3, 2009, because the then-mayor, Michael Bell, declared that Deputy Police Chiefs were exempt employees not subject to the CBA. At that time, Toledo continued to pay the full 10 percent pension pick-up for Police Captains.

{¶ 6} On March 30, 2010, however, Toledo City Council passed Ordinance 103-10, which "declar[ed] the existence of exigent circumstances compelling immediate action" due to the "unforeseen and unforeseeable" sharp decline in the city's general fund revenues. To address this "fiscal crisis," Ordinance 103-10 unilaterally changed certain benefits that Toledo provided to TPCOA members under the CBA, as well as some benefits that Toledo provided to city employees, effective April 1, 2010. Relevant here, the ordinance completely eliminated pension pick-ups for both Police Captains and Deputy Police Chiefs, and increased the amount that Police Captains and Deputy Police Chiefs were required to contribute to the cost of their health insurance. Although these "exigent circumstance" measures were repealed in May 2011, Toledo did not pay relators' pension pick-ups or health insurance premiums on the same basis as TPCOA members until May 12, 2012.

{¶ 7} Ordinance 103-10 sparked a protracted legal battle between Toledo and the TPCOA, including a federal action by the TPCOA against the city alleging that Toledo had violated 42 U.S.C. 1983, Toledo Police Command Officers' Assn. v. Toledo , Case No. 3:12-CV-00787 (N.D. Ohio); another action in Lucas County Common Pleas Court in which the TPCOA successfully received an order compelling Toledo to arbitrate the "exigent circumstances" dispute, which was later upheld by this court in Toledo Police Command Officers' Assn. v. Toledo , 6th Dist. Lucas, 2014-Ohio-4119, 20 N.E.3d 308 ; and yet another action stemming from an unfair labor practice charge that the TPCOA filed against Toledo with the State Employment Relations Board ("SERB"), which was appealed to the Lucas County Common Pleas Court and, ultimately, this court in Toledo Police Command Officers Assn. v. State Employment Relations Board , 6th Dist. Lucas No. L-13-1074, 2014-Ohio-4341, 2014 WL 4824268. In that case, we affirmed the trial court's decision that Toledo had not bargained with the TPCOA in good faith as required by R.C. 4117 and the city was not entitled to unilaterally modify the CBA, that the exigencies cited in Ordinance 103-10 were foreseeable at the time the parties negotiated the CBA, and that the midterm changes should be rescinded, the parties returned to the status quo ante, and TPCOA members should receive equitable relief for the losses they sustained.

{¶ 8} Toledo appealed our decision in case No. L-13-1074 to the Supreme Court of Ohio, but the parties settled their dispute before the Supreme Court decided whether it would accept jurisdiction. Under the settlement agreement, dated November 18, 2014, Toledo agreed to dismiss its appeal to the Supreme Court and pay the full amount of back pension pick-ups and health insurance premiums to TPCOA members. In return, the TPCOA agreed that it would not pursue any arbitration against the city related to the dispute or seek "any costs, interest, attorneys' fees, or further damages in connection with this matter or any other actions relating to the City's 'exigent circumstances' decision," and that it would dismiss the pending action against Toledo in federal court.

{¶ 9} On January 27, 2015, Toledo City Council passed Ordinance 40-15 that provided "[t]hat payment of $1,272,165.60 in settlement of the claims against the City of Toledo is hereby approved." The city then made payment to the TPCOA members as specified in the settlement agreement and Ordinance 40-15.

{¶ 10} Kenney claims that while the TPCOA and the city litigated their "exigent circumstances" dispute in various courts and forums, he had multiple conversations with the then-mayor, Michael Collins, and "on each such occasion, [he] assured me that if the outcome was favorable to the Union, the Deputy Chiefs would automatically get whatever the Police Captains got, and I shared his assurances with my fellow Deputy Chiefs." So, after Toledo settled the matter with the TPCOA and made the required payments to the Police Captains, Kenney made a demand to the city for similar payments to Deputy Police Chiefs. The city refused to make such payments, and relators filed the underlying mandamus action on July 13, 2015.

{¶ 11} In their petition for a writ of mandamus, relators seek a writ compelling the city to pay each of them an amount that includes the 7 percent pension pickups that relators paid from September 3, 2009, to March 31, 2010, and the 10 percent pension pickups that they paid from April 1, 2010, to March 15, 2012. They also seek reimbursement for the portion of their health insurance premiums that they paid from April 1, 2010, to March 15, 2012.

{¶ 12} Both sides moved for summary judgment. The trial court denied the city's motion. It also denied the portion of relators' motion seeking judgment on the issue of health insurance co-premiums because the court found that Toledo Municipal Code 2101.70(a) does not contemplate payment of health insurance premiums. On the issue of pension pick-ups, the trial court granted summary judgment to relators, finding that relators have a clear legal right to receive pension pick-ups in parity with Police Captains for the relevant timeframes, and the city has a clear legal duty to pay the pension pickups.

{¶ 13} Both sides have appealed the trial court's order. The city argues that the trial court erred when it found that it owed relators back pension pick-ups, while relators contend that the trial court erred by not including health insurance premiums in the amount the city owes them.

{¶ 14} In its brief, the city sets forth three assignments of error:

1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS-APPELLANT WHERE THE CITY HAD NO CLEAR AND UNAMBIGUOUS DUTY UNDER TOLEDO MUNICIPAL CODE 2101.70(a) TO PAY THEM PENSION PICK-UP CONTRIBUTIONS AFTER SETTLING LITIGATION WITH THE TOLEDO POLICE COMMAND OFFICERS ASSOCIATION.
2. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS-APPELLANT REQUIRING THE CITY TO PAY MONIIES [sic] TO THEM UNDER THE "BASE ANNUAL SALARIES" PROVISION OF THE TOLEDO MUNICIPAL CODE WHERE THE CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.
3. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS-APPELLANT WHERE THERE WAS AN ISSUE OF FACT AS TO WHETHER THE DOCTRINE OF LACHES BARRED SOME OR ALL OF THEIR CLAIMS.

{¶ 15} Relators set forth one assignment of error in their cross-appeal:

On this uncontested record, the trial court erred in its determination that T.M.C. § 2101.32 and not § 2101.70(a) controlled the insurance co-premiums the City could charge deputy police chiefs, resulting in their being charged a higher co-premium than police captains were required to pay as part of their total compensation.

II. Law and Analysis

{¶ 16} An appellate court reviews summary judgment de novo, employing the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) ; Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The court can grant a motion for summary judgment only when the moving party demonstrates:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) ; Civ.R. 56(C).

{¶ 17} The party seeking summary judgment must specifically delineate the basis upon which the motion is brought and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) ; Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E) ; Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). The opposing party must do so using "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact * * *." Civ.R. 56(C). A "material" fact is one that would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999) ; Needham v. Provident Bank , 110 Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Relators Timely Filed Their Claims

{¶ 18} We begin by addressing Toledo's second assignment of error, in which it argues that relators' claims are barred by the applicable statute of limitations.

{¶ 19} The trial court found that because relators' claims against Toledo are based upon Toledo Municipal Code 2101.70(a), which guarantees Deputy Police Chiefs parity with Police Captains regarding "any pension pick-ups, lump sums, and allowances* * *," the six-year statute of limitations of R.C. 2305.07 is applicable to relators' claims. R.C. 2305.07 provides that "an action* * * upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." The trial court concluded that the relators' claims are timely because they filed their initial complaint on July 13, 2015, which was within six years after their claims accrued on September 3, 2009, as required by R.C. 2305.07.

{¶ 20} Toledo, however, argues that the two-year limitations period of R.C. 2305.11(A), rather than the six-year period of R.C. 2305.07, applies. Under R.C. 2305.11(A), "an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation shall be commenced within two years after the cause of action accrued." Toledo argues that relators' mandamus action is "essentially a pay dispute brought under the salary provision of the Municipal Code" and because they are "alleging that they were under-paid," this is the functional equivalent of an employee lawsuit for unpaid "minimum wages." Toledo's proposed interpretation of "minimum wages," however, is far too broad and conflicts with both the particular and common usage of that phrase.

{¶ 21} When construing a statute, we read words and phrases in context and according to their "common usage," and we construe words and phrases "that have acquired a technical or particular meaning, whether by legislative definition or otherwise" according to that meaning. R.C. 1.42. We find, as the trial court did, that the phrase "minimum wages" has a more narrow, particular meaning as stated by the Supreme Court of Ohio in Harris v. Atlas Single Ply Systems , 64 Ohio St.3d 171, 593 N.E.2d 1376 (1992). Moreover, this particular meaning also comports with common usage of the phrase-or, as stated by the court, the definition of "minimum wages" that is ascribed by "most American adults." Id. at 173, 593 N.E.2d 1376.

{¶ 22} In Harris , the Ohio Department of Industrial Relations filed suit on behalf of former employees to recover money their former employer allegedly owed them under Ohio's prevailing wage law. Id. at 171, 593 N.E.2d 1376. The Supreme Court considered whether a claim for "minimum wages" under R.C. 2305.11(A) could encompass a claim for failure to pay prevailing wage rates for work on public improvements. Id. at syllabus. The court differentiated "prevailing wages" from "minimum wages," as that phrase is used in R.C. 2305.11(A), and recognized that "[t]he term 'minimum wages' denotes a specified hourly wage guaranteed to all qualified workers under federal and Ohio law. It is a dollar and cents amount readily cited by most American adults-$4.25 at the time of the decision. R.C. Chapter 4111." Id. at 173, 593 N.E.2d 1376. The court then found that the phrase "minimum wages" is not broad enough to encompass a claim for failure to pay prevailing wages, and therefore the two-year statute of limitations of R.C. 2305.11(A) was inapplicable.

{¶ 23} Similarly here, the phrase "minimum wage" under R.C. 2305.11(A) -as that phrase is defined in Harris and commonly understood by "most American adults"-is not broad enough to encompass relators' claims against Toledo for pension pick-ups and health insurance co-premiums. Although Toledo argues to the contrary, it relies upon two pre- Harris cases that are largely inapposite.

{¶ 24} Toledo claims that State ex rel. Gingrich v. Fairfield City School District Board of Education , 18 Ohio St.3d 244, 480 N.E.2d 485 (1985) supports its broad interpretation of "minimum wages." In Gingrich, substitute teachers sought back pay based on an earlier decision from the Supreme Court of Ohio that entitled them to more years of teacher-service credit, which then moved them to higher levels on the salary schedule. Id. at 244, 480 N.E.2d 485. The Supreme Court determined that the six-year statute of limitations set forth in R.C. 2307.07, rather than the two-year statute of limitations of R.C. 2305.11(A), applied because the version of the Fair Minimum Wage Standards Act in effect at the time excluded elementary school teachers from the definition of "employee." Id. at 245, 480 N.E.2d 485. In reaching that conclusion, however, the Supreme Court stated that the substitute teachers' "salaries can be considered wages under the definition provided in R.C. 4111.01(B) * * *" and noted that the statutes upon which the substitute teachers based their claims specified minimum salary levels. Id. The city analogizes this case to Gingrich in two ways: (1) relators' salaries are the same type of compensation as the substitute teachers' salaries and thus are "wages" and (2) relators base their claims on Toledo Municipal Code 2101.70(a), which, like the statutes the substitute teachers relied on in Gingrich , contains minimum salary levels for Deputy Police Chiefs.

{¶ 25} The city's reliance on Gingrich , however, is misplaced. Although Toledo Municipal Code 2101.70(a) contains the base salary schedule for Deputy Police Chiefs, relators (unlike the substitute teachers in Gingrich ) are not claiming that they were entitled to higher base salaries from September 2009, to May 2012. Rather, relators are seeking reimbursement for certain payments that they claim Toledo should have made on their behalf. Thus, this case is not one where the relators are seeking "payment of unpaid minimum wages"-especially in light of the Supreme Court of Ohio's more-recent interpretation of "minimum wages" in Harris. Moreover, to the extent that Gingrich referred to the Fair Minimum Wage Standards Act, R.C. 4111, for the meaning of both "employee" and "minimum wage," it is consistent with Harris.

{¶ 26} The other case relied upon by Toledo, Ebright v. City of Whitehall , 8 Ohio App.3d 29, 31, 455 N.E.2d 1307 (10th Dist.1982), is similarly inapposite. In that case, police officers brought a class action for overtime pay. The court found that "[t]he specific subject matter in this case is overtime compensation and therefore R.C. 2305.11(A) is controlling." Id. at 32, 455 N.E.2d 1307 (noting that R.C. 2305.11(A) applies to any "action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation* * *"). In contrast, this is not a case for unpaid overtime pay.

{¶ 27} We find, therefore, that the trial court correctly found that relators filed their claims within the applicable six-year statute of limitations of R.C. 2305.07. Accordingly, the city's second assignment of error is not well-taken.

B. Relators' Claims are not Barred by Laches

{¶ 28} Next, we address the city's third assignment of error. In it, the city contends that, even if the six-year statute of limitations of R.C. 2305.07 applies, there remains a genuine issue of material fact regarding whether relators' claims are barred by laches. Relators counter that the city did not show that it was prejudiced by relators' delay in bringing suit, so the trial court properly found that laches did not prevent summary judgment.

{¶ 29} Laches is a party's failure to assert a right for an unreasonable and unexplained period of time under circumstances that cause prejudice to the opposing party. Connin v. Bailey , 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984). Laches is available to a defending party even though the proceeding is commenced within the relevant statute of limitations. A & B Constrs., Inc. v. McWhorter , 12th Dist. No. CA86-02-010, 1986 WL 12095, *6 (Oct. 27, 1986). Delay alone is an insufficient basis to support a laches defense, however; the party asserting the defense must also show that it was materially prejudiced by the opposing party's delay. Smith v. Smith , 168 Ohio St. 447, 156 N.E.2d 113 (1959), paragraph three of the syllabus. Material prejudice exists when the defendant shows (1) the loss of evidence helpful to the defendant's case or (2) a change in the defendant's position that would not have occurred if the plaintiffs had asserted their rights sooner. Junkins v. Spinnaker Bay Condo. Assn. , 6th Dist. Ottawa Nos. OT-01-006 and OT-01-007, 2002 WL 337780, ¶ 85 (Mar. 1, 2002).

{¶ 30} Laches is an affirmative defense. State ex rel. Spencer v. E. Liverpool Planning Comm. , 80 Ohio St.3d 297, 299, 685 N.E.2d 1251 (1997). In the context of a motion for summary judgment, the party asserting the affirmative defense has the burden of producing sufficient evidence in support of its defense to show that a genuine issue of material fact remains. JPMorgan Chase Bank v. Swan , 6th Dist. Lucas No. L-14-1186, 2015-Ohio-1056, 2015 WL 1278565, ¶ 17, citing Todd Dev. Co. v. Morgan , 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 18.

{¶ 31} Application of laches is within the sound discretion of the trial court. Bellamy v. Bellamy , 6th Dist. Erie No. E-98-034, 2000 WL 638949 (May 19, 2000). Therefore, we review the trial court's decision on the application of laches for an abuse of discretion. Id. Abuse of discretion means that the trial court's decision was unreasonable, arbitrary, or unconscionable. State ex rel. Askew v. Goldhart , 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).

{¶ 32} Here, we find that the trial court did not abuse its discretion in finding that relators' claims are not barred by laches. Toledo does not set forth any evidence that it was materially prejudiced by relators' delay in bringing suit. Toledo merely argues that it would have revised Toledo Municipal Code 2101.70(a) before this litigation arose if relators had asserted their claims earlier. It does not otherwise argue that the delay caused the loss of any evidence that would have been helpful to its case, or that Toledo changed positions in any way that would not have occurred if relators had filed their claims sooner. Junkins at ¶ 85.

{¶ 33} Accordingly, the equitable doctrine of laches does not apply to this case, and Toledo's third assignment of error is not well-taken.

C. The Trial Court's Summary Judgment Decision was Proper

{¶ 34} Finally, we address the city's first assignment of error and relators' cross-assignment of error, which are both related to the trial court's substantive summary-judgment ruling on the relators' mandamus action.

{¶ 35} To be entitled to a writ of mandamus, a relator must establish three separate elements by clear and convincing evidence: (1) the relator has a clear legal right to the requested relief, (2) the opposing party has a clear legal duty to provide the relief, and (3) the relator lacks an adequate remedy in the ordinary course of the law. State ex rel. Manley v. Walsh , 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 18, citing State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, and State ex rel. Cleveland Right to Life v. State Controlling Bd., 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.

{¶ 36} In its first assignment of error, Toledo claims that the trial court erred by concluding that it had a clear legal duty to pay relators' pension pick-ups (and that relators had a corresponding clear legal right to receive such payments) under Toledo Municipal Code 2101.70(a). In relators' sole assignment of error, it contends that the trial court erred in concluding that they had no clear legal right to receive insurance co-premiums in parity with Police Chiefs under that same provision. We find no merit to either argument.

1. Pension Pick-ups from September 3, 2009, and March 31, 2010

{¶ 37} Between September 3, 2009, and April 1, 2010, the relators-all Deputy Police Chiefs-received 3 percent pension pick-ups while Police Captains received 10 percent pension pick-ups.

{¶ 38} Toledo Municipal Code 2101.70(a), states: "Police Deputy Chiefs shall automatically receive any pension pick-ups, lump sums, and allowances on the same basis as those provided to Police Captains as part of the Captains' total compensation." This language of this statute is clear and unambiguous: Police Deputy Chiefs are "automatically" entitled to receive the same pension pick-ups that Toledo provides to Police Captains.

{¶ 39} Toledo argues that relators do not have a clear legal right to pension pickups during this time period because their claims are barred by the statute of limitations or, in the alternative, the doctrine of laches. But, as stated above, relators filed their claims within the applicable six-year statute of limitations of R.C. 2305.07 and the doctrine of laches is not applicable to this case. Toledo does not otherwise attempt to excuse their payment of a lower pension pick-up rate to Deputy Police Chiefs than to Police Captains during this time.

{¶ 40} Accordingly, the trial court correctly found that relators have a clear legal right to receive, and the city has a clear legal duty to pay, a 7 percent pension pick-up-i.e., the difference between the 3 percent pick-up they actually received and the 10 percent pension pick-up they were entitled to receive under Toledo Municipal Code 2101.70(a)-for the time period between September 3, 2009, and March 31, 2010. The trial court properly granted judgment in relators' favor and did not err in issuing a writ of mandamus compelling the city's compliance with Toledo Municipal Code 2101.70(a) and ordering it to pay each relator the unpaid 7 percent pension pick-ups for September 3, 2009, through March 31, 2010.

2. Pension Pick-ups from April 1, 2010, to March 15, 2012

{¶ 41} Between April 1, 2010, and March 15, 2012, neither relators nor Police Captains received any pension pick-ups from Toledo in the wake of Ordinance 103-10, which declared "exigent circumstances" to address the city's immediate "financial crisis."

{¶ 42} Because the CBA in effect between the city and the TPCOA required the city, among other things, to pay Police Captains a 10 percent pension pick-up, the TPCOA filed several grievances and court actions against Toledo on behalf of its members. As already discussed, the TPCOA and Toledo then spent several years embroiled in litigation over the "exigent circumstances" measures. Eventually, after this court ruled in favor of the TPCOA in Toledo Police Command Officers Assn. , 6th Dist. Lucas No. L-13-1074, 2014-Ohio-4341, the parties reached a global settlement agreement on November 18, 2014, and shortly thereafter, Toledo City Council passed Ordinance 40-15 providing that "payment of $1,272,165.60 in settlement of the claims against the City of Toledo is hereby approved." Relevant here, pursuant to the parties' settlement, Toledo paid the full amount of the unpaid 10 percent pension pick-ups that had been suspended as of April 1, 2010, to Police Captains.

{¶ 43} Relators claim that, under Toledo Municipal Code 2102.70(a), they are entitled to receive 10 percent pension pick-ups for April 1, 2010, through March 15, 2012, on the same basis as Toledo provided to Police Captains through the 2014 settlement. In response, Toledo argued that because the Police Captains received these monies through settlement, the payments were not provided as part of the Police Captains' "total compensation" as required by Toledo Municipal Code 2101.70(a). Toledo also claimed that it is not clear whether it did, in fact, even owe Police Captains 10 percent pension pick-ups during this time period because it dismissed its appeal of our case, Toledo Police Command Officers Assn. , 2014-Ohio-4341, to the Supreme Court of Ohio as part of the settlement agreement.

{¶ 44} The trial court found that under Toledo Municipal Code 2101.70(a), relators have a clear legal right to receive the unpaid 10 percent pension pick-ups during this time period because the plain and unambiguous language of the statute states that "Police Deputy Chiefs shall automatically receive any pension pick-ups, lump sums , and allowances on the same basis as those provided to Police Captains as part of the Captains' total compensation." (Emphasis added). The trial court reasoned that the settlement payment was a "lump sum" that was provided "as part of the Captains' total compensation" for two reasons: (1) the amount that each TPCOA member received was directly tied to the 10 percent pension pick-up that was owed for work performed for the city, and (2) the city was found to have wrongfully withheld this amount from the Police Captains' total compensation package for several years, and it could not now argue that the settlement payment did not represent owed compensation. We agree with the trial court's conclusion, but base our decision on Toledo's obligation to pay "pension pickups."

{¶ 45} Relevant here, Toledo Municipal Code 2101.70(a) clearly and unambiguously provides that relators are automatically entitled to receive "pension pickups" on the same basis as provided to Police Captains "as part of the Captains' total compensation." See State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996), citing State ex rel. Herman v. Klopfleisch , 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995) (If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.).

{¶ 46} On appeal, Toledo argues that Toledo Municipal Code 2101.70(a) would require it to provide the unpaid 10 percent pension pick-ups to relators only if the statute expressly stated that Deputy Police Chiefs are entitled to parity with Police Captains for "proceeds derived from the settlement of a disputed case," which the statute does not say. Toledo also relies upon the language of Ordinance 40-15, which approved payments to TPCOA members "in settlement" but did not expressly state that the payments were to be considered part of TPCOA members' total compensation. Toledo argues that city council's omission of any reference to compensation in Ordinance 40-15 shows that there is "no clear and convincing evidence that the settlement was intended to be part of the TPCOA members['] total compensation." Finally, Toledo argues that whether or not it actually owed TPCOA members anything is "still contested" because the city abandoned its appeal of our decision Toledo Police Command Officers , 2014-Ohio-4341, to the Supreme Court of Ohio. We find no merit to these contentions, and address them in reverse order.

{¶ 47} In Toledo Police Command Officers , 2014-Ohio-4341, we upheld the trial court's ruling that Police Captains were entitled to, among other things, the 10 percent pension pick-ups that the city wrongfully withheld due to the "exigent circumstances" ordinance effective April 1, 2010. It is axiomatic that, whether Toledo agrees with it or not, the case is still good law and binding on the city, even though it abandoned its appeal to the Supreme Court of Ohio.

{¶ 48} Second, it is immaterial that Ordinance 40-15, accepting and approving Toledo's settlement with the TPCOA, does not expressly state that the settlement payments were to be made as part of the TPCOA members "total compensation." The settled dispute between the TCPOA and Toledo unquestionably centered on whether the city, by passing the "exigent circumstances" Ordinance 103-10, unlawfully withheld compensation, including pension pick-ups, that was otherwise owed to TPCOA members under the CBA. Indeed, Toledo fails to acknowledge that Ordinance 103-10 expressly recognized that the exigent circumstances measures were focused on cutting "labor compensation costs " because these costs represented a majority of the city's general fund expenditures. Ordinance 103-10 ("Labor compensation costs, including both wages and benefits, now compromise approximately 79% of the City Department's 2010 General Fund expenditures.") And, as the trial court recognized, the amount that each TPCOA member received is correlated to the 10 percent pension pick-ups that they were each owed as compensation.

{¶ 49} Finally, in light of these findings, it is clear that the 2014 settlement represented "pension pick-ups" that were owed "as part of the Captains' total compensation." Toledo cannot claim otherwise simply because it paid this money to the Police Captains in settlement, after years of litigation, rather than paying the pension pick-ups when due under the CBA. The relators, who were Deputy Police Captains at the time, are entitled to parity under Toledo Municipal Code 2101.70(a)

{¶ 50} Relators have a clear legal right to receive, and the city has a clear legal duty to pay, 10 percent pension pick-ups from April 1, 2010, to March 15, 2012. The trial court properly granted summary judgment in relators' favor and did not err in issuing a writ of mandamus compelling the city's compliance with Toledo Municipal Code 2101.70(a) and ordering it to pay each relator 10 percent pension pickups for the period from April 1, 2010, to March 15, 2012.

{¶ 51} Having found no error in the trial court's summary judgment decision, we find that the city's first assignment of error is not well-taken.

3. Health Insurance Co-Premiums

{¶ 52} Relators allege in their cross-assignment of error that the trial court erred in denying their motion for summary judgment on their claim for unpaid health insurance co-premiums. They claim that Toledo Municipal Code 2101.70(a) entitles Deputy Police Chiefs to complete parity with Police Captains in terms of "total compensation," which necessarily includes health insurance co-premiums. Toledo argues, in response, that Toledo Municipal Code 2101.70(a) only requires parity in terms of "pension pick-ups, lump sums, and allowances," and none of these categories include health insurance co-premiums. We agree with Toledo.

{¶ 53} Toledo Municipal Code 2101.70(a) provides a base salary schedule for Deputy Police Chiefs, and then provides:

The foregoing rates shall be maintained at eleven (11%) greater than Police Captains' rates at corresponding years of service. Further, Deputy Police Chiefs shall automatically receive any pension pick-ups, lump sums, and allowances on the same basis as those provided to Police Captains as part of the Captains' total compensation. This shall not be considered to include any payments to Captains under the Career Enhancement Program.

{¶ 54} Relators claim that "pension pick-ups, lump sums, and allowances" refers to all of the elements of compensation that the city is obligated to pay police officers of any rank with only two express exceptions: base salary and Career Enhancement Program. They then argue that because there are only two express exceptions, city council necessarily intended Toledo Municipal Code 2101.70(a) to require parity for Deputy Police Chiefs in terms of all other items of Captains' total compensation, including health insurance co-premiums.

{¶ 55} Relators' argument would have merit if Toledo Municipal Code 2101.70(a) stated that Deputy Police Chiefs are entitled to "automatically receive all compensation on the same basis [as Police Captains,]" instead of what it does state: i.e., Deputy Police Chiefs are entitled to "automatically receive any pension pick-ups, lump sums, and allowances on the same basis [as Police Captains.]" The canon of construction expressio unius est exlusio alterius-the express inclusion of one thing implies the exclusion of the other-compels us to conclude that city council did not intend Toledo Municipal Code 2101.70(a) to require parity between Deputy Police Chiefs and Police Captains for anything other than "pension pick-ups, lumps sums, and allowances."

{¶ 56} It is obvious that health insurance co-premiums are not "pension pick-ups." Moreover, although the city paid the Police Captains a "lump sum" settlement payment that included payment for wrongfully withheld health insurance co-premiums, we do not believe that this fact, alone, is dispositive. Just as Toledo cannot avoid its obligation to pay the relators for "pension pick-ups" just because it paid these monies in settlement rather than when they were due under the CBA, the relators also cannot claim to be entitled to parity in terms of health insurance co-premiums, which are otherwise not listed in Toledo Municipal Code 2101.70(a), based solely on the timing of their payment to Police Captains. Thus, the salient issue is whether the disputed health insurance co-premiums can be considered "allowances" under Toledo Municipal Code 2101.70(a). We find, as the trial court found, that health insurance co-premiums are not "allowances" under that code provision.

{¶ 57} Chapter 2101 of the Toledo Municipal Code governs the city's administrative and managerial staff and, if possible, we must construe the various sections of Chapter 2101 in pari materia, which means "in the same manner." Black's Law Dictionary 911 (10th Ed.2014). See In re Z.R. , 144 Ohio St.3d 380, 384, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 19 (a "body of laws governing the same subject must be read in pari materia."), citing In re C.W. , 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 7. Chapter 2101 specifically delineates various "allowances" to be included in Deputy Police Chiefs' compensation including safety equipment (Toledo Municipal Code 2101.63); clothing allowance (Toledo Municipal Code 2101.64); police stress allowance (Toledo Municipal Code 2101.67); and travel, clothing maintenance, and training allowance (Toledo Municipal Code 2101.69). Accordingly, insurance co-premiums are not an "allowance" as that term is expressly used in other provisions of Chapter 2101 of the Toledo Municipal Code.

{¶ 58} Moreover, health insurance co-premiums are expressly provided for, and treated differently than, "allowances" under Chapter 2101. Toledo Municipal Code 2101.01(c) defines the classifications of employees who "comprise the Exempt Service and are the management level, supervisory and confidential staff * * *," and includes Deputy Police Chiefs but not Police Captains. "For purposes of this Chapter of the Code, the term 'employee' refers to all persons in the Exempt Service in classifications listed in Section 2101.01." Toledo Municipal Code 2101.02(a). Health insurance for city employees, including Deputy Police Chiefs, is governed by Toledo Municipal Code 2101.32, which includes a cost schedule for health insurance premiums that employees must pay. Toledo Municipal Code 2101.32(c)(iv). It does not make sense to conclude that Toledo Municipal Code 2101.70(a) should be interpreted to impose a cost schedule for Deputy Police Chiefs' health insurance premiums that is different than the applicable cost schedule that is expressly contained in Toledo Municipal Code 2101.32(c)(iv).

{¶ 59} Thus, when Toledo Municipal Code 2101.70(a) is harmonized with the rest of Chapter 2101, it is clear that the term "allowances" does not include health insurance co-premiums.

{¶ 60} In sum, relators have failed to set forth clear and convincing evidence that health insurance co-premiums are "pension pick-ups," "lump sums," or "allowances," under Toledo Municipal Code 2101.70(a). Thus, the trial court properly denied their motion for summary judgment on their mandamus claim for these monies. Relators' cross-assignment of error is not well-taken.

D. Remand to Trial Court

{¶ 61} Finally, we note that while we affirm the trial court's decision in full, we remand the matter to the trial court to perform the mechanical task of calculating relators' damages.

{¶ 62} Generally speaking, "[W]here the issue of liability has been determined, but a factual adjudication of relief is unresolved, the finding of liability is not a final appealable order * * *." Noble v. Colwell , 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). There is an exception to this rule, however: "a judgment not completely determining damages is a final appealable order where the computation of damages is mechanical and unlikely to produce a second appeal because only a ministerial task similar to assessing costs remains." State ex rel. White v. Cuyahoga Metro. Hous. Auth. , 79 Ohio St.3d 543, 546, 684 N.E.2d 72 (1997).

{¶ 63} Our review of the trial court's order convinces us that it is a final appealable order. Based on the exhibits in the motions for summary judgment, it appears that the determination of the pension pick-ups owed to each relator is ministerial and can be calculated based on relators' salaries during the relevant time periods. Nevertheless, the trial court did not include in its entry the damages to which each relator is entitled.

{¶ 64} For the sake of clarity, we remand this case to the trial court for the limited purpose of entering an order on the damages to which each relator is entitled, i.e., the unpaid 7 percent pension pick-ups-representing the difference between the 3 percent pick-up that relators actually received and the 10 percent pension pick-up that they were entitled to receive-for the time period between September 3, 2009, and March 31, 2010; and the unpaid 10 percent pension pick-ups for the time period between April 1, 2010, and March 15, 2012.

E. Conclusion

{¶ 65} Based on the record before us, relators' claims were not barred by the applicable six-year statute of limitations or laches. Relators have a clear legal right to payment of 10 percent pension pickups from September 3, 2009, to March 15, 2012, but do not have a clear legal right to payment of any health insurance co-premiums. Accordingly, the trial court properly granted relators' motion for summary judgment and issued a writ of mandamus on the issue of pension pick-ups, properly denied relators' motion on the issue of health insurance co-premiums, and properly denied the city's motion for summary judgment.

{¶ 66} Although we find that the trial court's entry is a final appealable order, we remand this matter to the trial court for the calculation of the damages owed to each relator because those amounts were not included in the trial court's journal entry.

{¶ 67} The May 23, 2017 judgment of the Lucas County Court of Common Pleas is affirmed. The matter is remanded to the trial court for the entry of the issue on damages. The parties are ordered to share equally in the costs of this appeal pursuant to App.R. 24.

Judgment affirmed and remanded.

Christine E. Mayle, P.J.

Arlene Singer, J.

James D. Jensen, J.

CONCUR.

      Mayor Collins was deceased by the time Toledo and the TPCOA reached their settlement.

      We note that R.C. Chapter 4111 was amended in 2007 to conform to Article II, Section 34a, Ohio Constitution, which was approved by voters at the general election on November 7, 2006. The current version of R.C. 4111.01 does not define "wages."