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

text:
    Barry RIDDICK, Plaintiff-Appellant v. Owen R. TAYLOR, et al., Defendants-Appellees
    No. 105603
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Barry Riddick, pro se, 2501 East 59th Street, Suite 1310, Cleveland, Ohio 44104, FOR APPELLANT.
    Adam J. Davis, Martin T. Galvin, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115-1093, ATTORNEYS FOR APPELLEES.
    BEFORE: Jones, J., E.A. Gallagher, A.J., and Kilbane, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Plaintiff-appellant, Barry Riddick ("Riddick"), has filed this pro se appeal challenging the trial court's decision to grant the motion to dismiss and motion for summary judgment of defendants-appellees, Owen Taylor and Key Decisions/Positive Choices. Finding no merit to the appeal, we affirm.

{¶ 2} In May 2012, Riddick paid $200 to Key Decisions/Positive Choices to perform an alcohol and drug evaluation and assessment so he could renew his Ohio driver's license. According to Riddick, he needed the evaluation and assessment for the state of Michigan, which had suspended his driver's license due to a DUI conviction and he had a holder on his license.

{¶ 3} Owen Taylor ("Taylor") worked for Key Decisions/Positive Choices as a licensed chemical dependency counselor and performed Riddick's evaluation and assessment. Riddick contends that as part of his assessment Taylor was to complete a state of Michigan request for administrative review or hearing (Form 1) and a state of Michigan evaluation or assessment (Form II).

{¶ 4} Unsatisfied with the results of his evaluation and assessment, Riddick filed a complaint with the Cuyahoga County Board of Alcohol Drug Addiction and Mental Health ("Board" or "ADAMHS") in June 2012. The Board investigated his complaint and found that Riddick's rights had not been violated. In June 2016, Riddick filed suit against Taylor and Key Decisions/Positive Choices alleging breach of contract, respondeat superior, fraud, intentional infliction of emotional distress, and vicarious liability.

{¶ 5} Taylor and Key Decisions/Positive Choices moved to dismiss the fraud and intentional infliction of emotional distress claims based on the statute of limitations. The trial court granted the motion. Riddick subsequently filed a first amended complaint identifying a John Doe defendant.

{¶ 6} After Riddick failed to timely respond to discovery, Taylor and Key Decisions/Positive Choices moved to have admitted their Requests for Admission 1-4. The trial court admitted the following:

REQUEST FOR ADMISSION NO. 1: Admit that you, Barry Riddick, refused to sign a written release authorizing Defendants to release your information to the Michigan Department of State.
REQUEST FOR ADMISSION NO. 2: Admit that no written contract exists between you and Defendants.
REQUEST FOR ADMISSION NO. 3: Admit that a material term of your agreement with Defendants was for you to sign a written release authorizing Defendants to release the details of your evaluation by Owen R. Taylor, Key Decisions/Positive Choices to the Michigan Department of State.
REQUEST FOR ADMISSION NO. 4: Admit that the ADAMHS Board determined that Mr. Taylor and Key Decisions did perform the service that you paid for.

{¶ 7} Taylor and Key Decisions/Positive Choices then moved for summary judgment. Riddick also moved for summary judgment. The trial court granted the motion in favor of Taylor and Key Decisions/Positive Choices, finding that Riddick failed to establish a breach of contract claim because he did not sign an authorization allowing Taylor and Key Decisions/Positive Choices to release his assessment to the state of Michigan.

{¶ 8} Riddick filed this pro se appeal, raising the following assignments of error for our review:

I. The trial court committed prejudicial error when, for purposes of the application of the 4-year statute of limitations on his claims based in (A) Fraud, Count III and (B) Intentional Infliction of Emotional Distress, Count IV, it, pursuant to Civ.R. 12(B)(6), granted in part [defendant's motion to dismiss], dismissing those claims as time[-]barred, denying Appellant his right to jury trial on the issue of reasonable date of discovery.
II. The trial court committed prejudicial error and/or abused its discretion when it deemed admissions admitted by default and refused to withdraw and/or allow amendment where plaintiff had demonstrated that the action should be judged on its merits and the defendants were not prejudiced where plaintiff via his deposition categorically denied the deemed admissions prior to the Civ.R. 36 motion by defendants.
III. The trial court to the prejudice of appellant erred and/or abused its discretion when it failed to enforce its Order that defendants respond to plaintiff's Interrogatory 1 (see Journal Entry 1/25/2017) thus, denying appellant meaningful discovery despite appellant's Civ.R. 56(F) motion.
IV. The trial court to the prejudice of appellant erred and/or abused its discretion when it denied meaningful discovery from the appellees, by not deferring a ruling upon or denying appellees' motion for summary judgment and granting summary judgment for appellees where appellees failed to answer appellant's Civ.R. 31 deposition after properly being noticed and prior to the summary judgment decision, where appellant filed a Civ.R. 56(F) motion due to outstanding discovery.
V. Deemed admissions in and of themselves do no[t] entitle appellees to summary judgment when a contract still existed.
VI. The trial court erred in denying appellant's motion for summary judgment where there were no issues of material fact and appellees b[r]eached the agreement/contract.

I. Law and Analysis

A. Motion to Dismiss and Statute of Limitations

{¶ 9} In the first assignment of error, Riddick contends that the trial court erred in granting Taylor and Key Decisions/Positive Choices's motion to dismiss based on the statute of limitations.

{¶ 10} We employ a de novo review for dismissals granted pursuant to Civ.R. 12(B)(6). Battersby v. Avatar, Inc. , 157 Ohio App.3d 648, 2004-Ohio-3324, 813 N.E.2d 46, ¶ 5 (1st Dist.). "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A Civ.R. 12 (B)(6) motion to dismiss should be granted only when a plaintiff can prove no set of facts that would entitle him or her to relief. O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶ 11} The trial court dismissed Riddick's claims for fraud and intentional infliction of emotional distress claims because they were barred by the statute of limitations. Under Ohio law, claims for fraud and intentional infliction of emotional distress are governed by a four-year statute of limitations. R.C. 2305.09.

{¶ 12} The four-year limitations period in a fraud claim begins to run " 'when the complainant has discovered, or should have discovered in the exercise of reasonable diligence, the alleged fraud.' " Washburn v. Gvozdanovic , 2017-Ohio-2954, --- N.E.3d ----, ¶ 17, quoting Vanderlaan v. Pavlik , 1st Dist. Hamilton No. C-150060, 2015-Ohio-5349, 2015 WL 9392747, ¶ 13. A person should be aware that a fraud has occurred when the facts that she or he possesses would alert a reasonable person to the possibility of fraud. Washburn at id. citing Palm Beach Co. v. Dun & Bradstreet, Inc. , 106 Ohio App.3d 167, 171, 665 N.E.2d 718 (1st Dist.1995).

{¶ 13} Riddick alleged in his complaint that Taylor and Key Decisions/Positive Choices "fraudently diagnosed" him as alcohol and cocaine dependent on May 30, 2012. He filed his complaint in this case on June 24, 2016. Riddick argues that he was not aware of the fraud until either July 3, 2012, when he received the Board's decision on his grievance, or August 10, 2015, when he received his alcohol and drug assessment from the Board. According to Riddick, it was not until either of these later dates that he could identify that Taylor and Key Decisions/Positive Choices fraudently diagnosed him because none of the information in the assessment justified his diagnoses.

{¶ 14} Constructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule. Cundall v. U.S. Bank , 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 30. In his fraud allegation, Riddick alleges that he was diagnosed on May 25, 2012, as alcohol and cocaine dependent and received the fraudulent diagnoses on May 30, 2012. Thus, Riddick was either aware or should have been aware of any fraud on May 30, 2012, when he received his assessment and diagnosis. The fact that the Board decided not to amend his diagnosis does not change his actual knowledge of said diagnosis. Moreover, it appears from the complaint that Riddick filed a grievance with the Board not to change his diagnosis but "in an attempt to have Defendants comply with the terms of Plaintiff and Defendants' contract." Complaint ¶ 8.

{¶ 15} Riddick also argues that his claim for intentional infliction for emotional distress was timely filed. But in his complaint, Riddick alleges he suffered emotional distress on May 30, 2012, when he asked Taylor the identity of John Doe and to give him copies of the drug and alcohol assessment and its accompanying forms and Taylor told Riddick to leave or he would call the police. Thus, Riddick's claim for intentional infliction of emotional distress clearly began to run on May 30, 2012, and is likewise time-barred.

{¶ 16} Therefore, the trial court did not err when it dismissed Riddick's claims for fraud and intentional infliction of emotional distress based on the statute of limitations. The first assignment of error is overruled.

B. Admissions as Admitted

{¶ 17} In the second and fifth assignments of error, Riddick argues that the trial court erred when it allowed admissions to be admitted by default and granted summary judgment based on the admissions.

{¶ 18} We review a trial court's entry of summary judgment de novo, using the same standard as the trial court. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment may only be granted when the following are established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and the 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 its favor. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978) ; Civ.R. 56(C).

{¶ 19} The party moving for summary judgment bears the initial burden of apprising the trial court of the basis of its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact on an essential element of the nonmoving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). "Once the moving party meets its burden, the burden shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue of material fact exists." Willow Grove, Ltd. v. Olmsted Twp. , 2015-Ohio-2702, 38 N.E.3d 1133, ¶ 14-15 (8th Dist.), citing Dresher . "To satisfy this burden, the nonmoving party must submit evidentiary materials showing a genuine dispute over material facts." Willow Grove at ¶ 15, citing PNC Bank v. Bhandari , 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477, 2013 WL 3055918.

{¶ 20} Civ.R. 36 governs requests for admissions. Civ.R. 36(A)(1) provides that an admission

is admitted unless, within a period designated in the request, not less than twenty-eight days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney.

{¶ 21} Civ.R. 36(B) provides that "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission."

{¶ 22} Pursuant to the express language of Civ.R. 36(A), requests for admissions are " 'self-executing; if there is no response to a request or an admission, the matter is admitted. Unlike other discovery matters, the admission is made automatically and requires no further action by the party requesting the admissions.' " Smallwood v. Shiflet , 8th Dist. Cuyahoga No. 103853, 2016-Ohio-7887, 2016 WL 6906241, ¶ 18, quoting State v. Cordell , 10th Dist. Franklin No. 08AP-361, 2008-Ohio-6124, 2008 WL 5049902, ¶ 10. Thus, once a party fails to timely respond to the requests for admissions, the defaulted admissions become fact, and a motion seeking confirmation of those admissions is unnecessary. Smallwood at id. , citing Cordell at id.

{¶ 23} Taylor and Key Decisions/Positive Choices served Riddick with discovery including first requests for admission on August 31, 2016. Riddick's responses were due by September 28, 2016. Taylor and Key Decisions/Positive Choices issued follow-up requests for admissions on October 3 and October 19, 2016. They moved to deem their requests for admissions admitted on December 1, 2016; Riddick opposed the motion. The trial court granted the motion.

{¶ 24} Civ.R. 36(B) allows withdrawal or amendment of admissions under certain circumstances:

Subject to the provision of Rule 16 governing modification of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits.

Civ.R. 36(B). Thus, pursuant to Civ.R. 36(B) withdrawal of admissions may be permitted where: (1) it will aid in presenting the merits of the case; and (2) the requesting party is unable to convince the court that it will be prejudiced in maintaining the action by the withdrawal. 6750 BMS, L.L.C. v. Drentlau , 2016-Ohio-1385, 62 N.E.3d 928, ¶ 14 (8th Dist.), citing Balson v. Dodds , 62 Ohio St.2d 287, 405 N.E.2d 293 (1980), paragraph two of the syllabus. "This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice." 6750 BMS, L.L.C. at id.

{¶ 25} An appellate court applies an abuse of discretion standard to a Civ.R. 36(B) analysis, and decides whether the trial court's decision was arbitrary, unreasonable, or unconscionable. Sylvester Summers, Jr. Co., L.P.A. v. E. Cleveland , 8th Dist. Cuyahoga No. 98227, 2013-Ohio-1339, 2013 WL 1384892, ¶ 13, citing Aetna Cas. & Sur. Co. v. Roland , 47 Ohio App.3d 93, 547 N.E.2d 379 (10th Dist.1988).

{¶ 26} In this case, because Riddick did not respond to the request for admissions, by operation of Civ.R. 36, the request for admissions were deemed admitted, even without Taylor and Key Decisions/Positive Choices filing their motion to have the admissions deemed admitted.

{¶ 27} "While we recognize the importance of having cases decided on the merits, there is also the consideration of advocacy and diligence." U.S. Bank, N.A. v. Koodrich , 2017-Ohio-956, 86 N.E.3d 687, ¶ 20. Taylor and Key Decisions/Positive Choices requested discovery and admissions three times before they moved to have the admissions deemed admitted. In his motion in opposition, Riddick did not dispute he had failed to timely respond to the request for admissions. Rather, he claimed he was waiting on tax returns that were necessary for him to respond to one of the requests for production of documents, specifically, request for production of documents No. 7, which asked for ten years of tax returns, W-2s, and 1099 forms. Riddick, however, introduced no evidence justifying the failure to respond, or made any effort to explain the lack of response other than stating he was waiting on his tax returns.

{¶ 28} Riddick argues on appeal that the withdrawal of the admissions would not have prejudiced Taylor and Key Decisions/Positive Choices and the deemed admissions harmed the merits of his case. But Riddick could have complied with discovery in the trial court and supplemented the discovery once his tax returns were available. We find that Riddick has not shown that the trial court abused its discretion when it granted Taylor and Key Decisions/Positive Choices' motion to have admissions deemed admitted.

{¶ 29} Riddick also claims that the trial court erred in relying on the admissions when it granted summary judgment. In Ohio, "unanswered requests for admissions render the matter requested conclusively established * * * and a motion for summary judgment may be based on such admitted matter." (Citations omitted.) Jade Sterling Steel Co. v. Stacey , 8th Dist. Cuyahoga No. 88283, 2007-Ohio-532, 2007 WL 416697, ¶ 11. The failure to respond to the request satisfies the Civ.R. 56 written answer requirement, and also serves as a "conclusive admission pursuant to Civ.R. 36." Id.

{¶ 30} To set forth a claim for a breach of contract, a claimant must show: (1) a contract existed; (2) the plaintiff fulfilled his or her obligations; (3) the defendant failed to fulfill its obligations; and (4) damages resulted from this failure. Moore v. Adams, 5th Dist. Tuscarawas No. 2007AP090066, 2008-Ohio-5953, 2008 WL 4907590, ¶ 22. In granting summary judgment in favor of Taylor and Key Decisions/Positive Choices, the trial court found that Riddick could not support his claim because he would not sign an authorization allowing Taylor and Key Decisions/Positive Choices to release his assessment to the state of Michigan and the signing of the release was a material term of the agreement.

{¶ 31} Riddick contends that he had a contract with Key Decisions/Positive Choices and paid the company $200. Key Decisions/Positive Choices contends they were unable to fulfill any agreement they had with Riddick because he never executed the release, which would have allowed Taylor and Key Decisions/Positive Choices to release Riddick's assessment to the state of Michigan.

{¶ 32} During his deposition, Riddick claimed he was never asked to sign a release. In his motion for summary judgment, Riddick stated that "as of May 31, 2012" he had "correctly refused to sign any written authorization authorizing [Taylor and Key Decisions/Positive Choices] to incorrectly forward his information * * *." He readily admits that he refused to sign a release when asked to do so during his deposition.

{¶ 33} Taylor and Key Decisions/Positive Choices submitted into evidence Riddick's Individualized Progress Note, dated May 22, 2012. Taylor wrote "Client refused to sign [word illegible] release of information[,] stated that he was mailing all his paperwork." A supervisor signed off on Taylor's progress note. This is evidence that Riddick refused to sign the necessary release and, therefore, Taylor and Key Decisions/Positive Choices could not release his assessment and evaluation to the proper party.

{¶ 34} In light of the above, the trial court did not abuse its discretion in granting Taylor and Key Decisions/Positive Choices' motion to admit unanswered admissions nor did the court err in relying on those admissions or other evidence in granting summary judgment.

{¶ 35} The second and fifth assignments of error are overruled.

C. Alleged Discovery Violations

{¶ 36} In the third and fourth assignments of error, Riddick contends that the trial court erred when it failed to sanction Taylor and Key Decisions/Positive Choices for their discovery violations.

{¶ 37} Riddick alleges that trial court erred when it failed to require Taylor and Key Decisions/Positive Choices to comply with its order to respond to Riddick's discovery. In an order dated January 25, 2017, the trial court ordered Taylor and Key Decisions/Positive Choices to respond to interrogatory No. 1, as follows: "Defendants must respond as to when this request (to sign the release) was made to plaintiff and who was present." Taylor and Key Decisions/Positive Choices complied with the court's order on February 3, 2017, answering the interrogatory as follows: "The first instance was on May 22, 2012, as is documented in Mr. Riddick's progress note (attached hereto) in which he refused to sign. Multiple additional requests were made, the last of which was made by undersigned counsel at the time of Mr. Riddick's November 15, 2016 deposition * * *."

{¶ 38} Riddick contends the progress note is "fraudulent" and the progress note does not state who was present when he allegedly refused to sign the release. But there is no evidence the progress note is fraudulent. The progress note indicates that Riddick was at Key Decisions/Positive Choices for a three-hour assessment. Taylor performed the assessment and noted Riddick's refusal to sign the release of information. Taylor signed and dated the progress note and his supervisor signed off on the note.

{¶ 39} Riddick also contends that the trial court prevented him from obtaining discovery by granting Taylor and Key Decisions/Positive Choices' motion for summary judgment before they had fully answered discovery. We disagree. In his motion, Riddick asked the court to compel Taylor and Key Decisions/Positive Choices to respond to interrogatory Nos. 1, 2, 3, and 5. In an order dated January 1, 2017, the trial court found that interrogatory No. 2 had already been answered and interrogatory Nos. 3 and 5 were vague and ambiguous. In a March 30, 2017 order, the trial court noted that interrogatory No. 1 had already been answered. Based on our review of the record, there was no outstanding discovery and, therefore, no prejudice to Riddick.

{¶ 40} In light of the above, the third and fourth assignments of error are overruled.

D. Summary Judgment

{¶ 41} In the sixth assignment of error, Riddick claims that the trial court erred when it denied his motion for summary judgment. Riddick contends Taylor and Key Decisions/Positive Choices breached the contract they had with him because they did not supply him with a copy of his drug and alcohol assessment and accompanying state of Michigan forms. We disagree.

{¶ 42} As mentioned, Riddick hired Key Decisions/Positive Choices for $200 to have a licensed alcohol or drug professional evaluate his alcohol and/or drug use disorder to determine his ability to clear his Michigan driving record. Riddick signed a Consent for Treatment/Services, an Initial Treatment Plan, and an Authorization to Disclose Information, which allowed Key Decisions/Positive Choices to gather information from a local Community Based Correctional Facility. Included in the record is a Authorization to Disclose Information to the State of Michigan form, which Riddick did not sign.

{¶ 43} Riddick subsequently filed a grievance with ADAMHS. Judy Jackson Winston, a Board client rights officer, investigated Riddick's complaint. Jackson Winston determined that Taylor and Key Decisions/Positive Choices did not violate Riddick's rights when Taylor failed to complete the state of Michigan Evaluations and Request for Hearing form or give the completed form to Riddick, because the instructions on the form required the evaluator to send the forms directly to the state of Michigan.

{¶ 44} Riddick presented no evidence that he had a written contract with Key Decisions/Positive Choices or evidence that Taylor and Key Decisions/Positive Choices were required to provide him with the forms he requested. The state of Michigan forms required Riddick to sign an authorization to release said forms to the state. Taylor and Key Decisions/Positive Choices were required to obtain that authorization prior to releasing the forms. Because Riddick refused to sign the release, Taylor and Key Decisions/Positive Choices could not complete the services Riddick hired them to perform.

{¶ 45} In addition, we note that after Riddick filed the grievance, Taylor and Key Decisions/Positive Choices were willing to again meet with Riddick so he could sign the release, see the forms before they were mailed to the state of Michigan, and receive copies. Riddick refused their advances.

{¶ 46} In light of the above, the trial court correctly granted summary judgment in favor of Taylor and Key Decisions/Positive Choices.

{¶ 47} Finding no breach of contract, Riddick's claims for vicarious liability and respondeat superior fail as well. See Mender v. Chauncey , 2015-Ohio-4105, 41 N.E.3d 1289, ¶ 31 (4th Dist.), citing Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712 (a derivative claim cannot afford greater relief than that relief permitted under a primary claim, a derivative claim fails when the primary claim fails).

{¶ 48} The sixth assignment of error is overruled.

{¶ 49} Therefore, having found that the trial court properly granted Taylor and Key Decisions/Positive Choices' motion to dismiss Riddick's fraud and intentional infliction of emotional distress claims and motion for summary judgment on his breach of contract, vicarious liability, and respondeat superior claims, we affirm the court's judgment.

{¶ 50} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and

MARY EILEEN KILBANE, J., CONCUR

      It is unclear from the record what role John Doe had in this case.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    Morris K. HINTON, Plaintiff-Appellant, v. OHIO BUREAU OF SENTENCE COMPUTATION, et al., Defendants-Appellees.
    No. 17AP-187
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on January 23, 2018
    On brief: Morris K. Hinton, pro se.
    On brief: Michael DeWine, Attorney General, and George Horváth, for appellees.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiff-appellant, Morris K. Hinton, appeals a decision and entry of the Franklin County Court of Common Pleas entered February 23, 2017, that granted summary judgment to defendants-appellees, Ohio Bureau of Sentence Computation ("OBSC") and Ohio Department of Rehabilitation & Correction ("ODRC") (collectively referred to as "appellees"). Because we agree with the trial court that credit for good behavior is deducted from the minimum but not the maximum measures of an indeterminate sentence, we overrule Hinton's assignment of error and affirm.

I. PROCEDURAL POSTURE

{¶ 2} On December 19, 1994, following Hinton's guilty plea to two counts of rape, the Hamilton County Court of Common Pleas sentenced Hinton to two indefinite sentences of 9 to 25 years, to be served concurrently with each other. (Dec. 19, 1994 Jgmt. Entry case No. B 945589, Ex. A attached to July 25, 2016 Compl.) Over 21 years later, on July 25, 2016, Hinton filed a complaint for a declaratory judgment against appellees alleging that three years of credit for good behavior, having been applied to the minimum term of his sentence, should also have reduced his total sentence. (Compl.) Hinton's complaint included copies of correspondence between Hinton and appellees indicating that Hinton and appellees reached an impasse on the issue. (Exs. B-C attached to Compl.)

{¶ 3} Appellees answered, admitting most of the pertinent background facts, including that Hinton began serving his 9-to-25-year sentence on December 27, 1994. (Sept. 26, 2016 Answer at ¶ 1-5 .) On October 21, 2016, after filing its answer, appellees filed "DEFENDANTS' MOTION FOR LEAVE TO PROCEED, INSTANTER WITH THEIR MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATE MOTION TO DISMISS WITH MOTION TO STRIKE PLAINTIFF'S EXHIBIT AT PAGE 13 OF PLAINTIFF'S COMPLAINT AS IRRELEVANT." (Emphasis sic.) (Oct. 21, 2016 Mot. for Summ. Jgmt.) Essentially, appellees' motion had the potential of being four motions in one-a motion to strike certain news articles attached to the complaint, a motion for summary judgment, a request that the trial court consider the motion for summary judgment, and, in the alternative, a motion to dismiss.

{¶ 4} Exhibits were filed with the four-in-one motion, the trial court treated it as a summary judgment motion, and the parties addressed it in the record as a motion for summary judgment. (Feb. 23, 2017 Decision in passim; Feb. 21, 2017 Entry at 2.) The trial court did not need to give separate notice under Civ.R. 12(B)(6) that it was considering summary judgment, since an answer had been filed, and appellees' out-of-rule motion to dismiss was in the alternative to its motion for summary judgment.

II. JURISDICTION

{¶ 5}

"Whenever a want of jurisdiction is suggested by a court's examination of the case or otherwise, the court has a duty to consider it, for the court is powerless to act in the case without jurisdiction." Id. , citing Patton v. Diemer (1988), 35 Ohio St.3d 68, 70, 518 N.E.2d 941, and Wandling v. Ohio Dept. of Transp. (1992), 78 Ohio App.3d 368, 371, 604 N.E.2d 825. As a result, "[e]ven though not asserted, lack of subject matter jurisdiction may be raised sua sponte, by the court at any stage of the proceedings." Id. , citing Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, 358 N.E.2d 536.

Adams v. Cox , 10th Dist. No. 09AP-684, 2010-Ohio-415, 2010 WL 438141, ¶ 19. It is incumbent on us to consider our jurisdiction, and in doing so we examine two issues: first, whether a final appealable order was before us when the motion to strike had not been ruled on by the trial court, and second, whether we can entertain an action such as Hinton has filed in declaratory judgment.

{¶ 6} The trial court did not rule on appellees' motion to strike before entering judgment for appellees. Under CitiMortgage, Inc. v. Guinther , 10th Dist. No. 12AP-654, 2013-Ohio-4014, 2013 WL 5288841, ¶ 24, we previously held that a trial court's failure to rule on a motion to strike before granting summary judgment to the moving party is deemed to be a denial of the earlier filed motion. See also FitWorks Holdings, L.L.C. v. Pitchford-El , 8th Dist. No. 88634, 2007-Ohio-2517, 2007 WL 1508351, ¶ 9 (noting "[i]t is well-settled that, when a motion is not ruled on, it is deemed to be denied"). Appellees' motion to strike is denied as by operation of law, leaving no matters unaddressed by the judgment of the trial court and a final appealable order capable of our review.

{¶ 7} As for jurisdiction over Hinton's claim in declaratory judgment, we review the nature of his claim, whether prior case law permits him to use declaratory judgment as a means to seek relief, and whether he has met the statutory requirements of declaratory judgment pursuant to R.C. 2721.12, which are jurisdictional.

Copeland v. Tracy , 111 Ohio App.3d 648, 656, 676 N.E.2d 1214 (10th Dist.1996).

A. The Nature of Hinton's Claim

{¶ 8} Incarcerated, Hinton seeks an earlier maximum sentence release date for two counts of rape. His indeterminate sentence predates the current statutory scheme for "good time" by several years. He was sentenced in 1994, and on March 1, 1998, the Ohio Adult Parole Authority ("APA") changed the guideline system it used to consider inmates for parole. What was formerly referred to in law as "good time" as a consideration for early release is eliminated under the new guidelines and is now presumed by the requirements of the statute. Ankrom v. Hageman , 10th Dist. No. 04AP-984, 2005-Ohio-1546, 2005 WL 737833.

B. Case Law Treatment of Declaratory Judgment for "Good Time" Claims

{¶ 9} In Hageman, the inmate appellants asserted among other claims that the APA did not promulgate new guidelines according to the Administrative Procedure Act. Id. at ¶ 7. This Court held that parole guidelines are not a rule and do not fall under the purview of the declaratory judgment statute. Id. at ¶ 36, citing Wise v. Ohio Dept. of Rehab. & Corr. , 84 Ohio App.3d 11, 616 N.E.2d 251 (10th Dist.1992) ("Thus, we concluded in Wise that a declaratory judgment action is not the appropriate remedy to preclude utilization of a rule not properly adopted in accordance with statutory procedures. We later followed Wise to find that declaratory judgment is not the proper method to contest the utilization of a rule regarding the APA's death penalty clemency procedure that was not properly promulgated. See Coleman v. Ohio Adult Parole Auth. (1996), 115 Ohio App.3d 212, 215, 685 N.E.2d 241. Thus, pursuant to Wise and Coleman , appellees would be precluded from using a declaratory judgment action to challenge the promulgation of the guidelines.").

{¶ 10} But Hinton, who was sentenced before March 1, 1998, does not challenge how guidelines were promulgated, and his claim does not concern clemency for the death penalty. Rather, he challenges appellees' application of sentence reduction guidelines to his sentences, claiming in his sole assignment of error prejudice to his "liberty interests." (Hinton's Brief at ii.) He does not challenge the underlying judgment of the sentencing court.

{¶ 11} We previously stated that collateral civil attacks by an inmate who filed an original action for a writ of mandamus against ODRC and the chief of OBSC seeking recalculation of his end of sentence date was a civil action and a collateral civil attack on the judgment. State ex rel. McGlown v. Mohr , 10th Dist. No. 14AP-478, 2015-Ohio-1554, 2015 WL 1851661, ¶ 1, 6. In McGlown at ¶ 6, we cited State v. Reynolds , 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus ("Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.").

{¶ 12} Because McGlown's action had been filed in mandamus it could be treated as a postconviction motion for two reasons. First, R.C. 2731.02, authorizing writs of mandamus, permits courts to issue them simply on the information of the party beneficially interested. Second, under Hageman , we held that what are now essentially "good time" guidelines are not rules. Mandamus commands the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. R.C. 2731.01. Under Hageman and in this context, mandamus, like declaratory judgment, cannot issue based on guidelines. McGlown does not apply to Hinton's appeal, and his action in declaratory judgment should not be converted to a postconviction motion as we did in McGlown for a prisoner's original mandamus action.

{¶ 13} The Eleventh District Court of Appeals has held, citing Reynolds, that determining whether a motion is for postconviction relief under R.C. 2953.21(A)(1) requires examining whether the petition is (1) filed subsequent to the defendant's direct appeal; (2) claims a denial of constitutional rights; (3) seeks to render the judgment void; and (4) requests vacation of the judgment and sentence. State v. Archibald , 11th Dist. No. 2014-L-005, 2014-Ohio-4314, 2014 WL 4825394, ¶ 20, citing Reynolds at 160, 679 N.E.2d 1131. Because the movant in Archibald did not seek to vacate his sentence or render it void, but rather to modify it from consecutive to concurrent, the Eleventh District found his motion should not be converted to a motion for postconviction relief. Id. at ¶ 20. Hinton does not seek to render a judgment void or to vacate his sentence. And his claim of prejudice to his liberty interests is in the absence of knowing whether he is entitled to a particular release date because of the application of "good time" credits under prior law. Under Archibald , his action should not be converted to a postconviction motion.

{¶ 14} The Second District Court of Appeals has also distinguished Reynolds, stating that Reynolds "must be narrowly construed" and reaches "only a motion * * * that fails to delineate specifically whether it is a postconviction release petition or a Crim.R. 32.1 motion," referring to poorly delineated motions as "irregular 'no-name' motions [that] must be categorized by a court in order for the court to know the criteria by which the motion should be judged." (Emphasis sic.) State v. Spencer , 2d Dist. No. 2006 CA 42, 2007-Ohio-2140, 2007 WL 1297171, ¶ 11. See also State v. Meadows , 6th Dist. No. L-05-1321, 2006-Ohio-6183, 2006 WL 3378416, ¶ 19.

" Reynolds therefore does not obviate Crim.R. 32.1 postsentence motions. Instead, Reynolds sets forth a narrow rule of law limited to the context of that case." State v. Bush (2002), 96 Ohio St.3d 235, 237-38, 773 N.E.2d 522, 2002-Ohio-3993.

Spencer at ¶ 11. The Second District held that because the motion before the trial court was specifically filed pursuant to Crim.R. 32.1, the trial court erred in analyzing it as a petition for postconviction relief pursuant to R.C. 2953.21. Id. See also Meadows at ¶ 19.

{¶ 15} Hinton's action in the trial court is a specific action filed in declaratory judgment pursuant to R.C. 2721.12(A) with specific criteria by which it should be judged. Accordingly, we cannot apply Reynolds as we did in McGlown. We must conduct a jurisdictional review under R.C. 2721.12, which specifically requires that we determine whether "all persons who have or claim any interest that would be affected by the declaration [have been] made parties to the action or proceeding."

{¶ 16} We have previously held that a party that would be affected by the outcome of a case is a necessary party, and the failure to include them as a party constitutes a jurisdictional defect. Copeland at 656, 676 N.E.2d 1214. The statutory elements of declaratory judgment are jurisdictional requirements and all affected parties must be named in the complaint. R.C. 2721.12 ; Spencer v. Freight Handlers, Inc. , 131 Ohio St.3d 316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 19 ("We have recognized that naming proper parties and fulfilling service requirements are jurisdictional requirements in cases that involve statutes that clearly require such for jurisdiction.").

{¶ 17} We find no jurisdictional defects with Hinton's complaint. He seeks a specific declaration of the rights of clearly delineated parties, all of whom are part of the action. Thus, we have jurisdiction to review his appeal of the trial court's denial of his claims in declaratory judgment.

{¶ 18} We do note at this juncture that "logic" would point to the need for Hinton to name in his complaint those persons who would seek to be heard about a potential earlier prison release date, such as the persons contemplated in what is known as Ohio's "Marsy's Law" taking effect 90 days after the November 7, 2017 election. However, this provision was not a part of the Ohio Constitution or in effect at the time Hinton filed his action. Thus we cannot say that Hinton was required to name his victim(s) such that they would have the right "to be heard in any public proceeding involving [his] release, plea, sentencing, disposition, or parole." Prospective Ohio Constitution, Article I, Section 10a (A)(3). But we cannot say this is the case for future declaratory judgment actions that may be brought by prisoners concerning their earlier release once "Marsy's Law" takes effect in Ohio.

{¶ 19} Finally, and by way of analogy, we note that this Court previously has reviewed a prisoner's pro se declaratory judgment action contesting revocation of his parole. In that case, the trial court granted summary judgment to the State and the prisoner appealed. We did not convert the action to or treat it as a postconviction motion; we addressed it in declaratory judgment in the context of criminal post-sentencing matters. Helton v. Ohio Adult Parole Auth. , 10th Dist. No. 00AP-1108, 2001 WL 709946, *3 (June 26, 2001). In Helton , we affirmed the trial court's denial of declaratory relief to the prisoner, analyzing that declaratory judgment requires that a party establish (1) a real controversy between adverse parties; (2) a controversy which is justiciable in character; and (3) a situation where speedy relief is necessary to preserve the rights of the parties. Id., citing Fairview Gen. Hosp. v. Fletcher , 63 Ohio St.3d 146, 148-49, 586 N.E.2d 80 (1992).

{¶ 20} En toto, we are convinced that Hinton's situation presents a narrow and limited application that allows us to review his claims in declaratory judgment pursuant to R.C. 2721.12. The straightforward legal issue Hinton places before us is whether the approximately three years of credit he earned for good behavior and participation in prison programs, should have reduced his maximum sentence as a logical consequence of reducing his minimum sentence.

III. FACTS

{¶ 21} In granting appellees' motion for summary judgment, the trial court found that Hinton was not entitled to an interpretation of law that reduced his maximum sentence, even though his minimum sentence had been reduced so that he could appear before the APA earlier than he would have without his "good time."

{¶ 22} The facts in evidence before the trial court included an affidavit appellees attached to its somewhat unorthodox motion for summary judgment of an auditor for appellees, Kimberly Guitner. (Guitner Aff. at ¶ 3, Ex. A attached to Oct. 21, 2016 Memo. in Opp.) Guitner swore by affidavit that, based on documents attached as sub-exhibits A-1 through A-12, Hinton's sentence was a 9-year minimum and a 25-year maximum. Id. at ¶10. The expiration of the maximum, according to Guitner, was December 13, 2019. Id. at ¶11. Guitner explained that Hinton's good-time credit, earned credit, and jail-time credit (a total of 992 days) has been deducted from his minimum sentence. Id. at ¶14-16. As previously detailed in a letter to Hinton in January 2016, these credits reduce the minimum sentence so that the inmate is eligible for parole sooner. Id. at ¶22; see also Guitner Aff. at Ex. A-12. But earned and good-time credits, unlike jail-time credit, have no effect on the maximum possible sentence. (Guitner Aff. at ¶ 22.)

{¶ 23} On November 7, 2016, Hinton filed a memorandum in opposition to appellees' motion. (Nov. 7, 2016 Memo. in Opp.) Hinton did not disagree with Guitner's calculation of his maximum-sentence expiration date based on his original sentence. (Diagram, App'x at 11 attached to Nov. 7, 2016 Memo. in Opp.) He argued that he had 16 years to serve following the completion of his minimum sentence of 9 years. (Nov. 7, 2016 Memo. in Opp. at 5.) Assuming that approximately three years were deducted from his minimum sentence for good-time, earned, and jail-time credits, Hinton reasoned once he served 16 years after his minimum 9-year sentence expired, he should have been freed. Id. He argued the approximate three-year deduction of credits from his minimum sentence also applied in computing his maximum sentence. Id. He argued for a release date of December 13, 2016. Id.

{¶ 24} The trial court granted appellees' motion for summary judgment, concluding that appellees' calculation of Hinton's release date, based on the relevant law and agreed facts, was correct. (Feb. 23, 2017 Decision at 6-7.) It also noted that even if Hinton's claims were construed as a motion for postconviction relief or a petition for a writ of mandamus, they would fail. Id. at 4-5.

{¶ 25} Hinton now appeals.

IV. ASSIGNMENT OF ERROR

{¶ 26} Hinton presents a single assignment of error for review:

The Court of Common Pleas Abused Its Discretion when It dismissed Appellant Morris K. Hinton's properly filed Complaint for Declaratory Judgment filed in accordance with Ohio's Declaratory Judgment Act, pursuant to O.R.C. Chap. 2721; causing prejudice to Appellant Hinton's liberty interests in Good Time credits earned and awarded under Ohio's pre-1996 Sentencing scheme in accordance with O.R.C. 2967.19(A) and 2967,193(A).

(Sic passim.)

V. DISCUSSION

{¶ 27} Ohio Rule of Civil Procedure 56(C) provides that:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

When reviewing a trial court's decision on summary judgment, our review is de novo and we therefore apply the same standards as the trial court. Westfield Ins. Co. v. Hunter , 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12 ; Bonacorsi v. Wheeling & Lake Erie Ry. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24.

{¶ 28} In this case, there appears to be no dispute between the parties as to the relevant facts. Hinton was sentenced 9 to 25 years in prison, began serving that sentence on December 27, 1994, earned approximately three years of credit, and had a maximum sentence expiration date of December 13, 2019.

{¶ 29} Hinton was sentenced in December 1994. The versions of R.C. 2967.19 and 2967.193 that were in effect at the time of Hinton's sentencing and commission of the crimes for which sentencing occurred were enacted in 1994. Am.Sub.H.B. No. 571. On review of sentencing issues, we are obliged pursuant to R.C. 1.58(B) to apply the statutes in effect at the time Hinton was sentenced. Thus, as to matters affecting Hinton's sentence, we apply the version of R.C. 2967.19 in effect at the time he was sentenced, which provided in relevant part as follows:

[A] person confined in a state correctional institution is entitled to a deduction from his minimum * * * sentence of thirty per cent of the sentence, prorated for each month of the sentence during which he faithfully has observed the rules of the institution.

(Emphasis added.) R.C. 2967.19(A) (1994).

{¶ 30} There existed in the law at the time Hinton was sentenced an additional basis for minimum sentence reduction for participation in programming, pursuant to R.C. 2967.193, which provided in relevant part as follows:

[A]ny person confined in a state correctional institution is entitled to earn days of credit as a deduction from his minimum * * * sentence as follows:
(1) Two days shall be awarded to the prisoner and be deducted from his sentence for each full month during which he productively participates in any of the following programs approved by the department of rehabilitation and correction:
(a) Academic or vocational education;
(b) Prison industries;
(c) Alcohol and drug abuse rehabilitation.

(Emphasis added.) R.C. 2967.193(A)(1) (1994).

{¶ 31} By the plain text of both former R.C. 2967.19(A) and former 2967.193(A)(1), deductions were from a prisoner's "minimum" sentence. The Supreme Court of Ohio has recognized that " '[t]he reasoning for [former R.C. 2967.19 ] reducing the minimum, rather than the maximum, sentence is * * * clear: the intent was to enable earlier parole eligibility , not to allow prisoners to unilaterally shorten their court-imposed sentence.' " (Emphasis sic.) State ex rel. Vaughn v. Money , 104 Ohio St.3d 322, 2004-Ohio-6561, 819 N.E.2d 681, ¶ 9, quoting Gavrilla v. Leonard , 4th Dist. No. 01CA2638, 2002-Ohio-6144, 2002 WL 31522443, ¶ 12. The Supreme Court also agreed with this Court's holding that " '[f]ormer R.C. 2967.19 provides for "good time" credit solely for purposes of acceleration of the date that an offender is first eligible for parole.' " Vaughn at ¶ 10, quoting State ex rel. Perry v. Ohio Adult Parole Auth. , 10th Dist. No. 03AP-1277, 2004-Ohio-4039, 2004 WL 1728603, ¶ 6.

{¶ 32} Accordingly, the credits earned by Hinton for his good behavior and participation in prison programs should have been (and were) deducted from his minimum sentence. However, though this had the effect of having the APA consider granting parole at an earlier point in time from his original sentencing date and thereby potentially reducing the minimum amount of time he had to serve, it did not alter the maximum time he could be required to serve under the trial court's original sentence. In reaching this conclusion, we take into consideration that "in the event of breaking his parole he might under certain circumstances be returned to the penitentiary to serve out the balance of his time." O'Neill v. Thomas , 123 Ohio St. 42, 49, 173 N.E. 727 (1930). That is, were good time permitted to reduce the maximum sentence, an inmate released upon having served the minimum (and reduced) sentence but who violates parole, could argue that he or she would not need to serve all of the remainder of the maximum sentence if denied further community supervision. Thus, in following Vaughn, neither we, nor the APA, are in a position to reduce a trial court's maximum sentence for indeterminate sentences.

{¶ 33} Hinton's contention that he was required to serve a minimum sentence of 9 years plus a possible 16 years so that reducing the 9-year sentence logically reduces the total sentence of 9 years plus 16 years misapprehends the nature of his indefinite sentence. Vaughn. His sentence was a maximum of 25 years, with a minimum of 9 before he became eligible for release. Reducing the 9 years made him eligible for release sooner. It did not affect his maximum sentence of 25 years.

VI. CONCLUSION

{¶ 34} Hinton's sole assignment of error is overruled and the decision of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

TYACK and KLATT, JJ., concur.

      In an apparent typographical error, appellees also admitted that Hinton's maximum sentence expired on December 13, 2009 (rather than 2019). (Answer at ¶ 5.)

      In addition, in an entry filed on February 21, 2017, the trial court stated that the parties in a conference on October 25, 2016, discussed the fact that the trial court would be considering the defendants' motion for summary judgment and any responses thereto. (Feb. 21, 2017 Entry at 2.) Also, Hinton filed a "VERIFIED MEMORANDUM IN OPPOSITION TO DEFENDANT'S [sic] MOTION FOR SUMMARY JUDGMENT," acknowledging that he was responding to a motion for summary judgment and not a motion to dismiss. (Nov. 7, 2016 Memo. in Opp.)

      Although the record includes a number of filings and disputes between Hinton and appellees, we focus only on those relevant to the subject matter of this appeal.

      The revised statute sets up a grid or matrix as guidelines for the APA:
      First, the parole board assigns a risk score. The risk score represents an inmate's risk of recidivism and is calculated by analyzing several objective factors, including an inmate's prior convictions, incarcerations, age, and prior parole and probation history. These factors are given numerical values that are added to arrive at a number between zero and eight, with eight indicating the greatest risk of recidivism. These risk scores are similar to the risk scores used in the matrix. Second, the parole board assigns an offense category. The offense category is determined by analyzing the conduct leading to the inmate's current incarceration based on the offense of conviction. The offense is then placed in categories numbered one through 13, with 13 being the most serious offense. The offense category is a new creation and was not used in the matrix. Third, the parole board evaluates the risk score and offense category. The risk score and offense category are utilized in a guideline-grid chart to suggest a range of months the inmate should serve before being paroled. The horizontal axis of the grid lists the eight risk of recidivism factors, while the vertical axis of the grid lists the 13 categories of offenses. After locating the category of offense along the vertical axis and then locating the risk score along the horizontal axis, the parole board then finds the intersection of these categories on the grid, which suggests a range of months to be served by the inmate before becoming eligible for parole. Fourth, the parole board decides whether to follow or depart from the suggestion of the guidelines. If it chooses to follow the guidelines, the board picks a period within the suggested range that the offender should serve. "Good time" as a consideration is eliminated under the new guidelines and is now presumed.
      Ankrom v. Hageman , 10th Dist. No. 04AP-984, 2005-Ohio-1546, 2005 WL 737833, ¶ 4.

      A petition for postconviction relief pursuant to R.C. 2953.21 must demonstrate "a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States." R.C. 2353.21(A)(1)(a). In McGlown , we did not reach this question, because we treated the mandamus petition as a postconviction motion and denied it for failure to satisfy R.C. 2969.25(A), requiring an affidavit detailing prior civil actions filed.

      We also note since Hinton is not seeking that any state law or rule be held unconstitutional, there is no requirement under R.C. 2721.12(A) to serve the attorney general for him to be heard.

      Reported online as 1993 Ohio HB 571.


author: MELODY J. STEWART, J.:

text:
    Rola MOUDED, Plaintiff-Appellant v. Antoine H. KHOURY, Defendant-Appellee
    No. 105656
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Joseph G. Stafford, Nicole A. Cruz, Stafford & Stafford Co., L.P.A., 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114, ATTORNEYS FOR APPELLANT.
    Jack W. Abel, Abel & Zocolo Co., L.P.A., 815 Superior Avenue, Suite 1915, Cleveland, OH 44114, ATTORNEY FOR APPELLEE.
    BEFORE: Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Appellant Rola Mouded and appellee Antoine Khoury were married in the state of Ohio after a long-distance courtship (Mouded lived in Ohio; Khoury lived in Massachusetts). Five months later, Mouded filed for divorce in the domestic relations court. While the divorce action was pending, Khoury asked a commonwealth of Massachusetts court to annul the marriage. He also asked the domestic relations court to stay the divorce action pending the resolution of the Massachusetts annulment action. The domestic relations court refused to stay the divorce proceedings; nevertheless, the Massachusetts court annulled the marriage. Khoury then asked the domestic relations court to dismiss the divorce action by giving full faith and credit to the Massachusetts annulment. The domestic relations court granted the motion to dismiss the divorce action over Mouded's argument that the domestic relations court had jurisdictional priority over the matter. The domestic relations court also found that Mouded was making a collateral attack on the Massachusetts annulment and should have challenged the annulment on direct appeal in that state.

{¶ 2} Mouded's sole assignment of error is that the court erred by granting the motion to dismiss and giving full faith and credit to the Massachusetts annulment. She maintains that her divorce complaint was first filed in the domestic relations court, so that court had exclusive jurisdiction over the subject matter.

{¶ 3} "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Article IV, Section 1 of the U.S. Constitution. "Ohio courts are required to recognize the validity of a foreign judgment rendered by a court of competent jurisdiction." Wyatt v. Wyatt , 65 Ohio St.3d 268, 269, 602 N.E.2d 1166 (1992), citing Durfee v. Duke , 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Jurisdiction is the key to full faith and credit-a judgment rendered by a court of another state "is subject to collateral attack in Ohio if there was no subject matter or personal jurisdiction to render the judgment under the sister state's internal law, and under that law the judgment is void." Litsinger Sign Co. v. Am. Sign Co. , 11 Ohio St.2d 1, 227 N.E.2d 609 (1967), paragraph one of the syllabus. However, a party cannot collaterally attack the judgment of another state in Ohio if the party "submitted to the jurisdiction" of the other state's court. Id. See also Wyatt at 270, 602 N.E.2d 1166.

{¶ 4} The Massachusetts court had subject matter jurisdiction over Khoury's petition to annul the marriage. In Massachusetts, an action to determine the validity of a marriage "shall be commenced in the same manner as an action for divorce, and all the provisions of chapter two hundred and eight relative to actions for divorce shall, so far as appropriate, apply to actions under this section." Mass.Gen. Laws Ann., Chapter 207, Section 14. A person may bring a divorce action in Massachusetts if that person has "lived in this commonwealth for one year last preceding the commencement of the action if the cause occurred without the commonwealth * * *." Mass.Gen.Laws Ann., Chapter 208, Section 5. There is no dispute that Khoury lived in the commonwealth of Massachusetts for one year preceding the commencement of his petition to annul the marriage-the parties agree that just days after being married in Ohio, Khoury returned to Massachusetts and Mouded continued to live in Ohio.

{¶ 5} As for personal jurisdiction, Mouded maintains that she did not submit to the jurisdiction of the Massachusetts court, noting that she filed a motion to dismiss the annulment action on grounds that the court had no personal jurisdiction over her.

{¶ 6} "[A] foreign judgment is subject to collateral attack in Ohio if there was no subject matter or personal jurisdiction to render the judgment under the law of the foreign state." Garabet v. Sabbagh , 8th Dist. Cuyahoga No. 102933, 2015-Ohio-4703, 2015 WL 7075963, ¶ 13, citing Litsinger Sign Co. , 11 Ohio St.2d 1, 4, 227 N.E.2d 609. However, a party may not collaterally attack a foreign judgment for want of personal jurisdiction when those issues have been " 'fully and fairly litigated in the court which rendered the original judgment.' " Digitalbiz Corp. v. Friedman-Swift Assocs., Inc. , 2013-Ohio-666, 989 N.E.2d 119, ¶ 12 (1st Dist.), quoting Dollar Bank v. Bernstein Group, Inc. , 71 Ohio App.3d 530, 533, 594 N.E.2d 1074 (10th Dist.1991). "[A] judgment is entitled to full faith and credit-even as to questions of jurisdiction-when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment." Durfee, 375 U.S. at 111, 84 S.Ct. 242, 11 L.Ed.2d 186.

{¶ 7} Mouded attached an affidavit to her brief in opposition to Khoury's motion to dismiss that stated that the Massachusetts court held a hearing on her motion to dismiss the annulment action and then denied the motion. She claims that the Massachusetts court then scheduled a pretrial, but that on the date of the scheduled pretrial, the Massachusetts court granted the annulment. She retained new counsel who filed both an appeal from the annulment and a motion for relief from judgment. The outcome of the appeal and motion for relief from judgment are not a part of this record on appeal. Nevertheless, that Mouded appealed from the annulment shows that she fully and fairly litigated the matter on the question of personal jurisdiction. This would be true under Massachusetts law even if she failed to perfect the appeal as claimed by Khoury. See Alba v. Raytheon Co. , 441 Mass. 836, 838, 809 N.E.2d 516 (2004) (collateral estoppel provides preclusive effect only for valid and final judgments; judgment became final when plaintiff failed to perfect her appeal to the department's reviewing board); Tynan v. A.G. , 453 Mass. 1005, 900 N.E.2d 833 (2009) (fact that party failed to perfect his appeal from the earlier judgment is immaterial for purposes of claim preclusion);

Cohen v. Brigham & Women's Hosp. , App. No. 10-P-1163, 2011 WL 2175966, 1 (June 6, 2011) (party's failure to perfect an appeal from a judgment, resulting in the appeal's dismissal, made the judgment final). Because Mouded appealed the Massachusetts annulment, she fully and fairly litigated the issue of personal jurisdiction. So she may not collaterally attack the Massachusetts judgment in the domestic relations court.

{¶ 8} Mouded's sole remaining basis for challenging the court's decision to grant the judgment of annulment full faith and credit is to claim that the Massachusetts court lacked subject matter jurisdiction under the rule of jurisdictional priority.

{¶ 9} The rule of jurisdictional priority provides that "as between state courts of concurrent jurisdiction, the tribunal whose power is first invoked acquires exclusive jurisdiction to adjudicate the whole issue and settle the rights of the parties." State ex rel. McGirr v. Winkler , --- Ohio St.3d ----, 2017-Ohio-8046, --- N.E.3d ----, ¶ 19, citing State ex rel. Dunlap v. Sarko , 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 9. The rule does not, however, apply to courts in other states. Developers Diversified Realty v. Coventry Real Estate Fund II, L.L.C. , 8th Dist. Cuyahoga No. 97231, 2012-Ohio-1056, 2012 WL 913748, ¶ 30 ; Long v. Grill , 155 Ohio App.3d 135, 2003-Ohio-5665, 799 N.E.2d 642, ¶ 27 (10th Dist.) ("The 'rule of priority of jurisdiction' applies to actions pending in different Ohio courts that have concurrent jurisdiction; it does not apply when an action is pending in another state."); Nationwide Mut. Fire Ins. Co. v. Modroo , 11th Dist. Geauga No. 2004-G-2557, 2004-Ohio-4697, 2004 WL 1960087, ¶ 12 (rule of jurisdictional priority "does not apply when an action is pending in another state[.]").

{¶ 10} The domestic relations court correctly noted that when competing cases are pending in Ohio and another state, the Ohio court has three options: (1) it can defer to the foreign state as a matter of comity; (2) go forward with the case; or (3) dismiss the action under the doctrine of forum non conveniens. Developers Diversified Realty at ¶ 31 ; Newman v. Martinez , 4th Dist. Pike No. 15CA857, 2016-Ohio-647, 2016 WL 698607, ¶ 19. The court acknowledged that it first refused to stay the divorce action because the parties were married in Ohio and Ohio law would apply to determine the validity of the marriage. But once the Massachusetts court annulled the marriage, the domestic relations court determined that the decision became binding on the parties and should be given preclusive effect. Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp. , 106 Ohio App.3d 477, 487, 666 N.E.2d 571 (2d Dist.1995) ("once the proceeding on the same case has been finally adjudicated by the court of a sister state, res judicata effect must be given to it by the court of the forum state.").

{¶ 11} Although not directly stated, the court gave preclusive effect to the Massachusetts judgment as a matter of comity-extending a courtesy to foreign judgments out of deference and good will. State v. Ramos , 41 Ohio App.3d 88, 90, 534 N.E.2d 885 (8th Dist.1987), citing Bobala v. Bobala , 68 Ohio App. 63, 71, 33 N.E.2d 845 (7th Dist.1940). The court recognized that the Massachusetts court rendered a final decision regarding the parties' marriage, and that any error of law in that decision was "a matter for direct appeal in Massachusetts[.]" The exercise of comity is discretionary with the court. Anderson v. Poindexter , 6 Ohio St. 622 (1856) ; Baze-Sif v. Sif , 10th Dist. Franklin No. 15AP-152, 2016-Ohio-29, 2016 WL 101687, ¶ 11-12.

{¶ 12} It is difficult to say that the court acted irrationally or arbitrarily by deferring to the Massachusetts annulment. The court appeared to dismiss the divorce action with reluctance: it stated that "[b]ecause the choice-of-law rules in both states would look to Ohio law to determine the validity of the marriage, this Court chose not to defer[.]" The Ohio action was first filed and it might have been expected that the Massachusetts court would stay the annulment action pending decision from the Ohio court. It is true that the court could have proceeded with the divorce action even with the Massachusetts court having annulled the marriage. But with the Massachusetts court fully adjudicating the case by annulling the marriage, further proceedings in Ohio could have resulted in the scenario of a divorce being granted for a marriage that another state court had, with finality, declared void. The domestic relations court could reasonably have desired to avoid that outcome, leaving it to Mouded to appeal the Massachusetts judgment where she could question whether the Massachusetts court should have abstained from annulling the marriage, in addition to challenging whether the Massachusetts court had personal jurisdiction over her.

{¶ 13} We would add that the domestic relations court noted that Mouded's arguments against dismissing the divorce action were primarily that the Massachusetts court erred by finding that an annulment should issue: "[Mouded] devotes one page of argument to these issues, and four pages of argument to a collateral attack on the merits of the Massachusetts court's ruling." Judgment entry at 2. That collateral attack included, among things, "37 pages of text messages which purportedly undermine the factual basis of the Massachusetts court's decision-utterly irrelevant here." Id. We agree with the domestic relations court that Mouded's attacks on the Massachusetts judgment of annulment were irrelevant to any question of whether it had priority over the divorce action. As earlier stated, her recourse was to appeal from the Massachusetts judgment annulling the marriage or seek vacation of the annulment. Because the annulment has not been either overturned or vacated by the Massachusetts courts, the domestic relations court did not err by dismissing the divorce action.

{¶ 14} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      Mouded claims that the Massachusetts court annulled the marriage after her attorney failed to appear at a pretrial, and the Massachusetts court converted the pretrial into a trial on the merits. The judgment of annulment says nothing about Mouded's attorney failing to appear at a pretrial or that the pretrial had been converted into a trial. Mouded supports her assertions by reference to an affidavit she filed with her opposition to the motion to dismiss, but the affidavit makes no claim that her attorney failed to attend the pretrial. The affidavit states only that it was her "belief" that her attorney would attend the pretrial and continue to represent her in the pending action. We disregard any factual assertions that have no proof in the record. See Squire v. Geer , 117 Ohio St.3d 506, 2008-Ohio-1432, 885 N.E.2d 213, ¶ 11.

      Khoury has appended to his merit brief a document purported to be an order dismissing Mouded's Massachusetts appeal for failure to perfect it by filing a transcript. That document is not a part of the lower court record, nor does it bear any certification or verification from the court that purportedly issued it. We therefore disregard it.

      Generally, a court in one state may exercise jurisdiction over a divorce proceeding even though a different divorce proceeding involving the same parties is pending in another state. Archer v. Belding , 12 Ohio Dec. 418, 420 (C.P.1901) (calling proposition "so well settled that it is unnecessary to discuss it."). "The question is not whether a state court has the power to exercise jurisdiction over a case filed within its jurisdiction, but whether the court should restrain itself and not exercise that power." Sensient Colors, Inc. v. Allstate Ins. Co. , 193 N.J. 373, 386-387, 939 A.2d 767 (2008).

      Mouded's brief in opposition to the motion to dismiss the divorce action also attached a copy of a motion for relief from the judgment of annulment. That motion appears to raise the same arguments that Mouded raised in her motion to dismiss Khoury's petition for an annulment. The record on appeal does not contain any disposition of the motion for relief from judgment.


author: EILEEN T. GALLAGHER, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Andre JACKSON, Defendant-Appellant
    No. 105530
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Timothy Young, Ohio Public Defender, BY: Randall L. Porter, Kathryn Sandford, Assistant State Public Defenders, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Christopher D. Schroeder, Assistant Prosecuting Attorney, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, P.J.:

{¶ 1} Defendant-appellant, Andre Jackson, appeals the denial of his motion for a new mitigation trial. He claims the following two errors:

1. The trial court erred when it denied Jackson's motion for leave to file his motion for a new mitigation trial.
2. Ohio's capital punishment scheme, R.C. 2929.03 and R.C. 2929.05, and the procedures set forth therein, deprive a defendant of his Sixth Amendment right to a jury trial.

{¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

I. Facts and Procedural History

{¶ 3} In June 1987, 74-year old Emily Zak was found dead with her head stuffed in a toilet at the Washboard Laundromat in Euclid, Ohio. Jackson was subsequently charged with one count of aggravated murder, one count of aggravated robbery, and a capital specification alleging that Jackson murdered Zak during the course of an aggravated robbery. Evidence presented at a jury trial showed that Jackson fractured Zak's skull and broke Zak's neck over the rim of the toilet bowl by stomping on it with his foot. There was also evidence that Jackson stole the cash register from the laundromat along with its keys, which Zak kept pinned to her smock. The jury found Jackson guilty of aggravated murder, aggravated robbery, and the capital specification.

{¶ 4} The jury unanimously recommended the death penalty following the mitigation phase of trial. The trial court agreed with the jury's recommendation and sentenced Jackson to death in 1988. Jackson's convictions and death sentence were affirmed on appeal. State v. Jackson , 8th Dist. Cuyahoga No. 55758, 1989 WL 117434 (Oct. 5, 1989) ; State v. Jackson , 57 Ohio St.3d 29, 565 N.E.2d 549 (1991).

{¶ 5} In January 2017, Jackson filed a motion for leave to file a motion for a new mitigation trial, arguing that Ohio's death penalty statute, R.C. 2929.03, is unconstitutional as explained in the United States Supreme Court's recent decision in Hurst v. Florida , 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). The trial court denied the motion without a hearing. Jackson now appeals the trial court's judgment.

II. Law and Analysis

{¶ 6} In the first assignment of error, Jackson argues the trial court erred in denying his motion for leave to file a motion for a new mitigation trial.

{¶ 7} We review a judgment denying a motion for leave to file a delayed motion for new trial for an abuse of discretion. State v. Washington, 8th Dist. Cuyahoga No. 103875, 2016-Ohio-5329, 2016 WL 4243804, ¶ 16. To constitute an abuse of discretion, the trial court's ruling must be "unreasonable, arbitrary or unconscionable." State ex rel. DiFranco v. S. Euclid , 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 13.

{¶ 8} Crim.R. 33 governs motions for new trial and sets forth grounds for securing a new trial. Jackson contends he was entitled to a new mitigation trial due to an "irregularity in the proceedings" ( Crim.R. 33(A)(1) ), insufficient evidence ( Crim.R. 33(A)(4) ), and "an error of law occurring at trial." ( Crim.R. 33(A)(5) ). However, Jackson does not dispute the evidence supporting his convictions and sentence, and the Ohio Supreme Court found sufficient evidence to support Jackson's conviction and sentence on direct appeal. Jackson , 57 Ohio St.3d 29, 565 N.E.2d 549 (1997). Therefore, Jackson failed to establish a right to a new mitigation trial due to insufficient evidence under Crim.R. 33(A)(4).

{¶ 9} Further, Jackson has not expressly identified any irregularities in the proceedings or errors of law occurring at trial apart from a general reference to Hurst , 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504, which involved a Sixth Amendment violation. An alleged Sixth Amendment violation could constitute an "irregularity in the proceedings" or "error in law occurring at trial," depending on the facts and circumstances of the case. Thus, Jackson's claim that he is entitled to a new trial is based on the Sixth Amendment principles described in Hurst.

{¶ 10} In Hurst , the United States Supreme Court held that Florida's death penalty statute violated the defendant's Sixth Amendment right to a jury trial because it required that the judge, rather than the jury, determine the existence of any aggravating circumstances justifying the death penalty. Id. at 624. The Florida law only allowed the jury to make an advisory recommendation, and the judge was free to impose a death sentence even if the jury recommended against it. Id. at 620. And even if the jury recommended a death sentence, the trial court was not permitted to adopt the recommendation until the judge independently found the existence of an aggravating circumstance. Id.

{¶ 11} In finding Florida's death penalty statute unconstitutional, the Hurst court explained that the Sixth Amendment right to a jury trial requires that "any fact that 'expose[s] the defendant to greater punishment than that authorized by the jury's guilty verdict' is an 'element' that must be submitted to the jury." Id. at 621, quoting Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See also Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that the Sixth Amendment requires a jury to find any fact necessary to impose a death sentence).

{¶ 12} Jackson's claim that he is entitled to a new mitigation trial due to an irregularity in the proceedings is apparently based on his belief that a judge rather than a jury found there were aggravating circumstances that justified his death sentence. However, Ohio's death penalty statute is, and was at the time of Jackson's trial, much different from the Florida death penalty scheme at issue in Hurst.

{¶ 13} Ohio's death penalty is governed by R.C. 2929.03 and 2929.04. In 1988, when Jackson was sentenced to death, R.C. 2929.04 provided that the "[i]mposition of the death penalty for aggravated murder is precluded unless one or more [aggravating circumstances] is specified in the indictment or count in the indictment pursuant to section 2941 of the Revised Code and proved beyond a reasonable doubt." R.C. 2929.03(B) similarly provided:

(B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, * * * and whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard, which shall include an instruction that a specification shall be proved beyond a reasonable doubt in order to support a guilty verdict on the specification, but such instruction shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification.

{¶ 14} In accordance with these provisions, the jury found the existence of aggravating circumstances required for a death sentence when it found Jackson guilty of the death specification beyond a reasonable doubt. The jury's guilty verdict on the death specification created, in a sense, a presumption in favor of the death penalty that Jackson had the opportunity to rebut with evidence of mitigating factors during the mitigation phase of the trial. Regarding mitigation, R.C. 2929.03(D) provided, in relevant part:

The defendant shall have the burden of going forward with the evidence of any factors in mitigation of the imposition of the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death.

{¶ 15} Additionally, R.C. 2929.03(D) provided that "the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case." R.C. 2929.03(D) further provided:

If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.

{¶ 16} Thus, under Ohio's death penalty statute, a defendant is not eligible for the death penalty unless at least one of the aggravating circumstances set forth in R.C. 2929.04(A) is specified in the indictment and that aggravating circumstance is found by the trier of fact beyond a reasonable doubt. State v. Mason , 3d Dist. Marion No. 9-16-34, 2016-Ohio-8400, 2016 WL 7626193, ¶ 22. Unlike the Florida judge in Hurst , Ohio judges are not permitted to consider any evidence that was not presented to the jury. If a defendant is tried by a jury in Ohio, the judge cannot impose a death sentence unless the jury has entered a unanimous verdict for a death sentence. State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59. And since "the determination of guilt of an aggravating circumstance renders the defendant eligible for a capital sentence, it is not possible to make a factual finding during the sentencing phase that will expose a defendant to greater punishment." Id. Therefore, there was neither a Sixth Amendment violation nor an irregularity in the proceedings because Ohio's death penalty statute required the jury to unanimously find that the aggravating circumstances necessary for Jackson's death sentence were established beyond a reasonable doubt.

{¶ 17} Jackson nevertheless maintains he is entitled to a new mitigation trial pursuant to Crim.R. 33(A)(5). Crim.R. 33(A)(5) provides that an error of law occurring at trial is a valid basis for granting a new trial. Cases applying that provision typically involve erroneous rulings that occurred while the case was pending in the trial court and do not deal with subsequent changes in the law. State v. Ingram , 10th Dist. Franklin No. 08AP-937, 2009-Ohio-2755, 2009 WL 1653577, ¶ 15, citing State v. Cherukuri , 79 Ohio App.3d 228, 607 N.E.2d 56 (1992) ; State v. Jones , 10th Dist. Franklin No. 08AP-551, 2008-Ohio-6515, 2008 WL 5196516, ¶ 11. Indeed, an error based on changes in the law that occurred after trial could not have occurred during trial. Therefore, Crim.R. 33(A)(5) is inapplicable here.

{¶ 18} There was no Sixth Amendment violation in this case. Jackson has not demonstrated any irregularity or error of law that occurred during the proceedings nor does he dispute the evidence supporting his conviction and sentence. Therefore, Jackson failed to establish any basis for a new trial under Crim.R. 33, and the trial court properly overruled the motion for leave to file a new mitigation trial.

{¶ 19} However, claims based on a newly recognized federal or state right may be made under Ohio's postconviction statute, R.C. 2953.23(A)(1), if the requirements of that statute are met. And, "[c]ourts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged."

State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing State v. Bush , 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, and State v. Reynolds , 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997).

{¶ 20} The trial court denied Jackson's request for leave to file a motion for a new mitigation trial without opinion. Because a judge is presumed to follow the law, we assume that the trial court considered the merits of a petition for postconviction relief based on Hurst. However, as previously explained, Jackson failed to establish a violation of his Sixth Amendment right to a jury trial as described in Hurst. Therefore, the trial court properly overruled his motion for leave to file a motion for new mitigation trial even if it was viewed as a petition for postconviction relief under R.C. 2953.23(A)(1).

{¶ 21} The first assignment of error is overruled.

{¶ 22} Having determined that Jackson had no basis on which to seek a new mitigation trial under Crim.R. 33, the second assignment of error, which addresses the merits of his motion for a new mitigation trial is moot.

{¶ 23} Judgment affirmed.

MELODY J. STEWART, J., and PATRICIA ANN BLACKMON, J., CONCUR


text:
    Lemmie L. SMOOT, Plaintiff-Appellant v. DIRECTOR, OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, Defendant-Appellee
    No. 105270
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
   Kenneth J. Kowalski, Doron M. Kalir, Civil Litigation Clinic, Cleveland-Marshall College of Law, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLANT

Mike DeWine, Ohio Attorney General, BY: Laurence R. Snyder, Assistant Attorney General, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113, For Director, Ohio Department of Job and Family Services

Barbara A. Langhenry, Director of Law, BY: Mark V. Webber, City of Cleveland, Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, For City of Cleveland

Michele L. Jakubs, Zashin & Rich Co., L.P.A., 950 Main Avenue, 4th Floor, Cleveland, Ohio 44113-1901, For YMCA of Greater Cleveland

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Brad Meyer, Assistant Prosecuting Attorney, 1200 Ontario Street, 9th Floor, Cleveland, Ohio 44113, Also Listed

BEFORE: Kilbane, J., E.A. Gallagher, A.J., and Jones, J.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.:

{¶ 1} Appellant, Lemmie Smoot ("Smoot"), appeals the trial court's decision affirming the decision of the Unemployment Compensation Review Commission ("Review Commission"), which denied Smoot's claim for unemployment benefits. For the reasons set forth below, we reverse and remand.

{¶ 2} Smoot was employed as a housekeeper for the Greater Cleveland YMCA ("YMCA") for over 11 years, without any complaints or disciplinary actions. In December 2015, Smoot was discharged for conduct, the YMCA alleged, that violated its employee handbook. The conduct referred to by the YMCA results from a series of incidents with a certain YMCA member.

{¶ 3} According to Smoot, the first incident with the member occurred in December 2014. Smoot testified that the member approached her from behind and pushed her, causing her to fall into a Christmas tree. Smoot reported the incident to her supervisor, Chris Scheuer ("Scheuer"), who was the YMCA's manager. He told Smoot that he would get back to her, but she never heard from the YMCA regarding this incident, and management did nothing to address the member's conduct.

{¶ 4} The next incident occurred a month later in January 2015. Smoot asked the member to move her car from a no-parking zone so a member with physical disabilities would be able to enter the building and avoid the rain. In response to her request, the member started yelling, screaming, and pointing her finger at Smoot. Smoot reported this incident to Scheuer. The YMCA did nothing to address the member's conduct.

{¶ 5} The third incident occurred a month later, in February 2015. The member ran into the building, screaming at Smoot about how there was a car parked outside where her car was parked last month and Smoot did not ask for that car to be moved. Smoot went to see whose car was outside and observed the maintenance man unloading supplies. The fourth incident occurred later that same day while Smoot was walking down the hallway. The member elbowed her as she walked by, saying "get out of my way."

{¶ 6} Smoot reported the incidents to Barbara Freeman in Human Resources ("HR"). Smoot also wrote a letter reflecting her displeasure with management's inaction to the repeated incidents with the member. Smoot also expressed her fear for her well-being in a letter to Scheuer.

{¶ 7} In response to Smoot's conversation with HR, HR stated the member was told that her behavior was unacceptable, and the YMCA would terminate her membership if such conduct continued. Smoot was to let management know if there were any other issues.

{¶ 8} The fifth incident occurred in July 2015. The member pushed Smoot out of the way and again Smoot notified Scheuer. The YMCA did nothing to address the member's conduct, despite HR's notice that another physical incident would result in the member's termination.

{¶ 9} The sixth and final incident occurred on December 3, 2015. Smoot testified that she was leaving work early that day. She was talking to herself as she was walking. She said aloud, "I really busted my ass today." The member overheard this and accused Smoot of calling her an "ass." The member then became irate and screamed and pointed her finger at Smoot. The member went to the reception desk to complain. As the reception desk employee was escorting the member away, Smoot said to the member, "you need to stop." The member reached over, swung at Smoot, and hit her on the shoulder and neck. The member also put her finger on Smoot's jaw. Smoot then reached over and pushed the member back by her forehead. During this incident, Smoot also picked up a vacuum cleaner in an attempt to strike the member but then put the vacuum down.

{¶ 10} The YMCA terminated Smoot's employment the next day. The YMCA found that Smoot's conduct on December 3, 2015, violated the employee handbook's policy on the treatment of members. Smoot then filed an application for unemployment benefits. Smoot's application was denied by the Ohio Department of Job and Family Services ("ODJFS"). Smoot sought a redetermination that was also denied. Smoot appealed from this redetermination. The matter was then set before the Review Commission. A hearing was held before the hearing officer in March 2016. Following the hearing, the Review Commission denied Smoot's application, finding that Smoot was discharged for just cause. The hearing officer stated that Smoot's "own conduct placed her job in jeopardy, and was contrary to the [YMCA's] interests." Smoot sought a review of this determination. Her request was denied, and Smoot appealed to the Cuyahoga County Common Pleas Court. The trial court affirmed the decision of the Review Commission, concluding that the Review Commission's finding that Smoot was terminated for just cause was not "unlawful, unreasonable, or against the manifest weight of the evidence."

{¶ 11} Smoot now appeals, raising the following single assignment of error for review.

Assignment of Error

The decision of the Hearing Officer is erroneous in that it is unlawful, unreasonable, and against the manifest weight of the evidence.

{¶ 12} R.C. 4141.282(H) governs the standard of review for decisions made by the Review Commission that applies to all appellate courts. Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. , 73 Ohio St.3d 694, 697, 653 N.E.2d 1207 (1995). The statute provides that the common pleas court shall reverse the Review Commission's decision only if it finds "that the decision of the commission was unlawful, unreasonable, or against the manifest weight of the evidence." R.C. 4141.282(H). Appellate courts are not permitted to make factual findings or to determine the credibility of witnesses, but they do have the duty to determine whether the Review Commission's decision is supported by the evidence in the record. Tzangas at 696, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp. Bd. of Rev. , 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587 (1985) ; see also Williams v. Ohio Dept. of Job & Family Servs. , 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031.

{¶ 13} In her sole assignment of error, Smoot argues that she was entitled to receive unemployment benefits, and the Review Commission's decision is against the manifest weight of the evidence.

{¶ 14} In order to be eligible for unemployment compensation benefits, Smoot must satisfy the criteria in R.C. 4141.29(D)(2)(a), which provides that no individual may be paid benefits if the individual has been discharged for just cause in connection with the individual's work. Smoot has the burden of proving her entitlement to unemployment compensation benefits under R.C. 4141.29(D)(2)(a). Irvine at 17, 482 N.E.2d 587, citing Shannon v. Bur. of Unemp. Comp. , 155 Ohio St. 53, 97 N.E.2d 425 (1951) ; Canton Malleable Iron Co. v. Green , 75 Ohio App. 526, 62 N.E.2d 756 (5th Dist.1944) ; 54 Ohio Jurisprudence 2d, Unemployment Compensation, Section 35 (1962). Just cause has been defined as " 'that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.' " Irvine at 17, 482 N.E.2d 587, quoting Peyton v. Sun T.V. , 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975).

{¶ 15} Whether just cause exists is unique to the facts of each case. Irvine at 18, 482 N.E.2d 587. The factual questions are primarily within the province of the referee and the board, and this court has limited power of review. Id. It, therefore, follows that the lower court's judgment will be affirmed if the evidence supports the claim that Smoot was terminated through her own fault. Heller v. Ohio Dept. of Jobs & Family Servs. , 8th Dist. Cuyahoga No. 92965, 2010-Ohio-517, 2010 WL 547500, ¶ 38, citing Milyo v. Bd. of Rev., Ohio Bur. of Emp. Servs. , 8th Dist. Cuyahoga No. 60841, 1992 WL 181686 (July 30, 1992).

{¶ 16} As stated above, our duty on appeal is to determine whether the Review Commission's decision is supported by the evidence in the record. Our review of the record, however, does not support the Review Commission's decision that:

[Smoot's] own conduct placed her job in jeopardy, and was contrary to her employer's interests. [Smoot] argued that she was provoked. However, there was ample evidence that it was not self-defense. There was additional evidence that [Smoot] could have removed herself from the situation. As such, [Smoot] was sufficiently at fault to reasonably justify her discharge.

{¶ 17} Rather, the record demonstrates that Smoot was an 11-year employee at the YMCA without any disciplinary complaints in her file. Over the course of a year, Smoot was involved in several physical and verbal incidents with a certain YMCA member. Smoot advised the YMCA about these incidents. The YMCA indicated that the member's behavior would not be tolerated, and Smoot was to advise management if any other issues occurred. Smoot and the member did have another incident. Smoot advised the YMCA of the same, and the YMCA did nothing to address the member's conduct. Approximately five months later, Smoot and the member had the sixth and final incident that resulted in the termination of Smoot's employment. A YMCA employee attempted to escort the member outside when Smoot said to the member, "you need to stop." The member reached over, swung at Smoot, hitting her on the shoulder and neck. The member also put her finger on Smoot's jaw. Smoot then reached over and pushed the member back by her forehead. During this incident, Smoot also picked up a vacuum cleaner in an attempt to strike the member, but then decided to put the vacuum down. Tellingly, the YMCA discharged Smoot for a violation of its employee handbook, which the YMCA never included in the record.

{¶ 18} Smoot gave the YMCA the opportunity to correct the problem with the member, and the YMCA neglected to do so. The YMCA's failure to act placed Smoot in a position where she was subjected to abusive conduct while waiting for her employer to respond. This isolated incident of Smoot's physical conduct with the member, when viewed with Smoot's good record of job performance, the circumstances prior to the altercation, and the lack of the employee handbook in the record, is insufficient evidence to support the Review Commission's determination that Smoot was terminated for just cause. Therefore, we find that the Review Commission's decision was unlawful, unreasonable, or against the manifest weight of the evidence.

{¶ 19} Accordingly, the sole assignment of error is sustained.

{¶ 20} Judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion.

EILEEN A. GALLAGHER, A.J., and LARRY A. JONES, SR., J., CONCUR