author: MARY J. BOYLE, J.:

text:
    Kim BURNELL, et al., Plaintiffs-Appellees v. CLEVELAND MUNICIPAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants-Appellants
    No. 106623
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 15, 2018
    William Michael Hanna, Colin R. Jennings, Emily R. Spivack, Squire Patton Boggs, L.L.P., 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT Cleveland Municipal School District, Board of Education.
    Wayne J. Belock, Kevin J. Burtzlaff, Cleveland Metropolitan School District, 1111 Superior Avenue, E., Suite 1800, Cleveland, Ohio 44114, Kristin Bryan, Emilie Carver, Susan C. Hastings, Squire Patton Boggs, L.L.P., 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT Denise W. Link.
    Susannah Muskovitz, James R. Myers, Muskovitz & Lemmerbrock, L.L.C., 1621 Euclid Avenue, Suite 1750, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEES.
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendants-appellants, Cleveland Municipal School District Board of Education ("CMSD" or the "Board") and its chair, Denise Link ("collectively appellants"), appeal from the trial court's order concluding that plaintiffs-appellees, 12 teachers employed by CMSD who did not have their contracts renewed at the end of the 2013-2014 school year ("teachers"), did not receive an adequate hearing under R.C. 3311.81. The appellants raise two assignments of error for our review:

1. The trial court erred in determining that Plaintiffs did not receive an adequate hearing before the Board pursuant to R.C. 3311.81(C).
2. The trial court erred in interpreting R.C. 3311.81(C) to require hearing procedures that are not present in the language of the statute.

{¶ 2} Finding merit to CMSD's assignments of error, we reverse.

I. Procedural History and Factual Background

{¶ 3} In June 2012, the Ohio General Assembly passed H.B. 525, titled, "The Cleveland Plan for Transforming Schools" ("the Cleveland Plan"), which sought to remedy a myriad of issues facing CMSD schools. Involved in the creation of the Cleveland Plan were CMSD officials, the Cleveland Teachers Union ("CTU"), and Cleveland Mayor Frank Jackson. As part of the Cleveland Plan, the Ohio Legislature passed R.C. 3311.81, which created new procedures for limited contract teachers, including changes to the nonrenewal process, appellate procedures, and collective bargaining. Additionally, as part of the discussions concerning the Cleveland Plan, CTU and CMSD negotiated changes to the collective-bargaining agreement between them, including changes to nonrenewal and evaluation procedures, which went into effect on July 1, 2013 ("the collective-bargaining agreement").

{¶ 4} Under the collective-bargaining agreement, a teacher could receive a limited contract, a continuing contract, or an extended limited contract. The collective-bargaining agreement stated that " 'limited contract' means a limited contract that the board of education enters into with a teacher who is not eligible for a continuing contract." According to the agreement, "[a]ny teacher employed under a limited contract who is not eligible to be considered for a continuing contract is, at the expiration of such limited contract, considered re-employed under a one-year limited contract, unless the board gives such teacher written notice of its intention not to re-employ such teacher."

{¶ 5} The following procedures for the nonrenewal of a limited contract teacher were set forth in R.C. 3311.81 and the collective-bargaining agreement:

A. The following only applies upon the expiration of a teacher's limited or extended limited contract.
B. Prior to the board giving written notice to a teacher of its intention not to re-employ such teacher, the following shall apply:
1. The evaluation process, as outlined in Article 13, must have been completed.
2. The Principal/Administrator shall provide the teacher with notice of his/her recommendation that the teacher not be re-employed, with a copy to the Union and the Academic Superintendent.
3. The Academic Superintendent shall hold a hearing with the teacher, CTU representative, and Principal/Administrator. Following the hearing, the Academic Superintendent shall transmit his or her recommendation to the [Chief Executive Officer ("CEO") ], with a copy to the employee and the CTU.
4. If a recommendation for non re-employment is made by the Academic Superintendent or if the CEO intends to recommend non reemployment to the Board, the teacher shall be entitled to a hearing before the CEO or his/her designee, with CTU representation, prior to any recommendation to the Board.
5. The CEO shall make a recommendation to the school board. A copy of the recommendation shall be issued to the teacher and CTU.
6. On or before June 1 of the year that the teacher's limited or extended limited contract expires, the board must give a teacher written notice of its intention not to re-employ the teacher. A copy shall be provided to the CTU.
7. Any teacher receiving written notice of the intention of the board not to re-employ such teacher pursuant to this section may request a hearing before the board. * * * The hearing shall be held in executive session of the board at the board's next scheduled meeting. Following the hearing, or if no hearing is requested, the board shall act on the question of the teacher's re-employment. The decision of the board shall be final and shall not be subject to further appeal.

{¶ 6} During her deposition, Link explained that under the Cleveland Plan, nontenured teachers that were nonrenewal were identified "through their evaluation process with their principals[.]" Further, according to Link, the purpose of the hearing with the teacher's academic superintendent is to "determine if they should move forward with the nonrenewal, or if the teacher should go back to possibly corrective action[.]" If the academic superintendent supports nonrenewal, the teacher then has the right to a second hearing, with his or her CTU representative present, before CMSD's CEO or the CEO's designee. Link explained that during the second hearing,

the other administrators, [including] the principal and the academic superintendent, * * * are not present * * * so the teacher has [his or her] chance to voice [his or her] opinion without fear of retribution from [the] principal for their management [and] * * * can have [his or her] opportunity to be heard without any interruptions.

If CMSD's CEO recommends nonrenewal, a limited contract teacher is then allowed to request a hearing before the Board.

{¶ 7} The teachers involved in this case were limited contract teachers in CMSD schools during the 2013-2014 school year. At the end of the school year, the teachers were each notified that their principals intended not to renew their contracts for the following year. As required under the collective-bargaining agreement between CTU and CMSD - particularly, in the section titled, "CTU-Bargained Due Process Procedures" - the teachers each (1) received written recommendations of nonrenewal from their principals, (2) had a hearing with their academic superintendents with the teachers' CTU representatives and principals/administrators present, (3) received a written recommendation of nonrenewal from the academic superintendent, and (4) had a hearing with CMSD's CEO or the CEO's designee, which ended in a recommendation of nonrenewal to the Board.

{¶ 8} After the teachers received the CEO's recommendations for nonrenewal, they requested "(1) an explanation in writing as to why their contracts were not being renewed, and (2) a hearing to challenge CMSD's decision not to renew their contracts" with the Board. Burnell v. Cleveland Mun. School Dist. Bd. of Edn. , 8th Dist. Cuyahoga No. 103069, 2015-Ohio-5431, 2015 WL 9461719, ¶ 3. As a result, Link, the Board's chair,

scheduled a hearing at the next regularly scheduled meeting and established rules for the hearing. Pursuant to Link's rules, each teacher, and his or her representative, were afforded 20 minutes to present an oral argument. Each of the teachers' principals and other administrators who recommended that his or her limited contract not be renewed, were present at the hearing, but the teachers were not permitted to question them.

Id. at ¶ 4.

{¶ 9} When asked about how the format of the hearings was determined, Link explained that, after conferring with her vice chair, Link herself decided the format. Link also explained that, per the rules she established, each teacher was only allowed to bring one person in the room with him or her and was not allowed to bring in witnesses during the hearing with the Board. The Board removed any additional persons from the room. She also said that each teacher's principal, CEO designee, and academic superintendent were present at the hearing. Link also explained that, after the teacher presented his or her oral argument for renewal and left the room, the Board went into executive session, where it had the opportunity to ask the CEO questions, such as how long the teacher worked for the district, and if the CEO did not know the answer, the CEO would defer the question to the teacher's principal or academic superintendent. After all of the teachers presented their oral arguments and the Board returned to public session,

the Board moved to adopt a resolution not to re-employ all 12 of the limited contract teachers, and the resolution passed.
Appellants subsequently filed a complaint for declaratory judgment against CMSD, alleging CMSD deprived appellants of their statutory right to a hearing before voting not to renew their contracts. Appellants alleged they were denied a hearing because they were not permitted to present evidence, cross-examine witnesses, or respond to the evidence and arguments made against them.

Id. at ¶¶ 5-6.

{¶ 10} Appellants filed a motion to dismiss arguing that the trial court lacked jurisdiction because R.C. 3311.81, the statute governing CMSD teacher contracts, states that school board decisions "shall be final and shall not be subject to further appeal[.]" The trial court granted appellants' joint motion, and the teachers appealed.

{¶ 11} On appeal, we found that "[a]lthough R.C. 3311.81(C) states that a school board's decision is final and not subject to appeal, nothing prevents aggrieved limited contract teachers from bringing an action to enforce their right to a hearing under R.C. 3311.81(B)." Id. at ¶ 11. We found that the teachers' declaratory judgment action was an appropriate method to enforce their rights under R.C. 3311.81. Id. at ¶¶ 11-14. However, we also concluded that the trial court "lacks jurisdiction to review the Board's decision not to renew the teachers' contracts." Id. at ¶ 15. As a result, we affirmed in part and reversed in part and "remanded [the case] to the trial court to conduct a hearing to determine whether [appellants] complied with the hearing requirements of R.C. 3311.81(C)." Id. at ¶ 20.

{¶ 12} Upon remand, the trial court, without holding a hearing, issued a judgment entry, finding that the teachers "had an adequate hearing as required by R.C. 3311.81(C)." The teachers again appealed, and we vacated the trial court's judgment and remanded the case to the trial court based on the trial court's failure to follow our mandate - namely, failing to hold a hearing to determine whether a hearing under R.C. 3311.81 took place. Burnell v. Cleveland Metro. School Dist. , 8th Dist. Cuyahoga No. 104447, 2016-Ohio-7406, 2016 WL 6139135, ¶¶ 10-11.

{¶ 13} Upon remand, the parties submitted prehearing briefs, exhibits, and transcripts, and the trial court held a hearing in September 2017, during which the parties presented oral arguments. In November 2017, the trial court issued a judgment entry finding that the teachers "did not have an adequate hearing as required by R.C. 3311.81(C)." The trial court's judgment entry stated,

This matter is remanded to the [CMSD] for the limited purpose of conducting hearings for each individual plaintiff and voting on whether to renew each plaintiff. Procedurally, hearings shall include, but are not limited to, the following: Each plaintiff is to be given copies of the evidence considered by the Board. Each plaintiff is to have an opportunity to ask questions of their principal, their academic superintendent, and their CEO designee. Each plaintiff is to be present in the room when arguments against them are presented and have an opportunity to rebut those arguments.

{¶ 14} It is from this judgment that appellants now appeal.

II. Law and Analysis

{¶ 15} In their first assignment of error, the appellants argue that the trial court erred when it found that the teachers did not receive an adequate hearing pursuant to R.C. 3311.81(C).

{¶ 16} This appears to be a case of first impression. The central issue is determining what due process procedures limited contract teachers are provided under R.C. 3311.81. More particularly, the issue on which the parties disagree is the type of hearing that R.C. 3311.81 requires. The teachers argue that R.C. 3311.81 requires an evidentiary hearing where he or she can call witnesses and present evidence. The appellants argue that the statute does not require an evidentiary hearing and that permitting the teachers an opportunity to present an oral argument constitutes a hearing for purposes of R.C. 3311.81. The appellants argue that under the new nonrenewal process under R.C. 3311.81 and the collective-bargaining agreement, it acts similar to an appellate court, reviewing the lower decisions of the academic superintendent and CEO and is not supposed to provide the teachers with another opportunity to present evidence.

{¶ 17} R.C. 3311.81, which became effective in October 2012, states in pertinent part,

(B) The board of education of each municipal school district shall enter into a limited contract with each teacher employed by the board who is not eligible to be considered for a continuing contract.
Any teacher employed under a limited contract who is not eligible to be considered for a continuing contract is, at the expiration of such limited contract, considered re-employed under a one-year limited contract, unless the board gives such teacher written notice of its intention not to re-employ such teacher on or before the first day of June. The teacher is presumed to have accepted such employment unless the teacher notifies the board in writing to the contrary on or before the tenth day of July.
Any teacher receiving a written notice of the intention of the board not to re-employ such teacher pursuant to this division is entitled to a hearing under division (C) of this section.
(C) Any teacher receiving written notice of the intention of the board not to re-employ such teacher pursuant to division (B) of this section may request a hearing before the board. The request for a hearing shall be in writing and shall be delivered to the chief financial officer of the district within ten days of the date of receipt of the notice. The hearing shall be held in executive session of the board at the board's next scheduled meeting. Following the hearing, or if no hearing is requested, the board shall act on the question of the teacher's re-employment. The decision of the board shall be final and shall not be subject to further appeal.
* * *
(F) Notwithstanding any provision to the contrary in Chapter 4117 of the Revised Code, the requirements of this section prevail over any conflicting provisions of a collective bargaining agreement entered into on or after the effective date of this section. However, the board and the teachers' labor organization shall negotiate the due process procedures preceding a teacher's receipt of a written notice indicating the intent of the board not to re-employ the teacher, which procedures shall be consistent with this section.

{¶ 18} The statute does not define "hearing," which is the essential term in this case. However, we have previously noted that a "hearing" is

"any confrontation, oral or otherwise, between an affected individual and a decision[-]maker sufficient to allow the individual to present the case in a meaningful manner. Hearings may take many forms, including a formal, trial-type proceeding, an informal discussion, or a paper hearing, without any opportunity for oral exchange."

(Internal quotations omitted.) Marks v. Morgan Stanley Dean Witter Commercial Fin. Servs. , 8th Dist. Cuyahoga No. 88948, 2008-Ohio-1820, 2008 WL 1747224, ¶ 29, quoting Liese v. Kent State Univ. , 11th Dist. Portage No. 2003-P-0033, 2004-Ohio-5322, 2004 WL 2801698.

{¶ 19} When reviewing questions of statutory interpretation, our standard of review is de novo. Electronic Classroom of Tomorrow v. Ohio Dept. of Edn. , --- Ohio St.3d ----, 2018-Ohio-3126, --- N.E.3d ----, ¶ 11.

When considering the meaning of a statute, our " 'paramount concern is the legislative intent' of its enactment." State ex rel. Steffen v. Judges of the Court of Appeals for the First Appellate Dist. , 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 30, quoting State ex rel. Steele v. Morrissey , 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. Because a statute must be considered as a whole, "a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body." State v. Wilson , 77 Ohio St.3d 334, 336, 1997-Ohio-35, 673 N.E.2d 1347 (1997). When considering the four corners of an enactment, we "consider the statutory language in context, construing words and phrases in accordance with rules of grammar and common usage." State Farm Mut. Auto. Ins. Co. v. Grace , 123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 25. Provided that "[t]he meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary." State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 1996-Ohio-291, 660 N.E.2d 463 (1996).

Id.

{¶ 20} Concerning principles of statutory interpretation, we must first address whether R.C. 3311.81 is remedial in nature, and therefore, requires us to give a liberal construction of the statute in favor of the teachers. See Naylor v. Cardinal Local School Dist. Bd. of Edn. , 69 Ohio St.3d 162, 630 N.E.2d 725 (1994) ("In resolving the instant appeal, we are guided by the standard that R.C. 3319.11 and 3319.111 are remedial statutes that must be liberally construed in favor of teachers. R.C. 1.11.").

{¶ 21} " '[A] statute undertaking to provide a rule of practice, a course of procedure or a method of review, is in its very nature and essence a remedial statute.' * * * Rather than addressing substantive rights, remedial statutes involve procedural rights or change the procedure for effecting a remedy." Euclid v. Sattler, 142 Ohio App.3d 538, 540, 756 N.E.2d 201 (8th Dist.2001), quoting Miami v. Dayton, 92 Ohio St. 215, 110 N.E. 726 (1915).

{¶ 22} Here, like R.C. 3319.11, R.C. 3311.81 involves procedural rights, including the rights that a teacher has when the CMSD and its officials decide not to renew his or her contract. As a result, we find that R.C. 3311.81 is remedial in nature, and therefore, we will give a liberal construction of the statute in favor of the teachers.

{¶ 23} With this conclusion in mind, we turn to the case's central issue - interpretation of "hearing" under R.C. 3311.81. The teachers cite Naylor in support of their position that "hearing" means an evidentiary hearing. In that case, the appellant-teacher, who was on a limited contract, appealed the school district board of education's decision not to renew her contract, arguing that the board failed to comply with R.C. 3319.11, the statute that still covers non-CMSD school districts in Ohio and pertains to the non-reemployment of limited contract teachers. Specifically, the appellant argued that the Board did not provide her a written statement describing the circumstances that led to the board's intention not to re-employ her and "had not provided her with the type of hearing contemplated by R.C. 3319.11." Naylor , 69 Ohio St.3d 162, 630 N.E.2d 725, at syllabus. The Ohio Supreme Court began its analysis by recognizing that R.C. 3319.11 is a remedial statute "that must be liberally construed in favor of teachers. R.C. 1.11." Id. at 164, 630 N.E.2d 725. As to the board's failure to provide the appellant with a written statement, the court said,

The board's statement does not describe any circumstances explaining how it arrived at its decision [and] is merely conclusory and leaves plaintiff groping for answers as to why she was not offered a continuing contract. If R.C. 3319.11(G)(2) is to have any meaning whatsoever, the written statement from the board must provide the teacher with an explanation of why his or her employment contract is not being renewed. Therefore, we hold that R.C. 3319.11(G)(2) requires a board of education to provide a teacher under a limited contract a clear and substantive basis for its decision not to reemploy the teacher for the following school year.

Id. at 167, 630 N.E.2d 725.

{¶ 24} As to whether the board in Naylor gave the appellant an adequate hearing, the appellant argued that the hearing she received was not adequate because "the term 'hearing' includes the presentation of evidence, confrontation and examination of witnesses and the review of the argument of the parties." Id. In response, the Board argued that R.C. 3319.11(G)(5) did not require a full evidentiary hearing. The court agreed with the appellant and found that "the General Assembly intended a more thorough and formal proceeding than that which was accorded to plaintiff." Id. at 168, 630 N.E.2d 725. It stated,

If the General Assembly had intended to restrict a nontenured teacher's right to the simple recitation of a position statement, it could have easily done so by use of another phrase, such as "presentation of argument" or "oral argument." In our view, the requirements of R.C. 3319.11(G)(5) envision more than an informal session between a school board and the teacher, where the teacher makes a verbal presentation protesting nonrenewal of his or her contract. The General Assembly must have intended more in light of the elaborate and comprehensive procedures appearing in R.C. 3319.11, as amended. R.C. 3319.11(G)(5) * * * speak[s] of a "hearing" and an "order," words clearly suggesting a proceeding that possesses some formality, especially in light of the liberal construction standard which must be applied to this remedial statutory scheme.

Id. The court continued, stating that "the legislature intended ['hearing'] to be given its ordinary meaning, to provide some measure of security to the nontenured teacher faced with the possibility of nonrenewal of his or her teaching contract." Id. at 168-169, 630 N.E.2d 725. As a result, the court concluded that "the hearing provided teachers under limited contracts * * * necessarily includes the presentation of evidence, confrontation and examination of witnesses and the review of the arguments of the parties." Id. at 169, 630 N.E.2d 725.

{¶ 25} After review, we find that Naylor - as well as the cases interpreting R.C. 3311.19 and involving nonmunicipal school districts to which the teachers cite-is distinguishable and noncontrolling because its analysis focused on R.C. 3319.11, not R.C. 3311.81. In fact, Naylor was decided approximately 18 years before R.C. 3311.81 went into effect. Further, the Cleveland Plan removed limited contract teachers from R.C. 3319.11's coverage and placed those teachers under R.C. 3311.81's directives instead. The Legislative Service Commission's ("LSC") final analysis of H.B. 525 specifically noted that R.C. 3319.11 was no longer applicable under the Cleveland Plan.

{¶ 26} Naylor is also distinguishable because the process afforded to teachers under R.C. 3319.11 is different than that afforded to teachers in CMSD under R.C. 3311.81 and the collective-bargaining agreement agreed to by the CTU and the CMSD. The record shows that the collective-bargaining agreement, which was changed in conjunction with the Cleveland Plan's passage and R.C. 3311.81's adoption, required two levels of hearings before a hearing with the Board. The LSC's final analysis of H.B. 525 states that the Cleveland Plan "makes several changes to [the] nonrenewal procedures for a municipal school district[.]" In its analysis, the LSC compared changes in the act that were applicable only to municipal school districts ( R.C. 3311.81 ) to the law applicable to all other school districts ( R.C. 3311.19 ). As to changes regarding collective bargaining, the LSC noted that R.C. 3311.81

specifies that the act's requirements regarding nonrenewal of teacher contracts prevail over collective bargaining agreements entered into on or after the act's effective date. However, the district and teachers union must bargain over the due process procedures that precede the district board's notification that it intends not to renew a teacher's contract, but those procedures must be consistent with the act.

{¶ 27} Based on the above, we disagree with the teachers that R.C. 3311.81's requirement of a "hearing" means that the teachers must be allowed to present evidence and call witnesses. While "hearing" has been interpreted to include such requirements before, such as in Naylor , we find that when examined in context, usage of that term in R.C. 3311.81 does not result in nor require the same interpretation. See R.C. 1.42 ("[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.").

{¶ 28} Here, R.C. 3311.81's plain language as well as evidence in the record supports the CMSD's argument that the Board hearing was appellate in nature and that R.C. 3311.81 does not require an additional evidentiary hearing during the nonrenewal process. The record shows that the Board reviewed and depended on the lower decisions made by the academic superintendent and CEO or its designee, who were required to hold hearings under the collective-bargaining agreement. Under that agreement, the limited contract teachers employed by the CMSD had two opportunities prior to their hearings before the Board to present any evidence they believed justified renewing their contracts. In fact, Lisa Thomas, a member of the Board since 2011, described the process as beginning with a hearing with the teacher's principal, during which the teacher "presents whatever evidence he or she may have regarding [his or her] performance[.]" If the principal recommends nonrenewal, the teacher then has a hearing before the academic superintendent, during which the teacher can again present whatever evidence he or she believes supports his or her renewal. Finally, if the academic superintendent recommends nonrenewal, the teacher is then provided another hearing during which he or she can present the same, different, or more evidence to the CEO or its designee in support of his or her arguments for renewal.

{¶ 29} We decline to adopt an interpretation of R.C. 3311.81 that would require the Board to give a teacher another evidentiary hearing during the nonrenewal process. The entire organization of the nonrenewal process, under both the collective-bargaining agreement and R.C. 3311.81, supports the Board's position that the changes made were to streamline employment decisions and give the Board more autonomy. The organization also supports the Board's position that it oversees and reviews decisions made by a teacher's principal, academic superintendent, and CEO, all of whom are more directly involved with the teacher. R.C. 3311.81(C) states that "[t]he decision of the board shall be final and shall not be subject to further appeal." Further, R.C. 3311.81(C) suggests that the Board has the final say as to whether to renew a limited contract teacher, a concept that we upheld when we found that the Board was the ultimate decision-maker and that a trial court "lacks jurisdiction to review the Board's decision not to renew the teachers' contracts" in an earlier appeal from this case. Burnell , 8th Dist. Cuyahoga No. 103069, 2015-Ohio-5431, at ¶ 15.

{¶ 30} When considered as a whole, the nonrenewal process under the collective-bargaining agreement and R.C. 3311.81 also supports the Board's position that the hearings it provided to each of the teachers were adequate because they gave each teacher an opportunity to orally argue for their renewal after the teachers had numerous opportunities to present any evidence they believed best justified renewing their contracts. See Marks , 8th Dist. Cuyahoga No. 88948, 2008-Ohio-1820, at ¶ 29, quoting Liese , 11th Dist. Portage No. 2003-P-0033, 2004-Ohio-5322 (held that "hearing" is " 'any confrontation, oral or otherwise , between an affected individual and a decision[-]maker sufficient to allow the individual to present the case in a meaningful manner.' ") (Emphasis added.)

{¶ 31} To the extent that the teachers argue that the hearing was deficient because they were not provided a rationale before, during, or after the Board hearing and that they could not argue for or respond to recommendations for nonrenewal without knowing the underlying reasons, the record as well as R.C. 3311.81's language make it clear that the Board does not need - and is not required to state - a reason to not renew a teacher's contract. In fact, during her deposition, Link stated, "It's my understanding that with limited contract teachers, [the Board does not] need a reason to non-renew." Additionally, when asked to confirm that the letters recommending nonrenewal sent to the teachers did not contain a rationale for nonrenewal, Thomas explained, "Yes, there is no rationale, and it's also my understanding that there need not be a rationale." This is supported by the fact that a review of the record and the statute actually suggests that the nonrenewal process under the collective-bargaining agreement and R.C. 3311.81 puts the onus on the teacher. Put another way, the nonrenewal process requires the teacher to show why his or her contract should be renewed and does not require the academic superintendent, CEO, or the Board to justify why the teacher's contract should not be renewed. Therefore, contrary to the teachers' contentions, the Board's failure to disclose the information it reviewed in rendering its decision does not render the nonrenewal process unfair.

{¶ 32} Also, to the extent that the teachers argue that their hearings were inadequate because of the alleged deficiencies in the hearings before the academic superintendent and the CEO, we find that those hearings are not before us on appeal. Therefore, whether the hearing before the Board was sufficient does not depend on the alleged deficiencies in the lower hearings and those alleged deficiencies are not before us.

{¶ 33} Accordingly, while we are mindful that R.C. 3311.81's remedial nature requires a liberal construction in favor of the teachers, we nevertheless find that the statute's language analyzed alongside the collective-bargaining agreement and nonrenewal process as a whole compels an interpretation contrary to that proposed by the teachers and adopted by the trial court, and leads us to conclude that R.C. 3311.81 does not require an evidentiary hearing. As a result, we conclude that the Board held an adequate hearing under R.C. 3311.81.

{¶ 34} Accordingly, we sustain appellants' first assignment of error.

{¶ 35} Based on our resolution of the first assignment of error, we find that appellants' second assignment of error is moot.

{¶ 36} Judgment reversed and remanded to the lower court for further proceedings consistent with this opinion.

EILEEN A. GALLAGHER, A.J., and MELODY J. STEWART, J., CONCUR

      The plaintiffs-appellees teachers are Kim Burnell, Karen Cunningham-Frank, Barbara Delgado, Iris Diaz, Layla Dibe, Emmett Erwin, Vito Federici, Karen Jozwiak, Brett Katz, Sarah Morrow, Heidi Stevens, and Michael Worth.

      According to CMSD's website, CMSD has over 100 schools in its district, "is the second largest school district in the state of Ohio[,]" and covers an area of 82 square miles. Cleveland Metro. School Dist., Facts , http://www.clevelandmetroschools.org/domain/24 (accessed Sept. 26, 2018).

      In her deposition, Lisa Thomas, a Board member since 2011, stated that the Board follows the Robert Rules of Order when holding a hearing for nonrenewal. She explained that "the Chair has the ability to set methods by which hearings can be conducted[, and that] the officers of the Board get to determine how they're established." A copy of those rules, however, was not included in the record.

      Our opinion and case citation should have identified CMSD as "Cleveland Municipal School District," not "Cleveland Metropolitan School District," a distinction that CMSD explained at oral argument.

      R.C. 3319.11 states in pertinent part,
      (G)(1) Any teacher receiving written notice of the intention of a board of education not to reemploy such teacher * * * may * * * file with the treasurer of the board a written demand for a written statement describing the circumstances that led to the board's intention not to reemploy the teacher. * * *
      (3) Any teacher receiving a written statement describing the circumstances that led to the board's intention not to reemploy the teacher pursuant to division (G)(2) of this section may * * * file with the treasurer of the board of education a written demand for a hearing before the board of education[.]
      (4) The treasurer of the board of education * * * shall * * * provide to the teacher a written notice setting forth the time, date, and place of the hearing. * * *
      (5) Any hearing conducted pursuant to this division shall be conducted by a majority of the members of the board of education. The hearing shall be held in executive session of the board of education unless the board and the teacher agree to hold the hearing in public. The superintendent, assistant superintendent, the teacher, and any person designated by either party to take a record of the hearing may be present at the hearing. * * *
      (7) A teacher may appeal an order affirming the intention of the board not to reemploy the teacher to the court of common pleas of the county * * * on the grounds that the board has not complied with this section or section 3319.111 of the Revised Code.

      At oral argument before the trial court, counsel for CMSD stated, "[l]imited contract teachers, essentially they have a one-year contract that, absent an action that can be nonrenewed basically for no reason whatsoever, as long as it's nondiscriminatory, the District can nonrenew them for any reason whatsoever."


source: Caselaw Access Project

author: WAITE, J.

license: Public Domain

text:
    Jeffrey H. SHARP, et al., Plaintiffs-Appellants Cross-Appellees, v. David R. MILLER, et al., Defendants-Appellees Cross-Appellants.
    No. 17 JE 0022
    Court of Appeals of Ohio, Seventh District, Jefferson County.
    Dated: November 26, 2018
    Atty. Sean R. Scullin, Scullin & Cunning, LLC, 940 Windham Ct., Ste. 4, Boardman, Ohio 44512, for Plaintiffs-Appellants/Cross-Appellees Jeffrey H. Sharp, Bradley W. Sharp, Gregory C. Smith, J. Kent Smith, Jeffrey S. Smith, Lelah Cline Smith, and Scott Johnson
    Atty. Lawrence T. Piergallini, 131 Third Street, P.O. Box 7, Tiltonsville, Ohio 43963, for Defendants/Appellees David R. Miller and Ruth A. Miller
    Atty. Thomas A. Hill and Atty. Richard F. Protiva, 6075 Silica Road, Suite A, Austintown, Ohio 44515-1081, for Defendants-Appellees/Cross-Appellants, Eric Petroleum Corp., and the Brocker Royalty Trust.
    Atty. Clay K. Keller, Jackson Kelly PLLC, 50 S. Main Street, Akron, Ohio 44308, for Defendants-Appellees Chesapeake Exploration, L.L.C., Chesapeake Appalachia, L.L.C., Total E & P USA, Inc., CHK Utica, L.L.C., Pelican Energy, L.L.C. and Dale Pennsylvania Royalty, LP.
    BEFORE: Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.
    OPINION AND JUDGMENT ENTRY
   WAITE, J.

{¶ 1} This oil and gas case involves the ownership of mineral interests that lie beneath approximately 153 acres of land located in Springfield Township, Jefferson County. Appellants/Cross-Appellees Jeffrey H. Sharp, Bradley W. Sharp, Gregory C. Smith, J. Kent Smith, Jeffrey S. Smith, Lelah Cline Smith, and Scott Johnson (collectively referred to as "Appellants") appeal a judgment entry granting summary judgment in favor of Appellees David R. and Ruth A. Miller (collectively referred to as "the Millers"). Appellants argue the trial court erroneously ruled that their interest in the minerals was abandoned pursuant to common law and the 2006 Dormant Mineral Act ("DMA"). Appellees/Cross-Appellants Eric Petroleum Corporation ("EPC") and Brocker Royalty Trust ("Brocker") filed a cross-appeal seeking a declaration from this Court that an oil and gas lease entered into by EPC and the Millers is not a nullity. For the reasons provided, the trial court correctly determined that Appellants' interests were abandoned pursuant to the 2006 DMA. Because the 2006 DMA controls, Appellants' arguments regarding common law abandonment are moot. As to the cross-appeal, the trial court's dicta did not affect the validity of the oil and gas lease between the Millers and EPC. Finally, EPC/Brocker waived their Marketable Title Act ("MTA") argument. Accordingly, the judgment of the trial court is affirmed.

Factual and Procedural History

{¶ 2} The property at issue in this matter was originally owned by I.W. Poole and R.S. Smith. In a March 3, 1944 deed, Poole and Smith transferred the surface rights to Henry and Lucy McClosky. Poole and Smith reserved mineral interests in the property using language in the deed: "Excepting and reserving all mineral rights." (3/3/44 Deed.) Following a series of conveyances, the surface rights are currently owned by the Millers.

{¶ 3} On May 20, 2004, the Millers entered into an oil and gas lease with Mason Dixon Energy, Incorporated. The record is devoid of the details regarding the Miller/Dixon lease. On June 30, 2009, the Millers entered into an oil and gas lease with EPC. After several assignments, Brocker obtained an interest in the lease.

{¶ 4} On July 9, 2014, the Millers filed a notice of intent to declare the mineral interests abandoned. They could not locate the names or addresses of any Poole/Smith heirs and filed the notice by publication. On or about August 10, 2014, East Ohio Minerals Recovery, LLC ("EOMR") learned of this notice and informed Jeffrey Sharp that he and his brother, Bradley, might be heirs to a reservation of mineral interest and would need to file something by early September of 2014.

{¶ 5} On August 15, 2014, the Sharps' attorney ordered a title search on a farm formally owned by the Sharps' grandfather (the property at issue) and discovered that a coal interest had been reserved. On August 27, 2014, the Sharps' attorney requested a copy of the March 3, 1944 deed and learned that the mineral interests had also been reserved. On September 2, 2014, the Millers filed an affidavit of abandonment. On September 10, 2014, the Sharps' attorney requested a second title search which revealed the 2009 oil and gas lease between the Millers and EPC. On November 6, 2014, the attorney requested an updated title report which showed the affidavit of abandonment. On November 12, 2014, Jeffrey and Bradley Sharp filed a claim of preservation.

{¶ 6} On March 17, 2015, the Sharps filed a complaint against the following individuals: the Millers, EPC, Brocker, Dale Pennsylvania Royalty, L.P., Chesapeake Explorations, LLC, Chesapeake Appalachia, LLC, Total E & P USA, Inc., CHK Utica, LLC, Pelican Energy, LLC, CGas Properties, L.P., Belden & Blake Corporation, EnerVest Energy Institutional Fund IX, L.P., EnerVest Energy Institutional Fund XI-WI, L.P., EnerVest Energy Institutional Fund XI-A, L.P., and EnerVest Energy Institutional Fund IX-WI, L.P. The complaint sought to have the court declare that Appellees did not comply with the 2006 DMA, sought quiet title and termination of the Miller/EPC lease, and raised a conversion claim.

{¶ 7} On April 3, 2015, Appellants voluntarily dismissed the following defendants: CGas Properties L.P., Belden & Blake Corporation, EnerVest Energy Institutional Fund IX, L.P., EnerVest Energy Institutional Fund XI-WI, L.P., EnerVest Energy Institutional Fund XI-A, L.P., and EnerVest Energy Institutional Fund IX-WI, L.P.

{¶ 8} On June 15, 2015, Appellants filed an amended complaint seeking ejectment and the value of the rents and profits resulting from the oil and gas leases. The amended complaint asked for a declaratory judgment that the two oil and gas leases entered into by the Millers constituted savings events under both the 1989 and 2006 version of the DMA and that the Millers failed to comply with the notice requirements of the 2006 DMA. The complaint also joined later discovered heirs June Smith, Jane Doe, Lelah Cline Smith, Gregory C. Smith, Jeffrey S. Smith, J. Kent Smith, and Scott W. Johnson. June Smith did not file an answer and the court entered default judgment against her.

{¶ 9} On June 29, 2015, EPC and Brocker filed an answer to Appellants' amended complaint and to the Millers' counterclaim. On the same date, the remaining defendants filed an answer: Dale Pennsylvania Royalty, L.P., Chesapeake Explorations, LLC, Chesapeake Appalachia, LLC, Total E & P USA, Inc., CHK Utica, LLC, and Pelican Energy, LLC. It is unclear whether Dale Pennsylvania Royalty and Chesapeake remained parties to this action. On July 10, the Millers filed an answer.

{¶ 10} On April 11, 2017, the parties filed competing motions for summary judgment. The trial court held a hearing on April 24, 2017. However, the trial court judge recused herself from the case on June 22, 2017 and a new judge was assigned. On October 25, 2017, the trial court granted summary judgment in favor of Appellees. The court ruled that the mineral interests of R.S. Smith and I.W. Poole were abandoned pursuant to the 2006 DMA. The court additionally ruled that Poole's interests were abandoned pursuant to common law. Appellants filed this timely appeal. Because Appellants' second assignment of error is determinative, the assignments of error are addressed out of order.

Summary Judgment

{¶ 11} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is "material" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

{¶ 13} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable to the nonmoving party. Temple , 50 Ohio St.2d at 327, 364 N.E.2d 267.

ASSIGNMENT OF ERROR NO. 2

The trial court erred by finding that Appellants' mineral interest were [sic] abandoned pursuant to the 2006 Ohio Dormant Mineral Act. Judgment Entry, at 2.

{¶ 14} Appellants raise several reasons to support their contention that the trial court erroneously ruled their interest in the minerals was abandoned pursuant to the 2006 DMA. First, Appellants argue that the Millers failed to comply with the notice requirements of R.C. 5301.56(E). Appellants argue that the Millers did not use reasonable diligence when researching potential heirs, making service by publication improper. Second, Appellants argue that two oil and gas leases entered into by the Millers are title transactions that constitute a savings event.

{¶ 15} We first address whether Appellees were permitted to file notice of intent to declare the mineral interests abandoned by publication. Pursuant to R.C. 5301.56(E)(1), a surface owner attempting to reunite the surface with the mineral interests must:

Serve notice by certified mail, return receipt requested, to each holder or each holder's successors or assignees, at the last known address of each, of the owner's intent to declare the mineral interest abandoned. If service of notice cannot be completed to any holder, the owner shall publish notice of the owner's intent to declare the mineral interest abandoned at least once in a newspaper of general circulation in each county in which the land that is subject to the interest is located. The notice shall contain all of the information specified in division (F) of this section.

{¶ 16} R.C. 5301.56(E)(1) allows notice by publication when notice cannot be completed through certified mail. An attempt to provide notice by certified mail is unnecessary where a reasonable search fails to reveal the names or addresses of potential heirs who must be served. Shilts v. Beardmore , 7th Dist. No. 16 MO 0003, 2018-Ohio-863, 2018 WL 1225745, ¶ 15, appeal not allowed by Shilts v. Beardmore , 153 Ohio St.3d 1433, 2018-Ohio-2639, 101 N.E.3d 464. Appellants ask this Court to determine the extent of the efforts required to satisfy reasonable due diligence in locating heirs before service by publication can be employed.

{¶ 17} In Shilts , we reviewed whether the following search efforts satisfied the "reasonable due diligence" standard: probate records, public records, Ohio Department of Natural Resources ("ODNR") records, and an internet search. Id. at ¶ 14. We found that, based on the facts of that case, these efforts satisfied the due diligence requirement. Id. at ¶ 15. Appellants ask this Court to require these exact efforts in every case. Contrary to Appellants' arguments, we did not establish in Shilts a bright-line rule or definition of "reasonable due diligence." Because the standard relies on the reasonableness of any party's actions, whether that party's efforts constitute "due diligence" will depend on the facts and circumstances of each individual case. In other words, reasonable actions in one case may not be reasonable in another case.

{¶ 18} Appellees in this matter provided evidence in summary judgment in the form of two affidavits. The first affidavit is from Michael J. Calabria, an attorney retained by EPC as an expert witness. (4/17/17 Calabria Aff.) In his affidavit, Calabria avers that he reviewed Appellees' efforts in this matter and concluded that those efforts satisfied reasonable due diligence. While we note that this testimony improperly goes to the legal question to be determined by the court, we also note that this witness set forth the efforts undertaken. Calabria stated that Appellees searched public records, specifically probate and deed records, and were unable to locate any heirs. The sole address obtained in the search was a post office box that formally belonged to I.W. and Ruth Poole. Calabria stated that the search also revealed I.W. Poole's release of estate from administration, which did not refer to the mineral interests. A title report also failed to reveal any potential heirs.

{¶ 19} Appellees also filed an affidavit from Richard F. Protiva. Protiva apparently undertook an exhaustive search to locate heirs during trial preparation which did not yield information on all heirs. Additionally, he was unable to confirm that the information he did obtain was accurate. He could not ensure that the information he found correlates to the correct individual heir. He began by conducting an online search using paid subscription services such as ancestry.com, world vital records, and MyHeritage Company. Next, he visited the Carroll County Genealogical Society. Based on his efforts up to this point, he was able to locate a record for Florence Edna Poole Sharp (Jeffrey and Bradley Sharp's mother.) He used that information to conduct public record searches, including probate records. He then used the names in the complaint to connect the names he found in his search efforts. Using this information, he conducted another internet search and contacted a librarian at Arizona State University. Again, he was unable to locate all heirs and could not confirm that the information he had obtained was correct.

{¶ 20} Appellants argue that the trial court erroneously relied on a statement at the hearing made by EPC counsel that it took more than 80 hours for Protiva to find a partial list of heirs. Although the fact that the search took more than 80 hours to complete is not in Protiva's affidavit, it is apparent from his affidavit that his search consumed a great deal of time. Regardless, the search that occurred prior to the filing of the notice is at issue here, not any later-conducted search.

{¶ 21} Based on Calabria's affidavit, prior to filing the complaint Appellees searched available public records; they undertook to search probate records and recorded deeds. The only difference between their search and the Shilts search is an internet component. However, an internet search would not likely have been helpful in this case, because the only names available to Appellees were Smith and Poole. There is no evidence that a simple internet search would have revealed the actual Smith/Poole heirs. Based on the facts and circumstance of this case, Appellees' public record search constituted reasonable due diligence.

{¶ 22} Next, we must address whether Appellants preserved their interests in accordance with R.C. 5301.56(H). R.C. 5301.56(H)(1) states:

If a holder or a holder's successors or assignees claim that the mineral interest that is the subject of a notice under division (E) of this section has not been abandoned, the holder or the holder's successors or assignees, not later than sixty days after the date on which the notice was served or published, as applicable, shall file in the office of the county recorder of each county where the land that is subject to the mineral interest is located one of the following:
(a) A claim to preserve the mineral interest in accordance with division (C) of this section;
(b) An affidavit that identifies an event described in division (B)(3) of this section that has occurred within the twenty years immediately preceding the date on which the notice was served or published under division (E) of this section.

{¶ 23} There is no question that Appellants failed to file a timely claim of preservation or an affidavit identifying a savings event. While Appellants claim that they did not know Appellees filed a notice of intent to abandon, the record demonstrates that Appellants did learn of their possible interest prior to the deadline for filing a timely claim of preservation.

{¶ 24} The Millers published a notice of intent to declare the mineral interests abandoned on July 9, 2014. Pursuant to statute, Appellants had until September 9, 2014 to file either a claim of preservation or an affidavit declaring a savings event had occurred. See R.C. 5301.56(H)(1)(a), (b). Appellants admit that EOMR informed them on August 10, 2014 that they were required to file in the matter by sometime in September. While Appellants claim that they lacked sufficient information after the initial call from EOMR and needed time to research the nature of their claim, it is clear from this record that they had sufficient information on which to at least timely file a claim of preservation.

{¶ 25} Appellants obtained the March 3, 1944 deed on August 27, 2014, placing the Sharps on notice of the mineral interest reservation. The Millers filed the notice of abandonment on September 2, 2014. That same day, Appellants obtained an updated title report alerting the Sharps to the 2009 oil and gas lease between the Millers and EPC. Knowledge of this lease placed Appellants on notice that there was an adverse interest in the minerals, particularly as they already knew that their grandfather reserved the interest in the property's minerals by way of the March 3, 1944 deed. Despite this knowledge, Appellant filed nothing to protect their interests. On September 9, 2014, the period to file a timely claim of preservation ended. Appellants waited until November 6, 2014 to attempt to file their claim for preservation. While it was on that date that they obtained an updated title search revealing the September 2, 2014 affidavit of abandonment, Appellants were aware as early as August that they had a potential interest in these minerals, and that quick action was necessary in order to preserve this potential interest. Appellants have provided no reasonable excuse as to why they waited until November of 2014 to file a claim of preservation. Importantly, EOMR informed the Sharps in early August that something would need to be filed in this matter by September at the latest. Appellants failed to take heed. This record shows that Appellants failed to file a timely claim of preservation to protect their interests.

{¶ 26} Appellants next argue that two oil and gas leases entered into by the Millers constitute savings events under the statute. Pursuant to R.C. 5301.56(B)(3) :

Within the twenty years immediately preceding the date on which notice is served or published under division (E) of this section, one or more of the following has occurred:
(a) The mineral interest has been the subject of a title transaction that has been filed or recorded in the office of the county recorder of the county in which the lands are located.
(b) There has been actual production or withdrawal of minerals by the holder from the lands, from lands covered by a lease to which the mineral interest is subject, from a mine a portion of which is located beneath the lands, or, in the case of oil or gas, from lands pooled, unitized, or included in unit operations, under sections 1509.26 to 1509.28 of the Revised Code, in which the mineral interest is participating, provided that the instrument or order creating or providing for the pooling or unitization of oil or gas interests has been filed or recorded in the office of the county recorder of the county in which the lands that are subject to the pooling or unitization are located.
(c) The mineral interest has been used in underground gas storage operations by the holder.
(d) A drilling or mining permit has been issued to the holder, provided that an affidavit that states the name of the permit holder, the permit number, the type of permit, and a legal description of the lands affected by the permit has been filed or recorded, in accordance with section 5301.252 of the Revised Code, in the office of the county recorder of the county in which the lands are located.
(e) A claim to preserve the mineral interest has been filed in accordance with division (C) of this section.
(f) In the case of a separated mineral interest, a separately listed tax parcel number has been created for the mineral interest in the county auditor's tax list and the county treasurer's duplicate tax list in the county in which the lands are located.

{¶ 27} A title transaction has been defined as "any transaction affecting title to any interest in land, which means that it is not limited to the transactions enumerated in the statute or to transactions that transfer an ownership interest." Chesapeake Exploration, L.L.C. v. Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶ 39. "In order for the mineral interest to be the 'subject of' the title transaction the grantor must be conveying that interest or retaining that interest." Dodd v. Croskey, 7th Dist. No. 12 HA 6, 2013-Ohio-4257, 2013 WL 5437365, ¶ 48, affirmed on other grounds, Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147. A recorded oil and gas lease is a title transaction, and constitutes a savings event under R.C. 5301.56(B)(3)(a). Id. at ¶ 66. According to Appellants, a lease constitutes a savings event regardless of whether the lessor is the surface owner or the interest holder. This issue is one of first impression in Ohio.

{¶ 28} We are puzzled as to Appellants' claim that this lease would constitute a savings event for them, as they were never parties to this lease. Regardless, this particular lease cannot in any way be construed as a savings event. A person can only convey what he or she owns. Short v. Short, 4th Dist. No., 2014-Ohio-5864, 2014 WL 7739340, ¶ 28. The record is clear that the Millers did not own any mineral interests at the time they entered into a lease with EPC, as they had not yet initiated the abandonment process. Because the Millers did not hold an interest in the minerals in either 2005 or 2009, they had no rights or property they were able to convey in a lease. As the mineral interests at issue were not properly conveyed or retained, they cannot validly be the "subject of" a title transaction. As such, neither the 2005 nor 2009 oil and gas lease rises to the level of a savings event under R.C. 5301.56(B)(3)(a).

{¶ 29} Accordingly, Appellants' second assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 1

The trial court erred by finding that Appellants' mineral interest was abandoned under common law principles. Judgment Entry, at 4, 5, 10-11.

{¶ 30} Appellants argue that the trial court erroneously ruled that I.W. Poole's mineral interests were abandoned due to Ruth Poole's failure to include these interests during her husband's estate administration. According to the trial court's findings of facts, I.W. Poole died in 1954, leaving his assets to his wife, Ruth Poole. In 1969, Ruth filed a release of administration listing a small parcel of property, but did not mention the mineral interests reserved in the March 3, 1944 deed. It does not appear that an estate was filed for Ruth Poole. The trial court ruled that Poole's interests were abandoned due to the failure to include them in the release of administration.

{¶ 31} In Ohio, as we have previously noted, any theory of common law abandonment has been supplanted by statute: "the Supreme Court has stated abandonment is now governed by the 2006 DMA. Corban v. Chesapeake Exploration, L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089 at ¶¶ 31, 33. None of the DMA cases in the appellate courts or the Supreme Court were remanded to ascertain if the mineral interest was abandoned outside of the DMA, and such a claim was not in the plaintiff's complaint." Jefferis Real Estate Oil & Gas Holdings, L.L.C. v. Schaffner Law Offices, L.P.A., 7th Dist., 2018-Ohio-3733, 109 N.E.3d 1265, ¶ 22 (" Jefferis II "). Because the 2006 DMA is the sole governing authority when determining whether interests in minerals have been abandoned, any analysis under common law is moot.

{¶ 32} Accordingly, Appellants' first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 3

The trial court erred by failing to grant Appellants' motion for summary judgment. Judgment Entry, at 11.

{¶ 33} Appellants essentially repeat the arguments that appear in their first and second assignments of error. For the reasons provided within those assignments, Appellants' arguments are without merit and are overruled.

Cross-Appeal

{¶ 34} EPC/Brocker raises four cross-assignments of error: (1) the trial court erroneously ruled that the oil and gas lease between the Millers and EPC is null pursuant to the 2006 DMA, (2) the trial court erroneously ruled that the lease is null pursuant to common law abandonment, (3) the trial court improperly failed to rule on EPC/Brocker's MTA defense, and (4) the trial court erroneously denied EPC/Brocker's counterclaim to quiet title. As EPC/Brocker does not provide any law or argument as to its fourth cross-assignment, it will not be addressed.

{¶ 35} Regarding its other three claims, EPC/Brocker generally argues that the trial court erroneously deemed its lease with the Millers a "nullity." As we have previously acknowledged, the purpose of the DMA is to "allow a surface owner to take steps to have mineral interests reunited with the surface lands." Paul v. Hannon, 7th Dist. No. 15 CA 0908, 2017-Ohio-1261, 2017 WL 1231743, ¶ 28. In other words, the 2006 DMA addresses only whether mineral interests have been abandoned, allowing these interests to reunite with the surface property. While the trial court inartfully called the lease a "nullity," the validity of the lease was never directly at issue in this case, as the DMA resolves only issues regarding the abandonment of mineral interests. To the extent that the parties interpret the trial court's dicta as affecting the validity of the lease, the court's statement reflects only its interpretation that the lease is irrelevant to any 2006 DMA analysis in this matter, and not that the lease is itself invalid.

{¶ 36} EPC/Brocker also argues that the trial court erroneously failed to consider its MTA defense. EPC/Brocker assert that they presented an affirmative defense based on the MTA, claiming that Appellants' interests were extinguished pursuant to the MTA. As interests extinguished by the MTA are automatically null and void, EPC/Brocker contended that the surface and mineral interests reunited in 1985, 24 years before the oil and gas lease was signed. Thus, the Millers did own the mineral interests at the time they entered the lease with EPC.

{¶ 37} EPC/Brocker raised the MTA as an affirmative defense, however, it was not raised for the first time until it was included in their motion for summary judgment. An affirmative defense must be raised in the pleadings or in an amendment to the pleading, or it is waived. Henricksen v. Henricksen, 7th Dist. No. 17 MA 0044, 2017-Ohio-9050, 2017 WL 6398863, ¶ 19. The MTA is not mentioned in either EPC/Brocker's answer and counterclaim or in their amended answer and counterclaim. Consequently, any MTA issue was waived, here.

{¶ 38} Accordingly, EPC/Brocker's cross-assignments of error are without merit and are overruled.

Conclusion

{¶ 39} Appellants argue that the trial court erroneously ruled their interest in the minerals at issue was abandoned pursuant to common law and the 2006 DMA. For the reasons provided, the trial court correctly determined that Appellants' interests were abandoned pursuant to the 2006 DMA. Because the 2006 DMA controls, Appellants' arguments regarding common law abandonment are moot. As to Appellees' cross-appeal, the trial court's dicta did not directly address nor affect the validity of the oil and gas lease between the Millers and EPC/Brocker in any way. The judgment of the trial court is affirmed.

Robb, P.J., concurs.

Bartlett, J., concurs.


author: TIMOTHY P. CANNON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Branden S. EDWARDS, Defendant-Appellant.
    NO. 2017-G-0122
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided June 25, 2018
    James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
    Dennis Day Lager, 1025 Chapel Ridge Street, N.E., Canton, OH 44714 (For Defendant-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Branden S. Edwards, appeals from the May 15, 2017 judgment of conviction of the Geauga County Court of Common Pleas. For the following reasons, the trial court's judgment is affirmed in part and vacated in part.

{¶ 2} On November 8, 2016, appellant was indicted by the Geauga County Grand Jury on the following charges: Count 1, Domestic Violence, a fifth-degree felony, in violation of R.C. 2919.25(A) and (D)(5) ; Count 2, Possession of Heroin, a fourth-degree felony, in violation of R.C. 2925.11(A) and (C)(6)(b) ; Count 3, Possession of Cocaine, a fifth-degree felony, in violation of R.C. 2925.11(A) and (C)(4)(a) ; and Count 4, Obstructing Official Business, a fifth-degree felony, in violation of R.C. 2921.31(A). Appellant entered a plea of not guilty to the charges in the indictment.

{¶ 3} Pursuant to a plea agreement with appellee, the state of Ohio, appellant later pleaded guilty to an amended Count 1, to wit: Attempted Aggravated Assault, a fifth-degree felony in violation of R.C. 2903.12(A)(1) and R.C. 2923.02(A) ; a lesser-included offense of Count 2, to wit: Possession of Heroin, a fifth-degree felony in violation of R.C. 2925.11(A) and (C)(6)(a) ; and Count 4 (Obstructing Official Business). Count 3 (Possession of Cocaine) was dismissed.

{¶ 4} On April 25, 2017, the trial court sentenced appellant to a prison term of 12 months on amended Count 1, to run consecutively to appellant's sentence in case No. 2016 C 000029. The trial court also informed appellant he may be subject to up to three years of post-release control on that count after his release from prison. Regarding Count 2 and Count 4, the trial court's sentencing entry states:

For Possession of Heroin * * * and [f]or Obstructing Official Business * * * a total of three (3) years community control sanctions.
* * *
One hundred eighty (180) days residential community control in the Geauga County Safety Center and up to one hundred eighty (180) days in NEOCAP.
Upon notification by NEOCAP of bed availability, defendant shall be transported to said facility. Defendant shall enter and successfully complete the NorthEast Ohio Community Alternative Program.
* * *
Upon defendant's completion of NEOCAP, the defendant shall serve the balance of one hundred eighty (180) days residential community control at the Geauga Safety Center.

The balance of the three years of community control was to be non-residential. The trial court also reserved a prison term of 12 months each for Count 2 and Count 4 to be imposed for any violation of the community control sanctions. The trial court entered its judgment of conviction on May 15, 2017.

{¶ 5} Appellant noticed a timely appeal from the judgment of conviction.

{¶ 6} Appellant asserts one assignment of error on appeal:

{¶ 7} "The trial court erred in sentencing Defendant-Appellant to a 'blended sentence,' by imposing upon him a prison term on one offense consecutive to a term of community control on others."

{¶ 8} We generally review felony sentences under the standard of review set forth in R.C. 2953.08(G)(2), which states:

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under [ R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.10(I) ], whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.

{¶ 9} Appellant argues it was improper for the trial court to impose his community control sanctions consecutively to or concurrently with his prison sentence because there is no express statutory authorization for such a sentence.

{¶ 10} Here, the trial court did not specify whether appellant's community control sanctions were to run consecutively to or concurrently with his prison sentence. However, the clear effect of the sentence as imposed was to require the residential portion of the community control sanctions on Count 2 and Count 4 to be served consecutively to the prison term on Count 1.

{¶ 11} Appellant cites State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512 in support of his argument. He relies on the Ohio Supreme Court's statement that "because ' "sentencing is a creature of the legislature * * * courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute." ' " Id. at ¶ 13, quoting Wilson v. State , 5 N.E.3d 759, 762 (Ind.2014), quoting Wilson v. State , 988 N.E.2d 1221, 1224 (Ind.App.2013) (Robb, C.J. dissenting) (emphasis sic). In Anderson , the Supreme Court held that the felony sentencing statutes do not expressly authorize a no-contact order to be imposed for a felony offense. Id. at ¶ 16. In interpreting the Revised Code, however, the Court determined that no-contact orders are considered community control sanctions and ultimately held "[a] trial court cannot impose a prison term and a no-contact order [which is a community control sanction] for the same felony offense." Id. at ¶ 1 (emphasis added).

{¶ 12} Appellant asks us to apply the dicta in Anderson too broadly, and although it is not expressly authorized, it was not error for the trial court to run appellant's non-residential sanctions concurrently with his prison sentence for a separate offense. See State v. Paige , 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 9-10. However, in Paige , the Ohio Supreme Court recently observed that none of the exceptions in R.C. 2929.41(A) apply to allow confinement in a community based residential facility subsequent to a prison term imposed in the same case. Id. at ¶ 13.

{¶ 13} R.C. 2929.41 governs the trial court's imposition of sentence for multiple offenses. R.C. 2929.41(A) provides: "Except as provided in [ R.C. 2929.41(B), R.C. 2929.14(C), or R.C. 2971.03(D) or (E) ], a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States."

{¶ 14} Although the Revised Code does not define "sentence of imprisonment," R.C. 1.05(A) provides, in pertinent part:

[U]nless the context otherwise requires, 'imprisoned' or 'imprisonment' means being imprisoned under a sentence imposed for an offense or serving a term of imprisonment, prison term, jail term, term of local incarceration, or other term under a sentence imposed for an offense in * * * a county * * * jail or workhouse, a minimum security jail, [or] a community-based correctional facility[.]

Accordingly, serving residential sanctions in the Geauga County Safety Center and in NEOCAP is "imprisonment," and the imposition of a term at one of those facilities is a "sentence of imprisonment" under R.C. 2929.41(A). See Paige , supra , at ¶ 12 ; see also State v. Barnhouse , 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, ¶ 12. Because none of the exceptions in R.C. 2929.41(A) for the imposition of consecutive sentences apply in this case, the trial court could not order the residential community control sanctions to begin after appellant's prison sentence. Accordingly, we vacate that portion of appellant's sentence. See id. at ¶14.

{¶ 15} Appellant's sole assignment of error has merit to the extent discussed above.

{¶ 16} This court subsequently ordered supplemental briefing from the parties to address the limited issue of whether the sentence imposed on appellant for Count 2 and Count 4 constitutes a prohibited "sentencing package" pursuant to State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.

{¶ 17} In Saxon , the Supreme Court of Ohio held that the Ohio felony sentencing statutes do not allow for "sentencing packages" i.e., the imposition of one overarching sentence for multiple offenses. Id. at ¶ 8. Judges must consider each offense separately and impose a separate sentence for each offense. Id. at ¶ 9. "[A] sentence is the sanction or combination of sanctions imposed for each separate, individual offense." Id. at paragraph one of the syllabus. As community control sanctions are criminal penalties subject to Ohio's felony sentencing statutes, pursuant to R.C. 2929.15, they must also be imposed individually for each offense. State v. Williams , 3d Dist. Hancock No. 5-10-02, 2011-Ohio-995, 2011 WL 775909, ¶ 21 (relying on Saxon ).

{¶ 18} Here, the trial court imposed one overarching three-year sentence of community control sanctions on Count 2 and Count 4. That sentence constitutes an impermissible sentencing package. Accordingly, we must also vacate that portion of appellant's sentence and remand for the trial court to impose separate terms of community control on Count 2 and Count 4. See State v. Evans , 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, ¶ 17 ; State v. South , 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 26-27, Saxon , supra , at ¶ 30.

{¶ 19} For the foregoing reasons, the judgment of the Geauga County Court of Common Pleas is affirmed in part and vacated in part. This matter is remanded for further proceedings consistent with this opinion.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.


author: THOMAS R. WRIGHT, J.

text:
    In the MATTER OF: T.M., Delinquent Child
    NOS. 2017-G-0113 2017-G-0114
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided June 25, 2018
    James R. Flaiz, Geauga County Prosecutor, and Melissa J. Lee, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee, State of Ohio).
    Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Defendant-Appellant, Truxton Mullett).
   THOMAS R. WRIGHT, J.

{¶ 1} Appellant, T.M., appeals the trial court's decision that he is not entitled to an immediate hearing to modify or terminate his classification as a Tier III sex offender. He contends that the hearing is required because he has satisfied all requirements placed upon him. Since we agree that an immediate hearing is mandated under the circumstances, we reverse and remand the case for further proceedings.

{¶ 2} In November 2014, appellant admitted to a charge of rape, a first-degree felony under R.C. 2907.02(A)(2) in the Cuyahoga County Court of Common Pleas, Juvenile Division. On the date of this admission, appellant was 15 years old, having been born December 10, 1998. The underlying offense occurred when he was 14. His victim was 6.

{¶ 3} In light of the admission, the Cuyahoga County court found appellant to be a juvenile delinquent. But, because appellant was a resident of Geauga County, the Cuyahoga County court transferred the case to the Geauga County juvenile court for final disposition.

{¶ 4} The final dispositional hearing was held before the Geauga County trial court on April 10, 2015. The trial court ordered that appellant be committed to the custody of the Ohio Department of Youth Services (ODYS) "for an indefinite term consisting of a minimum period of one year and a maximum period not to exceed the juvenile's twenty first birthday." The court further ordered appellant to undergo sex offender treatment during commitment. Last, the court ordered appellant to have no contact with the victim or his family until appellant turns 21 years old.

{¶ 5} In February 2016, ODYS notified the trial court that its release review panel had approved appellant for release on parole on or after April 10, 2016. As a result, the trial court classified appellant a Tier III sexual offender. That decision was affirmed in In re T.M. , 11th Dist. Geauga No. 2016-G-0067, 2017-Ohio-156, 2017 WL 168918.

{¶ 6} Notwithstanding the pendency of his prior appeal, appellant was released on parole on April 10, 2016. Nine months later, in December 2016, ODYS notified the trial court that appellant had been approved for discharge from parole on January 6, 2017.

{¶ 7} Within three weeks of discharge, appellant moved the trial court to review/modify his classification as a Tier III juvenile sex offender. The state opposed, maintaining that although appellant was no longer on parole, his request was premature because he was still subject to the no-contact order.

{¶ 8} On February 23, 2017, the trial court heard oral arguments on whether a "review" hearing could be held prior to the termination of the no-contact order. Appellant's counsel argued that once discharged from parole, the trial court no longer has jurisdiction to enforce the no-contact order. The trial court rejected that argument, holding that its jurisdiction continues despite parole discharge. However, the trial court also stated that it would accept additional briefing whether the no-contact order should be vacated so that the "review" hearing could go forward.

{¶ 9} Appellant immediately moved the trial court to vacate the no-contact order, arguing that the order was void since its issuance because a juvenile court has no authority to impose such an order unless it is part of a community control sentence, citing State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 17.

{¶ 10} Without waiting for a response, the trial court denied appellant's motion to vacate ruling that a juvenile court has discretion to impose a no-contact order in conjunction with a commitment sentence.

{¶ 11} Appellant appeals both judgments. This court consolidated the appeals. Appellant raises one assignment of error:

{¶ 12} "The Geauga County Juvenile Court erred when it failed to vacate its no-contact order in this case and when it denied T.M.'s right to an end-of-disposition hearing required under R.C. 2152.84, Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I, Section 16, Ohio Constitution."

{¶ 13} In challenging the trial court's conclusion that he had not fulfilled all of the orders in the April 10, 2015 dispositional judgment, appellant asserts two arguments for review. First, he argues that the no-contact order is invalid because the trial court does not have the statutory authority to impose such a requirement as part of a commitment order. Second, he claims that by ordering his commitment to the Ohio Department of Youth Services, the court lost its authority to enforce a no-contact order.

{¶ 14} As to the validity of the no-contact order, appellant asserts that the Ohio Supreme Court's holding in State v. Anderson, supra , is controlling. In Anderson , the adult defendant was convicted of rape and kidnapping. In addition to imposing an aggregate prison term of 17 years, the trial court ordered the defendant to have no contact with the victim. On appeal, the defendant asserted that the trial court had no authority under the adult sentencing scheme to impose a no-contact order in conjunction with a prison term. The Ohio Supreme Court agreed.

{¶ 15} The Anderson court first emphasized that a trial court does not have inherent power to create a sentence; i.e., a trial court can impose only what is expressly authorized by statute. Id. at ¶ 10-12. Second, the Anderson court concluded that a no-contact order is a community control sanction. Id. at ¶ 17. Third, the court found the statutory scheme governing adult sentencing for prison terms and community control sanctions to be alternative remedies. Id. at ¶ 28. Therefore, since a no-contact order is a community control sanction, it cannot be imposed when the adult defendant has been ordered to serve a prison term.

{¶ 16} The juvenile statutes, however, differ and sanction the no-contact order in conjunction with confinement.

{¶ 17} R.C. 2152.16 governs commitments to the youth services department for secure confinement. Division (A)(1)(c) states that if a child is found to have committed the crime of rape under R.C. 2907.02(A)(2), a juvenile court may commit the child to the legal custody of the department "for an indefinite term consisting of a minimum period of one to three years, * * * and a maximum period not to exceed the child's attainment of twenty-one years of age[.]" Division (A)(2) provides that when a juvenile court commits a juvenile to confinement, the court retains control over the commitment for the stated minimum period.

{¶ 18} R.C. 2152.19 sets forth additional dispositional orders a juvenile court may impose:

{¶ 19} "(A) If a child is adjudicated a delinquent child, the court may make any of the following orders of disposition, in addition to any other disposition authorized or required by this chapter:

{¶ 20} "* * *

{¶ 21} "(4) Place the child on community control under any sanctions, services, and conditions that the court prescribes. * * *"

{¶ 22} R.C. 2152.19(A)(8), a catchall provision, provides that a juvenile court can "[m]ake any further disposition that the court finds proper," except that it cannot place the child in a correctional institution or a community corrections facility where adults are held.

{¶ 23} In the second appealed judgment, the trial court concluded that it had the authority to impose a no-contact order either as a specific sanction under community control or in conjunction with an order of commitment to ODYS relying on R.C. 2152.19(A)(8). We agree.

{¶ 24} In In re Caldwell , 76 Ohio St.3d 156, 666 N.E.2d 1367 (1996), the Ohio Supreme Court concluded a juvenile court has the authority to impose consecutive terms of commitment upon a delinquent relying on the catchall provision. "[B]y using the word 'any' in [the provision], which the General Assembly was not required to do, it gave the trial judge discretion to take 'any' steps the judge believes necessary to fully and completely implement the rehabilitative disposition of a juvenile * * *." Id. at 159, 666 N.E.2d 1367. The Caldwell court also stated that its broad interpretation of the catchall provision "is consistent with the underlying purposes and goals of the juvenile court system, i.e. , supervision, care and rehabilitation of the delinquent youth." Id. at 160, 666 N.E.2d 1367. See also, In re H.V. , 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173 ; In re G.L.L. , 11th Dist. Geauga Nos. 2014-G-3189 & 2014-G-3190, 2015-Ohio-3539, 2015 WL 5095950, ¶ 55-57.

{¶ 25} Given Caldwell , the extent of a juvenile court's sentencing authority in a delinquency case is manifestly broader than in an adult criminal case. To this extent, the minimal limitation upon a juvenile court's authority under the catchall provision is that disposition cannot directly conflict with another statute governing juveniles. See, e.g., In re Williams , 4th Dist. Washington No. 05CA56, 2006-Ohio-4657, 2006 WL 2588923. Appellant has not noted a conflicting statute.

{¶ 26} Moreover, given that a no-contact order serves the purposes and goals of the juvenile system, the trial court's order is sanctioned under the governing statutes and, therefore, was not void ab initio.

{¶ 27} However, this leads to the question of whether the no-contact order was still enforceable when appellant filed his motion to review/modify his sex offender status in January 2017. After a juvenile court has committed a delinquent child to the custody of the youth services department, its continuing authority over the child is governed by two statutory provisions. The first statute is R.C. 2152.16(A)(2). As noted above, R.C. 2152.16(A)(1) delineates the length of commitment a juvenile court can impose for the commission of a felony offense, including rape. Division (A)(2) of the statute then provides:

{¶ 28} "In each case in which a court makes a disposition under this section, the court retains control over the commitment for the minimum period specified by the court in divisions (A)(1)(a) to (e) of this section. During the minimum period, the department of youth services shall not move the child to a nonsecure setting without the permission of the court that imposed the disposition."

{¶ 29} The extent of a juvenile court's control over a child following a commitment order is also addressed in R.C. 2152.22(A) :

{¶ 30} "When a child is committed to the legal custody of the department of youth services under this chapter, the juvenile court relinquishes control with respect to the child so committed, except as provided in divisions (B), (C), (D), and (H) of this section or in sections R.C. 2152,82 to 2152.86 of the Revised Code. Subject to divisions (B), (C), and (D) of this section, sections 2151.353 and 2151.412 to 2151.421 of the Revised Code, sections 2152.82 to 252.86 of the Revised Code, and any other provision of law that specifies a different duration for a dispositional order, all other dispositional orders made by the court under this chapter shall be temporary and shall continue for a period that is designated by the court in its order, until terminated or modified by the court or until the child attains twenty-one years of age.

{¶ 31} "The department shall not release the child from a department facility and as a result shall not discharge the child or order the child's release on supervised release prior to the expiration of the minimum period specified by the court in division (A)(1) of section 2152.16 of the Revised Code and any term of commitment imposed under section 2152.17 of the Revised Code or prior to the child's attainment of twenty-one years of age, except upon the order of a court pursuant to division (B), (C), or (D) of this section or in accordance with section 5139.54 of the Revised Code."

{¶ 32} Given the provisions in R.C. 2152.16(A)(2) and 2152.22(A), the extent of a juvenile court's authority over a child, i.e., its jurisdiction, is very limited once an order of commitment is issued. First, pursuant to R.C. 2152.16(A)(2), the court can only control the child's placement within the youth services system for the minimum period of the commitment. As noted above, the minimum period of appellant's commitment was one year. Second, pursuant to R.C. 2152.22(A), the type of orders the juvenile court can issue regarding a child is limited. Divisions (B), (C), and (D) of R.C. 2152.22 only permit the court to grant the child judicial release at various stages throughout the commitment period. For example, division (B) governs the granting of judicial release during the first half of the minimum period. Distinct from orders concerning judicial release, a juvenile court also has jurisdiction under R.C. 2152.22(H) to issue orders pertaining to the child's supervised release under the sole authority of the youth services department. These orders are limited to stating the terms of the release and determining whether those terms have been subsequently violated. See R.C. 5139.51 and 5139.52. In addition, if the child was also classified as a juvenile offender registrant, the juvenile court retains the authority following commitment to issue orders regarding a child's petition to modify or terminate his sexual offender status. See R.C. 2152.82 et seq.

{¶ 33} None of the exceptions set forth in R.C. 2152.22(A) grant a juvenile court the general authority to enforce other pending orders in the case. Instead, the provision only allows for the issuance of new orders pertaining to three specific subjects: judicial release, supervised release granted by the youth services department, and modification or termination of the child's sexual offender status.

{¶ 34} As to the extent of the trial court's authority under R.C. 2152.16(A)(2), the ability to "control" the child's commitment would necessarily entail the authority to limit the persons with whom the child could communicate while in the secured facility. As a result, a no-contact order is enforceable under that provision. However, as previously noted, the authority granted under R.C. 2152.16(A)(2) can only be exercise during the minimum period of the child's commitment.

{¶ 35} The one-year minimum period of appellant's commitment ended in April 2016. Therefore, when appellant moved to review/modify his sex offender classification in January 2017, R.C. 2152.16(A)(2) no longer applied, and the trial court no longer had any authority to enforce its prior no-contact order.

{¶ 36} In turn, this means that when appellant's motion to review/modify came before the trial court for consideration in February 2017, all dispositional orders in the April 10, 2015 final judgment had either been satisfied or were no longer enforceable. Under these circumstances, the trial court was required to proceed on the motion and conduct a hearing regarding appellant's continuing sex offender status. Accordingly, appellant's sole assignment has merit.

{¶ 37} The judgments of the Geauga County Court Common Pleas, Juvenile Division, are reversed, and the case is hereby remanded for further proceedings.

CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.