author: Wise, John, J.

text:
    In the MATTER OF: K.K., Minor Children
    No. 2017 CA 00195
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: January 31, 2018
    BRANDON J. WALTENBAUGH, STARK COUNTY JFS, 402 2nd Street SE, Canton, Ohio 44702, For Appellee
    MARY G. WARLOP, 116 Cleveland Avenue NW, Suite 500, Canton, Ohio 44702, For Appellant Mother
    JUDGES: Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Earle E. Wise, Jr., J.
   Wise, John, J.

{¶ 1} Appellant Gaybriel F. appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, which granted permanent custody of her daughter, K.K., to Appellee Stark County Job and Family Services. The relevant facts leading to this appeal are as follows.

{¶ 2} On May 7, 2015, Appellee Stark County Job and Family Services ("SCJFS" or "agency") filed a complaint alleging that K.K., born in 2008, was neglected and/or dependent. A companion case involving K.K.'s sister, born in 2009, was also initiated. Initial concerns included the mental health of appellant-mother, her substance abuse, and housing issues.

{¶ 3} K.K. and her sister were initially placed under agency protective supervision. However, emergency shelter care was granted ex parte on June 5, 2015, one month after the complaint.

{¶ 4} An adjudication hearing took place on July 10, 2015. Both parents stipulated to a dependency finding at that time. Temporary custody of K.K. and her sister with SCJFS was also maintained.

{¶ 5} On October 16, 2015, the girls' maternal great uncle filed a motion for change of legal custody. However, he subsequently withdrew his request to intervene in the case.

{¶ 6} In the meantime, SCJFS filed a motion for permanent custody on October 5, 2016. However, the trial court denied same via a judgment entry issued on December 9, 2016.

{¶ 7} Throughout much of the case, K.K. and her sister were in placement with their paternal grandmother, even though she had not shown an interest in long-term custody. Tr. at 45. In April 2017, the agency attempted a third-party placement and correspondingly filed a motion for change of legal custody. However, said placement arrangement was not successful. Another foster placement was then arranged, which fared much better.

{¶ 8} On June 26, 2017, SCJFS filed a second motion requesting permanent custody.

{¶ 9} The matter proceeded to an evidentiary hearing held on September 11, 2017. Appellant appeared with counsel. K.K.'s father also appeared with counsel; however, he was found inter alia to have abandoned the child.

{¶ 10} Following these proceedings, via a judgment entry with findings of fact and conclusions of law issued September 13, 2017, the trial court granted permanent custody of K.K. to SCJFS. A nunc pro tunc judgment entry was issued on September 18, 2017. Permanent custody was also granted as to K.K.'s sister, under a separate case number.

{¶ 11} On October 13, 2017, appellant filed a notice of appeal. She herein raises the following two Assignments of Error:

{¶ 12} "I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 13} "II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO [THE] STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

I.

{¶ 14} In her First Assignment of Error, appellant-mother contends the trial court erred in granting permanent custody of K.K. to the agency. We disagree.

{¶ 15} R.C. 2151.414(B)(1) reads as follows:

Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

{¶ 16} We initially note the trial court in the case sub judice relied on R.C. 2151.414(B)(1)(a), supra, as well as R.C. 2151.414(B)(1)(b) and R.C. 2151.414(B)(1)(d). The latter provision is sometimes termed the "twelve of twenty-two" rule. See , e.g. , In re J.I. , 12th Dist. Preble No. CA2005-05-008, 2005-Ohio-4920, 2005 WL 2276959, ¶ 8. It is well-established that (B)(1)(a) and (B)(1)(d) are independently sufficient to use as a basis to grant an agency's motion for permanent custody. See In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, 2013 WL 1296280, ¶ 80. Similarly, (B)(1)(b) (abandonment) is independently sufficient to use as a basis to grant a motion for permanent custody. See In re N.W. , 10th Dist. Franklin No. 07AP-590, 2008-Ohio-297, 2008 WL 224356, ¶ 10 ; In re Anthony/Bentley Children, 5th Dist. Stark No. 2001CA00185, 2001 WL 1769937

{¶ 17} In this instance, while appellant focuses on the application of (B)(1)(a) and (B)(1)(b) in her case, it appears undisputed that at the time of the filing of the permanent custody motion, K.K. had been in agency custody for more than twelve months within a twenty-two month period. Under these circumstances, we are compelled, based on R.C. 2151.414(B)(1)(d), to directly proceed to an analysis of the best interest issue. See, e.g., In re Walton/Fortson Children, 5th Dist. Stark No. 2007CA00200, 2007-Ohio-5819, 2007 WL 3171171, ¶ 14.

{¶ 18} Appellant's First Assignment of Error is therefore overruled.

II.

{¶ 19} In her Second Assignment of Error, appellant-mother contends the trial court erred in granting permanent custody of K.K. to the agency, specifically in regard to the factor of "best interests." We disagree.

{¶ 20} R.C. 2151.414(D)(1) reads as follows:

In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

{¶ 21} It is well-established that the trial court is in the best position to determine the credibility of witnesses. See , e.g. , In re Brown, 9th Dist. Summit No. 21004, 2002-Ohio-3405, 2002 WL 1454025, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Furthermore, "[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned." In re Mauzy Children , 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, citing In re Awkal , 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).

{¶ 22} As the agency responds in its appellee's brief herein, appellant chiefly focuses on her case plan compliance in her "best interest" argument, although she urges that visitation has gone well and that K.K maintains a bond and a desire for continued contact with her. Also, by the time of the permanent custody trial, appellant had commendably maintained a job in Massillon and had obtained better housing near Canton Monument Park, a car, and a driver's license. However, under R.C. 2151.414(D)(1), the focus is upon the child's best interests, not upon a parent's compliance with the case plan. See In the Matter of M.H.-L.T. , 4th Dist. Washington No. 17CA12, 2017-Ohio-7825, 2017 WL 4274268, ¶ 61, citing In re K.J., 4th Dist. Athens No. 08CA14, 2008-Ohio-5227, 2008 WL 4482690, ¶ 24. In this instance, K.K. is medically and developmentally healthy, but she is dealing with behavioral problems, PTSD, and ADHD, and she needs a stable and consistent home environment, which appellant has been unable to provide or demonstrate. (See testimony of Caseworker Heather Grimes, Tr. at 44, 50, and testimony of Irene Quinlin, L.I.S.W., Tr. at 61-62.) The agency has investigated several relative placements, but all have been unsuccessful. K.K. is bonded with her sister. They have been placed together, and the foster family has indicated a willingness to adopt both girls. See Tr. at 46-47. The G.A.L. since May 2015, Attorney Christopher Coleridge, spoke favorably of the current foster placement, and reported that K.K wished to stay there. He further recommended a grant of permanent custody to the agency. Tr. at 68-71; Amended GAL Report at 2.

{¶ 23} Accordingly, upon review of the record, the judgment entry, and the accompanying findings of fact and conclusions of law, we find no basis to overturn the decision of the trier of fact, and we conclude the grant of permanent custody of K.K. was made in the consideration of the child's best interests and did not constitute an error or an abuse of discretion.

{¶ 24} Appellant's Second Assignment of Error is therefore overruled.

{¶ 25} For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.

Hoffman, P.J., and Wise, Jr., J., concur.

      The case regarding the child's sister has been appealed under a separate number.

      The (E)(7) to (E)(11) factors involve certain criminal convictions, withholding of food or medical treatment, substantial risk of harm due to alcohol or drug abuse, abandonment of the child, and termination of parental rights in regard to siblings.

      The additional statutory "best interest" guidance found in R.C. 2151.414(D)(2) has not been argued in the present appeal.

      Appellant's claim in this regard is at least partially diminished by the following testimony of Heather Grimes, the ongoing services worker for SCJFS, on the question of a diminishing bond: "Um...because they've moved so many times, the last permanent custody, not knowing where they were going to be. The periods of time where mom and dad weren't visiting. Um...there's been a lot of trauma for that. I mean there was a period of time that [K.K.] would tell me how much she hated her mom and never wanted to see her. You know most recently with these moves, even though they've moved so many times, there was never I want to go home to mom or dad. It was just you know, every place we'd go, is this my forever home?...." Tr. at 49-50.


source: Caselaw Access Project

author: ANITA LASTER MAYS, J.:

license: Public Domain

text:
    Deborah D. FITZGERALD, Plaintiff-Appellee v. John W. FITZGERALD, III, Defendant-Appellant
    Nos. 105474 105476
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 1, 2018
    Joseph G. Stafford, Nicole A. Cruz, Stafford Co., L.P.A., 55 Erieview Plaza, 5th Floor, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT.
    Margaret E. Stanard, Schoonover Rosenthal Thurman & Daray L.L.C., 1001 Lakeside Avenue, Suite 1720, Cleveland, Ohio 44114, John C. Oberholtzer, Oberholtzer & Filous, L.P.A., 39 Public Square, Suite 201, Medina, Ohio 44256, ATTORNEYS FOR APPELLEE.
    BEFORE: Laster Mays, J., Stewart, P.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} This consolidated appeal arises from the issuance of two amended qualified domestic relations orders ("QDROs") journalized on January 23, 2017. We reverse and remand for further proceedings consistent with this opinion.

I. Background and Facts

{¶ 2} On May 13, 2014, plaintiff-appellee Deborah D. Fitzgerald ("appellee") filed a complaint for divorce against defendant-appellant John W. Fitzgerald ("appellant"). On April 14, 2015, the parties entered into a property settlement agreement ("PSA") resolving all issues except for spousal support and attorney fees that were addressed through hearings by the court. The PSA also prescribed the terms for the QDROs, granting each spouse the marital portion of the other party's retirement plan. On October 20, 2015, the magistrate issued a decision adopting the PSA and granting the divorce.

{¶ 3} On April 14, 2015, the parties filed four stipulated QDROs. The stipulated QDROs for appellant's United Airlines and Continental Airlines retirement plans were denied. On November 13, 2015, the trial court adopted the magistrate's decision and, on December 31, 2015, the trial court issued a nunc pro tunc entry adopting the PSA. On November 29, 2015, appellee submitted two amended QDROs to appellant.

{¶ 4} On December 1, 2015, appellant opposed the amended QDROs, arguing that the terms did not comply with the PSA and the trial court lacked authority under R.C. 3105.171 to amend the terms. Appellant later filed a hearing request.

{¶ 5} On December 3, 2015, appellee filed a notice of submission of the QDROs under Loc.R. 28 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. On December 21, 2015, a status call was scheduled for January 19, 2016 on the motion for evidentiary hearing. On December 22, 2015, the status call notice was reissued for the same time and date but before a different judge, and then was subsequently rescheduled for February 16, 2016.

{¶ 6} New counsel entered an appearance for appellee on October 27, 2016. On January 23, 2017, a third judge approved the amended QDROs. The consolidated appeals followed.

II. Assignments of Error

{¶ 7} Appellant presents two assigned errors:

I. The trial court erred as a matter of law and abused its discretion by issuing the amended QDROs that are inconsistent with the PSA.
II. The trial court erred as a matter of law and abused its discretion by adopting the amended QDROs without a hearing and without addressing appellant's objections.

III. Discussion

{¶ 8} We combine the assigned errors for judicial economy. Generally, the division or distribution of marital property is not subject to future modification by a court. A QDRO prescribes the division of retirement and pension accounts. R.C. 3105.171. The parties agree that the QDROs do not comply with the PSA of the parties. Appellant argues that the trial court erred by issuing the QDROs without responding to appellant's objections and without a hearing. Appellee argues that the QDROs are void because the trial court lacked jurisdiction to issue them. As a result, appellee posits that the QDROs do not constitute final appealable judgments under R.C. 2505.02 because no substantial rights are affected.

{¶ 9} In Brownlee v. Brownlee , 8th Dist. Cuyahoga No. 94494, 2010-Ohio-5602, 2010 WL 4684656, the appellant appealed the denial of a motion to set aside a QDRO on the grounds that "the order was not consistent with the judgment entry of divorce." Id. at ¶ 5. We determined,

"A QDRO does not in any way constitute a further adjudication on the merits of the pension division, as its sole purpose is to implement the terms of the divorce decree." [ Wilson v. Wilson , 116 Ohio St.3d 268, 878 N.E.2d 16, 2007-Ohio-6056,] at ¶ 16. "Once a division of property is established in the divorce decree that decision 'is not subject to future modification by the court.' R.C. 3105.171(I)." Schneider v. Schneider , 5th Dist. Stark No. 2009CA00090, 2010-Ohio-534, 2010 WL 569886, ¶ 9.

Id. at ¶ 6.

{¶ 10} "A QDRO that fails to implement the divorce decree is void" and a "trial court has the inherent power to vacate a void decree." Id. at ¶ 8, citing Bagley v. Bagley , 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, ¶ 26 (2d Dist.), Himes v. Himes , 5th Dist. Tuscarawas No. 2004AP020009, 2004-Ohio-4666, 2004 WL 1948704, ¶ 20-21 ; Doolin v. Doolin , 123 Ohio App.3d 296, 704 N.E.2d 51 (6th Dist.1997).

{¶ 11} The Brownlee dissent opined that the motion to vacate the QDRO was merely an attempt to circumvent the failure to timely appeal. "[T]he reservation of jurisdiction to modify the terms of a division of marital property does not implicate subject matter jurisdiction." Id. at ¶ 11, citing Bagley at ¶ 44.

{¶ 12} The Second District subsequently shifted its position in Bagley and determined that:

[W]e overrule our holding in Bagley , that a QDRO which varies from the division of pension plan benefits ordered in a decree of divorce or dissolution in violation of R.C. 3105.171(I) is void for lack of jurisdiction, and hold that the violation is voidable for error. Being voidable for error, the QDRO is an order subject to appeal for review of the error concerned.

Pearl v. Pearl , 2012-Ohio-4752, 980 N.E.2d 1095, ¶ 17 (2d Dist.). This shift supports the Brownlee dissent's refusal to wholly jurisdictionalize the issue.

{¶ 13} At the oral argument in this case, counsel expressed frustration with the tension resulting from the requirement to timely appeal an order regarding a QDRO and the reality that it may takes months for a plan administrator to deny a QDRO, requiring further attention by the trial court. It is in recognition of this dichotomy that we elect to shift our position previously expressed in Brownlee , noting that Brownlee was based on the Second District's Bagley decision that was subsequently rejected in Pearl .

{¶ 14} We find that the interest of justice is served, and procedural difficulties addressed, by declaring that the issue of the propriety of a QDRO is voidable for error and therefore subject to appeal. Subject matter jurisdiction is not implicated where a trial court has reserved jurisdiction to "modify the terms of a division of marital property." Brownlee at ¶ 11, citing Bagley , 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, at ¶ 44. Where simple error does not initially exist, but a plan administrator subsequently rejects a QDRO, the proper vehicle to address the matter is through Civ.R. 60(B).

{¶ 15} In the case before us, the parties agree that the QDROs do not comply with the PSA and the appeals were timely filed. We find that this court has jurisdiction to entertain the matter as a matter of law. We vacate the orders and remand the case to the trial court for an evidentiary hearing to review the PSA and determine whether it is inconsistent with the QDROs. The combined assigned errors are sustained.

IV. Conclusion

{¶ 16} The trial court's order is reversed, and the case is remanded to the trial court to hold a hearing to entertain the question of whether the QDROs comply with the PSA.

MELODY J. STEWART, P.J., and MARY J. BOYLE, J., CONCUR

      We note that the Brownlee decision included a concurrence in judgment only and dissent.

      The Civ.R. 60(B) motion posed by the appellant in Brownlee "failed to make any argument on the requisite elements of a motion for relief from judgment as set forth in paragraph two of the syllabus to GTE Automatic Elec. v. ARC Indus. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976)." Id. at ¶ 12.


author: THOMAS R. WRIGHT, J.

text:
    SHELLY MATERIALS, INC., Appellee, v. CITY OF STREETSBORO PLANNING AND ZONING COMMISSION, et al., Appellants.
    NO. 2017-P-0025
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided December 29, 2017
    Barry W. Fissel, and Brian P. Barger, Eastman & Smith LTD., 100 East Broad Street, Suite 2100, Columbus, OH 43215 (For Appellee).
    John D. Latchney, O'Toole, McLaughlin, Dooley & Pecora Co., LPA, 5455 Detroit Road, Sheffield, OH 44054; and Paul A. Janis, Streetsboro Law Director, 9184 State Route 43, Streetsboro, OH 44241 (For Appellants).
   THOMAS R. WRIGHT, J.

{¶ 1} Appellants, the City of Streetsboro Planning and Zoning Commission and two of the city's zoning officials, appeal the common pleas court's decision reversing the Commission's determination denying a conditional use permit. Appellants primarily challenge the common pleas court's ruling that the Commission misapplied the evidence to the statutory criteria. The trial court's decision is reversed and the Commission's determination is reinstated.

{¶ 2} Appellee, Shelley Materials, Inc., an Ohio corporation, is engaged in the business of extracting natural resources. This includes surface mining to extract sand and gravel, employed in the construction of roads and building foundations. At some point prior to April 2016, appellee executed a lease to the mineral rights underlying a 226-acre tract of land, previously a horse farm, located near the intersection of State Route 14 and Diagonal Road.

{¶ 3} The tract is zoned as a rural-residential district. Since 1981, surface mining has been a permitted conditional use in rural-residential districts and has occurred at a few sites over the years. When appellee entered into the lease, a surface mine was being operated by a separate entity, Jefferson Materials, Inc. That site abuts the northwest corner of the tract. In light of the proximity, appellee entered into an agreement with Jefferson Materials, wherein all sand and gravel extracted at the proposed site would be transferred to the Jefferson Materials site for processing.

{¶ 4} Prior to beginning the process of obtaining permits to surface mine the tract, appellee held a public meeting to explain the project to those interested. Some who attended this meeting were homeowners whose property abuts the proposed site. After the public meeting, one of those homeowners, George Mitchell IV, hired counsel and submitted an application with the City of Streetsboro to amend its zoning ordinance to ban surface mining as a permitted conditional use throughout the city. On April 12, 2016, as part of the amendment process, the Commission passed a recommendation banning surface mining. Three months later, on June 27, 2016, the Streetsboro City Council adopted the amendment.

{¶ 5} On April 13, 2016, before the amendment was passed, appellee filed its application for a conditional use permit. Since a property owner's entitlement to a zoning permit is determined in accordance with the ordinances in effect at the time of application, the amendment banning surface mining could not be applied to appellee's application. Beth Jacob Congregation v. City of Huber Heights Bd. of Zoning Appeals , 2d Dist. Montgomery No. 16650, 1998 WL 125568, *2 (Mar. 20, 1998).

{¶ 6} After appellee's application was initially reviewed by the city zoning director, it filed a supplemental submission, addressing some of the concerns raised by the zoning director. The Commission then conducted an initial hearing on the application on June 14, 2016, consisting of unsworn statements made by those in attendance regarding the proposed project.

{¶ 7} A three-day evidentiary hearing before the Commission was held later. During this hearing, appellee presented testimony addressing the six general criteria set forth in Section 1153.03(c) of the city zoning ordinance for the issuance of a conditional use permit. In relation to whether the proposed surface mining project would be detrimental to the property in the immediate vicinity, appellee presented the testimony of Paul K. Bidwell, a certified residential and commercial appraiser. Based upon a report he previously produced, Bidwell testified that, in his opinion, surface mining would have no adverse effect upon the value of the homes in the immediate vicinity.

{¶ 8} Thereafter, the Commission heard sworn testimony from the Portage County Regional Commission Director, the city zoning director, a private engineer, and an environmental scientist regarding application. Appellee's lead counsel declined to question them. Mitchell's counsel presented two witnesses and legal arguments concerning whether appellee had carried its burden of proof.

{¶ 9} After discussion, in September 2016, the Commission denied the application. The Commission stated in part that surface mining is not consistent with the general "spirit" of the city's zoning ordinance, citing the recent surface mining ban. The Commission also found that appellee failed to meet at least four of the six requirements.

{¶ 10} Appellee appealed to the common pleas court, where the case was initially assigned to a magistrate for consideration. After the record of the Commission proceedings was filed, including transcripts of the three evidentiary hearings, appellee and the Commission submitted briefs. The parties presented oral arguments in a separate hearing, but no additional evidence was submitted.

{¶ 11} In a written decision, the magistrate concluded that the Commission erred in basing its determination, in part, upon improper non-evidentiary materials. She found error with Commission members' statements referencing opinions expressed by the public during the first hearing and the reference in the Commission's decision noting the ban. The magistrate also held that none of the Commission's findings were supported by a preponderance of the evidence, and that appellee carried its burden of proof on all six requirements. The magistrate recommended reversing the Commission's ruling and entering judgment granting appellee a surface mining permit.

{¶ 12} The Commission objected, challenging all aspects of the magistrate's decision. In relation to the statutory requirements for a conditional use permit, the common pleas court held that the magistrate followed the proper standard of review in determining whether the Commission's factual findings were supported by the evidence. The court also upheld the magistrate's conclusion that the Commission had improperly considered the passage of the recent city ordinance proscribing surface mining. The court ultimately overruled the Commission's objections and entered judgment in favor of appellee.

{¶ 13} Appellants appeal assigning the following as error:

{¶ 14} "The trial court committed reversible error when it adopted the magistrate's decision, which reversed the decision of the City of Streetsboro Planning and Zoning Commission."

{¶ 15} Although the Commission asserts three separate issues for review, only the second issue is addressed as it is dispositive. Under that issue, the Commission contends that both the common pleas court and the magistrate erred in rejecting its factual findings. Focusing upon the fourth of the six requirements, the Commission maintains that the magistrate should have affirmed its finding that appellee failed to establish that the proposed surface mining project would not be detrimental to property in the immediate vicinity. According to the Commission, the magistrate erred in holding that the Commission was required to accept Bidwell's uncontroverted testimony.

{¶ 16} R.C. 2506.04 sets forth the standard of review for a common pleas court hearing an administrative appeal:

{¶ 17} "[T]he court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole of the record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision * * *."

{¶ 18} In relation to a zoning board's factual determinations, the common pleas court must decide whether the findings are supported by a preponderance of the substantial, reliable, and probative evidence in the administrative record. Battaglia v. Newbury Twp. Bd. Of Zoning Appeals , 11th Dist. Geauga No. 99-G-2256, 2000 WL 1804344, *2 (Dec. 8, 2000).

{¶ 19} "In undertaking this review, the common pleas court, acting as an appellate court, must give due deference to the administrative agency's determination of evidentiary conflicts. Battaglia , supra , at *7. Accordingly, the common pleas court may not substitute its judgment for that of the agency. Id. ; [ Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals , 66 Ohio St.3d 452, 456, 613 N.E.2d 580 (1993) ]. Rather, the common pleas court 'is bound by the nature of the administrative proceedings to presume that the decision of the administrative agency is reasonable and valid[,]' and the burden of demonstrating the invalidity of the agency's decision is on the contesting party. Id. ; * * *. See also C. Miller Chevrolet v. Willoughby Hills , 38 Ohio St.2d 298, 313 N.E.2d 400 (1974), paragraph two of the syllabus." Green Vision Materials, Inc. v. Newbury Twp. Bd. of Zoning Appeals , 11th Dist. Geauga No. 2013-G-3136, 2014-Ohio-4290, 2014 WL 4824981, ¶ 50.

{¶ 20} "The role of an appellate court is even more limited in scope. A court of appeals must affirm the decision of the common pleas court unless it finds, as a matter of law, that the decision of the court of common pleas is not supported by a preponderance of substantial, reliable, and probative evidence. [ Kisil v. Sandusky , 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984) ]. While the court of common pleas has the power to weigh the evidence, an appellate court is limited to reviewing the judgment of the common pleas court strictly on questions of law. [ Battaglia , supra ]." Akwen, Ltd. v. Ravenna Zoning Bd. of Appeals , 11th Dist. Portage No. 2001-P-0029, 2002 WL 480041, *3 (Mar. 29, 2002).

{¶ 21} Section 1153.03 of the city zoning ordinance states:

{¶ 22} "(a) The applicant shall be required to establish by clear and convincing evidence that the general standards of this Zoning Ordinance and this Chapter and the specific standards pertinent to each proposed use shall be met for the proposed use provided further that any requirements of this Zoning Ordinance for permitted use(s) within a district shall be applicable to any conditional use unless otherwise stated herein.

{¶ 23} "(b) The Planning and Zoning Commission shall determine if the proposed use complies with these regulations and shall insure (sic) that the specific standards and requirements of this Zoning Ordinance pertinent to the proposed use shall be satisfied.

{¶ 24} "(c) General Standards. The Planning and Zoning Commission shall review the particular facts and circumstances of each proposed use in terms of the following standards and shall find adequate evidence showing that such use of the proposed location:

{¶ 25} "(1) Will be harmonious with and in accordance with the general objectives or with any specific objective of the Streetsboro Development Policy Plan of current adoption;

{¶ 26} "(2) Will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area;

{¶ 27} "(3) Will not be hazardous or disturbing to existing or future neighboring uses;

{¶ 28} "(4) Will not be detrimental to property in the immediate vicinity or to the community as a whole;

{¶ 29} "(5) Will be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, and school; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such service;

{¶ 30} "(6) Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public streets or roads."

{¶ 31} The parties do not dispute that the standard set forth in Section 1153.03(c) applies in the conjunctive; i.e., appellee must satisfy all six requirements to obtain a conditional use permit. Although the Commission did not cite to any specific requirement, it is clear that the Commission found appellee failed to satisfy the first four requirements. On appeal, though, the magistrate held that appellee carried its burden of proof as to all six requirements.

{¶ 32} The fourth requirement is dispositive. As previously noted, appellee's evidence that surface mining will not be detrimental to property in the immediate vicinity, consisted of the testimony of Bidwell, a certified residential and commercial appraiser. Based upon his appraisal of the adjacent homes, and a comparison to properties in other areas located near surface mines, Bidwell opined that the surface mine would not be detrimental to the property values in the immediate vicinity. While there was no conflicting expert testimony, the Commission found Bidwell's testimony lacking because it was predicated on an invalid comparison.

{¶ 33} In rejecting the Commission's conclusion on this point, the magistrate noted that Bidwell had 30 years of experience as an appraiser and had submitted a 76-page report in support of his opinion. The magistrate further noted that, despite the ability to do so, the Commission failed to refer this issue to consultants for further review and therefore, did not produce a conflicting opinion. The magistrate therefore held that the Commission's conclusion against appellee on the detrimental issue is not supported. The common pleas court did not directly address this point.

{¶ 34} The flaw is that the magistrate fails to recognize that appellee has the burden, and provided Bidwell's testimony lacks credibility, appellee fails.

{¶ 35} A trier of fact has no duty to accept evidence, expert or otherwise, as persuasive solely because it was not contradicted or challenged. Bickerstaff v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin Nos. 13AP-1028 and 13AP-1029, 2014-Ohio-2364, 2014 WL 2558945, ¶ 23 ; McWreath v. Ross , 179 Ohio App.3d 227, 2008-Ohio-5855, 901 N.E.2d 289, ¶ 85 (11th Dist.). However, a justifiable reason for rejecting expert testimony must exist; such evidence cannot be ignored arbitrarily. Bickerstaff , at ¶ 23.

{¶ 36} There was a justifiable reason for the Commission to reject Bidwell's opinion. After direct examination, Bidwell was asked multiple questions by commission members and other city officials. In responding to these questions, Bidwell acknowledged that the comparison properties utilized to form his opinion were further away from the surface mine than the properties at issue. Specifically, the properties in his comparison were between 2,000 and 3,000 feet from surface mining, while the properties at issue here are much closer, approximately 500 feet. Moreover, Bidwell acknowledged that some of the properties in the comparison group were probably separated from mining operations by natural buffers, such as woods, furthering distinguishing the comparison properties from the properties at issue. Based upon this, the Commission justifiably found Bidwell's comparison to be lacking, and his opinion unpersuasive.

{¶ 37} The Commission had a justifiable reason to reject Bidwell's opinion. Therefore, since appellee failed to carry its burden, the Commission did not err in denying the application.

{¶ 38} In its final judgment, the common pleas court placed heavy emphasis on the Commission's motivation in deciding against appellee. According to the court, the Commission wanted to act consistently with the recently-enacted ordinance banning surface mining. As to this point, the court aptly noted that one commission member referenced the ban at the third evidentiary hearing and that in its written decision, the Commission concluded that given the current surface mining ban, granting appellee's application would be inconsistent with the spirit of the city's zoning ordinance.

{¶ 39} Nevertheless, nothing indicates that the rejection of Bidwell's testimony was improper. Furthermore, the city law director advised the Commission at the hearing that the amended ordinance could not be considered in deciding appellee's application. Accordingly, as there was a justifiable reason for the Commission to deny the conditional use permit, the trial court erred.

{¶ 40} The Commission's sole assignment of error has merit. The judgment of the Portage County Court of Common Pleas is reversed, and the decision of the City of Streetsboro Planning and Zoning Commission is reinstated.

COLLEEN MARY O'TOOLE, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

{¶ 41} I dissent from the majority's decision to reverse the common pleas court's order, based on an incorrect conclusion that the Commission properly denied Shelley Materials' application for a conditional use permit. Given the critical flaws in the Commission's reasoning, including its outright rejection of the only expert testimony as to the impact of the property's use on the surrounding areas and its improper references to recent changes in the Streetsboro zoning ordinances, the lower court's ruling was justified and resulted in the appropriate outcome.

{¶ 42} The majority concludes that the Commission acted within its discretion to find the testimony of an experienced appraiser, Paul Bidwell, unconvincing, thereby justifying a conclusion that Shelley Materials failed to prove that the mining would not be detrimental to nearby property. However, the magistrate rightfully expressed serious concerns about the Commission's decision to entirely reject Bidwell's testimony, especially in light of the lack of any conflicting expert testimony. The Commission, comprised of laymen, essentially determined that it knew more about property valuation than an appraiser with 30 years of experience. In so doing, minor, and likely insignificant, differences in comparison properties were emphasized, such as the distance from the surface mining or separation by natural buffers. The Commission created an unrealistic expectation, essentially requiring Bidwell to find examples of properties that were exactly the same for comparison, a proposition that is unreasonable given the unique circumstances of this type of property. In so doing, the members themselves acted as witnesses, advancing their own opinions, without any supporting evidence, above that of the expert.

{¶ 43} While the majority rejects the lower court's well-reasoned analysis as to the foregoing issue by arguing that there is a limited standard of review, this is unavailing. The Ohio Supreme Court has emphasized that a common pleas court can substitute its judgment for that of the administrative board or commission if it finds that there "is not a preponderance of reliable, probative and substantive evidence to support the board's decision." Kisil v. Sandusky , 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). Importantly, it has explained that this type of review under R.C. 2506.04"often in fact resembles a de novo proceeding." Id. ;

Marks v. Aurora Bd. of Zoning Appeals , 2016-Ohio-5183, 69 N.E.3d 216, ¶ 14 (11th Dist.). Thus, it was necessary for the common pleas court to examine all of the evidence and determine whether there was a preponderance to support the Commission's decision. The court of common pleas is required to hold the Commission accountable and ensure that its findings were supported by reliable and substantial evidence. This is exactly what the lower court did. The Commission rejected Bidwell's report, finding on its own and/or by relying on lay witnesses that there would be an impact on the surrounding properties. This conclusion was correctly rejected by the lower court as not supported by the evidence, since an administrative determination cannot rest upon "inferences improperly drawn from the evidence adduced." Univ. of Cincinnati v. Conrad , 63 Ohio St.2d 108, 111-112, 407 N.E.2d 1265 (1980).

{¶ 44} The necessity of the lower court thoroughly reviewing the Commission's decision-making process, rather than merely rubber-stamping its decision, is especially critical in the present case. There exists a serious concern that the Commission's decision was impacted by nonlegal factors not properly before it for consideration. One member of the Commission noted during the deliberations, in discussing whether the permit application was harmonious with the master zoning plan, that "surface mining is no longer permitted as a conditional use." While recognizing there was a "timing" issue, he considered the "spirit of the code" and noted that "this is not something that the people of Streetsboro want to move forward with as a conditional use." This clearly erroneous and legally feckless analysis indicates that his decision was made with the recent changes to the zoning provisions, prohibiting such permits, in mind. Such analysis is wrong as a matter of law. Other members noted they agreed with his statements. Appellants concede that the zoning code, as amended, could not be applied in this case given that the changes took place after Shelley Materials filed for its permit. An individual cannot be denied a "conditional zoning certificate because the conditionally permitted use proposed is no longer desired for the proposed location. Such a basis is outside [of a body's] administrative authority * * *." Gillespie v. Stow , 65 Ohio App.3d 601, 607, 584 N.E.2d 1280 (9th Dist.1989), citing Gerzeny v. Richfield Twp. , 62 Ohio St.2d 339, 342, 405 N.E.2d 1034 (1980).

{¶ 45} Shelley Materials cannot be punished or prohibited from using its property in a beneficial manner based on changes that occurred after it took steps to lawfully exercise its property use. There is little question that this improper consideration impacted the overall Commission proceedings, given the general tone that Streetsboro should no longer allow this use, even though it was permitted at the time of Shelley Materials' request. Concerns expressed regarding the "spirit of the code" are also improper since, if a conditional use permit for surface mining was not within the "spirit of the code," it would not have been permitted by the zoning code at the time of appellee's filing. The timing of the changes to the zoning ordinances, as well as the commentary throughout the hearings on that change and the request for the permit, should give pause to anyone reviewing the record. It raises serious questions as to whether Shelley Materials truly had a fair chance to receive a permit.

{¶ 46} Finally, this court should be mindful that its review is "more limited in scope" and we can reverse only if we find an error "as a matter of law." Kisil , 12 Ohio St.3d at 34, 465 N.E.2d 848 ; Carrolls Corp. v. Willoughby Bd. of Zoning Appeals, 11th Dist. Lake No. 2005-L-110, 2006-Ohio-3411, 2006 WL 1816935, ¶ 10. Any errors alleged here simply do not rise to the level of error as a matter of law. The lower court appropriately exercised its duty to review the Commission's decision and determined it was not supported by reliable and probative evidence. Legitimate questions were raised as to why valid expert evidence was rejected, without any contrary testimony. Comments or questions made by a zoning appeals or commission members do not constitute evidence and a commission's decision must be supported by, and limited to, evidence in the record other than the members' personal statements or beliefs. See Kuhns v. Kent , 11th Dist. Portage No. 2010-P-0002, 2010-Ohio-5056, 2010 WL 4054446, ¶ 19 ; Cooper State Bank v. Columbus , 10th Dist. Franklin Nos. 14AP-414 and 14AP-415, 2015-Ohio-2533, 2015 WL 3917588, ¶ 31. In reversing, this court recklessly and improperly interferes with the lower court's prescient exercise of its authority to review decisions in administrative matters.

{¶ 47} Given the foregoing, the flaws in the Commission's decision and the common pleas court's proper exercise of its authority in reviewing that decision, it is evident that reversal is not warranted. For these reasons, I dissent.

      Incidentally, additional evidence presented by Shelley Materials in the form of the testimony of geologist, Frank Tokar, supported a conclusion that there would be no hazard to existing or neighboring uses and there would be no impact to surface water, ground water, or any flora or fauna. This lends additional support to the conclusion that property values would not be impacted.


author: DIANE V. GRENDELL, J.

text:
    Richard MCCONNELL, Plaintiff-Appellant, v. BARE LABEL PRODUCTIONS, INC., et al., Defendants,
    Tammy Schmitt, Intervening Defendant-Appellee
    NO. 2015-T-0053
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided December 29, 2017
    Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For Plaintiff-Appellant).
    Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For Intervening Defendant-Appellee).
   DIANE V. GRENDELL, J.

{¶ 1} Plaintiff-appellant, Richard McConnell, appeals the Judgment Entry of the Trumbull County Court of Common Pleas, following this court's remand in McConnell v. Bare Label Prods., Inc. , 11th Dist. Trumbull No. 2013-T-0050, 2015-Ohio-1206, 2015 WL 1432464. The issue before this court is whether a trial court must comply with the mandate of an appellate court where the judgment is supported by a majority of judges hearing the cause. For the following reasons, the judgment of the lower court is modified and reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

{¶ 2} The underlying case, originally filed on January 24, 2008, involved claims against intervening defendant-appellee, Tammy Schmitt, for violation of R.C. 1701.37, interference with a business relationship, breach of a fiduciary duty, and punitive damages/attorney fees. The factual and procedural history of this case is set forth in McConnell , 2015-Ohio-1206.

{¶ 3} Following trial to the court, judgment was entered against Schmitt in the amount of $23,030 on April 9, 2013. McConnell appealed.

{¶ 4} After the case had been pending for twenty-three months on appeal, on March 31, 2015, this court issued the following Judgment Entry, constituting the mandate of this court: "The order of this court is that the judgment of the Trumbull County Court of Common Pleas is reversed and this cause is remanded for further proceedings consistent with the opinion." App.R. 27 ("[a] court of appeals may remand its * * * judgments * * * to the court below for further proceedings therein" and "[a] certified copy of the judgment shall constitute the mandate"). In accord with Section 3(B)(3), Article IV of the Ohio Constitution, this Judgment was rendered by two judges of this court-the second judge concurring in judgment only. Id. ("[a] majority of the judges hearing the cause shall be necessary to render a judgment"). The third judge concurred in part and dissented in part.

{¶ 5} Upon remand, the trial court determined that it was without "clear directive" as to how to proceed, as "the authored opinion was not joined by enough jurists to create a majority as to the body of its work."

{¶ 6} On April 28, 2015, the trial court entered judgment against Schmitt in the amount of $23,071 for lost profits of the business during the first six months of operation, $23,071 for lost profits during the remaining six months of McConnell's employment contract; and $1 for punitive damages.

{¶ 7} On May 26, 2015, McConnell filed a Notice of Appeal. On appeal, McConnell raises the following assignments of error:

{¶ 8} "[1.] The court erred to the prejudice of plaintiff in again finding that appellant was not entitled to an award of statutory forfeiture damages pursuant to R.C. 1701.94 contrary to the clear directives of the reviewing court."

{¶ 9} "[2.] The court erred to the prejudice of plaintiff in failing to include significant and primary revenue sources in its calculation of lost profits contrary to the clear directives of the reviewing court."

{¶ 10} "[3.] The court erred to the prejudice of plaintiff in failing to award lost profits beyond the term of the management agreement contrary to the clear directives of the reviewing court."

{¶ 11} "[4.] The trial court erred to the prejudice of appellant by failing to award as damages his percentage of ownership of Club Pink's property removed by the appellee just prior to sale and then returned immediately thereafter contrary to the clear directives of the reviewing court."

{¶ 12} "[5.] The trial court erred to the prejudice of appellant by failing to award attorneys fees to appellant and only awarding one dollar in punitive damages contrary to the clear directives of the reviewing court."

{¶ 13} In the first assignment of error, McConnell claims the trial court failed to comply with this court's mandate in the prior appeal to award statutory damages pursuant to R.C. 1701.94. We agree.

{¶ 14} On this issue in the prior appeal, the trial court had found in favor of Schmitt on McConnell's claim that she violated R.C. 1701.37(C), by failing to produce corporate records upon request. This court reversed and remanded with instructions for "the lower court * * * to either reinstate the December 26, 2012 Judgment [awarding McConnell statutory fines in the amount of $47,580 for violating 1701.37(C) ], or, if it finds this amount to be in error, to recalculate the amount of statutory damages to which McConnell is entitled." McConnell , 2015-Ohio-1206, at ¶ 38.

{¶ 15} Instead of complying with this court's mandate, the trial court concluded that the determination that Schmitt had violated R.C. 1701.37(C) was against "the manifest weight of the direct evidence" and so would "not impose a statutory penalty." The court further stated that it could not "in good conscience simply revert to [the December 26, 2012 Judgment] as suggested by the author of the appellate decision."

{¶ 16} It is well-established law that "an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case." Nolan v. Nolan , 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus; Calvaruso v. Calvaruso , 9th Dist. Summit No. 21781, 2004-Ohio-1877, ¶ 30, 2004 WL 785454. "[T]he rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution" Nolan at 3, 462 N.E.2d 410 ; State ex rel. Potain v. Mathews , 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979) ("[t]he [Ohio] Constitution does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals").

{¶ 17} It is equally well-established that "[a] judge shall comply with the law ." (Emphasis sic.) Jud.Cond.R. 1.1; Disciplinary Counsel v. O'Neill , 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 10 ("[b]y refusing to comply with the mandate of an appellate court, respondent violated [a] basic judicial duty").

{¶ 18} The trial court justified the violation of its judicial duty on the grounds that "[t]he opinion from the Appellate Court was not a majority opinion," but, "[r]ather, it was authored by one jurist" while "[a]nother jurist concurred in the judgment only." In doing so, the court misconstrued what constituted this court's judgment and what constituted this court's opinion. The opinion is a "written statement explaining [the court's] decision in a given case." Black's Law Dictionary 1125 (8th Ed. 2004). The court's opinion is distinct from its judgment which is "[a] court's final determination of the rights and obligations of the parties in a case." Id. at 858. The opinion in the 2015 McConnell appeal was unsupported by a majority of the judges, but the judgment did have the support of a majority of judges. The fact that the opinion lacked precedential value did not absolve the inferior court in the case from abiding by this court's judgment.

{¶ 19} The first assignment of error is with merit. The trial court's April 28, 2015 Judgment Entry is reversed with respect to the denial of statutory damages. Based on the record, judgment is entered in favor of McConnell in the amount of $47,580 on Count I of the Amended Complaint (Violation of O.R.C. § 1701.37 by Defendant Schmitt).

{¶ 20} In the second and third assignments of error, McConnell challenges the trial court's award of lost profits on remand.

{¶ 21} In the prior appeal, this court held as follows with respect to lost profits:

McConnell presented sufficient evidence of Club Pink's profitability to merit an award of lost profits beyond his seven-month period of employment. * * * Given the totality of the evidence, the trial court should have fashioned an appropriate remedy to compensate McConnell, not only for lost shareholder profits during his period of employment, but also for the period after his employment, during which he remained a 49% shareholder.
McConnell's losses as a 49% owner of Masury Real Estate * * * were demonstrated with reasonable certainty. * * * McConnell is entitled to $35,770, representing his share of the rents * * *.

McConnell , 2015-Ohio-1206, at ¶ 45-46.

{¶ 22} On remand, the trial court partially complied with this court's mandate. The court awarded McConnell $23,071 "for lost profits during his operation of the club," and $23,071 "for lost profits for the remaining six months under his employment contract."

{¶ 23} The trial court did not, however, award McConnell lost profits from Masury Real Estate. Rather, the court construed this court's judgment that "McConnell is entitled to $35,770, representing his share of the rents" as "dicta" which it "decline[d] to follow."

{¶ 24} As noted above, this court's judgment was supported by a majority of the judges and the trial court is without discretion to disregard it.

{¶ 25} The second and third assignments of error are with merit. The trial court's April 28, 2015 Judgment Entry is reversed with respect to future lost profits from Masury Real Estate. Based on the record, judgment is entered in favor of McConnell in the amount of $35,770 representing "[o]ne-half (1/2) of the rental monies collected or entitled to be collected by Masury Real Estate, Inc." See page 9 of the Amended Complaint.

{¶ 26} In the fourth and fifth assignments of error, McConnell contends the trial court did not enter a proper award of punitive damages in accordance with this court's previous decision.

{¶ 27} In the prior appeal, this court held as follows with respect to punitive damages:

On remand, the trial court should fashion an award of punitive damages, taking into consideration McConnell's testimony regarding attorney fees and the removal of property and equipment from the club building.

McConnell , 2015-Ohio-1206, at ¶ 51 ; also id. at ¶ 49 ("[p]unitive damages may [be] awarded based on a claim of breach of fiduciary duty where there is a demonstration of 'actual malice' ").

{¶ 28} The trial court made a pretense of complying with this court's judgment, stating, "in review of the evidence presented, * * * the Appellate Court is correct." Thereupon, the court "award[ed] McConnell $1.00 (ONE DOLLAR) in punitive damages against Schmitt after taking into consideration the totality and credibility of the evidence."

{¶ 29} The trial court's purported compliance with this court's judgment may best be described as facetious. Again, we note that a judge has the obligation to recuse himself when his impartiality might reasonably be questioned. State v. Watkins , 2d Dist. Clark No. 10CA0088, 2011-Ohio-2979, ¶ 12, 2011 WL 2436961 (finding that a judge's impartiality could reasonably be questioned where "the trial court judge was unable to reconcile his views with our prior decision").

{¶ 30} In the interests of facilitating judicial economy, preventing further injustice, and obtaining a timely, fair, and final determination, it is the order of this court that this matter be remanded to the administrative judge for reassignment to another judge of the court of common pleas.

{¶ 31} The fourth and fifth assignments of error are with merit. The trial court's April 28, 2015 Judgment Entry is reversed with respect to punitive damages and this cause is remanded with instructions for the lower court, upon reassignment, to comply with this court's prior decision, i.e., to "fashion an award of punitive damages, taking into consideration McConnell's testimony regarding attorney fees and the removal of property and equipment from the club building." Furthermore, on remand and reassignment, a hearing is to be held to determine the amount of attorney fees and litigation expenses incurred by McConnell in the course of these proceedings.

{¶ 32} In cases such as this, where the lower court judge indicates that he "in good conscience" cannot follow the appellate court's judgment on remand, the Ohio Supreme Court and Ohio appellate courts have recognized the authority of the appellate court to order the assignment of another judge to hear the case on remand. Columbus v. Hayes , 68 Ohio App.3d 184, 189, 587 N.E.2d 939 (10th Dist. 1990) ("[s]ince the trial judge has made it perfectly clear that he does not intend to follow the mandate of this court, it is apparent that any further proceedings in which he participates will prejudice the appellant"); United States v. Snyder , 235 F.3d 42, 48 (1st Cir.2000) ("when a judge proves unable to put aside his personal convictions in order to carry out the law * * *, then recusal is of course warranted"); Nolan , 11 Ohio St.3d at 3, 462 N.E.2d 410 ("where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law"). Here the lower court judge's comments and token punitive award of one dollar further evidence the judge's unwillingness to follow the judgment of the appellate court on remand.

{¶ 33} The dissent states that the trial court was entitled to exercise "free reign" on remand because "the lead opinion was not joined by a majority of the appellate judges hearing the case" and, so, "did not control," or "dictate the proceedings on remand."

{¶ 34} Note that the situation in the prior appeal with respect to the positions taken by members of the panel is not unusual. A similar situation existed in State v. Victor , 11th Dist. Geauga Nos. 2014-G-3220 and 2014G3241, 2015-Ohio-5520, 2015 WL 9594363. In Victor , this court's judgment was that "judgment of the Chardon Municipal Court is reversed and the matter is remanded for further proceedings consistent with this opinion * * * [s]pecifically, upon remand, appellant must be afforded a new trial wherein she is to be represented by counsel, unless she makes a knowing, intelligent, and voluntary waiver thereof." Id. at ¶ 37. As in this case, this court's opinion was not supported by a majority of the panel. One judge dissented. The other judge (Wright, J.), who writes a scathing dissent in this matter, concurred in judgment only, declining to "regale" the other members of the panel and the litigants before the court with his "relevant insight" or "heretofore undisclosed knowledge of why the lead opinion is right albeit for alternative reasons."

{¶ 35} We question whether that judge who concurred in judgment only believed the Chardon Municipal Court had free reign on remand to disregard this court's decision. Could the municipal court have re-convicted Ms. Victor without counsel and/or a knowing, intelligent, and voluntary waiver if the court, in "good conscience," felt unable to comply with the mandate of this court? We also question if all lower courts receiving cases on remand from divided appellate panels enjoy similar reign to act according to the dictates of conscience rather than the judgment of the superior court.

{¶ 36} The cases cited by the dissent do not support his unique "free reign" theory of proceeding on remand. They stand for the unremarkable proposition that a plurality opinion does not constitute controlling law. Kraly v. Vannewkirk , 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). To the extent that these cases cited by the dissent are relevant at all, they support the conclusion that this court's prior judgment states the law of this case. State v. Weaver , 4th Dist. Ross No. 93CA1944, 1995 WL 117608, 4 (Mar. 6, 1995) ("[w]hile Judge Grey has previously voted otherwise, he has concurred in judgment only, so there is no majority opinion, only a decision which reverses the result in this case") (emphasis sic); Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency , 34 F.Supp.2d 1226, 1248 (D.Nev.1999) ("there was no majority opinion in TSPC I as to why the dismissal of those particular claims was being upheld * * *[,] [n]onetheless, the dismissal of these claims is the law of the case").

{¶ 37} The precedential value of the opinion is not the relevant issue in the present case. Rather, the issue is the trial court's willful failure to abide by the judgment of a superior court duly supported by a majority of judges hearing the case. Furthermore, it is noted that the trial court's ambivalence and confusion regarding the law in this matter has cost the litigants excess time and fees in obtaining a resolution to their dispute.

{¶ 38} For the forgoing reasons, the Judgment of the Trumbull County Court of Common Pleas is modified. In addition to the $23,071 already awarded "for lost profits during [McConnell's] operation of the club," and $23,071 already awarded "for lost profits for the remaining six months under his employment contract," McConnell is awarded the following:

$47,580 for the violation of R.C. 1701.37 by Defendant Schmitt; and
$35,770 for lost profits from Masury Real Estate.

{¶ 39} The judgment of the lower court is reversed with respect to the award of punitive damages and this cause remanded with instructions, upon reassignment, to hold a hearing to determine the amount of reasonable attorney fees and costs incurred by McConnell in the course of this litigation. Finally, it is the order of this court that this matter be remanded to the administrative judge of the Trumbull County Court of Common Pleas for reassignment to another judge of the court of common pleas. The clerk of courts is instructed to serve the administrative judge of the Trumbull County Court of Common Pleas with a copy of this court's judgment and opinion. Costs to be taxed against the appellee.

COLLEEN MARY O'TOOLE, J., concurs,

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

{¶ 40} I agree with the trial court's conclusion that McConnell's prior appeal did not produce a majority opinion. One jurist wrote the lead opinion reversing and remanding while a second jurist concurred in judgment only without written opinion. I concurred in part and dissented in part and wrote separately explaining the bases for my opinion. McConnell v. Bare Label Prods., Inc., 11th Dist. Trumbull No. 2013-T-0050, 2015-Ohio-1206, ¶ 54-61, 2015 WL 1432464. I agreed in part with the lead opinion on one of the three issues previously before us, but otherwise dissented.

{¶ 41} Article IV, Section 3(B)(2) of the Ohio Constitution, "Organization and jurisdiction of court of appeals," bestows upon Ohio appellate courts the authority to "review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." Furthermore, "[a] majority of the judges hearing the cause shall be necessary to render a judgment." Ohio Const. Article IV, Section 3 (B)(3).

{¶ 42} A "concurring opinion agrees with the judgment of the majority. It might agree with the reasoning as well, but often a concurring opinion will express different [or additional] reasons for the same result." The Supreme Court of Ohio Writing Manual, 153 (2d Ed. 2013). Black's Law Dictionary defines a concurrence as "agreement; assent" or "[a] separate written opinion explaining such a vote." 309 (8th Ed. 2004).

{¶ 43} Judgment is defined as "[a] court's final determination of the rights and obligations of the parties in a case." Black's Law Dictionary, 858 (8th Ed. 2004). App.R. 12(A), "Determination," provides in part,

{¶ 44} "(1) On an undismissed appeal from a trial court, a court of appeals shall do all of the following:

{¶ 45} "(a) Review and affirm, modify, or reverse the judgment or final order appealed;

{¶ 46} "(b) Determine the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16, the record on appeal under App.R. 9, and, unless waived, the oral argument under App.R. 21 ;

{¶ 47} "(c) Unless an assignment of error is made moot by a ruling on another assignment of error, decide each assignment of error and give reasons in writing for its decision."

{¶ 48} The jurist concurring in judgment only did not provide an opinion explaining the basis for her decision. Thus, she agreed solely with the lead opinion's judgment , i.e., reverse and remand, but not with the reasoning delineated in the opinion. The Supreme Court of Ohio Writing Manual , 2d Edition 2013, explains that "[a]n opinion concurring in judgment only is meant to convey that the writing judge agrees with the result (affirm, reverse, etc.) but not with the reasoning of the majority opinion."

{¶ 49} Typically, an inferior court is not permitted to disregard the mandate of a superior court in a prior appeal in the same case whether the decision is correct or incorrect. Nolan v. Nolan , 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410 (1984) ; Farm Credit Servs. of Mid-Am. PCA v. Pertuset , 2014-Ohio-1289, 10 N.E.3d 769, ¶ 8 ; State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 48, 741 N.E.2d 127 (2001) ; Hopkins v. Dyer , 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 15. "[T]he decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. * * *

{¶ 50} "* * *

{¶ 51} "In pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts. * * * Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law. * * * Moreover, the trial court is without authority to extend or vary the mandate given." (Citations omitted.) Id.

{¶ 52} However, our divided opinion issued after McConnell's first appeal left the trial court with no majority opinion to follow making the law of the case doctrine inapplicable. State v. Weaver , 4th Dist. Ross No. 93CA1944, 1995 WL 117608, at *4 (Mar. 6, 1995) (noting that an opinion that is joined by a concurrence in judgment only does not produce a majority opinion); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 34 F.Supp.2d 1226, 1247-1248 (D.Nev.1999) (recognizing that the subsequent federal appellate court did not follow the prior appellate decision since there was no majority opinion on the issue because one judge concurred in part and another dissented); Cox v. Steffes , 161 N.C.App. 237, 245, 587 S.E.2d 908 (2003), fn1 (noting that the court of appeals lacked a majority opinion since one judge concurred in the result only and the other judge dissented). The Supreme Court of Oklahoma has addressed this issue in a different context and found where "a majority of three panel members of the Court of Civil Appeals is required for a majority decision. * * * Concurring-in-result and concurring-in-judgment votes may not be counted as votes to form a majority opinion ." (Emphasis added.) Estate of Brown v. Brown , --- P.3d ----, ----, 2013 OK 102, 2013 WL 6516418, *1.

{¶ 53} Because the second appellate judge in McConnell's prior appeal concurred in judgment only without drafting a separate opinion, the majority only agreed that the cause was to be reversed and remanded. "[A]n opinion concurring in the judgment is the functional equivalent of a dissent from the * * * reasoning even if it represents agreement with the result reached in the case." James F. Spriggs II & David R. Stras, Explaining Plurality Decisions , 99 Geo. L.J. 515, 520 (2011). And because the lead opinion was not joined by a majority of the appellate judges hearing the case, it did not control the proceedings on remand. Ohio Constitution Article IV, Section 3 (B)(3). Accordingly, we must examine the issues raised in McConnell's second appeal anew.

{¶ 54} The four cases on point find there was no majority opinion to follow. Citing no case law to the contrary, the majority attempts to find authority for its position in the foregoing, but its parenthetical holdings only bolster its unfortunate misunderstanding of what concur in judgment only means.

{¶ 55} McConnell first argues that the trial court erroneously held that he was not entitled to an award of statutory forfeiture damages under R.C. 1701.94 and that its decision was beyond the scope of its authority on remand. He alleges that the trial court should have found that Schmitt was a corporate officer charged with keeping corporate records since we previously directed the trial court to either reinstate the December 26, 2012 judgment entry governing statutory fines or recalculate the resulting damages.

{¶ 56} The lead opinion does not dictate the proceedings on remand. Thus, we review the trial court's interpretation and application of the statute de novo and independently review the trial court's legal decisions without deference. Red Ferris Chevrolet, Inc. v. Aylsworth , 9th Dist. Wayne No. 07CA0072, 2008-Ohio-4950, ¶ 4, 2008 WL 4377549 ; State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4, 2006 WL 335646.

{¶ 57} "[W]hen construing a statute, we first must look to the plain language of its provisions[,]" and read the words and phrases in context and according to grammatical rules and common usage. Morgan v. Community Health Partners , 9th Dist. Lorain No. 12CA010242, 2013-Ohio-2259, ¶ 33, 2013 WL 2407123, citing Hewitt v. L.E. Myers , 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 16. If a statute is clear and unambiguous, a court must apply it as written. Id.

{¶ 58} R.C. 1701.94(B) states: "If any officer charged with one of the duties specified in division (A) of this section fails to perform such duty after written request by any shareholder, the officer shall be subject to a forfeiture of one hundred dollars, and to the further forfeiture of ten dollars for every day that such default continues, beginning in cases under paragraphs (1), (2), (3), and (4) of division (A) on the same respective days as are provided for in division (A), which amount shall be paid to each shareholder making such request. The right of each shareholder to enforce any such forfeiture is in addition to all other remedies." (Emphasis added.) R.C. 1701.94(A) provides that a corporation that fails to maintain and produce certain corporate records can be subjected to these same forfeiture provisions.

{¶ 59} To be "charged" with a duty means that one has been "entrust[ed] with a responsibility, duty, or obligation." Webster's II New College Dictionary , 188 (1999). Thus, in order for McConnell to recover from Schmitt under R.C. 1701.94(B), he was required to establish first that she was an officer charged with a duty under the statute and second, that she failed to perform the duty after receiving a written request from a shareholder to produce the records.

{¶ 60} McConnell first sought the corporation's records in January 2008. However, the trial court found that Schmitt was not "charged with" the duty to maintain the company's financial and corporate records, a conclusion supported by the record, as enumerated in its judgment entry:

{¶ 61} "However, the Court shall review the appropriate measure of damages as instructed for the statutory violation.

{¶ 62} "In doing so, the Court finds there is absolutely no evidence in the record to suggest the burden of maintaining the corporate records was to rest solely on the shoulders of Schmitt. The Shareholders Agreement executed between Schmitt and McConnell is silent as to this task. R.C. 1701.37(B) states: '[i]f any officer charged with one of the duties specified in division (A) * * * fails to perform such duty after written request * * *, the officer shall be subject to forfeiture of one hundred dollars * * *.'

{¶ 63} "The predicate to this penalty provision is 'any officer charged with * * * the duties * * *.' (Emphasis added.) After an additional thorough review of the record in this matter, the Court finds there is no evidence that Schmitt was so charged with that duty of corporate record keeping.

{¶ 64} "Furthermore, the evidence in the record suggests quite the opposite. Schmitt was to be a silent partner. She deposited the capital, including the building, to run the business. It was McConnell who was in charge of the operations and the day-to-day (or night-to-night) business.'

{¶ 65} "McConnell described their arrangement as follows: 'I pretty much was responsible for everything as far as the management, the hiring and firing of everybody, ordering the supplies, getting the kitchen opened, remodeling of the building[.] I was responsible for and did all of the work. * * * She [Schmitt] didn't want anybody to know she was involved in an adult nightclub.'

{¶ 66} "McConnell continued to describe the partnership: '* * * I took care of running the club and managing the club, and she would put up the money. * * * I would get fifty percent, she would get fifty percent, of the profits.'

{¶ 67} "To suggest otherwise would be against the manifest weight of the direct evidence before this Court. Therefore, the Court finds the penalty section of R.C. 1701.37 is not applicable as the prerequisite component has not been met. Without any evidence that it was the duty to Schmitt to maintain those records, this Court will not impose a statutory penalty for the failure to do so."

{¶ 68} The factual findings and a plain reading of the statute dictate that McConnell's first assignment of error lacks merit. The lead opinion fails to apply the statute as written, and instead imposes a duty where none is established.

{¶ 69} This very issue was before this court in the first appeal. The trial court did not award statutory damages for reasons unrelated to whether Schmitt was charged with the duty to maintain the books. The trial court, therefore, did not determine whether Schmitt was so charged.

{¶ 70} In the first appeal, the lead and I agreed that the trial court's reason for not awarding statutory damages was in error. However, it should be abundantly obvious that unless Schmitt was charged with bookkeeping duties, statutory damages are impermissible. And so I said that, on remand, the trial court would have to determine whether Schmitt was given bookkeeping duties and take it from there. The lead opinion failed to acknowledge the conditional nature of the statute and the need for a factual finding even when pointed out. The lead opinion did not address the "charged with" issue, but instead ordered the trial court to award statutory damages regardless.

{¶ 71} On the merits, the trial court is inarguably right.

{¶ 72} The law of the case "doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results." Hawley v. Ritley , 35 Ohio St.3d 157, 160, 519 N.E.2d 390 (1988) ; New York Life Ins. Co. v. Hosbrook , 130 Ohio St. 101, 106, 196 N.E.2d 888, 196 N.E. 888 (1935).

{¶ 73} As things stand, Schmitt will be whacked with statutory fines for not producing books she was not required to keep. A court cannot utilize the law of the case doctrine "as an instrument of oppression and injustice." Gohman v. St. Bernard , 111 Ohio St. 726, 731, 146 N.E. 291 (1924). Thus, the justice or injustice of the prior decision remains material but unaddressed.

{¶ 74} Moreover, as pointed out in McConnell's brief, the prior judgment entry that the lead opinion in Bare Label Productions, I sought to reinstate on remand awarded statutory damages against the dissolved corporations, not Schmitt. McConnell , 2015-Ohio-1206, at ¶ 17, 38.

{¶ 75} McConnell's second assigned error states the trial court failed to include significant revenue sources in its calculation of lost profits contrary to the clear directive of our prior decision. He specifically challenges the trial court's finding that Club Pink's dance revenue was too speculative to calculate, and as such it was unable to assess lost profits from lap dances.

{¶ 76} Again, because we failed to produce a majority opinion, the trial court was not bound by the lead opinion on remand. Ohio Constitution Article IV, Section 3 (B)(3); State v. Weaver , 4th Dist. Ross No. 93CA1944, 1995 WL 117608, at *4 (Mar. 6, 1995). However, both of the writing judges agreed that the trial court misconstrued McConnell's testimony in finding that the club's net profits were $3,500 per month. Instead, he testified that the club's monthly expenses were $3,500. Thus, two of the three appellate court judges agreed on this narrow issue. McConnell , supra , at ¶ 43 ; McConnell, supra, at ¶ 58 (concur in part, dissent in part). Thus, on remand the trial court had to reassess its lost profit award in McConnell's favor.

{¶ 77} A plaintiff has the burden to prove lost profits as damages in a breach of contract case, and proof of lost profits must be reasonably certain and not based on speculation. Kinetico, Inc. v. Indep. Ohio Nail Co. , 19 Ohio App.3d 26, 30, 482 N.E.2d 1345 (8th Dist.1984) citing Battista v. Lebanon Trotting Assn. , 538 F.2d 111, 119 (C.A.6, 1976). "[S]ufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). If the evidence presented at trial is susceptible to more than one interpretation, we are bound to uphold the trial court's decision. Estate of Barbieri v. Evans , 127 Ohio App.3d 207, 211, 711 N.E.2d 1101 (9th Dist.1998).

{¶ 78} On remand the trial court concluded that the dance revenue was too speculative to include in its analysis, stating: "McConnell did not provide any numbers or credible evidence whatsoever to support the dance revenue. Susak's testimony was likewise speculative. Furthermore, it was not clear that Susak's knowledge of the dance revenue was derived from first-hand knowledge as he was a self-described door and maintenance man. * * * In addition, the Court finds the general testimony regarding the door and dance numbers were not credible and were not based on any evidence whatsoever other than the self-serving testimony * * *."

{¶ 79} However, the trial court did find that the club's weekly gross income was $4,650, which "equates to monthly gross revenue of $20,150. Less the monthly expenses of $5,500, the total monthly net was $14,650. * * * After expenses of $5,500 per month, the Court finds the monthly net profit was $14,650. McConnell ran the club for six months. Six months of a monthly net profit at $14,650 equals $87,900. McConnell is entitled to 49% of this profit; or $43,071."

{¶ 80} After reducing this amount by the $20,000 for Schmitt's initial investment, the trial court awarded McConnell $23,071 for lost profits the first six months and another $23,071 for the remaining six months under his employment contract based in part on McConnell's statement that he personally expected to earn $50,000 in profits the first year of business.

{¶ 81} Thus, the trial court awarded McConnell an additional $23,071 for lost profits for the six months remaining under his contract for a total lost profit award of $46,142. Contrary to McConnell's claims, the trial court was not required to award lost profits for lap dances in light of the limited evidence before it, and as such, his second assignment lacks merit.

{¶ 82} McConnell's third assignment of error has two sub-arguments. First he claims the trial court erred in failing to award him lost profits for the period of time beyond the expiration of his management agreement. The lead opinion instructed the trial court to compensate McConnell "not only for lost shareholder profits during his period of employment, but also for the period after his employment, during which he remained a 49% shareholder ." (Emphasis added.) Id. at ¶ 45. McConnell claims he was not awarded any lost profits for the time period after the expiration of his management agreement during which he remained a 49% shareholder and the club continued to exist, consistent with our prior opinion. Again, the trial court was not obligated to follow the directives of the lead opinion.

{¶ 83} Furthermore, the lead opinion arising from McConnell's prior appeal notes that Schmitt provided the pertinent evidence establishing these damages. She testified that Club Pink was open for a total of three years. Thus, it was open for two years beyond McConnell's one-year management agreement. Schmitt confirmed that the club was open seven nights in the beginning, but for the last year it was only open three nights per week. She confirmed that the club attempted to operate five nights per week after she terminated McConnell, but that it was not sustainable. However, and as found by the trial court on remand, there was no evidence reflecting the number of patrons admitted per night during this time period, and there was nothing introduced evidencing the amount of money earned by the club after the expiration of McConnell's management agreement. Schmitt never testified about the revenue generated. Accordingly, his first sub-argument lacks merit because McConnell did not establish lost profits beyond the expiration of his management agreement.

{¶ 84} McConnell's second sub-argument claims the trial court acted contrary to our prior lead opinion based on its failure to award him 49 percent of the real estate lease payments owed by Club Pink to Masury Real Estate. The prior lead opinion on this issue concludes that McConnell "is entitled to $35,770, representing his share of the rents ( [$88,000 - $15,000] x 0.49)." Id. at ¶ 46. My concurrence in part and dissent in part disagreed, and thus the trial court had free reign.

{¶ 85} Upon reviewing the evidence, the trial court concluded:

{¶ 86} "Any damages for lost profits from Masury Real Estate were not sufficiently proven at the trial in this matter and are indeed too remote to speculate. Therefore, the Court finds McConnell did not meet his burden of proof as to any lost profits due to him for future lost profits from Masury Real Estate."

{¶ 87} Accordingly, the trial court did not err and was within its discretion in concluding that McConnell did not meet his burden of proof. Thus, McConnell's second sub-argument under his third assignment of error lacks merit and his third assigned error lacks merit in its entirety.

{¶ 88} McConnell's fourth assignment of error claims the trial court erred by failing to award him 49 percent of the value of the personal property that Schmitt removed from the club prior to the sale of the building. Specifically, he alleges that Schmitt wrongfully removed bar furniture and kitchen appliances and equipment in advance of the auction thereby greatly reducing the price obtained.

{¶ 89} Schmitt initially purchased the property in 2004 for Bare Label, including all of its contents, for approximately $15,000. The building had been a VFW hall, and Schmitt's purchase included the existing kitchens and "all the equipment." McConnell described her purchase as a "turnkey business without a liquor license."

{¶ 90} According to Bare Label's appointed receiver, this same real property, including the personal property contained therein, had a total estimated value of $36,600 in advance of the auction in 2009. Schmitt purchased the property at auction for $17,500 in 2009. McConnell filed an objection to the sale based on Schmitt's removal of the personal property from the building. The trial court nevertheless confirmed the sale. McConnell , supra , at ¶ 9-11. The proceeds from the sale, minus various expenses, were deposited with the court in escrow.

{¶ 91} "The elements of a conversion claim include (1) plaintiff's ownership or right to possession of the property at the time of conversion; (2) defendant's conversion by a wrongful act or disposition of plaintiff's property rights; and (3) damages. If the defendant came into possession of the property lawfully, the plaintiff must prove two additional elements to establish conversion: (1) that the plaintiff demanded the return of the property after the defendant exercised dominion or control over the property; and (2) that the defendant refused to deliver the property to the plaintiff." (Citations omitted.) 6750 BMS, L.L.C. v. Drentlau, 8th Dist. Cuyahoga No. 103409, 2016-Ohio-1385, 62 N.E.3d 928, ¶ 28. "To prevail on a claim of conversion, the plaintiff must prove by a preponderance of the evidence that the defendant wrongfully exercised dominion and control over the plaintiff's property to the exclusion of, or inconsistent with, the plaintiffs' rights." Lanzalaco v. Lanzalaco, 8th Dist. Cuyahoga No. 97767, 2012-Ohio-4053, 976 N.E.2d 309, ¶ 31, citing Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).

{¶ 92} "The measure of damages in a conversion action is the value of the converted property at the time it was converted." Allied Erecting & Dismantling Co., Inc. v. City of Youngstown , 151 Ohio App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523, at ¶ 62, quoting Tabar v. Charlie's Towing Serv., Inc. , 97 Ohio App.3d 423, 428, 646 N.E.2d 1132 (1994). "An award of damages must be shown with a reasonable degree of certainty and in some manner other than mere speculation, conjecture, or surmise." Elias v. Gammel , 8th Dist. Cuyahoga No. 83365, 2004-Ohio-3464, at ¶ 25, 2004 WL 1471038. Damages are not speculative when they can be "computed to a fair degree of probability." Allied, supra, at ¶ 65.

{¶ 93} "In assessing whether a [decision] is against the manifest weight of the evidence, this Court examines the entire record, ' "weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the [verdict] must be reversed and a new trial ordered." ' [ State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) ] quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In other words, we review the verdict to determine whether the [trier of fact] lost its way in concluding that 'the greater amount of credible evidence, offered in a trial, [supported] one side of the issue rather than the other.' (Emphasis in original.) Thompkins at 387, 78 Ohio St.3d 380, 678 N.E.2d 541." Cromer v. Children's Hosp. Med. Ctr. of Akron , 2016-Ohio-7461, 64 N.E.3d 1018, 64 N.E.2d 1018, ¶ 12 citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17.

{¶ 94} McConnell contends he established his conversion claim via uncontroverted evidence and that the trial court's denial of this claim is against the manifest weight of the evidence. I disagree. Although the trial court did not delineate its reasoning for rejecting McConnell's conversion claim, the evidence supports the conclusion that he failed to establish this claim via credible evidence. A trial court has broad discretion upon determining the credibility of evidence. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (holding that "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.")

{¶ 95} First, McConnell did not establish that the personal property that Schmitt removed belonged to him at the time of the conversion. Instead, McConnell testified that the furniture and kitchen equipment removed belonged to the company. Second, McConnell failed to offer specific evidence identifying the personal property that Schmitt removed. Although McConnell generally identified the missing items as including bar stools, tables and chairs, and kitchen appliances and coolers, he did not provide any details outlining what property was scheduled to be included in the sale. He likewise did not offer evidence establishing the condition or quality of the missing items.

{¶ 96} Third, McConnell failed to establish the value of the items converted with a reasonable degree of certainty. He estimated the total value of the missing items at $34,000. This figure included all of the items that McConnell and Schmitt added to the business as well as the equipment that came with the purchase of this former VFW hall. McConnell explained that his estimate was based on his experience in purchasing bar furniture and used kitchen appliances in the past. However, he offered no breakdown of this estimate or detailed price list. He likewise did not offer expert opinion or any independent documentation supporting his broad opinion as to the value of the property. Furthermore, McConnell's estimated value vastly differed with the receiver's estimate that all of the real and personal property had a combined estimated value of $36,000.

{¶ 97} Thus, McConnell's fourth assignment is meritless because the trial court's decision is not against the manifest weight of the evidence.

{¶ 98} McConnell's fifth and final assignment alleges the trial court erred in failing to award him attorney fees and in awarding him only one dollar in punitive damages.

{¶ 99} The decision to award punitive damages is within a trial court's discretion and is permissible in a breach of fiduciary duty case upon a showing of actual malice. Hastings v. J.E. Scott Corp., 2d Dist. Miami No. 2003 CA 32, 2004-Ohio-1821, ¶ 39, 2004 WL 759658 ; Blair v. McDonagh , 177 Ohio App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377, ¶ 65 (1st Dist.). " 'Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.' " Id. quoting Preston v. Murty, 32 Ohio St.3d 334, 336, 512 N.E.2d 1174 (1987).

{¶ 100} "The amount of punitive damages rests largely within the discretion of the finder of fact. Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 40, 543 N.E.2d 464. An award of punitive damages will generally not be overturned unless it bears no rational relationship or is grossly disproportionate to the amount of compensatory damages awarded such that the award appears to be the result of passion or prejudice." (Citation omitted.) Davis v. Sun Ref. & Mktg. Co. , 109 Ohio App.3d 42, 60, 671 N.E.2d 1049 (2d Dist.1996).

{¶ 101} McConnell does not argue that the trial court's punitive damage award lacks a rational relationship or that it is grossly disproportionate to the amount of compensatory damages in this case. Instead, he claims a greater award was warranted in light of the overwhelming evidence of Schmitt's vindictiveness, spite, and malice.

{¶ 102} However, the trial court considered McConnell's testimony regarding attorney fees and Schmitt's removal of equipment from the building and took "into consideration the totality and credibility of the evidence." Thereafter, it awarded McConnell one dollar in punitive damages. This minimal punitive damage award was apparently based on the trial court's concern as to the nominal amount of proof establishing McConnell's claims. The trial court noted concern throughout its decision that his testimony was self-serving and unsubstantiated. Consequently, the trial court did not abuse of discretion upon awarding only one dollar in punitive damages. Id.

{¶ 103} Last, the directives by the lead opinion relative to damages following the first appeal were untenable in light of the overwhelming number of unresolved factual issues.

{¶ 104} Contrary to the majority's conclusion, the trial court did not defy what it believed to be a binding appellate decision. Instead, it conscientiously considered the hand it was dealt, and concluded that the splintered opinion did not constitute a binding majority. The trial court spells out its conclusion to this effect in the first paragraph of its decision.

{¶ 105} Based on its conclusion that there was no majority opinion, with which I agree, the trial court then proceeded to address the issues on remand consistent with the law, not the lead opinion.

{¶ 106} The majority finds that the trial court was defiant and disobedient. The trial court, however, provided a good faith basis for its actions. That the trial court highlighted fatal flaws in the lead opinion was unavoidable. While there is room for disagreement on this issue, the majority's conclusion that the trial court was derelict is unnecessary and unwarranted.

{¶ 107} This court has now issued a majority opinion. And the trial court is now duty bound to follow the majority opinion, however flawed. There is no reason to believe the trial court will not do so. Accordingly, this case need not be reassigned.

{¶ 108} I dissent.

      The dissent states that there was "no evidence that Schmitt, as a corporate officer, was 'charged with' the duty to maintain the company's financial and corporate records." The dissent overlooks the fact that Schmitt was treasurer for both Bare Label Productions and Masury Real Estate, i.e., the chief financial officer for both corporations with responsibility for monitoring corporate finances and reporting to the organizations' members. The dissent also overlooks the fact that, after Schmitt "froze" McConnell out of the corporations, she was the corporations' only effective corporate officer.

      This dissent is properly concerned with how time could be "better served" in the resolution of this appeal. One suggestion would be for the judges on the panel, particularly the dissenting judge, to act on the appeal so as to ensure its release within the 210-day period prescribed by the Rules of Superintendence. Sup.R. 40(A)(2) and (3).

      The lead opinion and my dissent did not, however, agree with the scope of the trial court's authority on remand in fashioning the award. The lead opinion provided specific directives to the trial court on remand whereas my concurring in part and dissenting in part opinion found that the recalculation of lost profits was within the trial court's discretion as the trier of fact. The third appellate judge did not indicate any reasoning or opinion. Thus, we failed to provide a majority opinion directing the trial court's actions on remand.