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

text:
    STATE of Ohio, Plaintiff-Appellee v. Torrance JOHNSON, Defendant-Appellant
    No. 105424
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Timothy F. Sweeney, The 820 Building, Suite 430, 820 West Superior Avenue, Cleveland, Ohio 44113-1800, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor BY: Shannon M. Raley, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: E.T. Gallagher, P.J., Stewart, J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, P.J.:

{¶ 1} Defendant-appellant, Torrance Johnson, appeals his convictions and sentence. He claims the following two errors:

1. Johnson's guilty plea to the amended charges was not made knowingly, voluntarily, and intelligently, and, as a result, the court's acceptance of that plea was in violation of Johnson's constitutional rights and Crim.R. 11.

2. Johnson's convictions for (1) improperly discharging a firearm into a habitation, (2) felonious assault, and (3) discharge of a firearm on or near a prohibited premises should have been merged into a single conviction on only one of those allied offenses of similar import. The trial court's failure to merge in these circumstances violated Ohio merger law and Johnson's rights to due process and against being subjected to double jeopardy.

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

I. Facts and Procedural History

{¶ 3} Johnson was charged with six counts of improperly discharging a firearm into a habitation, one count of having a weapon while under disability, one count of aggravated menacing, one count of receiving stolen property, four counts of felonious assault, and one count of discharging a firearm on or near a prohibited premises. The discharging a firearm into a habitation and discharging a firearm on or near a prohibited premises counts included one- and three-year firearm specifications.

{¶ 4} The charges resulted from an incident that occurred in August 2016. Following an argument, Johnson's wife locked herself in a bathroom. Johnson, who had been drinking, took a handgun and fired two rounds above the bathroom door where his wife was hiding. Still angry, Johnson went outside and fired two more shots into the house. At the time Johnson fired the shots, his wife, children, and other relatives were present in the house.

{¶ 5} Pursuant to a plea agreement, Johnson pleaded guilty to one count of discharging a firearm into a habitation with a three-year firearm specification, one count of having a weapon while under disability, one count of receiving stolen property, and one count of discharging a firearm on or near a prohibited premises. Johnson also pleaded guilty to one count of felonious assault, which was amended to change the name of the victim.

{¶ 6} The court sentenced Johnson to six years in prison on the discharging a firearm into a habitation conviction to be served consecutive to the three-year firearm specification on that count, for an aggregate nine-year sentence. The court also sentenced Johnson to 24 months for having a weapon while under disability, 12 months for receiving stolen property, six years for felonious assault, and 24 months for discharging of a firearm on or near a prohibited premises conviction, to be served concurrently with the nine-year sentence on the discharging a firearm into a habitation conviction.

{¶ 7} Johnson now appeals his convictions and sentence.

II. Law and Analysis

A. Guilty Plea

{¶ 8} In his first assignment of error, Johnson argues his guilty pleas should be vacated as involuntarily made because the trial court failed to ensure that he understood the factual basis for the allegations alleged in each count. Johnson also contends that despite his protestations of innocence with respect to the felonious assault charge, the trial court failed to comply with the additional requirements established in North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), for accepting a guilty plea accompanied by a genuine claim of innocence.

{¶ 9} A guilty plea that is not knowingly, intelligently, and voluntarily made violates the Ohio and United States Constitutions. State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11(C) sets forth certain constitutional and procedural safeguards with which the trial court must comply prior to accepting a guilty plea to ensure the voluntariness of the plea. As relevant here, Crim.R. 11(C)(2) provides that the trial court shall not accept a guilty plea in a felony case without personally addressing the defendant and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 10} The trial court must strictly comply with those provisions of Crim.R. 11(C)(2) that relate to the waiver of constitutional rights. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus. As to the nonconstitutional aspects of Crim.R. 11(C)(2), which includes a defendant's right to have an understanding of the "the nature of the charges" and "the maximum penalty involved" and to be informed of and understand the effect of a guilty plea, substantial compliance is required. Id. at ¶ 14 ; State v. Moore , 8th Dist. Cuyahoga No. 101658, 2015-Ohio-1026, 2015 WL 1276467, ¶ 12.

{¶ 11} "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If a trial court fails to substantially comply with one of the nonconstitutional aspects of Crim.R. 11(C)(2), a determination must be made as to whether the trial court partially complied or completely failed to comply the requirement at issue. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If the trial court partially complied, the plea is properly vacated only if the defendant demonstrates prejudice. Id. If the trial court completely failed to comply, the plea must be vacated; a showing of prejudice is not required. Id.

{¶ 12} There is no precise method for determining a defendant's subjective understanding of the plea proceedings. State v. Davner , 2017-Ohio-8862, 100 N.E.3d 1247, ¶ 43. However, if a defendant received the proper information during the plea colloquy, we may presume that he understood it. Id., citing State v. Cardona , 8th Dist. Cuyahoga No. 75556, 1999 WL 1206582, 4-5 (Dec. 16, 1999). Therefore, where a trial court complies with Crim.R. 11(C)(2) in accepting a plea, there is a presumption that the defendant's plea was knowingly, intelligently, and voluntarily made. Id. , citing State v. Alexander , 8th Dist. Cuyahoga No. 103754, 2016-Ohio-5707, 2016 WL 4701436, ¶ 11.

{¶ 13} It is undisputed that the trial court fully complied with Crim.R. 11(C)(2) with respect to Johnson's constitutional rights. Johnson asserts that he did not understand the nature of the charges against him because he only had a ninth grade education and because the trial court failed to explain the elements of each offense.

{¶ 14} However, neither a detailed recitation of the elements of the charges nor an inquiry as to whether the defendant understands the elements of the charges is required unless the totality of the circumstances indicate that the defendant did not understand the charges. State v. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 56 ; State v. Krcal , 8th Dist. Cuyahoga No. 80061, 2002-Ohio-3634, 2002 WL 1587839, ¶ 25.

{¶ 15} Although Johnson asserts he did not understand the charges due to his limited education, the record shows that Johnson was endeavoring to obtain his GED, had taken the test once, and only failed the math section. He indicated that he could read and write and was not under the influence of alcohol, drugs, or medications that would affect his ability to understand the proceedings. And Johnson's competency was never raised as an issue in this case. Therefore, the record is devoid of any circumstances indicating that Johnson was unable to understand the proceedings.

{¶ 16} Before explaining the charges, the court invited Johnson to ask any questions he may have during the plea proceedings. In this regard, the court instructed:

[I]f you have any questions of me about anything I say or, perhaps a question I might ask you that you don't quite understand, let me know and I will clear it up.
Likewise, if you would like to have the opportunity to speak with [your lawyer] about something in private, let me know. I will make sure that happens as well.
Does that sound like a plan?
THE DEFENDANT: Yes, sir.

(Tr. 8.)

{¶ 17} During the colloquy, the trial court identified each charge by name with its felony classification and described the range of potential penalties associated with each charge, including the maximum penalties. (Tr. at 14-17.) The court also explained the potential aggregate sentence Johnson could receive, ensured that Johnson understood that he was forfeiting the firearm and magazine used in the crimes, and explained the terms of postrelease control. (Tr. 18.) After reviewing the charges and penalties, but before accepting Johnson's pleas, the court again asked if Johnson had any questions about anything the court had discussed up to that point in the proceedings, and Johnson replied: "No, sir." Although Johnson had indicated that he understood all aspects of the proceedings, the court nevertheless inquired further:

THE COURT: Do you feel that you have a complete understanding of what it is that you are pleading to, what the maximum penalties might be, and all the rights that you have that you are giving up or waiving?
THE DEFENDANT: Yes, sir.

The trial court discussed all the information necessary for Johnson to make an informed decision regarding his guilty pleas. Therefore, in the absence of any evidence to the contrary, we may presume that Johnson understood the nature of the charges to which he pleaded guilty.

{¶ 18} Johnson nevertheless argues that his guilty pleas should be vacated because the trial court failed to comply with the additional requirements of an Alford plea. When a defendant makes an Alford plea, the trial court has a duty to make further inquiries to ensure the voluntariness of his plea. State v. Alvelo , 2017-Ohio-742, 85 N.E.3d 1032 ; Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. An Alford plea occurs when a defendant pleads guilty while simultaneously maintaining actual innocence of the charges. Alvelo at ¶ 23-25.

{¶ 19} Johnson contends he asserted his innocence of the felonious assault charge when he told the court, moments before pleading guilty, that he was "not trying to hurt anybody." The state, however, maintains that Johnson never asserted his innocence and that Johnson's statement that he did not intend to hurt anyone was an expression of regret rather than a declaration of innocence that would elicit an Alford inquiry. We must, therefore, determine whether Johnson's assertion that he did not intend to hurt anyone constitutes a protestation of innocence that would give rise to an Alford plea.

{¶ 20} In Alford , the defendant stated: "I'm not guilty, but I plead guilty." Alford at 28, 91 S.Ct. 160. The United States Supreme Court determined that Alford's assertion that he was not guilty was sufficient to require the trial court to inquire as to whether Alford had a rational basis for pleading guilty. In State v. Padgett , 67 Ohio App.3d 332, 586 N.E.2d 1194 (2d Dist.1990), the Second District held that the following was a protestation of innocence that required the trial court to conduct an Alford inquiry:

[Padgett's attorney]: * * * That is a correct statement of the plea negotiations. At this time Mr. Padgett is ready to tender a plea of guilty to two counts of aggravated burglary.
THE COURT: Is this what you want to do?
THE DEFENDANT: Yeah. I want to go ahead and do that.
* * *
COURT: And you understand in each case you have a right to face the people that accuse you of these charges?
DEFENDANT: Yeah. She was lying. * * *
COURT: Do you understand what you are charged with?
DEFENDANT: Yeah. That's a lie.

{¶ 21} Johnson argues the following exchange demonstrates that he protested his innocence at the plea hearing in this case:

THE COURT: As a total aside here, your emotional response to me at this point seems genuine, and I mean that.
What is disappointing for me about that, these are serious charges which your response now tells me, anyways, that you are not just some terrible monster thug.
THE DEFENDANT: Can I speak, please?
THE COURT: Yeah.
THE DEFENDANT: I understand what I did was wrong. Like, I can't make an excuse what I did because wrong is wrong.
At the time, I was just angry, and drinking. My wife, we was both having problems. Her mother, auntie moving in, we not getting along. It was-we were both drinking. I shouldn't did what I did.
THE COURT: I get all that.
THE DEFENDANT: I'm not trying to hurt nobody. I promise I wasn't.
THE COURT: I understand that.
THE DEFENDANT: I didn't want to leave. I was angry.
THE COURT: Here. We can talk more about those issues at the time of sentencing. I'm just trying to share with you again what I see and what I perceive to be a genuine display of emotion.
I'm disappointed. That's all that I am compelled to tell you. We will talk more about it as we go through. Fair enough?
THE DEFENDANT: Yes, sir.

{¶ 22} However, Johnson pleaded guilty to one count of felonious assault in violation of R.C. 2903.11(A)(2), which states, in relevant part, that "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon." "Knowingly" is the mens rea element of the offense. R.C. 2901.22(B) states that "[a] person acts knowingly, regardless of his purpose , when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." (Emphasis added.)

{¶ 23} Johnson admitted that he fired gunshots into an occupied structure. Although he may not have specifically intended to hit a particular person with a bullet, he knew that by firing a gun into an occupied structure, he was creating a substantial risk that someone would be hit by a bullet. He knew that his conduct could cause serious physical harm to someone. Therefore, Johnson never denied the charges; he simply expressed remorse.

{¶ 24} Padgett categorically denied the charges against him, not once, but twice. Alford's assertion of innocence was clear and unequivocal. Indeed, Alford never wavered from his claim of innocence during a subsequent hearing on his claim of innocence. Johnson asserted that he never meant to hurt anyone but admitted in the same breath that his conduct "was wrong," and that he could "not make an excuse" for it. Moreover, Johnson never denied committing the offenses. Unlike Alford and Padgett, who never conceded guilt, Johnson admitted that he committed the crimes and took full responsibility for them. We agree with the state that Johnson's remark that he did not mean to hurt anyone was an expression of remorse rather than an affirmative declaration of innocence and was, therefore, insufficient to trigger an Alford inquiry.

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

B. Allied Offenses

{¶ 26} In the second assignment of error, Johnson argues his discharging a firearm into a habitation, felonious assault, and discharging a firearm on or near a prohibited premises convictions should have merged for sentencing.

{¶ 27} Johnson neither raised the issue of merger nor objected to his sentence in the trial court. He therefore forfeited all but plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-25. Crim.R. 52(B) provides that, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." To prevail on a claim of plain error, the defendant must demonstrate that but for the error, the outcome of the proceedings clearly would have been different. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus; Rogers at ¶ 22.

{¶ 28} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, prohibiting multiple punishments for the same offense. Under R.C. 2941.25(A), when the same conduct by the defendant "can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." However, R.C. 2941.25(B) provides:

Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 29} Multiple offenses do not merge if (1) the offenses are dissimilar in import or significance, (2) the offenses were committed separately, or (3) the offenses were committed with a separate animus or motivation. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus. Two or more offenses are dissimilar within the meaning of R.C. 2941.25(B)"when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at syllabus.

{¶ 30} Johnson's discharging a firearm into a habitation, felonious assault, and discharging a firearm on or near a prohibited premises convictions do not merge because they were committed against separate victims.

{¶ 31} Johnson pleaded guilty to Count 1 of the indictment, which alleges that Johnson improperly "discharg[ed] a firearm at or into an occupied structure that is a permanent or temporary habitation of Jamese Johnson." The indictment identifies Jamese Johnson's home as the victim of the offense rather than a person.

{¶ 32} Johnson also pleaded guilty to Count 14, which alleges that Johnson improperly discharged a firearm on or near a prohibited premises. In State v. James , 2015-Ohio-4987, 53 N.E.3d 770, ¶ 34, we held that because discharging a firearm on or near a prohibited premises is a strict liability offense, the victim of such an offense is the public at large. Therefore, while the victim of Johnson's discharging a firearm on or near a prohibited premises was the general public, the victim of his discharging a firearm into a habitation conviction was the occupied home of Jamese Johnson. Because these offenses were committed against separate victims, they are dissimilar in import and not subject to merger under R.C. 2941.25.

{¶ 33} Finally, Johnson pleaded guilty to felonious assault in violation of R.C. 2903.11(A)(2), as alleged in Count 10 of the indictment. R.C. 2903.11(A)(2) prohibits a person from knowingly causing or attempting to cause physical harm "to another." Unlike Johnson's other offenses, which were committed against the an occupied structure and the public at large, his felonious assault conviction requires a human victim. Count 10, as amended, alleged that Johnson knowingly caused or attempted to cause physical harm to a person identified in the indictment as "Bennette Smith."

{¶ 34} As previously stated, the victim of Johnson's improper discharging of a firearm into a habitation was the occupied home of Jamese Johnson. Bennette Smith was the victim of Johnson's felonious assault conviction, and society at large was the victim of Johnson's improper discharging of a firearm on or near a prohibited premises conviction. Because Johnson committed these offenses against three different victims, they are dissimilar in import, and the trial court properly sentenced Johnson on all three offenses.

{¶ 35} The second assignment of error is overruled.

{¶ 36} Judgment affirmed.

SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE CONCURRING OPINION

MELODY J. STEWART, J., CONCURS WITH MAJORITY AND SEPARATE CONCURRING OPINION

{¶ 37} I concur with the majority decision, but write separately in the hopes of avoiding an analytical problem inherent in an overly broad reliance on State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, as the standard of review over all allied-offense issues. The fact that the state purported to name an individual as the victim of the discharging into a habitation crime, as demonstrated from the inclusion of separate charges for discharging into a habitation each naming a different occupant, is noteworthy. The problem with the state's position is that not all crimes are committed against identifiable victims. The discharging into a habitation statute punishes an individual for discharging a firearm into a habitation to prevent the victimization of those possibly present. It is for this reason that the crime is deemed committed against the habitation. Likewise, discharging a firearm over a road reflects the legislative attempt to prevent motorists from being harmed. Therefore, and setting aside the issue of multiple shots being fired for the sake of this discussion, discharging a firearm into a single habitation with multiple people present cannot lead to multiple convictions for that act-although it could possibly lead to multiple convictions for felonious assault of those inside.

{¶ 38} The state's charging instrument in this case emphasizes the importance of recognizing that there is no need to resort to Ruff as the only mechanism to analyze allied-offense issues. State v. Miranda , 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 10, citing State v. Childs , 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000). The statute R.C. 2941.25 and the progeny of cases discussing its application are "not the sole legislative declaration in Ohio on the multiplicity of indictments." Id. Appellate courts cannot get bogged down with determining whether separate victims exist for every crime under the Ruff framework if the legislature has clearly indicated an intent to punish an offender for the harm caused by his conduct. State v. Grayson , 2017-Ohio-7175, 95 N.E.3d 1025, ¶ 31 (S. Gallagher, J., concurring). As the majority recognized, the discharging a firearm into a habitation and discharging a firearm on or near a prohibited premises statutes are intended to punish offenders for the act regardless of the existence of a named victim.


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    JSS PROPERTIES, II, LLC, Plaintiff-Appellee v. LIBERTY TOWNSHIP BOARD OF ZONING APPEALS, Defendant-Appellant
    No. 17-CA-59
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT ENTRY: April 13, 2018
    A. TERRANCE TRENEFF, Morrow, Gordon & Byrd, Ltd., 33 West Main Street, P.O. Box 4190, Newark, Ohio 43058-4190, For Plaintiff-Appellee.
    CAROLYN J. CARNES, Assistant Prosecuting Attorney, 20 S. Second St., 4th Floor, Newark, Ohio 43055, For Defendant-Appellant.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.
   Hoffman, J.

{¶ 1} Appellant Liberty Township Board of Zoning Appeals ("the Board") appeals the July 18, 2017 Judgment Entry entered by the Licking County Court of Common Pleas, which reversed the Board's decision which had found Appellee JSS Properties II, LLC ("JSS Properties") violated Article 8, Section 807 of the Liberty Township Zoning Resolution.

STATEMENT OF THE CASE AND FACTS

{¶ 2} JSS Properties owns real property located at 7234 Johnstown-Utica Road, Johnstown, Ohio ("the property"). The property is zoned General Business. After Wendi Zigo, the Liberty Township Zoning Inspector, received a complaint from a neighboring landowner concerning multiple junk vehicles stored on the property, she investigated and discovered thirteen vehicles stored outside of the buildings on the property. As a result, Zigo cited JSS Properties for violating three sections of the Liberty Township Zoning Resolution ("the resolution"). JSS Properties through its primary member, John Sadinsky, filed an appeal to the Board on October 29, 2016.

{¶ 3} The Board conducted a hearing on November 28, 2016. Prior to the hearing, JSS Properties remedied two of the alleged violations. Sadinsky appeared with legal counsel and testified under oath regarding his business operations at the property. The Board took the matter under advisement. At a subsequent meeting, the Board found:

The issue resolves around storing the cars uncovered and the type of work described within the hearing does not fit within the permitted uses within the General Business District as outlined within the resolution, nor does any permitted uses under LB District. Mr. Sadinsky is required to apply for a conditional use permit to continue the type of business he is operating and must remove the cars or cover them per the resolution. Minutes, Appeal 16-A-1, at 5.

{¶ 4} The Board notified Sandinsky and JSS Properties of its Decision on December 14, 2016. JSS Properties filed a timely appeal of the Decision to the Licking County Court of Common Pleas. Via Judgment Entry filed July 18, 2017, the trial court reversed the decision of the Board, finding such was unlawful. The trial court found there was no evidence in the record to establish JSS Properties was engaged in commercial activity which involved retail or services offered to the public, in violation of Article 8, Section 807 of the resolution.

{¶ 5} It is from this judgment entry the Board appeals, raising as its sole assignment of error:

THE TRIAL COURT ERRED ABUSED ITS DISCRETION BY REVERSING THE DECISION OF DEFENDANT-DEFENDANT-APPELLANT AS UNLAWFUL.

STANDARD OF REVIEW

{¶ 6} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas court considers the whole record, including any new or additional evidence, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. In reviewing an appeal of an administrative decision, a court of common pleas begins with the presumption the board's determination is valid, and the appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board of Zoning Appeals, Stark App. No. 09CA00275, 2010-Ohio-5097, 2010 WL 4111162.

{¶ 7} As an appellate court, our standard of review to be applied in an R.C. 2506.04 appeal is "limited in scope." Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848 (1984). "This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on 'questions of law,' which does not include the same extensive power to weigh the preponderance of the substantial, reliable, and probative evidence, as is granted to the common pleas court." Id. Ultimately, the standard of review for appellate courts in a R.C. 2506 appeal is "whether the common pleas court abused its discretion in finding that the administrative order was or was not supported by reliable, probative, and substantial evidence." See Weber v. Troy Twp. Board of Zoning Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163, 2008 WL 697384.

{¶ 8} "The standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance" and "permits reversal only when the common pleas court errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v. Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161.

I

{¶ 9} In its sole assignment of error, the Board contends the trial court erred and abused its discretion in reversing its decision. We disagree.

{¶ 10} JSS Properties was cited for a violation of Section 807 of the resolution, which sets forth the types of business activity permitted in a General Business District and includes "[a]ll permitted and conditionally permitted uses as allowed in the LB [Local Business] District". The Notice of Violation specifically provided:

You are notified herewith (in the first/second instance), that your property at 7234 Johnstown-Utica Road, Johnstown, Ohio 43031, is used in violation of the Liberty Township Zoning Resolution, Article 8, Section 807 * * * in the following manner:
In that repairing and storing vehicles in the open is not permitted use under section 807. Please refer to the definition of Automotive, Manufactured Homes, Travel Trailers and Farm implement Sales. This clearly indicates the primary purpose is sales of items and the repair or warranty work of those items sold. It appears that what is taking place falls under running a General Automotive Garage , which is a Conditionally Permitted Use . (Emphasis in original.)

{¶ 11} At the hearing before the Board, Wendi Zigo, the Liberty Township Zoning Inspector, testified she contacted Sadinsky after receiving a complaint regarding the property. Zigo indicated Sadinsky advised her the vehicles were not junk motor vehicles as defined by the Ohio Revised Code. Zigo added Sadinsky also argued he was allowed to run any business delineated under the general business classification in the resolution because the property was zoned as such, and he believed his use of the property could be considered an automobile service station, or that the property could be used for automobile and/or farm implement sales and services.

{¶ 12} Sadinsky testified he did not operate JSS Properties as a service garage open to the general public. He serviced his own vehicles as well as vehicles belonging to family members. Sadinsky indicated all of the vehicles located at the property were roadworthy. He added the work he did on the vehicles was done inside the building. The work he performed on the vehicles included changing tire, replacing batteries, and detailing, "a lot of simple stuff". Transcript of November 28, 2016 Public Hearing held before the Liberty Township Board of Zoning Appeals at 36. Sadinsky noted he sold four vehicles in private transactions in the year prior to the hearing.

{¶ 13} After the hearing on the violation, the Board determined the activity conducted at the property did not fit within the permitted uses allowed in a General Business District. JSS Properties filed an appeal to the trial court.

{¶ 14} Via Judgment Entry filed July 18, 2017, the trial court reversed the decision of the Board, finding such was unlawful. The trial court reasoned although the parties expended "much effort debating whether [JSS Properties'] use of the property constitutes an automobile service station or automobile sales and service as defined in the resolution", "it is clear from the record that Appellant is not using the property for a service station" and "Appellant's use of the property does not fit the definition of auto sales and service." July 18, 2017 Judgment Entry at 3, 4. The trial court noted, "Appellant's use of the property does not appear to be much of a business at all as contemplated in the resolution apart from his storage business." Id. at 4. The trial court explained:

[T]he business activity addressed by the resolution appears to be commercial activity that involves retail or services offered to the public. The only evidence in the record is that appellant does not offer services to the public. Indeed, the BZA makes no effort in its brief to define general automobile garage or argue that this is in fact the use appellant is making of the property. It is clear from the BZA's minutes that the Board's main concern was that appellant was storing vehicles in the open not that he was operating a general automobile garage. (Minutes at pg. 4). No section of the resolution was cited in conjunction with Section 807 in the notice of violation that prohibits appellant's storing of operable vehicles in the open.
The BZA in its minutes states that appellant uses its property as a "Garage, Mini-storage" which is defined in the resolution as "A principal commercial structure, open to the public, for the use of temporary, enclosed storage of personal belongings, furniture, household goods, boats, trailers, or automobiles." Section 200; (Minutes at pg. 4). The BZA apparently implies from this definition that appellant's storage of vehicles in the open is somehow a violation of the resolution. However, there is no provision in Section 807 requiring operable vehicles to be enclosed.
"Zoning resolutions are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled. Therefore, such resolutions are ordinarily construed in favor of the property owner. Restrictions on the use of real property by ordinance, resolution or statute must be strictly construed, and the scope of the restrictions cannot be extended to include limitations not clearly prescribed." Saunders v. Clark County Zoning Dept. , 66 Ohio St. 2nd 259, 261, 421 N.E.2d 152 (1981).
Appellant was cited for not enclosing certain junk or disabled vehicles in violation of Sections 908 and 1009, but he has remedied those violations. These are the only Sections concerning the enclosure of vehicles the BZA has cited. There was no evidence to contradict appellant's contention that the vehicles were all operable. The fact that appellant is operating a Mini-storage business does not preclude him from activity that is not otherwise prohibited by the resolution. If appellant's activity is a violation of some other provision of the resolution, it was not cited for a violation of such provision, and the BZA has not brought any such provision to the attention of the Court.
Accordingly, the Court finds the decision of the BZA to be unlawful. Id. at 4-6.

{¶ 15} We agree with the trial court nothing in the record supports the Board's assertion JSS Properties was engaged in a business other than the operation of the mini-storage facility. In its Brief to this Court, the Board contends the trial court abused its discretion by "arbitrarily select[ing] a segment of the record for which neither side argued nor relied upon in their respective briefs and issued a ruling that the decision of the [Board] was unlawful." Brief of Appellant at 5. We find the trial court had independent and proper grounds upon which to reverse the decision of the Board; therefore, did not abuse its discretion in doing so.

{¶ 16} The Board's sole assignment of error is overruled.

{¶ 17} The judgment of the Licking County Court of Common Pleas is affirmed.

Gwin, P.J. and Delaney, J. concur

      A person is allowed to make five casual sales of personal vehicles per year without requiring a car dealer's license R.C. 4517.02(A)(6).


author: SINGER, J.

text:
    AQUATIC RENOVATIONS SYSTEMS, INC., Appellant v. VILLAGE OF WALBRIDGE, Appellee
    No. WD-17-038
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: April 13, 2018
    Russell R. Miller, Sylvania, J. Mark Trimble and Stephen E. House, Toledo, for appellant.
    Brian J. Ballenger, for appellee.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} This case is before the court on the appeal of appellant, Aquatic Renovations Systems, Inc., from the May 15, 2017 judgment of the Wood County Court of Common Pleas. For the reasons that follow, we affirm the trial court's judgment.

{¶ 2} Appellant sets forth the following assignment of error:

The trial court erred in denying the Motion for Summary Judgment of Plaintiff-Appellant, Aquatic Renovation Systems, Inc., as to Plaintiff-Appellant's claims against the Defendant-Appellee, Village of Walbridge.

Facts

{¶ 3} This case concerns the validity of an agreement between appellee, village of Walbridge ("the village"), and appellant for a new liner for the village's swimming pool ("the pool").

{¶ 4} On April 18, 2012, the village council adopted an ordinance which authorized the village's mayor to enter into an agreement with appellant for a new liner for the pool in the sum of $52,720.08.

{¶ 5} On May 2, 2012, a Contract Agreement Form between the village and appellant was signed by Edward Kolanko, the acting mayor of the village, and a representative of appellant and witnessed by Janice Sawaya, of the village, and another person. The contract provided for the installation of a new liner for the pool in the sum of $52,720.08, with the work to be substantially completed by May 21, 2012.

{¶ 6} On May 9, 2012, before appellant began work on the pool, the village had an engineer conduct a preliminary evaluation of the condition of the pool. An engineering field service report, completed on that day, stated the pool was in need of significant maintenance and repairs, which needed to be undertaken before the liner was installed.

{¶ 7} On May 25, 2012, Kenneth Frost, the village's administrator, wrote to appellant's representative indicating appellant's work on the pool could not be completed by May 21, 2012, through no fault of appellant, but the village wanted to go forward with the project after the pool was inspected and repaired.

{¶ 8} On June 1, 2012, appellant submitted to the village an application and certificate for payment of $15,763.30, for liner material as well as work for design and submittals, less eight percent retainage. On July 16, 2012, the village issued a check to appellant for $15,763.30. Thereafter, the village had repairs to the pool completed; appellant was not involved in the repair work.

{¶ 9} On April 8, 2013, appellant submitted a quotation to the village for installation of the pool liner for the balance due of $36,956.78. Mayor Kolanko signed and initialed the quotation on April 12, 2013.

{¶ 10} On June 13, 2013, a change order submitted by appellant to the village in the amount of $3,142.60 was signed by Frost, for the village. The order was also signed by a representative of appellant.

{¶ 11} On June 28, 2013, the mayor and appellant's representative conducted a walk-through of the work appellant had performed. Mayor Kolanko and a representative of appellant signed a New Installation, Multi-Division Work Order Form, which set forth that appellant arrived at the pool on June 4, 2013, and completed work on the pool on June 28, 2013.

{¶ 12} On July 3, 2013, Frost notified appellant that the liner had lifted away from the walls and floor of the pool due to a water leak. Appellant sent a representative to the pool to address the issue. The representative surmised part of the problem was a leaking pipe. Appellant provided a pump to the village to remove the water from the liner.

{¶ 13} In the fall of 2013, appellant's representative suggested to Frost that a pressure test should be performed. The test was undertaken and the result was "unable to achieve pressure." Appellant's representative informed Frost of the test result and made other suggestions to resolve the issue, to no avail. Appellant requested payment from the village for the completed and approved work, but the village refused to pay.

{¶ 14} On January 15, 2016, appellant filed its complaint against the village setting forth three causes of action. Appellant alleged it entered into two contracts with the village: the first contract was dated May 2, 2012 ("first contract"), and the second contract was dated April 12, 2013 ("second contract"). Appellant alleged in its first cause of action that the village breached the second contract, and sought damages in the amount of $36,956.78. Appellant alleged in its second cause of action that the village was liable to it under the legal theory of quantum meruit. In its third cause of action, appellant alleged the village received a benefit as a result of the work appellant performed, thus the village was liable to appellant for unjust enrichment.

{¶ 15} On March 24, 2016, the village filed its answer as well as a counterclaim for breach of contract by appellant. In the answer, the village admitted the parties entered into the first contract, but denied there was a second contract between the parties. In the counterclaim, the village alleged the parties entered into the first contract, and appellant breached that contract.

{¶ 16} On October 28, 2016, appellant filed a motion for summary judgment on its claims and the village's counterclaim. On November 14, 2016, the village filed a motion for summary judgment on its counterclaim as well as appellant's claims. Appellant responded to the village's motion.

{¶ 17} On May 15, 2017, the trial court issued its judgment, finding neither the first contract nor the second contract constituted a valid contract as neither agreement complied with the statutory law. The court further found appellant was not entitled to recover under the theory of quantum meruit or unjust enrichment. The court granted summary judgment to the village on appellant's claims, and granted summary judgment to appellant on the village's counterclaim. Appellant appealed the court's decision to grant summary judgment to the village on appellant's claims. The village did not appeal.

Standard

{¶ 18} We review a trial court's summary judgment decision on a de novo basis. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we undertake our own independent examination of the record and make our own decision as to whether the moving parties are entitled to summary judgment. Dupler v. Mansfield Journal , 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). Pursuant to Civ.R. 56, the moving party bears the initial burden of informing the trial court of the basis for the motion and presenting evidence in support thereof. Vahila v. Hall , 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997) ; Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Civ.R. 56(C).

Analysis

{¶ 19} Appellant argued in its motion for summary judgment that the second contract was a new and binding contract, as the first contract was extinguished by the second contract. Appellant also contended Indiana law governed the second contract. Appellant asserted, however, under either Indiana or Ohio law, the second contract was valid and the village breached the second contract causing appellant's damages.

{¶ 20} The village countered it entered into one binding contract with appellant-the first contract. The village maintained the second contract was a quotation solely for the purpose of acknowledging the contract price of $52,750 and that the village already paid appellant $15,763.30. The village submitted it never intended for the second contract to be a new contract or to extinguish the first contract. The village asserted the first contract was authorized by village council pursuant to Ordinance 10-12. The village argued appellant's argument that the mayor entered into the second contract with appellant is misplaced because under R.C. 731.14, village contracts must be signed by the village mayor and the clerk, and under R.C. 731.141, village contracts must be signed by the village administrator and the clerk.

{¶ 21} In reply, appellant argued the village's contention that the second contract was not properly executed was raised for the first time in the village's summary judgment motion and not as an affirmative defense in its answer, and it is misguided. Appellant reasoned if the village's argument that the second contract is not valid due to noncompliance with the statutory law, then the first contract would also have no effect because the statutory law was not followed. Appellant insisted the enforcement of the second contract is consistent with the statutory law and the codified ordinances of the village. Appellant observed Ordinance 10-12 authorized the mayor of the village to enter into an agreement with appellant to install a pool liner. Appellant noted although the village had a village administrator prior to the first contract, the administrator did not sign the first contract, only the mayor signed it. Appellant further contended the village ratified the second contract, and even if the second contract was void, it was made in good faith and appellant incurred considerable expenses, thus appellant is entitled to recover payment for services rendered.

Appellant's First Cause of Action-Breach of Contract

{¶ 22} "In order to declare the existence of a contract, both parties to the contract must consent to its terms; there must be a meeting of the minds of both parties; and the contract must be definite and certain." (Citations omitted.) Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations , 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991).

{¶ 23} In addition to the basic contract formation requirements, a municipal corporation may only enter into a contract as dictated by statute. Pugh v. Ned Peppers , 2d Dist. Montgomery No. 22939, 2010-Ohio-1917, 2010 WL 1732634, ¶ 47. Accordingly, "[a] contract made by [a municipal corporation] * * * in violation or disregard of the statutes on that subject, is void * * *. Courts will leave the parties to such unlawful transaction where they have placed themselves, and will refuse to grant relief to either party." Buchanan Bridge Co. v. Campbell , 60 Ohio St. 406, 419, 54 N.E. 372 (1899), syllabus. Therefore, a village "cannot be bound by a contract that is not properly endorsed or 'formally ratified through proper channels.' " Pugh at ¶ 48, quoting Wellston v. Morgan , 65 Ohio St. 219, 62 N.E. 127 (1901), paragraph three of the syllabus.

{¶ 24} Courts must strictly construe statutory provisions which are designed by the legislature to safeguard public funds. Cleveland Trinidad Paving Co. v. Bd. of Cty. Commrs. of Cuyahoga Cty. , 15 Ohio App.3d 66, 69, 472 N.E.2d 753 (8th Dist.1984).

{¶ 25} "Contracts made in violation of state statute or in disregard of such statutes are void, not merely voidable, and courts will not lend their aid to enforce such contracts directly or indirectly but will leave the parties where they have placed themselves." (Citations omitted.) CommuniCare, Inc. v. Wood Cty. Bd. of Commrs. , 161 Ohio App.3d 84, 2005-Ohio-2348, 829 N.E.2d 706, ¶ 37-38 (6th Dist.). Thus, a party who enters into a contract with a municipality has the burden of " 'ascertain[ing] whether the contract complies with the Constitution, statutes, charters, and ordinances so far as they are applicable.

If he does not, he performs at his peril.' " Shampton v. Springboro , 98 Ohio St.3d 457, 2003-Ohio-1913, 786 N.E.2d 883, ¶ 28, quoting Lathrop Co. v. Toledo , 5 Ohio St.2d 165, 173, 214 N.E.2d 408 (1966).

Affirmative Defense

{¶ 26} As to the second contract, we will first address appellant's contention that the village failed to raise the "legislative authority" argument under R.C. 731.14 and 731.141, as an affirmative defense in its answer.

{¶ 27} An affirmative defense assumes the allegations in the complaint to be true, but constitutes a defense to them. Davis v. Cincinnati, Inc. , 81 Ohio App.3d 116, 119, 610 N.E.2d 496 (9th Dist.1991), citing Black's Law Dictionary (6 Ed.1990) 60. Moreover, an affirmative defense has been defined as " 'any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the "confession") but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the "avoidance").' " (Citation omitted.) State ex rel. Plain Dealer Publishing Co. v. City of Cleveland , 75 Ohio St.3d 31, 33, 661 N.E.2d 187 (1996).

{¶ 28} Civ.R. 8(C) sets forth certain affirmative defenses and requires that a party set forth its affirmative defenses in its responsive pleading. The failure to raise an affirmative defense in an answer results in its waiver. Hoover v. Sumlin , 12 Ohio St.3d 1, 3-4, 465 N.E.2d 377 (1984).

{¶ 29} Here, upon review of the village's answer, the village denied there was a "new Quotation or a Second Contract." Since the village denied the existence of a second contract, the village's legislative authority argument does not qualify as an affirmative defense which the village had to raise in its answer.

Validity of the Second Contract

{¶ 30} R.C. 731.14 states in pertinent part that "[a]ll contracts made by the legislative authority of a village shall be executed in the name of the village and signed on its behalf by the mayor and clerk." R.C. 731.141 provides in relevant part "[i]n those villages that have established the position of village administrator * * * [a]ll contracts shall be executed in the name of the village and signed on its behalf by the village administrator and the clerk."

{¶ 31} Ordinance 10-12, adopted by the village on April 18, 2012, was an emergency measure which stated in relevant part that "the mayor is authorized to enter into an agreement with [appellant] to install [a pool liner] * * * in the sum of $52,720.05."

{¶ 32} As to Ordinance 10-12, appellant maintains the second contract was executed in compliance with the ordinance, as the village's authorized agent signed and initialed the contract. Appellant argued R.C. 731.14 does not require the village to exercise its legislative authority to execute a contract by ordinance. Appellant further argued although the village had an administrator, the ordinance granted authority to the mayor to enter into an agreement with appellant. Appellant asserted an ambiguity was created in the ordinance's enactment, but the purpose and effect of the ordinance was carried out by the village and the mayor. Appellant claimed specific sections of the Codified Ordinances of the village of Walbridge governed construction of the village's ordinances.

{¶ 33} Upon review, it is undisputed that at all times relevant, the village had a village administrator. It is further undisputed that the second contract was only signed by the mayor; it was not signed by the village administrator or the clerk. As such, we conclude R.C. 731.14 does not apply. We must now determine whether R.C. 731.141 and/or Ordinance 10-12 apply.

{¶ 34} R.C. 1.51 provides:

If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.

{¶ 35} At the outset, we note the specific sections of the Codified Ordinances of the village of Walbridge upon which appellant relied are modeled after the rules of construction set forth in the Ohio Revised Code.

{¶ 36} Upon review, the general provision, R.C. 731.141, does not conflict with the specific or local provision, Ordinance 10-12. The ordinance granted authority to the mayor to enter into an agreement with appellant, but did not specify the steps necessary to ensure the formation of a valid contract. The statute, however, required that all village contracts must be signed by the village administrator and the clerk. Compliance with the ordinance does not preclude compliance with the statute. Thus, the statute and ordinance can operate concurrently, and both apply. Since the second contract was not signed by the village administrator and the clerk, it did not comply with R.C. 731.141. We therefore find the second contract is not valid. See City of Toledo v. Corr. Comm. of Northwest Ohio , 6th Dist. Lucas No. L-16-1155, 2017-Ohio-9149, 2017 WL 6508869. See also NaphCare, Inc. v. Cty. Council Ohio , 9th Dist. Summit No. 24906, 2010-Ohio-4458, 2010 WL 3677401.

Ratification

{¶ 37} Appellant submitted if there was a question as to the validity and enforceability of the second contract, the village ratified the mayor's actions and the second contract. Appellant suggested that the village ratified the second contract because the village, in its motion for summary judgment, set forth that the second contract was "simply a confirmation of a different textured liner." Appellant claims this sentence is conclusive proof that the second contract was intended to and did substitute the terms of the first contract. Appellant maintained the village cannot selectively pick which new and different terms were confirmed in the second contract, but argue other terms of the second contract were invalid.

{¶ 38} In its opposition to the village's motion for summary judgment, appellant cited to no legal authority in support of its argument that the village ratified the second contract. In its appellate brief, appellant invited the court to "[s]ee, generally," 20 Ohio Jurisprudence 3d, Counties, Townships and Municipal Corporations, Section 408 (1980), with respect to ratification of unauthorized contracts.

{¶ 39} A review of the record shows appellant has not cited to any case law or rule in support of its contention that the village ratified the second contract. The appellant has the burden on appeal. See App.R. 16(A)(7). "It is the duty of the appellant, not this court, to demonstrate his assigned error through an argument that is supported by citations to legal authority and facts in the record." State v. Taylor , 9th Dist. Medina No. 2783-M, 1999 WL 61619, *3 (Feb. 9, 1999). See also Speller v. Toledo Pub. Schools Bd. of Edn. , 6th Dist. Lucas No. L-16-1231, 2017-Ohio-7994, 2017 WL 4339468, ¶ 56. Since appellant failed to comply with App.R. 16, we find appellant's claim that the village ratified the second contract not well-taken.

Good Faith

{¶ 40} Appellant also argued even if the second contract was void, it was made in good faith and appellant incurred considerable expenses, thus appellant is entitled to recover payment for services rendered. In support of this argument, appellant cited to Wilson Bennett, Inc. v. Greater Cleveland Regional Transit Auth. , 67 Ohio App.3d 812, 588 N.E.2d 920 (8th Dist.1990).

{¶ 41} In Wilson Bennett , the public authority, Greater Cleveland Regional Transit Authority ("the Authority"), gave notice it would accept bids for a construction project. Id. at 815, 588 N.E.2d 920. The Authority provided instructions which set forth requirements which had to be met in order for a bidder's bid to be considered. Id. Two bids were submitted, including one by Wilson Bennett, Inc. ("WB"); WB's bid was rejected, and the Authority entered into a contract with the successful bidder. Id. at 815-816, 588 N.E.2d 920. WB sued to nullify the contract. Id. The trial court held the successful bidder's bid did not meet all of the requirements set forth by the Authority; thus, the contract was void as contrary to law. Id. at 817, 588 N.E.2d 920. The court enjoined the Authority from making any further payments to the successful bidder. Id. The court of appeals reversed and held "[e]ven where there is a void contract, if such a contract is made in good faith and vast expenses are incurred by the contractor in preparing to complete it, a court will not enjoin the payment of the reasonable value of services rendered." Id. at 822, 588 N.E.2d 920. The appellate court found the contract "was not void as contrary to law * * * [and] by applying basic equitable principles, * * * [the successful bidder] was entitled to compensation for the work it actually performed and the benefit it conferred. Id.

{¶ 42} While appellant claims it is clearly entitled to compensation pursuant to the holding in Wilson Bennett , a review of Ohio case law shows our case, Knox Elec. Constr., Inc. v. Huron Cty. Landfill , 6th Dist. Huron No. H-92-045, 1993 WL 235821, *3-4 (June 30, 1993), is controlling.

{¶ 43} In Knox , an electrical construction company ("company") performed work at the county landfill, and the company claimed the landfill owed it money for additional work performed under a previously bid contract. Id. at * 1. The trial court granted summary judgment in favor of the landfill finding "Ohio law did not permit the company to recover against the landfill in either quantum meruit, contract liability, or estoppel unless the alleged contract was executed or agreed upon [in accordance with the statutory law]." Id. at * 1. The company appealed, relying on Wilson Bennett . Id. at * 3. On appeal, we found Wilson Bennett was distinguishable because the company's circumstances varied greatly from the successful bidder's situation. Id. at * 3-4. We observed the successful bidder "was awarded the contract by the appropriate authorizing agent, * * * as a result of what it believed to be an apparently successful bid," whereas the company was granted permission for extra work from the landfill's supervisor, who was not the contracting agent for the county and did not have actual or apparent authority to bind the county. Id. We therefore refused to apply the holding in Wilson Bennett . Id. at * 4.

{¶ 44} Consistent with our holding in Knox , we refuse to apply the holding in Wilson Bennett in the present case, as appellant failed to establish the second contract was awarded by the appropriate authorizing agents of the village, as mandated by statute.

{¶ 45} For the foregoing reasons, we find the trial court did not err in holding the second contract was invalid, and therefore unenforceable. We further find the trial court's award of summary judgment to the village on appellant's first cause of action was proper.

Appellant's Second and Third Causes of Action Quantum Meruit and Unjust Enrichment

{¶ 46} Quantum meruit means " 'as much as deserved.' " (Citation omitted.) Dilly Door Co. v. Grymonprez , 6th Dist. Williams No. WM-97-025, 1998 WL 160043, * 2 (Mar. 31, 1998). The doctrine of quantum meruit is a remedy, derived from the law of equity, " 'the basic concept of which is that no one should be unjustly enriched from the services of another.' " (Citation omitted.) Id. Thus, recovery in quantum meruit is based upon a promise implied by law, or quasi-contract, to pay a reasonable amount for services rendered and accepted in order to prevent unjust enrichment. Id. at * 2. By definition, a quasi-contract does not adhere to the formalities required to form a binding contract with a municipality. Id. at * 2-3.

{¶ 47} "Unjust enrichment occurs when a person " 'has and retains money or benefits which in justice and equity belong to another.' " Johnson v. Microsoft Corp. , 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20, quoting Hummel v. Hummel , 133 Ohio St. 520, 528, 14 N.E.2d 923 (1938).

{¶ 48} "When the Ohio General Assembly intended a requirement that legislative authority of a municipal corporation be exercised by ordinance or by resolution or either, it has expressly so stated, e.g. Secs. * * * 731.141 * * * R.C." Bryan v. Village of Swanton , 6th Dist. Fulton No. F-76-4, 1976 WL 188442, * 4 (Nov. 2, 1976). "If the manner in which the legislative authority and power to contract of a municipal corporation can be exercised is expressly prescribed, such prescribed manner is mandatory and exclusive." Id.

{¶ 49} Since a municipality may not be held liable on the basis of a quasi-contract, it follows that a claim of quantum meruit or unjust enrichment against a municipality fails. See Cleveland v. Village of Marblehead, 6th Dist. Ottawa No. OT-00-018, 2001 WL 279763, * 1-2 (Mar. 23, 2001). See also McCormick v. Niles , 81 Ohio St. 246, 251, 90 N.E. 803 (1909) and Collaborative, Inc. v. Gernheuser , 6th Dist. Lucas No. L 78-088, 1978 WL 214989, * 3 (Dec. 29, 1978).

{¶ 50} In light of the foregoing, appellant could not recover from the village under a claim of quantum meruit or unjust enrichment. Accordingly, we find the trial court did not err in awarding summary judgment to the village on appellant's second and third causes of action. It follows that appellant's assignment of error is not well-taken.

{¶ 51} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal, pursuant to App.R. 24.

Judgment affirmed.

Christine E. Mayle, P.J.

James D. Jensen, J.

CONCUR.

      We note that only the validity of the second contract is at issue on appeal, as neither party has assigned as error the trial court's ruling that the first contract was not valid. We also note that although the village argued in its summary judgment motion that the first contract was valid, at the hearing on the motions for summary judgment, the village acknowledged that the first contract may be void.


text:
    WELLS FARGO BANK, N.A., Appellee v. Hollies P. MAYO, Appellant
    No. E-16-007
    Court of Appeals of Ohio, Sixth District, Erie County.
    Decided: April 13, 2018
    Daniel C. Gibson, Nelson M. Reid and Kara H. Herrnstein, Columbus, for appellee.
    Geoffrey L. Oglesby and Danielle C. Kulik, Sandusky, for appellant.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, Hollies P. Mayo, appeals from the December 31, 2015 judgment of the Erie County Court of Common Pleas granting appellee, Wells Fargo Bank, N.A., Trustee for the Certificate Holders of Carrington Mortgage Loan Trust, Series 2007-FRE1 Asset-Backed Pass-Through Certificates (hereinafter "Wells Fargo"), judgment on a promissory note in the amount of $92,306.82 and granting foreclosure of the mortgage securing the note. The notice of appeal was premature, but a final judgment of foreclosure was entered on January 21, 2016. For the reasons which follow, we affirm.

{¶ 2} On appeal appellant asserts the following assignments of error:

ASSIGNMENT OF ERROR NO. I
The Trial Court Erred by Finding that the Plaintiff Note Holder complied with the terms of the agreement of giving Thirty Days' Notice of Default to the Defendant when the Note Holder never sent notice that the Defendant was in Default of the Note that Plaintiff recently possessed.
ASSIGNMENT OF ERROR NO. II
The Trial Court erred by finding that Plaintiff's Predecessor gave notice to the Defendant of Default when there was no evidence that the notice of default was sent to the address Defendant had given to the Plaintiff's Predecessor.

{¶ 3} On May 21, 2012, Wells Fargo filed a complaint in foreclosure against Mayo. Summary judgment was denied to Wells Fargo because the trial court found there was a genuine issue of material fact as to whether Wells Fargo had complied with all contractual preconditions to filing a foreclosure action. The case proceeded to a bench trial on February 17, 2015.

{¶ 4} We note that while appellant ordered a transcript of the trial, she did not pay for the transcript and, therefore, neither the transcript nor the exhibits admitted into evidence were filed in the appeal. The transcript of the lower court proceedings must be filed by appellant, if necessary for disposition of the appeal, because appellant bears the burden of showing error by reference to the record. App.R. 9(B), 10(A), and 12(A)(2) ; Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988), citing Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Therefore, our review is limited on appeal to the questions of law determined by the trial court based on the facts found by the trial court.

{¶ 5} The trial court made the following factual findings in its December 31, 2015 judgment entry. On November 30, 2006, Mayo executed a promissory note in the amount of $94,500. The lender was Fremont Investment & Loan. The note was secured by a first mortgage to Mortgage Electronic Registration Systems, Inc., as nominee for Fremont Investment & Loan, which encumbered the property at 1102 Columbus Avenue, Sandusky, Ohio. The mortgage was recorded December 11, 2006. EMC Mortgage LLC (hereinafter "EMC") was the servicer for the original lender in 2007. Mayo's last payment on her account was made December 1, 2009. At the time of the breach, EMC physically held the note, which was endorsed in blank and made payable to the bearer.

{¶ 6} Under the promissory note paragraphs 7(C) and 8, notice of default was necessary for acceleration of the debt and that notice was required to be delivered or mailed by first class mail to the property address. Under the mortgage, paragraph 22, a notice of default was required to be sent prior to acceleration of the debt and exercise of the right of foreclosure by judicial proceeding and sale of the property. The stated purpose of the notice of default was to give the borrower 30 days to cure the default. Pursuant to the mortgage, paragraph 15, the notice of default had to be delivered or mailed by first class mail to the property address unless another address was provided.

{¶ 7} The court found EMC mailed a notice of default on August 3, 2010, to Mayo at the property address. Mayo had not notified the note holder of a different address for receiving notice of default. The notice of default informed Mayo that a default occurred on January 1, 2010; what action Mayo needed to take to cure the default and by what date; that failure to cure the default would result in commencement of the foreclosure action; and of her rights to reinstate after default and to defend in foreclosure. The notice of default further directed that Mayo remit payment to the mortgage loan servicer at that time, EMC. When EMC sent the default letter to Mayo in 2010, it had already (in May, 2008) been acquired by JPMorgan Chase, N.A. (hereinafter "Chase") and continued to do business under the control of Chase until it was fully absorbed by Chase in April 2011. Chase is a loan servicer for Wells Fargo and maintains all of its mortgage loan records.

{¶ 8} Wells Fargo acquired the note and the mortgage on May 1, 2012 (and the assignment of the mortgage was recorded May 10, 2012). Therefore, the court concluded Wells Fargo was the holder of the note and mortgage when it filed the foreclosure action on May 21, 2012. The trial court also found Wells Fargo had complied with the conditions for notice of default and acceleration of the note. The trial court concluded Mayo had been properly notified of the default, she did not act to cure the arrearage, and the entire note became due with interest. The court found the current principal balance due Wells Fargo was $92,306.82, with interest at 8.6 percent per annum from December 1, 2009. In its January 25, 2016, judgment entry, the trial court ordered foreclosure of the mortgage lien. Mayo appeals from the final judgment of foreclosure.

{¶ 9} On appeal, Mayo argues in her first assignment of error the trial court erred in finding that Wells Fargo sent a notice of default to Mayo as required by the promissory note and mortgage as a contractual condition precedent to a claim for foreclosure. Mayo argues the notice of default sent by EMC became moot once EMC ceased to be the holder of the note because EMC was made whole by the sale of the note to Wells Fargo. She further argues Wells Fargo had a separate duty to send her notice of the default as the subsequent holder of the note. Because Wells Fargo had acquired the note less than one month prior to filing the foreclosure action, Mayo argues Wells Fargo cannot establish it had complied with the condition precedent of sending Mayo notice of her default.

{¶ 10} We note that Mayo generally denied in her answer the allegation made by Wells Fargo in its complaint that it had complied with all conditions precedent prior to foreclosing the mortgage. Civ.R. 9(C) allows the plaintiff to aver conditions precedent generally, but requires the defendant to deny performance or occurrence of the conditions precedent "specifically and with particularity" or the allegation that the conditions precedent were satisfied is deemed admitted. Civ.R. 8(D) ; Huntington Bank v. Popovec , 7th Dist. Mahoning No. 12 MA 119, 2013-Ohio-4363, 2013 WL 5503180, ¶ 15. In this case, Mayo's general denial does not satisfy the requirements of Civ.R. 9(C) and the trial court should have found that she had already admitted this fact and dismissed her arguments regarding the fulfillment of the conditions precedent.

{¶ 11} Even if we consider the question of law she raises, as the trial court did, we conclude the notice sent by a prior holder inures to the benefit of a subsequent holder. Therefore, we reject Mayo's argument to the contrary.

{¶ 12} A holder is defined as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." R.C. 1301.201(B)(21)(a). The holder is the "person entitled to enforce" the instrument. R.C. 1303.31(A)(1). R.C. 1303.22(B) provides that "[t]ransfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument." Furthermore, we agree with Wells Fargo that basic contract principles apply to mortgage agreements, First Fed. S. & L. Assoc. v. Perry's Landing, Inc. , 11 Ohio App.3d 135, 143, 463 N.E.2d 636 (6th Dist.1983), including the concept of privity as a result of the assignment of the mortgage, Bank of New York Mellon v. Huth , 6th Dist. Lucas Nos. L-12-1241, 2014-Ohio-4860, ¶ 36, quoting EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d 855, ¶ 20 (10th Dist.) (citation omitted).

{¶ 13} EMC sent default notice in 2010 as a holder of the note. Wells Fargo became the holder of the note in 2012, when it purchased the note. Since there is nothing in the trial court's factual findings to dispute that Wells Fargo purchased the note in good faith as part of its ordinary course of business, Wells Fargo obtained all the rights of EMC under the note, including the right to file a foreclosure action. Mayo acknowledges that the purpose of the notice of default is to ensure fair dealing and give the maker opportunity to cure the default. Certainly after two years of being in default, the maker cannot claim the failure of a subsequent holder to send a second notice of default resulted in unfairness. The trial court found Mayo had not taken any action since 2010 to cure the default.

{¶ 14} Therefore, we conclude that upon the sale of the note and assignment of the mortgage to Wells Fargo, it also acquired the right to accelerate the debt and file a foreclosure action because the conditions precedent had been satisfied. Mayo's first assignment of error is found not well-taken.

{¶ 15} In her second assignment of error, Mayo argues that her personal address was the address to which the notice of default should have been sent. She contends that the fact that the foreclosure complaint listed her personal address was evidence that she had supplied the holder with a new address for sending the notice of default.

{¶ 16} The trial court specifically found that Mayo had not given the holder her personal address for purposes of sending the notices as required by paragraph 15 of mortgage. Because Mayo did not file a transcript of the trial, we cannot review this factual finding. Rose Chevrolet , 36 Ohio St.3d at 19, 520 N.E.2d 564. Nonetheless, we note that the use of Mayo's residential address for purposes of filing the foreclosure action is not evidence the holder was notified of Mayo's personal address for purposes of sending notices as required by the note and mortgage. Mayo's second assignment of error is found not well-taken.

{¶ 17} Having found that the trial court did not commit error prejudicial to appellant and that substantial justice has been done, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

James D. Jensen, J.

Christine E. Mayle, P.J.

CONCUR.


author: JENSEN, J.

text:
    STATE of Ohio, Appellee v. Jayson HALE, Appellant
    No. OT-17-023
    Court of Appeals of Ohio, Sixth District, Ottawa County.
    Decided: April 13, 2018
    James VanEerten, Ottawa County Prosecuting Attorney, and Dina Shenker, Assistant Prosecuting Attorney, for appellee.
    David A. Nacht, Ann Arbor, for appellant.
    DECISION AND JUDGMENT
   JENSEN, J.

{¶ 1} This matter is before the court on appeal from the July 31, 2017 judgment of the Ottawa County Municipal Court finding appellant, Jayson Hale, guilty of disorderly conduct in violation of R.C. 2917.11(A)(2), a minor misdemeanor. For the reasons that follow, we affirm the judgment of the Ottawa County Municipal Court.

{¶ 2} This matter stems from an allegation that while inside a gas station located in Oak Harbor, Ottawa County, Ohio, on or about October 29, 2016, Hale "used foul language and gross sexual language in a public place causing annoyance to Lindsey Huston, an employee of Friendship Sunoco."

{¶ 3} At a trial to the bench, the state presented testimony from three witnesses and a copy of the surveillance tape from a camera inside the Oak Harbor Friendship Sunoco Gas Station.

{¶ 4} Eric Parker testified that he is employed as a night shift patrolman with the Oak Harbor Police Department. Just after 11:30 p.m. on October 28, 2016, Officer Parker drove his marked patrol car to the Friendship Sunoco Gas Station and went inside. He was dressed in his regular uniform. Sergeant Couts from the Carroll Township Police Department arrived at about the same time. He was also dressed in uniform.

{¶ 5} Officer Parker testified that consistent with their usual routine, he and Sergeant Couts stood near the coffee area inside the gas station to provide late-night security as the gas station clerks waited on customers and performed their closing duties.

{¶ 6} At about 11:45 p.m., Jayson Hale and his wife, Christy Lynn Hale, entered the station. At the time, Hale was employed by the Ottawa County Sheriff's office. Hale was off-duty and dressed in street clothes. Both Officer Parker and Sergeant Couts knew Hale in his law enforcement capacity, but neither considered him a friend.

{¶ 7} Seconds after Hale walked into the gas station, Hale loudly asserted, "Fuck you, Parker." Officer Parker explained what happened next:

Then [Hale] walked to the far back corner, I guess it would be the furthest away from me he could get. I heard it again, "Fuck you, Parker." And then I just, I looked at * * * Sergeant Couts, and we kind of just looked at each other.
Then I heard, as he came back towards * * * the front of the store where the cashiers are, I heard him say, "Suck my dick, Parker." Now he's fairly close * * * he looked like through the racks area over the aisle and said it again, "Suck my dick, Parker."
I didn't respond to any of them. I was just kind of shocked that was happening in a public store, but then he came around the corner to me and I told him I didn't want to talk to him. And I could see that he had been drinking. I could smell it. So I didn't want to talk to him, so I asked him to get away from me.

{¶ 8} After stepping to within three feet of Officer Parker, Hale turned toward the counter to make a purchase. His wife followed. Officer Parker testified that while standing at the counter, Hale's wife pointed her finger at him and yelled "there is two sides to every story." As Hale and his wife walked out of the station, Hale yelled "coward" or "you're a coward."

{¶ 9} Sergeant Joshua Couts' recollection of what occurred in the gas station just before midnight on October 28, 2016, was nearly identical to that of Officer Parker. When asked how "bad" the situation inside the station was, Couts' explained:

Well, when [Hale] come over to the second aisle and with the "suck my dick, Parker," * * * I felt like "Okay, he's looking for us to say something or Officer Parker to say something."
And the last time he said it and then when he came over, just, I don't know, it was, felt like it was provoking, trying to start something that really didn't need to be started.

{¶ 10} Sergeant Couts testified that he did not get between Officer Parker and Hale nor did he think about getting in between the two men. He did however, turn sideways so that he could see what was going on and "be more prepared if [he] had to be."

{¶ 11} During the time that Hale was walking around the gas station yelling obscenities towards Officer Parker, there were other customers inside, including a woman with small children.

{¶ 12} Lindsey Huston is a sales associate at the Friendship Sunoco gas station. She was working when Hale and his wife entered the station. Ms. Huston explained that while she was standing behind the counter, "a couple walked in, and the man went straight for [Officer] Parker and was being very loud and yelling, and the wife did the same. So, it was kind of nerve racking and took me very by surprise." Huston indicated that Hale's voice was "very loud" and "enough to fill a room." When asked what she was feeling when Hale walked into the station, Ms. Huston explained,

I was blown away. * * * I've never seen anything like that happen. And I've been working retail for a while. So seeing someone go straight for an officer and not caring who was around and just wanted I mean it was almost, it was crazy. I was nervous, especially working at night. Like that stuff doesn't happen and then it did. It scared me.

{¶ 13} Ms. Huston explained that after Hale and his wife came up to the register, she "just wanted to get them out" of the gas station as fast as she could. She did not say anything to Hale or his wife because she was "scared." She also indicated that after witnessing the event, she realized that she never wanted to work a shift by herself.

{¶ 14} Following a bench trial, Hale was found guilty of disorderly conduct and ordered to pay court costs and serve ten hours in the court's supervised community service program. Hale now appeals, assigning one two-part error for our review:

The elements of the crime of disorderly conduct were not proven beyond a reasonable doubt because Defendant-Appellant's speech did not rise to the level of "fighting words" and was protected by the First Amendment to the United States Constitution.
Defendant-Appellant's conviction for disorderly conduct is in violation of the First Amendment to the United States Constitution which protects Mr. Hale's right to speech and free expression.

Hale simultaneously addresses both parts of his sole assignment of error in his brief. Thus, we address both parts of his sole assignment of error correspondingly.

{¶ 15} As noted above, the complaint charging Hale with disorderly conduct was based on allegations he used "foul" and "gross sexual language" to cause annoyance to an employee of the gas station. R.C. 2917.11(A)(2) provides that no person shall recklessly cause "inconvenience, annoyance, or alarm to another" by "[m]aking unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abuse language to any person."

{¶ 16} There is no dispute that Hale's comments toward Officer Parker were offensive, unwarranted, and grossly abusive. There is also no dispute that Hale's comments recklessly caused annoyance to Ms. Huston. Therefore, the only question before us is whether Hale's statements are protected speech under the First Amendment to the United States Constitution.

{¶ 17} Previously, in Toledo v. Grince , 48 Ohio App.3d 126, 548 N.E.2d 999 (6th Dist.1989), we held:

While the first Amendment to the United States Constitution creates the right of free speech (which is made applicable to the states and their subdivisions through the Fourteenth Amendment), the exercise of that right is narrowly limited under certain circumstances. One situation where pure speech can be regulated by criminal statute is where a certain class of speech, now commonly known as "fighting words" is involved. The rationale behind this limitation on the right to free speech is that where words incite an immediate breach of peace, their value as an expression of ideas or truth is outweighed by society's interests in maintaining order and morality * * *. Id. at 128, 548 N.E.2d 999.

{¶ 18} The Supreme Court of Ohio has held that a person may not be found guilty of disorderly conduct under subsection (A)(2) unless the words spoken are "likely by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace." State v. Hoffman , 57 Ohio St.2d 129, 133, 387 N.E.2d 239 (1979), paragraph one of the syllabus. In other words, if an offender's spoken words do not rise to the level of "fighting words," then the offender's speech is protected by the First and Fourteenth Amendments to the U.S. Constitution and cannot be punished as a criminal act. See Cincinnati v. Karlan , 39 Ohio St.2d 107, 314 N.E.2d 162 (1974) ; see also In re F.F. , 6th Dist. Wood No. WD-16-031, 2016-Ohio-7695, 2016 WL 6680296, ¶ 12 ("To support a conviction of disorderly conduct, the words spoken must be 'fighting words."); Hoffman , 57 Ohio St.2d at 131, 387 N.E.2d 239 ("[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be their utterance many not be made a crime unless they are 'fighting words' as defined by that tribunal.").

{¶ 19} "The test for determining what words constitute 'fighting words' is whether the words used would reasonably incite the average person to retaliate." Grince at 128, 548 N.E.2d 999. Further, to constitute "fighting words," the words chosen must be "used to describe a person or be directed at a person." Id. at 126, 548 N.E.2d 999, citing Chaplinsky v. New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In State v. Wood , 112 Ohio App.3d 621, 679 N.E.2d 735 (11th Dist.1996), the court held, "[t]o tell anyone, including a police officer, "fuck you," either verbally or via an extended digit, may indeed constitute 'fighting words' depending on the circumstances." Id. at 628, 679 N.E.2d 735.

{¶ 20} Here, Hale repeated obscene remarks, all of which were directly addressed to Officer Parker. After making the remarks, Hale approached Officer Parker in a manner that Sergeant Couts described as Hale "provoking" Officer Parker and "trying to start something that really didn't need to be started." Given the circumstances of this case, we find that the trial court did not err in finding Hale guilty of disorderly conduct. Hale's obscene remarks, directed toward Officer Parker, in the manner described would reasonably incite the average person to retaliate. Thus, Hale's words constitute "fighting words" and are not protected by the First and Fourteenth Amendment to the U.S. Constitution. Accordingly, Hale's sole assignment of error is not well-taken.

Conclusion

{¶ 21} For the reasons set forth above, the judgment of the Ottawa County Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.