author: SADLER, J.

text:
    ROSS SINCLAIRE AND ASSOCIATES, LLC, Plaintiff-Appellant, v. The HUNTINGTON NATIONAL BANK, Defendant-Appellee.
    No. 17AP-355
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 22, 2018
    On brief: Flagel & Papakirk, LLC, James Papakirk, and Hallie S. Borellis, Cincinnati, for appellant. Argued: Hallie S. Borellis.
    On brief: Porter, Wright, Morris & Arthur LLP, Kathleen M. Trafford, Robert W. Trafford, and Jay A. Yurkiw, Columbus, for appellee. Argued: Kathleen M. Trafford.
    DECISION
   SADLER, J.

{¶ 1} Plaintiff-appellant, Ross Sinclaire and Associates, LLC ("RSA"), appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, The Huntington National Bank ("HNB"). For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} RSA is a full-service investment banking, securities brokerage, and asset management firm with a principal office in Cincinnati, Ohio. HNB is a national banking association with its principal place of business located in Columbus, Ohio. The events that have resulted in this appeal began in 1998 when Montgomery County issued approximately $5.8 million in Multifamily Housing Mortgage Revenue Bonds. The county allocated the proceeds from the sale of the bonds to a nonprofit corporation known as the Trinity Foundation, Inc. ("Trinity") to finance the redevelopment of the Squirrel Run Apartments ("Squirrel Run") in Trotwood, Ohio for low-income families. In conjunction with the receipt of the bond revenue, Trinity executed and delivered to HNB, as indenture trustee, a promissory note for each series of the bonds, secured by an Open-End First Mortgage, Assignment of Lease and Rents, and Security Agreement. (Ex. 3 attached to Joint Stipulation of Facts and Exs. (hereinafter "Joint Ex.").) The promissory notes obligated Trinity to fund the principal and interest payments due under the bonds out of the rental income derived from Squirrel Run. The existing 160-unit Squirrel Run apartment complex provided the collateral for the loan to Trinity. In 1998, the Squirrel Run property appraised at $5.5 million using an income approach.

{¶ 3} On November 8, 2001, HNB's trust administrator and senior vice president, Candada Moore ("Trustee Moore"), issued the first Notice to Holders of an Event of Default. The notice provides, in relevant part, as follows:

As of the date of this notice, the Debt Service Reserve Fund * * * was used to make up the deficiencies in the payments for debt service due November 1, 2001 * * * and all holders of the Series A and Series B have been paid in full for such debt service that was due. To date, the Trinity Foundation, Inc. has not replenished the Debt Service Reserve Fund. Series C has not been paid for debt service due November 1, 2001.

(Joint Ex. 4 at 1.)

{¶ 4} Trustee Moore subsequently issued a similarly worded Notice to Holders of Continuing Events of Default on May 8, 2002, January 8, July 1, and November 20, 2003. Trustee Moore enclosed with the November 20, 2003 notice audited financial reports received on January 5, 2003. On December 10, 2003, Trinity and Montgomery County executed an agreement whereby Trinity agreed to make installment payments for delinquent property taxes.

{¶ 5} On February 26, 2004, Trustee Moore notified bondholders as follows:

We are writing to you in our capacity as Trustee * * * to advise you that Trinity * * * as owner of the Project property which serves as collateral for and secures the Bonds, and as the obligor under the Loan Agreement which provides the revenues to pay the Bonds, has contacted Reilly Mortgage Group, Inc. ("Reilly") to apply for FHA mortgage insurance and to place a mortgage loan to retire the Bonds. * * * In order to proceed, Reilly requires an up front payment of $23,000 to pay for initial fees and expenses [and] has requested your consent to use $23,000 from the Debt Service Reserve Fund which secures the Bonds, to pay Reilly.

(Joint Ex. 10 at 1.) The notice also advised bondholders that Trinity remained delinquent in its real property taxes and acknowledged that "ongoing routine repair and maintenance items, such as fixing storm drains and downspouts and replacing carpet, have regularly fallen behind as occupancy and revenues have not kept pace. There are frequent roof repair needs, patio dividers and balcony floors and railings have deteriorated wood and fogged up patio doors have been an ongoing problem." (Joint Ex. 10 at 2.)

{¶ 6} On May 18, 2004, Trustee Moore issued another Notice to Holders of Continuing Events of Default. On May 19, Reilly had the Squirrel Run property appraised in furtherance of its efforts to secure FHA refinancing. The appraiser estimated the fair market value of the property, using a cost-basis approach, between $3.3 and $3.5 million.

{¶ 7} On November 5, 2004, November 8, 2005, and May 5, 2006, Trustee Moore issued a Notice to Holders of Continuing Events of Default and Partial Interest payment. The November 5, 2004 notice informed bondholders that Reilly was unable to secure refinancing because "it has not been able to obtain FHA mortgage insurance due to receipt of an appraisal that was lower than needed for a full refinancing." (Joint Ex. 13 at 2.) The notice indicated "[o]ther refinancing alternatives are being explored." (Joint Ex. 13 at 2.)

{¶ 8} In February 2006, RSA made its first purchase of the bonds at issue, by and through RSA employee Philip Lucas. Lucas knew the loan to Trinity was in default status when he made the purchase. Lucas and RSA also had access to all prior notices of default, but Lucas did not recall reviewing any of the notices to bondholders issued prior to the time he purchased the bonds in 2006. In his deposition, Lucas maintained he was not concerned the loan was in default status because he believed the collateral securing the loan and the bonds had value. Lucas testified that over several years he engaged in some direct communications with Trustee Moore regarding the status of the project and the value of the collateral. The parties disagree as to the precise nature and import of RSA's communications with Trustee Moore.

{¶ 9} RSA did receive some scheduled interest payments associated with the Squirrel Run bonds purchased in 2006, but RSA received no such payments after December 2006. Trustee Moore subsequently issued a Notice to Holders of Continuing Events of Default on December 17, 2006, May 8, and November 8, 2007. A Squirrel Run "Balance Sheet" provided to all bondholders as an attachment to the December 27, 2006 notice shows "Total Assets" of $4,559,229.84 and "Total Liabilities" of $5,909,991.73 as of December 31, 2005. (Joint Ex. 16.)

{¶ 10} In February 2007, RSA records show it made a profit of $4,487.55 when Lucas sold some of the Squirrel Run bonds it had purchased in 2006. Lucas shared in these profits pursuant to a profit-sharing agreement with RSA. The record also shows on January 1, 2009, RSA held Squirrel Run bonds purchased by Lucas with a total face value of $250,000. From January 1 to March 24, 2009, Lucas purchased additional Squirrel Run bonds on behalf of RSA with a total face value of $530,000, for which it paid $58,415, approximately 11 cents on the dollar.

{¶ 11} On April 2, 2009, HNB, "as Trustee for the Multifamily Housing Mortgage Revenue Bonds," filed a "Complaint on Notes, Foreclosure, Sale of Collateral, Specific Performance of Assignment of Rents, Appointment of a Receiver, and for an Accounting and Inspection" against Trinity and several other defendants in the Montgomery County Court of Common Pleas. (Joint Ex. 19 at 1, 2.) On April 10, 2009, Trustee Moore issued a Notice of Default and Acceleration notifying bondholders of the action.

{¶ 12} RSA continued to buy Squirrel Run bonds after HNB filed the foreclosure action. RSA bought Squirrel Run bonds with a total face value of $755,000 for $80,865, or 9.3 cents on the dollar. The post-foreclosure purchases increased the total face value of RSA's holdings in Squirrel Run bonds to $1,535,000 for which it paid a total of $217,055, roughly 14 cents on the dollar on average.

{¶ 13} On August 31, 2009, HNB moved the Montgomery County Court of Common Pleas to appoint a receiver. On that same date, the Montgomery County Court of Common Pleas appointed a receiver to "take charge of, preserve, [and] manage" Squirrel Run. (Joint Ex. 21 at 1.) On November 15, 2010, Trustee Moore issued a Notice of Default and Receiver Sale. On August 8, 2011, Trustee Moore issued an Urgent Request for Immediate Direction to all bondholders, which requested bondholder approval of a proposed sale of the Squirrel Run property for $2.45 million, conditioned on the buyer obtaining tax credit financing to rehabilitate the property. The request also indicates "[t]o date the receiver has received a number of offers in the $1,600,000 range and attempted to negotiate them higher." (Joint Ex. 23 at 1.)

{¶ 14} On August 29, 2012, Squirrel Run sold for $1.6 million. After deducting outstanding expenses, taxes, and fees from the sale proceeds, RSA received a distribution out of the net proceeds of $164,043.05. HNB received a total of $134,462 for its services as indenture trustee from November 1998 through December 2012.

{¶ 15} On July 31, 2013, RSA filed a complaint against HNB in the Montgomery County Court of Common Pleas alleging breach of contract and breach of fiduciary duty. That complaint was dismissed without prejudice, and on September 24, 2014, RSA refiled the complaint against HNB in the Hamilton County Court of Common Pleas. On February 18, 2015, the Hamilton County Court of Common Pleas transferred venue of the case to Franklin County. On April 25, 2015, RSA moved the trial court to amend the complaint to add claims for negligence and breach of trust. The trial court granted the motion on May 19, 2015.

{¶ 16} On May 29, 2015, HNB moved the trial court to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court dismissed RSA's claims for common-law negligence and breach of contract on November 20, 2015 for failure to state a claim on which relief may be granted. On August 19, 2016, HNB filed a motion for summary judgment as to the remaining claims for breach of fiduciary duty and breach of trust. HNB argued the four-year statute of limitations barred RSA's claims because as early as 2007, RSA knew or should have known of the alleged breach of trust. RSA argued its claims for breach of trust and breach of fiduciary duty did not accrue until 2012 when it received the distribution of proceeds from the sale of Squirrel Run. RSA argues, alternatively, there are genuine issues of fact as to what RSA knew and when, precluding summary judgment.

{¶ 17} The trial court found the only reasonable conclusion to be drawn from the evidence is that RSA's claims for breach of fiduciary duty and breach of trust accrued at the latest in April 2009 when HNB filed the complaint in foreclosure and notified bondholders of the action. Accordingly, the trial court held the four-year statute of limitations barred RSA's claims against HNB because they did not file the complaint in Montgomery County until July 31, 2013. The trial court journalized a final judgment entry in favor of HNB on April 17, 2017.

{¶ 18} RSA timely appealed to this court from the judgment of the trial court.

II. ASSIGNMENT OF ERROR

{¶ 19} RSA sets forth the following assignment of error:

The trial court erred in granting summary judgment to Huntington National Bank [ ] on Ross Sinclaire and Associates, LLC's [ ] claims for breach of fiduciary duty and breach of trust when substantial questions of material fact exist and HNB is not entitled to judgment as a matter of law.

III. STANDARD OF REVIEW

{¶ 20} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party." Slane v. Hilliard , 10th Dist., 2016-Ohio-306, 59 N.E.3d 545, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr. , 10th Dist. No. 14AP-232, 2014-Ohio-3935, 2014 WL 4459120, ¶ 6, citing Harless v. Willis Day WarehousingCo. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 21} " '[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the nonmovant must set forth specific facts demonstrating a genuine issue for trial. Byrd at ¶ 7, citing Dresher at 293, 662 N.E.2d 264. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the nonmoving party. Byrd at ¶ 7, citing Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-59, 604 N.E.2d 138 (1992).

{¶ 22} Appellate review of summary judgment is de novo. Byrd at ¶ 5. When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Id. , citing Maust v. Bank One Columbus, N.A , 83 Ohio App.3d 103, 107, 614 N.E.2d 765 (10th Dist.1992) ; Brown v. Cty. Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

IV. LEGAL ANALYSIS

{¶ 23} In appellant's sole assignment of error, appellant contends the trial court erred when it granted summary judgment in favor of HNB as to the claims for breach of fiduciary duty and breach of trust because there are genuine issues of fact whether the statute of limitations barred appellant's claims. We disagree.

{¶ 24} One asserting a claim of breach of fiduciary duty must establish the existence of a fiduciary duty, breach of that duty, and injury proximately caused by the breach. Newcomer v. Natl. City Bank , 6th Dist., 2014-Ohio-3619, 19 N.E.3d 492, ¶ 9, appeal dismissed , 141 Ohio St.3d 1429, 2015-Ohio-12, 22 N.E.3d 1094, citing Strock v. Pressnell , 38 Ohio St.3d 207, 216, 527 N.E.2d 1235 (1988) ; Sudnick v. Klein , 11th Dist. No. 2001-G-2356, 2002-Ohio-7341, 2002 WL 31895117, ¶ 25. Appellant's complaint alleges claims for breach of fiduciary duty under the common law and for breach of trust as defined in R.C. 5810.01 et seq. R.C. 2305.09(D) provides a four-year limitations period for a cause of action seeking recovery for "an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 1304.35, 2305.10 to 2305.12, and 2305.14 of the Revised Code." This court has determined the four-year limitations period in R.C. 2305.09(D) applies to a common-law claim for breach of fiduciary duty. Clemens v. Nelson Fin. Group, Inc. , 10th Dist. No. 14AP-537, 2015-Ohio-1232, 2015 WL 1432604, ¶ 46, citing Wells v. C.J. Mahan Constr. Co. , 10th Dist. No. 05AP-180, 2006-Ohio-1831, 2006 WL 951444, ¶ 26.

{¶ 25} Under the common law, a cause of action for breach of fiduciary duty which could be brought prior to the termination of a trust is barred by the statute of limitations if not timely filed. Cundall v. U.S. Bank , 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 29, citing Paschall v. Hinderer , 28 Ohio St. 568, 576 (1876). When, however, a trustee's misconduct is surreptitious or obscured and remains so until the trustee's death or removal, a cause of action by trust beneficiaries against a trustee accrues and the statute of limitations begins to run when the fiduciary relationship ends. Cundall at ¶ 27, citing State ex rel. Lien v. House , 144 Ohio St. 238, 58 N.E.2d 675 (1944).

{¶ 26} In this instance, RSA's claims for breach of fiduciary duty and breach of trust are predicated on the same operative facts. The gravamen of the complaint is that Trustee Moore failed to timely file a foreclosure action which, according to RSA, would have preserved a greater portion of trust assets for distribution to the bondholders. RSA alleges that HNB, by and through Trustee Moore, breached a duty it owed to RSA by failing to provide the bondholders with relevant information regarding the financial difficulties experienced by Trinity and the deteriorating condition of the Squirrel Run property and/or providing RSA with false and misleading information regarding the status of the project that prevented RSA from discovering the breach of trust.

{¶ 27} The parties agree the applicable statute of limitations is four years for RSA's claims. RSA filed its original complaint in Montgomery County on July 13, 2013. Consequently, the statute of limitations barred any of RSA's claims that accrued prior to July 13, 2009. RSA first contends its cause of action accrued in 2012 when HNB "ended its role as trustee by selling the trust res and distributing the proceeds to the trust beneficiaries." (Emphasis sic.) (Appellant's Brief at 2.) HNB argues RSA's claims accrued when RSA either knew or, in the exercise of reasonable diligence, should have learned of a breach of trust. We agree with HNB.

{¶ 28} In Cundall , a successor trustee, on behalf of certain trust beneficiaries, sued a former trustee for fraud, self-dealing, and breach of fiduciary duty. The First District Court of Appeals affirmed the judgment of the trial court that the cause of action did not accrue, and the four-year statute of limitations did not begin to run until the death of the former trustee. The Supreme Court of Ohio, in applying the four-year statute of limitations in R.C. 2305.09, held the First District erred when it determined the cause for breach of fiduciary duty accrued on the death of the prior trustee because the beneficiaries knew much earlier, or reasonably should have known, the true value of trust assets sold had possibly been misrepresented. In so holding, the Supreme Court adopted the following rule of law for determining when the cause of action for breach of trust accrues: " 'If the trustee violates one or more of his obligations to the beneficiary * * *, there obviously is a cause of action in favor of the beneficiary and any relevant Statute of Limitations will apply from the date when the beneficiary knew of the breach or repudiation , or by the exercise of reasonable skill and diligence could have learned of it.' " (Emphasis sic.) Id. at ¶ 28, quoting George Gleason Bogert, The Law of Trusts and Trustees , Section 951 at 630-34 (2d Ed.Rev.1995). The court noted under the prevailing rule of law, "[k]nowledge of the beneficiary is the critical factor because when the beneficiary knows of the misconduct, he has knowledge that the trustee has repudiated his trust obligation. Upon learning of the repudiation, the time for the beneficiary to act begins to run." Cundall at ¶ 27. The Cundall court noted that " '[c ]onstructive knowledge of the facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running.' " (Emphasis sic.) Id. at ¶ 30, quoting Flowers v. Walker , 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1992).

{¶ 29} Consistent with the rule of law in Cundall , R.C. 5810.05(C), effective January 1, 2007, sets forth the limitation period for actions against a trustee, in relevant part, as follows:

[N]otwithstanding section 2305.09 of the Revised Code, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within four years after the first of the following to occur :
* * *
(3) The termination of the trust;
(4) The time at which the beneficiary knew or should have known of the breach of trust .

(Emphasis added.)

{¶ 30} Pursuant to Cundall and R.C. 5810.05, contrary to RSA's assertion, the claims against HNB accrued and the four-year statute of limitations began to run when RSA either knew or should have known of the breach of trust, not when HNB "ended its role as trustee by selling the trust res and distributing the proceeds to the trust beneficiaries." (Emphasis sic.) (Appellant's Brief at 2.) To that end, we note R.C. 5801.03(A) provides a general definition of "knowledge" for purposes of trust matters. Zook v. JPMorgan Chase Bank Natl. Assn. , 10th Dist., 2017-Ohio-838, 85 N.E.3d 1197, ¶ 38. That provision reads as follows:

Subject to division (B) of this section, a person has knowledge of a fact if any of the following apply:
(1) The person has actual knowledge of the fact.
(2) The person has received notice or notification of the fact.
(3) From all the facts and circumstances known to the person at the time in question, the person has reason to know the fact .

(Emphasis added.) R.C. 5801.03(A).

{¶ 31} HNB argues the only reasonable inference to be drawn from the evidence presented both in support of and in opposition to the motion for summary judgment is that RSA either knew or should have known of the alleged breach of trust as early as 2007. HNB relies primarily on Lucas's deposition testimony in support of its argument.

{¶ 32} Lucas testified he is an account executive at RSA, and RSA's core specialty is the purchase and sale of municipal bonds. Lucas stated RSA also gets involved in underwriting bond issues, but he acknowledged RSA had little experience in municipal revenue bonds for low-income housing. Lucas maintained 85 to 90 percent of his business involves distressed municipal bonds. According to Lucas, he considers municipal bonds "distressed" when the obligor fails to make debt service payments or a credit or other event occurs that casts doubt on the obligor's ability to pay. (Lucas Dep. at 103.) Lucas testified he typically does not get involved in the purchase of distressed municipal revenue bonds until the bonds are selling for 30 cents on the dollar or less.

{¶ 33} When Lucas purchased the Squirrel Run bonds in 2006, he did not consult the portion of the "official statement" pertaining to bondholder risks because "I know what the bondholder risks are." (Lucas Dep. at 190-91.) He did not obtain copies of the prior notices to bondholders of events of default issued by Trustee Moore when he made the initial purchase of bonds in 2006, even though he was aware he could obtain them from Trustee Moore. Lucas acknowledged he knew Trinity was in default when he made the initial purchase of bonds in 2006, but he could not recall whether he was aware Trinity had been in default since 2001. Lucas testified he believed there were still funds left in the debt service reserve fund at that time, and he was aware the Squirrel Run property was collateral for the underlying indebtedness. Lucas stated the exhaustion of the debt service reserve fund is a concern for bond holders but "[n]ot a major concern." (Lucas Dep. at 201.) He did acknowledge that a Notice to Bondholders in May 2006 stated there were no funds left in the debt service reserve fund.

{¶ 34} According to Lucas, the lack of cash flow was not a big concern to him when he purchased the Squirrel Run bonds because the collateral was still available for sale. Lucas testified he "didn't have any reason to believe the [fair market value of the Squirrel Run property] was extremely low." (Lucas Dep. at 203.) Lucas testified he first visited the property sometime in 2006 or 2007, after the initial purchase of bonds. According to Lucas, he got a look at the buildings and grounds, and Trinity representative John Bojo permitted Lucas to inspect an unoccupied unit. Lucas testified the property consisted of well-maintained townhouses with "market grade type finishes." (Lucas Dep. at 159.) Lucas recalled Squirrel Run was "a good-looking facility; it wasn't run down." (Lucas Dep. at 162.) Lucas testified that Bojo spoke with him about Trinity's efforts to increase occupancy and "different methods to try to * * * get it leased up" and that there was "some competition." (Lucas Dep. at 161.) Lucas noticed a fire had damaged some of the units that were now empty, but he saw no "broken windows and junk cars." (Lucas Dep. at 161.) Lucas concluded Squirrel Run was a good property.

{¶ 35} According to Lucas, he drove through the facility on one occasion thereafter, either in 2007 or 2008, and he observed the property "[l]ooked all right," and he acknowledged the property was "still well-maintained." (Lucas Dep. at 159, 164.) After the visit, Lucas telephoned Bart Welprin, the commercial real estate broker who first alerted him to the availability of Squirrel Run bonds, and he told Welprin that the property "[l]ooks fine." (Lucas Dep. at 164.) In his deposition, Lucas maintained neither he nor Welprin expressed an opinion during the conversation regarding the fair market value of the Squirrel Run property.

{¶ 36} HNB cites Lucas's deposition testimony as support for its contention RSA knew or should have known as early as 2007 or 2008 of the operative facts that allegedly support its claim for breach of trust. In his deposition, Lucas testified as follows:

Q. Did you think it should get foreclosed on at that time?
A. I think that I-I would have liked to have seen it happen sooner than later. The bonds weren't being paid on, so we weren't getting any interest, and I-I thought that it was past time that the discussion take place.
Q. Past time that the discussion about a foreclosure take place?
A. Uh-huh.
Q. And this is in 2007?
A. Yeah.
Q. And it was your feeling that the property should be sold so that bondholders could cash out, correct?
A. Yeah. Right, yes.
Q. Did you tell Ms. Moore that?
A. I told Ms. Moore that-and I don't know if it was that particular conversation, but I told Ms. Moore on several occasions that we should form a bondholder committee and discuss the-and see what the other bondholders had to say about moving forward with-with some sort of resolution.
Q. And this is all before Huntington foreclosed?
A. Correct.
Q. And what would the purpose of the bondholder committee be?
A. It's a fact-finding mission and weigh the options and-and get the-get the trustee to-to act.
Q. And what did Ms. Moore say in response to that?
A. Nothing.
Q. And you say you wanted to get the trustee to act, correct?
A. Uh-huh.
Q. What did you want the trustee to do?
A. You know, enforce their remedies, whatever they are. So if they could-if they could-if the obligor had some money or they were holding money back, maybe they could come up with some money and-and make up some past due payments, start marketing the property.
Q. But none of that happened?
A. No.

(Lucas Dep. at 174-76.)

{¶ 37} Concerning Trustee Moore's representation about the efforts to obtain additional financing in 2008 and the conduct of the trustee, Lucas testified as follows:

Q. Were you aware of refinancing efforts that were going on in 2008?
A. According to the-to the event notice, the-I didn't believe there was any refinance opportunities in '08.
Q. Did you see any way to get value out of these bonds other than through a sale of the Squirrel Run Apartments?
A. I could-I could put-I could put them up for sale.
Q. Okay. Other than selling the bonds, was there any way that you'd get money-
A. Extract value?
Q. Yeah. Extract value from the bonds in 2008?
A. No. At that point-you know, at that point it's-you know. Sell-sell the facility.
Q. In your view was it time to pull the plug and sell the facility?
A. I thought it was past time.
Q. Did you tell that to Ms. Moore?
A. If you tell a trustee's administrator that you don't think they're doing their job properly, they're not going to take your calls. So no. I didn't.
Q. But that's what you thought?
A. What?
Q. That the trustee's administrator wasn't doing their job properly?
A. There wasn't-there didn't seem to be much happening at that point.
Q. At this point the bonds were seven years in default, correct?
A. When was the first default, '01?
Q. November of 2001.
A. 2001, so, yeah, approximately.
Q. Had you ever seen a default situation go this long?
A. No.
Q. And in your view it was time for Huntington to move forward with foreclosing on the property or take some attempts at selling the property, correct?
A. Yeah, but I wasn't worried. I mean I wasn't worried about it. I'd never gotten an indication that-that there was a-that there was a big problem, that there was-you know, that the facility wasn't worth anything.
Q. But in 2008, I mean, there was no other way that the trustee was going to extract any value out of this project other than through selling the property at that point?
A. That's correct.
Q. And that wasn't happening?
A. No. It wasn't happening.

(Lucas Dep. at 238-40.)

{¶ 38} R.C. 5808.04 imposes a duty on a trustee to "administer the trust as a prudent person would and shall consider the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution." Pursuant to R.C. 5808.09, "[a] trustee shall take reasonable steps to take control of and protect the trust property." R.C. 5810.01 sets out the remedies available to beneficiaries for a breach of trust. R.C. 5810.01(B) authorizes the court to issue orders designed to "remedy a breach of trust that has occurred or may occur," including compelling the trustee to perform the trustee's duties, enjoining the trustee from committing a breach of trust, removing the trustee, and ordering any other appropriate relief.

{¶ 39} Lucas's deposition testimony establishes at some point in 2008, RSA became aware of the operative facts that allegedly support its breach of duty claims against HNB. Based on Lucas's deposition testimony, there is no question that by sometime in 2008, RSA knew Trinity was not meeting its obligations regarding debt service and alternative financing options had been unsuccessful. Sometime in 2008, Lucas had formed the opinion the only way the trustee could preserve the assets of the trust was to file a foreclosure action against Trinity and sell the collateral. Lucas knew Trustee Moore had no intention of doing so at that time. Lucas also acknowledged Trustee Moore had failed to respond to his informal request to form a bondholder committee and had not become engaged in marketing the property. Thus, the only reasonable conclusion to be drawn from the evidence submitted in connection with the motion for summary judgment is that RSA's cause of action for breach of trust and/or breach of fiduciary duty accrued sometime in 2008 when Trustee Moore failed to timely initiate foreclosure. Because RSA did not file its complaint in Montgomery County until July 31, 2013, the four-year statute of limitations bars RSA's claims against HNB.

{¶ 40} In opposition to the motion for summary judgment, RSA claims the notices to bondholders issued by Trustee Moore combined with Trustee Moore's direct communications with Lucas misled RSA about Trinity's financial condition and the market value of the Squirrel Run property, causing RSA to reasonably believe the bonds remained a sound investment. The duty to keep the beneficiaries/bondholders reasonably informed of the administration of the trust is a fundamental duty of a trustee. Kidd v. Alfano , 2d Dist., 2016-Ohio-7519, 64 N.E.3d 1052, ¶ 29, citing R.C. 5807.06. R.C. 5808.13 describes in general terms a trustee's duty to inform and report, in relevant part, as follows:

(A) A trustee shall keep the current [bondholders] of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a [bondholder's] request for information related to the administration of the trust.

{¶ 41} The record shows as early as February 26, 2004, Trustee Moore notified bondholders that "ongoing routine repair and maintenance items, such as fixing storm drains and downspouts and replacing carpet, have regularly fallen behind as occupancy and revenues have not kept pace. There are frequent roof repair needs, patio dividers and balcony floors and railings have deteriorated wood and fogged up patio doors have been an ongoing problem." (Joint Ex. 10 at 2.) Additionally, on November 5, 2004, Trustee Moore notified bondholders that Reilly had "not been able to obtain FHA mortgage insurance due to receipt of an appraisal that was lower than needed for a full refinancing." (Joint Ex. 13 at 2.) Lucas also visited the site on two occasions, once in 2007 and one other time in 2007 or 2008. Thus, Lucas had an opportunity to personally observe the condition of the property securing the bonds in 2007 and 2008. There can be no doubt, based on this undisputed evidence, RSA either knew or should have known in 2007 or 2008 of Trustee Moore's alleged breach of duty in failing to preserve the real property securing the bonds.

{¶ 42} Though Lucas maintained he had several conversations with Trustee Moore between the years 2007 and 2009 regarding the Squirrel Run property, he acknowledged Trustee Moore discussed the value of the RSA property with him on only one occasion. Lucas's testimony regarding the conversation is as follows:

Q. From Febuary 20-from Febuary 2006 through April 2009, did you have any communications with anyone regarding what the fair market value of the Squirrel Run Apartments was?
A. Yeah I did. I do recall that I had a telephone conversation with [Trustee] Moore at one point discussing, you know, what-what's the outcome going to be here, you know, what's going to happen here. And she-she assured me that, you know, that there was a-there was a good appraisal out there and that they had some-she had some interested buyers. And she didn't enumerate market value, but I got from that conversation it wasn't a complete disaster.
Q. When was this conversation?
A. Oh, gosh, I'm really bad at dates as I told you. I'm going to say it was a couple years prior to foreclosure.

(Lucas Dep. at 168.)

{¶ 43} The undisputed evidence in the record shows on or about the time Lucas's conversation with Trustee Moore took place, Lucas had visited the property and had gotten a look at the buildings and grounds, including a tour of one of the apartment units. At the time he spoke with Trustee Moore, Lucas also had access to all prior notices sent by Trustee Moore to the bondholders. Additionally, though Lucas recalled Trustee Moore told him she had interested buyers for the property, she did not tell him she had received any offers. Lucas acknowledged Trustee Moore never offered her opinion regarding the market value of the Squirrel Run property.

{¶ 44} With regard to the alleged misrepresentations and misinformation regarding Trinity's financial condition vis-à-vis RSA's investment in the Squirrel Run property, it is difficult to conceive on this record how RSA could have been unaware of Trinity's desperate financial condition in light of the information contained in the numerous notices issued by Trustee Moore, as summarized above. RSA argues Trustee Moore mislead bondholders in the event notice of November 5, 2004, when she indicated "[o]ther refinancing alternatives are being explored." (Joint Ex. 13 at 2.) Even if we accept RSA's contention Trustee Moore mislead bondholders into believing alternative financing was available, Lucas acknowledged by 2008 he did not believe alternative financing options existed. Thus, there is no question Lucas harbored no misconceptions about the refinancing options in 2008. In discussing RSA's claims regarding Trustee Moore's comments to Lucas, the trial court stated: "On this record, informal and isolated comments by [Trustee] Moore did not constitute misleading misconduct that legally delay[ed] [RSA's] obligation to investigate legal action against HNB." (Mar. 30, 2017 Decision at 7.) Based on our review of the record, we agree with the trial court that no reasonable trier of fact could interpret Trustee Moore's alleged statements to Lucas in the manner suggested by RSA.

{¶ 45} Taking the above-cited evidence and RSA's arguments into consideration, the trial court found RSA's claims for breach of fiduciary duty and breach of trust accrued, at the latest, in April 2009 when Trustee Moore filed the foreclosure action in Montgomery County and notified bondholders of that fact. The trial court found it significant that in addition to all the information contained in the prior notices provided to bondholders, the April 2, 2009 complaint sought the appointment of a receiver. The trial court stated the "request was a red flag warning to bondholders" that their investment was in jeopardy. (Mar. 30, 2017 Decision at 9.) We agree.

{¶ 46} As noted above, our de novo review of the evidence submitted in connection with the motion for summary judgment convinces us RSA either knew or should have known of the breach of trust sometime in 2008 when Lucas formed the opinion that the only means to preserve the value of the property for later distribution to the bondholders was to bring a foreclosure action against Trinity and sell the Squirrel Run property. Lucas believed it was "past time" to "pull the plug and sell the facility." (Lucas Dep. at 239.) Though Lucas's conduct in continuing to purchase bonds even after Trustee Moore filed the foreclosure action permits the inference that RSA did not recognize or appreciate the degree of risk associated with the investment, the evidence in the record does not permit an inference RSA was without actual or constructive knowledge on or before April 2009 of the operative facts which gave rise to the claims for breach of trust alleged in their complaint. Even construing the evidence in RSA's favor, any optimism regarding either the financial position of Trinity or the value of the Squirrel Run property that was created by Trustee Moore's statements to Lucas should have been dispelled by the filing of the foreclosure action and the request for appointment of a receiver in April 2009. It is impermissible on this record to infer RSA did not have actual or constructive knowledge of the alleged breach of trust in April 2009.

{¶ 47} RSA next contends the delayed damages rule applies to its claims for breach of fiduciary duty and breach of trust. We disagree.

{¶ 48} Under the delayed damages rule, " 'where the wrongful conduct complained of is not presently harmful, the cause of action does not accrue until actual damage occurs.' " Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co. , 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 19, quoting Velotta v. Leo Petronzio Landscaping, Inc. , 69 Ohio St.2d 376, 379, 433 N.E.2d 147 (1982). "Unlike the discovery rule, the delayed-damages rule does not just toll the running of the statute of limitations, it adjusts when the cause of action accrues." Chateau Estate Homes, L.L.C. v. Fifth Third Bank , 1st Dist., 2017-Ohio-6985, 95 N.E.3d 693, ¶ 14. "In other words, a cause of action for negligence is not complete, and the statute of limitations does not begin to run, until there has been an injury." Flagstar at ¶ 19.

{¶ 49} In Union Sav. Bank v. Lawyers Title Ins. Corp. , 191 Ohio App.3d 540, 2010-Ohio-6396, 946 N.E.2d 835 (10th Dist.), this court held a bank's claim against a title company alleging negligence and breach of fiduciary duty was time-barred because the cause of action accrued when the homeowners closed on their loan and the title company failed to subordinate two mortgages, not when the property went into foreclosure and was sold at a sheriff's sale. Id. at ¶ 33. In rejecting the homeowners' delayed damages argument, this court ruled that the plaintiff-bank suffered damages at the time of the closing when it assumed a second lien position due to the defendant's failure to subordinate two liens. Id.

{¶ 50} Here, RSA alleges that HNB breached a duty to bondholders when Trustee Moore failed to timely file a foreclosure action against Trinity. RSA claims it suffered harm as a result of Trustee Moore's breach due to the subsequent decrease in the market value of the real property securing the bonds. Though RSA did not discover the full extent of its losses until 2012 when the real property securing the investment sold in foreclosure, RSA suffered a loss and the breach of trust occurred when Trustee Moore failed to act. Under R.C. 2305.09 and 5810.05, RSA's cause of action against HNB accrued when RSA either knew or should have known facts which would have alerted it to Trustee Moore's breach, not when the property securing the investment sold in foreclosure. Thus, to the extent the delayed damages rule remains viable in Ohio, we find the rule is inapplicable in this case.

{¶ 51} For the foregoing reasons, we hold the trial court did not err when it granted HNB's motion for summary judgment. RSA's claims for breach of fiduciary duty and breach of trust accrued when, from all the facts and circumstances known to RSA, RSA either knew or should have known of the breach of trust, not when the trust terminated. Construing the evidence in RSA's favor, we find RSA knew of or should have known of the alleged breach of trust on or before April 2009. The statute of limitations barred RSA's claims against HNB as a matter of law because HNB did not file the complaint in Montgomery County within four years of the date when it knew or should have known of the breach of trust.

V. CONCLUSION

{¶ 52} Having overruled appellant's sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK and KLATT, JJ., concur.

      The amended complaint provides, in relevant part, as follows: "Despite knowing, in 2004, that Trinity was not protecting the value of the asset underlying the bondholders' security, and knowing that an appraisal of Squirrel Run Apartments did not support refinancing, [HNB] did nothing to maximize bondholder return. Instead, [HNB] allowed Squirrel Run Apartments to fall into further disrepair and took no action to foreclose on Squirrel Run Apartments for another five years. [The trustee's] fiduciary failure is demonstrated drastically by its failure to take any decisive action to preserve the Trust asset. This delay ultimately caused the opportunity to be lost to the detriment of the Trust and the bondholders." (Am. Compl. at 11, 12.)

      "[W]here breach of trust claims are not barred by the applicable statute of limitations prior to the time when [R.C. 5810.05 ] went into effect, then, in that event, the statute of limitations set forth in [R.C. 5810.05 ] applies to the claim, notwithstanding other provisions." Newcomer at ¶ 29.

      This court issued its decision in Cassner v. Bank One Trust Co., N.A. , 10th Dist. No. 03AP-1114, 2004-Ohio-3484, 2004 WL 1470806, several years prior to the effective date of R.C. 5810.05 and the decision of the Supreme Court in Cundall . Thus, RSA's reliance on Cassner is misplaced.

      R.C. 5810.02(A) sets forth the damages for a breach of trust, in relevant part, as follows:
      A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of the following:
      (1) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred.

      There is considerable doubt as to the continued viability of the delayed damages rule in Ohio. See, e.g. , LGR Realty, Inc. v. Frank & London Ins. Agency , 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 32-34 (Dewine, concurring); Flagstar at ¶ 25-27, citing Investors REIT One v. Jacobs , 46 Ohio St.3d 176, 546 N.E.2d 206 (1989) ; Chateau Estate at ¶ 22.

      In his deposition, RSA's expert, Robert Irwin Landau, testified "as the months and years went by, the value of the property went down [and] if the trustee had acted more aggressively, * * * quicker, if they had pulled the trigger quicker and disposed of the property sooner, the probability of the bondholders receiving more than they got at finally six or seven years later is significantly higher." (Landau Dep. at 260.)


source: Caselaw Access Project

author: KATHLEEN ANN KEOUGH, P.J.: LARRY A. JONES, SR., J., DISSENTING:

license: Public Domain

text:
    CITY OF CLEVELAND, Plaintiff-Appellant v. Todd C. KALISH, Defendant-Appellee
    No. 105557
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 22, 2018
    Barbara Langhenry, Director of Law, Kimberly G. Barnett-Mills, Chief Prosecutor, Marco A. Tanudra, Assistant City Prosecutor, City of Cleveland Law Department, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Leslie Johns, Hector G. Martinez, The Martinez Firm, 4230 S.R. 306, Suite 240, Willoughby, Ohio 44094, ATTORNEYS FOR APPELLEE
    BEFORE: Keough, P.J., Celebrezze, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, P.J.:

{¶ 1} The city of Cleveland (the "city") appeals from the judgment of the Cleveland Municipal Court granting the motion to suppress of defendant-appellee Todd Kalish ("Kalish"). For the reasons that follow, we reverse and remand.

I. Facts and Procedural Background

{¶ 2} Kalish was charged with violations of R.C. 4511.19(A), operating a motor vehicle while under the influence of alcohol, and R.C. 4511.33, driving in marked lanes. He pleaded not guilty and filed a motion to suppress the evidence against him, arguing that the arresting officer did not have a reasonable suspicion to make the initial stop of his vehicle, lacked a reasonable and articulable suspicion sufficient to extend the stop to administer field sobriety tests, did not administer the tests in compliance with the National Highway Traffic Safety Administration guidelines, and lacked probable cause to arrest him without a warrant.

{¶ 3} The trial court subsequently held a hearing on the suppression motion. Ohio State Patrol Officer Rick Suda testified that he was a recent graduate of the Ohio State Highway Patrol academy and that although during his training he had observed stops of motorists suspected of driving while under the influence of alcohol or drugs, this was the first stop he initiated. Suda testified that on October 14, 2016, at approximately 11:45 p.m., as Kalish was operating his vehicle westbound on I-90, he observed Kalish's vehicle twice cross over the white lane markers and then back into his own lane again without using any turn signals. Suda testified that traffic was heavy at the time because a Cleveland Indians game had recently ended, but Kalish was not speeding. Suda said that when he activated his lights to initiate a traffic stop, Kalish pulled over and stopped his vehicle without any problem.

{¶ 4} Suda and Ohio Patrol Officer Anthony Hosey, who was riding with Suda, approached the driver's side of Kalish's vehicle. Only Kalish was in the vehicle; there were no passengers. Suda testified that he detected an odor of alcohol coming from the vehicle. He advised Kalish of the reason for the stop and then asked Kalish for his driver's license and registration. Suda acknowledged that his report contained no observation that Kalish had any difficulty in providing his license and registration to him.

{¶ 5} Suda testified that he observed that Kalish's face was flushed and his eyes were bloodshot, so he asked Kalish to exit his vehicle to perform field sobriety tests. On cross-examination, Suda admitted that he did not know if Kalish's face is normally flushed, and that a flushed face is not necessarily indicative of alcohol consumption. He further admitted that he did not know if Kalish's eyes are normally bloodshot and that he did not ask Kalish how much sleep he had had the night before.

{¶ 6} Suda admitted that Kalish had no difficulty exiting his vehicle nor in walking back to the driver's side door of the patrol car. Suda also acknowledged that he did not ask Kalish any questions about his drinking before he asked him to exit his vehicle. He said that as Kalish was walking to the patrol car, he asked him if he had had any alcohol that night, and Kalish responded, "yeah, at the Indians game." Suda admitted that he did not ask Kalish how many drinks he had consumed, and Kalish did not tell him. Suda then advised Kalish that he was "going to run a few tests."

{¶ 7} Officer Hosey testified that he then read Kalish his Miranda rights. Hosey testified that Kalish responded appropriately to the questions the officers asked him, and that he did not detect any problems with Kalish's speech. After Suda administered the field sobriety tests, Kalish was arrested for operating a vehicle while under the influence of alcohol.

{¶ 8} Dashcam video from Suda's cruiser showing him following Kalish's vehicle and administering the field sobriety tests was shown during the suppression hearing. Subsequently, the court announced its ruling from the bench. After noting that it had carefully reviewed the dashcam video again after the hearing, the trial court granted the motion to suppress. The court found that the initial traffic stop of Kalish's vehicle was supported by traffic violations demonstrated on the video. The video showed that Kalish did not use his turn signal to change lanes, and crossed over lane lines several times. Accordingly, the court found that Officer Suda had probable cause to initiate a traffic stop.

{¶ 9} Nevertheless, the court found that Officer Suda did not have a reasonable suspicion supported by articulable facts sufficient to extend the stop to administer field sobriety tests. The court found that although it was clear that Kalish was trying to pass other vehicles before he was stopped, he was moving with the flow of traffic and not speeding. Further, the court found that when Officer Suda turned his lights on to initiate the stop, Kalish promptly stopped without any difficulty in maneuvering his vehicle to the side of the road. The court found that Kalish did not demonstrate any fumbling in retrieving his driver's license and registration, and had no difficulty exiting his vehicle or walking toward the patrol car. The court further found that Kalish's speech was not slurred, he was not slow to respond to the officer's questions, and he did not provide incorrect information or change his answers to the questions asked of him.

{¶ 10} With respect to the odor of alcohol detected by Suda, the court found that Suda testified that the odor came from within the vehicle, not Kalish, and that the officer did not detect any other odors, such as alcohol on Kalish's breath or marijuana. The court also noted that other than the odor of alcohol, there were no other indicia of intoxication, such as containers of alcohol in the car, soiled clothing, slurred speech, or fumbling by Kalish.

{¶ 11} The court further found that Kalish did not demonstrate any behavior indicative of intoxication when he got out of his vehicle. Specifically, the court found that he was not angry, he did not leave his car door open, he did not leave the vehicle in gear, and he did not lean against the vehicle or keep his hands on the vehicle to help with balance-he simply got out of his car and walked back to the patrol car.

{¶ 12} With respect to Suda's observation that Kalish's flushed face was indicative of intoxication, the judge noted that she had observed that Kalish's face was flushed during the suppression hearing, and that it was flushed again as she announced her ruling. She found that "his face is flushed the entire time" and "is his normal skin tone," so his flushed face was not indicative of intoxication on the night he was stopped. With respect to Kalish's bloodshot eyes, the court found that before administering the field sobriety tests, Suda did not ask any questions regarding how much sleep Kalish had the night before, how tired he was, or what his eyes normally look like.

{¶ 13} The court also found that Suda did not administer any pre-exit tests, such as the alphabet or finger count tests, before he asked Kalish to exit his vehicle, and that Suda did not establish how many drinks Kalish had consumed or when he last had a drink before he administered the tests.

{¶ 14} In light of these findings, the trial court found that "because of the lack of reason to pull him out of the car, * * * the scope of the stop was exceeded," and it suppressed all evidence obtained after the stop. This appeal followed.

II. Law and Analysis

{¶ 15} Appellate review of a trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. During a hearing on a motion to suppress evidence, the trial judge acts as the trier of fact and, as such, is in the best position to resolve factual questions and assess the credibility of witnesses. State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). An appellate court reviewing a motion to suppress is bound to accept the trial court's findings of fact where they are supported by competent, credible evidence. State v. Guysinger , 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). Accepting these facts as true, the appellate court independently reviews the trial court's legal determinations de novo. State v. Djisheff , 11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, 2006 WL 3393344, ¶ 19.

{¶ 16} On appeal, the city argues that the trial court erred in granting the motion to suppress because Officer Suda had a reasonable and articulable suspicion that Kalish was intoxicated sufficient to subject him to the administration of field sobriety tests. Specifically, the city contends that the lateness of the hour, Kalish's admission that he had "been at an event where alcoholic beverage is generally consumed," the odor of alcohol, Kalish's flushed face and bloodshot eyes, and his admission that he had consumed alcohol, under the totality of the circumstances, were indicia of intoxication sufficient to justify expanding the scope of the traffic stop to administer field sobriety tests.

{¶ 17} To conduct a constitutionally valid investigatory stop, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences derived from those facts, give rise to a reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. State v. Williams , 51 Ohio St.3d 58, 60, 554 N.E.2d 108 (1990). The propriety of an investigative stop by a police officer must be viewed in light of the totality of the circumstances. State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.

{¶ 18} It is well established that an officer may stop a motorist upon his or her observation that the vehicle in question violated a traffic law. Dayton v. Erickson , 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996). "[E]ven a de minimis traffic violation provides probable cause for a traffic stop." Id. at 9, 665 N.E.2d 1091. Specific to this case, "[w]hen an officer observes a vehicle drifting back and forth across an edge line, the officer has a reasonable and articulable suspicion that the driver has violated R.C. 4511.33." State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 16.

{¶ 19} Once a driver has been lawfully stopped, however, an officer may not request a motorist to perform field sobriety tests unless the request is separately justified by a reasonable suspicion based upon articulable facts that the motorist is intoxicated. Parma Hts. v. Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, ¶ 29, citing State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998) ; State v. Spillers , 2d Dist. Darke No. 1504, 2000 WL 299550, *3, 2000 Ohio App. LEXIS 1151 *7 (Mar. 24, 2000). "A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." Dedejczyk at id. , citing State v. Dye , 11th Dist. Portage No. 2001-P-0140, 2002-Ohio-7158, 2002 WL 31862667, ¶ 18.

{¶ 20} Here, the trial court found that Suda properly stopped Kalish for the purpose of issuing a citation for a lane violation and, therefore, the initial traffic stop was valid. Although Kalish challenged the initial stop in his motion to suppress, he does not do so on appeal, thereby abandoning this argument.

{¶ 21} Nevertheless, as noted above, the validity of the initial stop alone would not give Suda the right to subject Kalish to the further intrusion of field sobriety tests. "[A]n analysis of an investigatory stop leading to an arrest requires careful attention to each stage of the detention in order to make sure that the extent of the intrusion represented by each stage is warranted by the officer's reasonable and articulable suspicion at that point." Spillers at id. , citing State v. Smethurst , 2d Dist. Clark No. 94-CA-24, 1995 WL 108956, 1995 Ohio App. LEXIS 900 *8-9 (Mar. 8, 1995). Thus, we must decide whether, under the totality of the circumstances, Suda had a reasonable and articulable suspicion that Kalish was intoxicated sufficient to justify the administration of field sobriety tests.

{¶ 22} In Evans , supra , the court identified factors that courts may consider to determine whether, under the totality of the circumstances, an officer had reasonable suspicion to administer field sobriety tests: (1) the time of day; (2) the location of the stop; (3) any indicia of erratic driving before the stop; (4) whether there was a report the driver might be intoxicated; (5) the condition of the suspect's eyes; (6) an impaired ability to speak; (7) an odor of alcohol coming from the car, or on the driver's breath or person; (8) the intensity of that odor; (9) the suspect's demeanor; (10) any actions by the driver after the stop that might indicate a lack of coordination; and (11) the driver's admission of alcohol consumption. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, at ¶ 30, citing Evans, 127 Ohio App.3d 56, 63, 711 N.E.2d 761 at fn. 2. No factor is dispositive and the list is not exhaustive. Id.

{¶ 23} Suda testified that he decided to administer field sobriety tests because he observed two lane violations, he detected an odor of alcohol in the vehicle, and Kalish's eyes were bloodshot and his face was flushed. Contrary to the trial court, we conclude that under the totality of the circumstances, these facts created a reasonable suspicion that Kalish was intoxicated sufficient to justify the administration of field sobriety tests.

{¶ 24} First, although nominal lane violations combined with a slight odor of alcohol are generally insufficient by themselves to trigger a reasonable suspicion of a driving while intoxicated, Spillers , 2d Dist. Darke No. 1504, 2000 WL 299550, 2000 Ohio App. LEXIS 1151, Kalish's lane violations were not de minimis. Suda testified, and the video confirmed, that Kalish drifted well over the lane lines several times and then back into his own lane, and changed lanes several times without using his turn signal.

{¶ 25} Further, Suda testified that upon approaching Kalish's vehicle after he stopped on the side of the road, he smelled an odor of alcohol in the vehicle. Although he did not characterize the odor as particularly strong and did not say the odor was on Kalish's breath, the smell could only have come from Kalish; there were no other passengers in the vehicle. Moreover, the odor of alcohol was coupled with Kalish's flushed face and bloodshot eyes, as well as the lateness of the hour. Although the trial court would require that Suda ask Kalish whether his face is normally flushed and his eyes usually bloodshot, we decline to impose such a requirement. Erratic driving at 11:45 p.m., coupled with an odor of alcohol, a flushed face, and bloodshot eyes would indicate to a "reasonable and prudent police officer" that an individual may be driving while intoxicated.

{¶ 26} Furthermore, when he got out of his vehicle, Kalish admitted that he had been drinking earlier that evening. It is well-established that an officer can ask a person to exit a vehicle during a lawful traffic stop without having reasonable suspicion of any further criminal activity. This is known as a Mimms order. See Pennsylvania v. Mimms 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) ("[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures."); see also State v. Evans, 67 Ohio St.3d 405, 407-408, 618 N.E.2d 162 (1993) ; Parma Hts. v. Owca , 8th Dist. Cuyahoga No. 103606, 2017-Ohio-179, 77 N.E.3d 505, ¶ 23 (" Mimms dispenses with the requirement that the officer possess reasonable suspicion of criminal activity before he orders the driver out of an already lawfully stopped vehicle.").

{¶ 27} If reasonable suspicion thereafter arises from acts of the motorist while alighting or the officer's better observation of the motorist, an officer may proceed with other investigatory steps that require reasonable suspicion (such as the pat-down in Mimms or field sobriety tests). State v. Koczwara , 7th Dist. Mahoning No. 13 MA 149, 2014-Ohio-1946, 2014 WL 1877464, ¶ 19, citing Mimms at 111-112, 98 S.Ct. 330. "Thus, events occurring upon exiting (before any field sobriety testing) are permissibly considered in the evaluation of whether there exists reasonable suspicion to administer field sobriety tests." Koczwara at ¶ 24, citing State v. Kilbarger , 4th Dist. Hocking No. 11CA23, 2012-Ohio-1521, 2012 WL 1139132 (where there was a proper traffic stop, officer could order driver out for no reason, and driver's instability on exiting car and using door for support could be used in evaluation of whether there was reasonable suspicion for field sobriety tests).

{¶ 28} Here, as he was walking back to the patrol car after exiting his vehicle, Kalish admitted to Suda that he had been drinking at the Indians game earlier that evening. Although he did not stumble or walk erratically, Kalish's admission, made after he exited his vehicle, can be considered in determining whether Suda had a reasonable suspicion to administer field sobriety tests.

{¶ 29} "Reasonable suspicion requires that the officer 'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.' " State v. Buchanan , 9th Dist. Medina No. 13CA0041-M, 2014-Ohio-3282, 2014 WL 3734167, ¶ 8, quoting Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, although Kalish did not exhibit overwhelming signs of intoxication, his admission to drinking, coupled with the lane violations, his flushed face and bloodshot eyes, the odor of alcohol in his vehicle, and the reasonable inferences from those facts, gave Suda a reasonable suspicion, based on his training and the totality of the circumstances, that Kalish was driving while intoxicated sufficient to extend the traffic stop and administer field sobriety tests. Accordingly, although it is admittedly a close call, the trial court erred in granting the motion to suppress.

{¶ 30} Judgment reversed; remanded for further proceedings consistent with this opinion.

FRANK D. CELEBREZZE, JR., J., CONCURS;

LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION

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

{¶ 31} Respectfully, I dissent. As the majority notes, at a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact. State v. Oliver , 112 Ohio St.3d 447, 2007-Ohio-372, 860 N.E.2d 1002, ¶ 1. As such, we are bound to accept those facts as true if they are supported by competent, credible evidence. Id. Applying that deferential standard, I would find that the trial court's findings here are supported by competent, credible evidence and, therefore, would affirm its judgment.

{¶ 32} After viewing the dash-camera video of the incident, the trial court found that Kalish had committed a "moving traffic violation" and, therefore, that the stop was permissible. The court noted, however, that although Kalish had violated traffic laws, his driving did not indicate to the court that he was impaired. Rather, the court found that it was "pretty clear he was trying to pass other vehicles[,] but he was never necessarily speeding." The court further found that his response to the officer activating the police lights to stop him was "prompt" and he was "appropriate" and "very safe in pulling over."

{¶ 33} The court noted that once Kalish pulled over, there was "no difficulty with the motor vehicle controls, there was no fumbling for driver's license or registration" and his speech was not slurred, he was not slow to respond, and he did not provide incorrect information or change his answer.

{¶ 34} Officer Suda testified that he could smell alcoholic beverage coming from inside the car, Kalish's face was flushed, and his eyes were bloodshot. Based on these observations, Suda "decided to investigate further by [having Kalish step] out of the car to run standardized field sobriety tests." The trial court acknowledged the officer's testimony about the odor of alcohol coming from the car, and Kalish's bloodshot eyes and flushed skin tone, but did not find it justified the administration of the tests.

{¶ 35} In regard to the odor of alcohol, the court noted that the officer did not testify that he smelled the odor on Kalish's breath or coming from Kalish's person; rather, the officer just testified that it was coming from the vehicle. While I agree with the majority that, because Kalish was the sole occupant of the vehicle, the smell necessarily had to be attributed to him, I note that there was no testimony about the intensity of the odor.

{¶ 36} It is entirely plausible that consuming one alcoholic beverage could cause a person to "smell of alcohol." Thus, it has been held, as the majority notes, that instances where a driver makes de minimis traffic violations (as the trial court here found was the case) and has a slight odor of alcoholic beverage on his or her person, do not give rise to a reasonable and articulable suspicion that the driver is intoxicated. See State v. Spillers , 2d Dist. Darke No. 1504, 2000 WL 299550, 3, 2000 Ohio App. LEXIS 1151, 8 (Mar. 24, 2000). Thus, without more testimony about the intensity of the odor coming from inside Kalish's vehicle, I would not usurp the trial court's finding.

{¶ 37} Regarding his flushed skin tone, the trial court noted that it viewed Kalish at both the suppression hearing and the hearing announcing its decision, and noted that "his face is flushed the entire time. I think that is his normal skin tone and I don't find that to be a clue." Given that the trial court had the opportunity, on at least two occasions to view Kalish, I would defer to the trial court's finding on this point.

{¶ 38} Thus, the remaining "clue" that Kalish may have been intoxicated was his bloodshot eyes. The trial court noted that the officer did not ask Kalish whether he was tired or what his eyes normally look like. The majority states that it declines to impose such a requirement for OVI traffic encounters. I agree that it is not necessary for the police to make such an inquiry in those instances, but given the totality of the circumstances of this case, I would again defer to the court's decision.

{¶ 39} Moreover, I would not find that the " Mimms order" justified administration of the field sobriety tests. Although an officer can order a person to exit a vehicle during a lawful traffic stop without having reasonable suspicion of any further criminal activity under Mimms , the trial court found, and I would defer to that finding, that there was nothing suspicious about Kalish's behavior once he was out of his vehicle. Specifically, the court noted he did not have trouble getting out of his vehicle, there was "no swaying or unsteady balance problem, he never leaned on the vehicle or any other object." The court further noted:

regarding the suspect's actions during the exit sequence, there's nothing unusual about that, no angry initial reactions, no inability to follow instructions, he didn't leave his vehicle door open, he didn't leave the vehicle in gear; he didn't climb out. He got up. He didn't lean against the vehicle or keep his hands on the vehicle for balance. There were no other unusual reactions.

{¶ 40} And even though Kalish, once out of his vehicle, admitted that he had been at a Cleveland Indians game and had consumed alcohol there, Officer Suda testified that it was his intention to subject Kalish to field sobriety tests when he ordered him out his vehicle, before Kalish even told him he had drank alcohol at the Indians game.

{¶ 41} Thus, in light of the above, although I believe the stop was lawful, I would defer to the trial court's findings that the police exceeded the scope of the stop when they subjected Kalish to field sobriety tests because the findings are supported by some competent, credible evidence. I therefore dissent and would affirm the trial court's judgment.

      R.C. 4511.33, regarding rules for driving in marked lanes, states that "[w]henever any roadway has been divided into two or more clearly marked lanes for traffic * * *, a vehicle shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety."

      Thus, the trial court's reasoning that the scope of the stop was unlawfully exceeded because the officer had no reason to ask Kalish to exit his car, despite a valid traffic stop, was incorrect. Because the traffic stop was valid, Officer Suda could properly ask Kalish to exit his vehicle.

      We reject the city's alarming assertion, however, that admitting to merely being present at an event where alcohol is generally consumed is a factor to be considered in the totality of the circumstances analysis.


author: MAYLE, P.J.

text:
    Gaye Lynn HARRIS-MILES, et al., Appellants v. LAKEWOOD HOSPITAL, et al., Appellees
    No. E-17-023
    Court of Appeals of Ohio, Sixth District, Erie County.
    Decided: February 23, 2018
    Danielle C. Kulik and Geoffrey L. Oglesby, Sandusky, for appellants.
    Michael P. Murphy, Sandusky, and Taylor C. Knight, for appellees.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Plaintiffs-appellants, Gaye Lynn Harris-Miles, Timothy Miles, Amanda Kaye Miles, and Alexis Renee Miles, appeal the June 20, 2017 judgment of the Erie County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Alfred Serna, M.D. and the Cleveland Clinic. For the following reasons, we affirm.

I. Background

{¶ 2} Defendant-appellant, Alfred Serna, M.D., is an orthopedic surgeon who practices with the Cleveland Clinic. On August 29, 2014, Gaye Harris-Miles presented to Dr. Serna for a surgical consult relative to her left shoulder. After evaluating Harris-Miles, and because more conservative treatment had failed, a plan was made to go forward with an arthroscopic rotator cuff procedure, a routine surgical procedure performed on an outpatient basis.

{¶ 3} Harris-Miles had a history of interstitial lung disease ("ILD") and bronchiectasis, so the anesthesiology department-which worked alongside Dr. Serna as part of Harris-Miles' medical team-sought clearance from Cleveland Clinic's pulmonology department before proceeding to surgery. On September 8, 2014, the pulmonologist-Dr. Highland -cleared Harris-Miles for surgery, but noted that the procedure needed to be performed at a hospital rather than a surgical center because of the potential need for supplemental oxygen. The anesthesiology department classified Harris-Miles as ASA2, meaning that she was low-risk and had been cleared to undergo surgery.

{¶ 4} On September 26, 2014, a physician's assistant from Dr. Serna's department performed a detailed examination of Harris-Miles, and her surgery was scheduled to proceed on October 6, 2014, at Cleveland Clinic's Lakewood Hospital ("Lakewood"). Dr. Serna successfully performed the procedure without complication. After the surgery, however, Harris-Miles began coughing up blood and experienced desaturations in her oxygen levels. Dr. Serna ordered anesthesiology and pulmonology consults. It was determined that Harris-Miles had suffered an alveolar hemorrhage. She was admitted to Lakewood, and on October 9, 2014, she was transferred to the Cleveland Clinic's main campus where she remained until her discharge on October 14, 2014.

{¶ 5} Harris-Miles, her husband, and her two minor children, filed a complaint against Fairview Hospital (later amended to Cleveland Clinic-Lakewood Hospital ), Dr. Serna, and Drs. John Doe anesthesiologists. They alleged that Dr. Serna and the John Doe anesthesiologists rendered negligent care to Harris-Miles, and that as employees or agents of the hospital, Cleveland Clinic was responsible for their actions under the doctrine of respondeat superior. Harris-Miles' husband and children asserted claims for loss of consortium. After a number of requests for extensions, Harris-Miles provided an affidavit of merit, as required by Civ.R. 10(D)(2), from Casey Darrah, M.D., a physician who practices family medicine. The John Doe defendants were never substituted.

{¶ 6} On December 20, 2016, Cleveland Clinic and Dr. Serna filed a motion for summary judgment. They claimed that (1) Dr. Darrah was not critical of the care and treatment rendered by Dr. Serna; (2) Dr. Darrah is not qualified to render standard-of-care opinions applicable to either Dr. Serna, the anesthesiologist, or the pulmonologist, Dr. Highland; (3) Harris-Miles cannot establish a causal nexus between her injuries and the actions of Dr. Serna, the anesthesiologist, or Dr. Highland; (4) the statute of limitations has expired relative to Dr. Highland's treatment of Harris-Miles, so no claim can be brought against her; and (5) because Harris-Miles cannot maintain a claim against Dr. Highland, Cleveland Clinic is entitled to dismissal. Harris-Miles opposed the motion for summary judgment.

{¶ 7} On February 13, 2017, in a one-sentence judgment entry, the trial court granted summary judgment to Dr. Serna and Cleveland Clinic. Without explanation, it also denied Harris-Miles' request for findings of facts and conclusions of law in an order journalized on March 21, 2017. Harris-Miles appealed. In a decision dated June 13, 2017, we found that the February 13, 2017 judgment was not a final, appealable order, and we remanded the matter to the trial court for entry of a final, appealable order. The trial court amended its judgment entry, and it was journalized on June 20, 2017.

{¶ 8} Harris-Miles assigns the following errors for our review:

Assignment of Error No. I:
DEFENDANT, DR. SERNA FAILED TO SHOW HOW SUMMARY JUDGMENT WAS PROPER AND THE COURT ERRED IN GRANTING THE SAME .
Assignment of Error No. II:
DEFENDANT, THE CLEVELAND CLINIC FAILED TO SHOW HOW SUMMARY JUDGMENT WAS PROPER AND THE COURT ERRED IN GRANTING THE SAME .

II. Standard of Review

{¶ 9} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 10} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E) ; Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999) ; Needham v. Provident Bank , 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Law and Analysis

{¶ 11} Harris-Miles assigns error in the trial court's decision granting summary judgment to both Dr. Serna and to Cleveland Clinic. She disputes the assertion that Dr. Darrah rendered no opinions critical of Dr. Serna, and she insists that he was qualified to render standard-of-care opinions in this case. As such, she argues, summary judgment in favor of Dr. Serna and Cleveland Clinic was not appropriate. She also claims that Cleveland Clinic may be held liable regardless of whether Dr. Highland was named a party to the lawsuit, and she insists that Dr. Darrah's testimony was sufficient to establish causation.

A. Dr. Darrah's Testimony

{¶ 12} Dr. Darrah was examined about his qualifications and his opinions relative to Harris-Miles' treatment. He testified that he has been licensed to practice medicine in Ohio since December of 2015. At the time of his deposition, he was working at a suboxone treatment clinic treating patients with drug addictions. He explained that many of his patients do not have primary care physicians, so he often serves as a family practice physician for them. In that role, he testified, he will sometimes provide pre-operative medical clearance. Although medical clearance for his patients is sought in the context of their addiction issues, he explained that he tends to include "the entire review of systems" so that the surgeon has a complete view of the patient. Dr. Darrah conceded that he has never worked as an orthopedic surgeon, a pulmonologist, or an anesthesiologist. He explained, however, that pre-operative and post-operative care frequently "falls on family medicine," and he has treated about a dozen patients with alveolar hemorrhages, thus he believes himself qualified to render standard-of-care opinions.

{¶ 13} Dr. Darrah agreed that it was appropriate for Harris-Miles' medical team to seek pulmonary clearance prior to her surgery because she had a history of ILD and systemic sclerosis. He acknowledged that Dr. Highland provided this medical clearance on September 8, 2014. While Dr. Highland advised that the surgery should take place in a hospital setting in case supplemental oxygen was required, Dr. Darrah believes that her clearance should have mentioned that Harris-Miles had ILD and that she had a history of slow emergence from anesthesia. He believes this would have prompted additional questions from her medical team. Dr. Darrah agreed that surgery was not contraindicated as a result of Harris-Miles' medical history, and he testified that it was reasonable for Dr. Serna to rely on the pulmonologist's opinion that Harris-Miles was an acceptable risk for surgery. When asked whether there was anything that Dr. Serna "did or didn't do that was going to change the outcome for this patient," Dr. Darrah responded,"[p]ulmonology was the issue."

{¶ 14} Dr. Darrah testified that because of Harris-Miles' medical history, she should have been prescribed a steroid which, he contended, would have reduced the risk of alveolar hemorrhage. He testified that placing the patient on a steroid would have been the pulmonologist's responsibility. When asked whether it was more likely than not that the alveolar hemorrhage would not have occurred had Harris-Miles been placed on a steroid, Dr. Darrah responded only that it would have mitigated the risk. He conceded, "[t]hat's the furthest I can go."

B. Harris-Miles' Claims

{¶ 15} While Dr. Serna and Cleveland Clinic raise a number of reasons why summary judgment in their favor was appropriate, we choose to address one issue common to both of them: proximate cause.

{¶ 16} "To establish a claim of medical malpractice, a plaintiff must prove by expert testimony the applicable standard of care, a breach of that standard of care, and that the breach was a proximate cause of the injuries alleged."

Hitch v. Thomas , 6th Dist. Lucas No. L-09-1292, 2010-Ohio-3630, 2010 WL 3064405, ¶ 17. Summary judgment in favor of the defendant-physician is appropriate where " 'the plaintiff fails to present expert testimony that [the] physician breached the applicable standard of care and that the breach constituted the direct and proximate cause of the plaintiff's injury * * *.' " (Citations omitted.) Culp v. Olukoga , 2013-Ohio-5211, 3 N.E.3d 724, ¶ 70 (4th Dist.).

{¶ 17} In Ohio, an expert's testimony concerning proximate cause is admissible only where his or her opinions as to the causative event are expressed in terms of probability. Stinson v. England , 69 Ohio St.3d 451, 455, 633 N.E.2d 532 (1994). "[A]n event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue." Id. "If an expert testifying as to causation fails to testify in terms of probability, the expert's testimony is incompetent." Steinmetz v. Latva , 6th Dist. Erie No. E-02-025, 2003-Ohio-3455, 2003 WL 21500185, ¶ 21.

{¶ 18} Dr. Darrah testified that if Harris-Miles' medical providers would have properly identified the risks posed by her underlying medical conditions, the management of her care-and her outcome-would have changed. He testified:

The outcome would have changed as the management would have changed. While the surgery itself wouldn't have changed, doing a rotator cuff repair with a biceps tenotomy is a rotator cuff repair with a biceps tenotomy, unless they're extremely severe. But she would have been, in all likelihood, started on a steroid prior to surgery.

He explained that a steroid would have reduced inflammation and made her lungs less susceptible to thickening, "heal the alveoli a bit," make them more resilient, and make them "more available to accept" anesthesia, intubation, and ventilation, significantly reducing the likelihood of an alveolar hemorrhage. Dr. Serna and Cleveland Clinic contend, however, that Dr. Darrah was unable to state to a reasonable degree of medical probability that Harris-Miles would not have suffered an alveolar hemorrhage if a steroid had been prescribed. We agree.

{¶ 19} Initially, Dr. Darrah claimed that he could state to a reasonable degree of medical probability that Harris-Miles' alveolar hemorrhage would not have occurred if a steroid, such as Prednisone, had been prescribed:

Q: All right. So let me ask a different question. In the event Prednisone was started for Ms. Miles on September 8th and continued up until the time of surgery, October 6th, you can't say to a reasonable degree of medical probability, meaning more likely than not, that the alveolar hemorrhage would not have occurred:
A: I can.

But as Dr. Darrah was further probed about his opinions, it became clear that he could not, in fact, meet this threshold. He testified:

Q: And it's your belief that in the event Prednisone was started, let's say, on September 8th and continued through October 6th, so for nearly a month, that that would have prevented the alveolar hemorrhage?
A: Reduced the risk, let's say.
* * *
Q: All right. So, and that's what I was trying to explore before. I totally understand your opinion that placing the patient on Prednisone would reduce the risk of alveolar hemorrhage, I totally get that, but that's different than saying that it would be more likely than not, greater than 51 percent chance, that she would not have an alveolar hemorrhage, do you see the difference?
A: I do. Alveolar hemorrhage for patients that are, that have systemic sclerosis is rare. Alveolar hemorrhage in patients that have Prednisone on board prior to surgery-
Q: Still rare.
A: -unheard of. I couldn't find a single case.
* * *
Q: * * * So if this patient, Ms. Miles, received the Prednisone before surgery, it would have reduced the risk of alveolar hemorrhage, we've covered that?
A: Certainly.
Q: But isn't it fair for me to say that you can't say that if she got Prednisone before surgery the alveolar hemorrhage would not have happened?
A: You could mitigate the risk, but you could not say it's absolute, no.
* * *
Q: * * * All I'm saying, you know, if she gets the Prednisone before surgery you can't say that it's more likely than not the hemorrhage isn't going to happen?
A: True, you just mitigate the risk of it happening.
Q: That's-that's-okay, I got it.
A: That's the furthest I can go.

{¶ 20} Harris-Miles disputes that Dr. Darrah was required to establish that it was more likely than not that her injury would not have occurred if a steroid had been prescribed. She claims that he was required to testify only that her injury could have been prevented had a steroid been prescribed. She cites Wells v. Miami Valley Hosp. , 90 Ohio App.3d 840, 631 N.E.2d 642 (2d Dist.1993), for the proposition that where the alleged malpractice raised involves an omission, the court must apply a "could have" standard, and not a "more likely than not" standard.

{¶ 21} Wells does not stand for this proposition. In fact, Wells held that "[w]hile there are no magic words for establishing a more than fifty-percent probability, there are some words, left unmodified, that are obviously insufficient to establish probability, such as 'could' or 'chance,' " or even "very strong chance." Id. at 854, 631 N.E.2d 642. Thus, despite her contention to the contrary, Harris-Miles was required to present testimony that it was more likely than not that her injury would have been prevented if a steroid had been prescribed.

{¶ 22} Given Dr. Darrah's inability to state to a reasonable degree of medical probability that the failure to prescribe a steroid proximately caused her alveolar hemorrhage, his testimony as to causation is incompetent, and, therefore, inadmissible. Harris-Miles' claims against both Dr. Serna and the Cleveland Clinic necessarily fail.

{¶ 23} Accordingly, we find Harris-Miles' assignments of error not well-taken.

IV. Conclusion

{¶ 24} Harris-Miles failed to provide expert testimony establishing that the alleged negligence of Dr. Serna or the Cleveland Clinic proximately caused her injuries. We, therefore, find her two assignments of error not well-taken, and we affirm the June 20, 2017 judgment of the Erie County Court of Common Pleas. Harris-Miles is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

James D. Jensen, J.

CONCUR.

      Dr. Highland's first name does not appear in the record.

      Plaintiffs incorrectly named "Lakeview" instead of "Lakewood," but Lakewood answered the amended complaint.