author: THOMAS R. WRIGHT, J.

text:
    Denise PAOLUCCI, Plaintiff-Appellant, v. Timothy MORGAN, et al., Defendants-Appellees.
    NO. 2017-P-0020
    Court of Appeals of Ohio, Eleventh District, Portage County.
    March 5, 2018
    Oliver T. Koo, 250 South Chestnut Street, Suite 23, Ravenna, OH 44266 (For Plaintiff-Appellant).
    John A. Neville and Holly Marie Wilson, Reminger Co., L.P.A., 1400 Midland Building, 101 Prospect Avenue, West Cleveland, OH 44115 (For Defendant-Appellees).
   THOMAS R. WRIGHT, J.

{¶ 1} Appellant, Denise Paolucci, appeals the trial court's ruling granting summary judgment in favor of appellees, Timothy and Maren Morgan, as to all three claims in her complaint asserting that there are genuine issues of fact. We affirm.

{¶ 2} Appellees ("the Morgans") own a large horse farm in Streetsboro, Portage County, Ohio. The farm includes a pasture, the Morgans' home, and a seven-stall horse barn. Although the Morgans keep at least one of their horses in the barn, they rent the majority of the stalls to others and provide boarding services. Tim Morgan regularly feeds the horses, provides their bedding, and "turns them out to pasture." The "renters" are allowed to visit their horses at any time.

{¶ 3} As of early 2010, appellant owned three horses, two mares, and one gelding. One of her mares was pregnant. Wanting to keep her horses in a more convenient location, appellant orally contracted with the Morgans to board her horses. At the outset, she told Timothy Morgan that she did not want her gelding to be placed in the pasture with any stallions for fear that the gelding would be injured. She also told him that she expected him to notify her and a veterinarian when her mare began to give birth. Timothy informed her that he would not assist in delivery of foal. She assured him that she would handle the delivery.

{¶ 4} Appellant's claims against the Morgans are based upon three events. First, on March 31, 2010, appellant visited her horses and noticed that her gelding sustained a puncture and stifle injury. Appellate averred that this injury could not have occurred without severe trauma. According to her, another woman who boarded a horse saw the Morgans release appellant's gelding into the pasture with a stallion, and that the stallion "threw" the gelding into the fence, knocking down several boards. However, appellant did not produce this woman as a witness. Appellant, did not say that she witnessed the event, but nevertheless averred that she found broken boards in the fence.

{¶ 5} Timothy Morgan, in an affidavit, did not deny putting a stallion in the pasture with appellant's gelding, but averred that he did not see the stallion hit or injure the gelding.

{¶ 6} The second event occurred approximately ten days later. According to appellant, she went to the barn at 11:00 p.m. one evening to see her pregnant mare. She thought the mare was close to giving birth and, therefore, stayed with her for three hours. Appellant averred that she told Timothy to watch the pregnant mare closely and to call the veterinarian if anything changed. She does not, however, give a definite statement as to when she did so.

{¶ 7} Appellant left the barn at 2:00 a.m. The following morning, in accordance with his regular schedule, Timothy went to the barn at 6:00 a.m. to feed the horses. Upon arrival, he saw that the mare had given birth to the foal, but that the foal was dead. He immediately called appellant. She came to the barn and tried to revive the foal, without success. Appellant claimed that Timothy would not answer her questions as to how the foal had died. She also claimed, without evidence, that Timothy tried to deliver the foal himself when he should have called the veterinarian.

{¶ 8} The third event concerns the disposal of the foal's remains. According to Timothy, he buried the foal as a favor to appellant and did so after obtaining permission. Appellant denied that she consented to burying the foal on the Morgans' property.

{¶ 9} After dismissing her first action against the Morgans, appellant filed the current case. As to the injury to the gelding and the death of the foal, she asserted breach of contract and negligence claims.

She also sought damages for the wrongful disposal of the dead foal.

{¶ 10} After conducting discovery, the Morgans moved for partial summary judgment as to both the breach of contract and negligence claims. They argued that appellant could not prevail on either claim because she lacked evidence showing that the injury to the gelding and the death of the foal were attributable to any action or inaction on their part. In response, she asserted that construing the facts in a manner most favorable to her, a reasonable person could find the Morgans negligent under the doctrine of res ipsa loquitur.

{¶ 11} In November 2015, the trial court granted the Morgans' motion for partial summary judgment on the breach of contract and negligence claims.

{¶ 12} Appellant appealed. We dismissed that appeal for lack of a final appealable order because the judgment did not decide the wrongful disposal claim or contain Civ.R. 54(B) language. Paolucci v. Morgan , 11th Dist. Portage No. 2015-P-0086, 2016-Ohio-3009, 2016 WL 2870841.

{¶ 13} Upon remand, the Morgans filed a separate motion for summary judgment on the wrongful disposal claim, arguing that appellant could not recover for emotional distress because the foal is considered personal property. Second, they maintained that the foal lacked economic value.

{¶ 14} In response, appellant contended that regardless of the value of the foal, she was entitled to recover the cost to exhume and transport the remains to a proper resting place.

{¶ 15} In February 2017, the trial court granted summary judgment in favor of the Morgans on the remaining wrongful disposal claim.

{¶ 16} Appellant appeals asserting two assignments for review:

{¶ 17} "[1.] The trial court committed error in granting summary judgment while there are still genuine issues of material fact and the disputed facts were not taken in the light most favorable for the non-movant (Appellant).

{¶ 18} "[2.] The trial court erred in failing to recognize that replevin is an available remedy for Appellant before granting Summary Judgment on the wrongful disposal claim."

{¶ 19} Under her first assignment, appellant asserts three arguments contesting the trial court's first summary judgment ruling on the breach of contract and negligence claims. She maintains that the trial court failed to comply with Civ.R. 56(D) :

{¶ 20} "If on motion under this rule summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court in deciding the motion, shall examine the evidence or stipulation properly before it, and shall if practicable, ascertain what material facts exist without controversy and what material facts are actually and in good faith controverted. The court shall thereupon make an order on its journal specifying the facts that are without controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just." (Emphasis added.)

{¶ 21} Compliance with Civ.R. 56(D) is only necessary when summary judgment has not been rendered upon all the relief asked. Holeski v. Lawrence , 85 Ohio App.3d 824, 834, 621 N.E.2d 802 (11th Dist. 1993). The Morgans' partial summary judgment motion pertained only to appellant's breach of contract and negligence claims. Moreover, in ruling upon that motion, the trial court disposed of those claims entering judgment in favor of the Morgans. The trial court, at that time, rendered summary judgment for "all the relief asked," and, therefore, did not err.

{¶ 22} Under her second argument, appellant submits that both of the trial court's decisions are flawed because material issues of fact remain. As to the breach of contract and negligence claims, she states that there are genuine issues regarding the boarding contract terms and the extent of the Morgans' duty. In relation to the wrongful disposal claim, she asserts an issue of fact as to whether she gave consent for Timothy to dispose of the remains.

{¶ 23} Concerning the breach of contract and negligence claims, the trial court concluded that there is no evidence that the Morgans caused harm to the gelding or the foal. In order to prevail on either a breach of contract or negligence claim, the plaintiff must prove, inter alia, the lack of compliance with an obligation or duty, leading to damages. Carbone v. Nueva Constr. Group, L.L.C. , 83 N.E.3d 375, 2017-Ohio-382, ¶ 14 ; Konet v. Roberts , 2016-Ohio-1306, 62 N.E.3d 698, ¶ 25. Appellant did not present any evidence as to duty or breach. Consideration of the other issues was therefore unnecessary.

{¶ 24} As to the injury to the gelding, the dissent concludes that the Morgans have the burden of disproving negligence due to a "bailor-bailee" relationship. However, appellant did not raise this argument before the trial court and it has therefore, been waived. Fifth Third Bank v. Richards , 11th Dist. Portage No. 2014-P-0040, 2015-Ohio-638, 2015 WL 758548, *3 (Grendell, J., writing for the majority); Marks v. Aurora Bd. of Zoning Appeals , 11th Dist. Portage No. 2015-P-0048, 2016-Ohio-5182, 2016 WL 4080770, ¶ 13-14 (Grendell, J., writing the lead opinion). "It is well settled that where a party proceeds in trial on a certain legal theory, he may not abandon that theory on appeal and proceed on a different theory in the appellate court." State v. Urso , 195 Ohio App.3d 665, 2011-Ohio-4702, 961 N.E.2d 689, ¶ 77 (11th Dist.), citing Dolan v. Dolan , 11th Dist. Trumbull Nos. 2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, 2002 WL 1012575, ¶ 7 (Grendell, J., writing for the majority).

{¶ 25} Furthermore, appellant has not argued or briefed this issue on appeal and, therefore, it is precluded as a basis for disposition. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. , 24 Ohio St.3d 198, 202, 494 N.E.2d 1101 (1986) (" '[i]n fairness to the parties, a Court of Appeals which contemplates a decision upon an issue not briefed should * * * give the parties notice of its intention and an opportunity to brief the issue.' ").

{¶ 26} Similarly, as to the wrongful disposal claim, the trial court's decision was based solely upon the conclusion that appellant could not recover any economic or emotional damages. At the trial level, appellant did not contest the Morgans' argument regarding economic or emotional damages, but maintained that she was still entitled to recover the costs for exhuming the foal's remains. As will be discussed under the second assignment, appellant did not comply with statutory requirements for seeking damages under replevin. Thus, the trial court is affirmed for alternative reasons.

{¶ 27} Under the final argument of her first assignment, appellant asserts the trial court failed to apply res ipsa loquitur.

{¶ 28} "The doctrine of res ipsa loquitur is not a substantive rule of law, but rather is a rule of evidence which permits the trier of fact to infer negligence on the part of the defendant when the logical premises for the inference are demonstrated. The application of res ipsa loquitur does not alter the nature of the plaintiff's claim in a negligence action, but instead simply permits the plaintiff to prove his or her case through circumstantial evidence, as opposed to direct evidence.

{¶ 29} "Res ipsa loquitur permits the trier of fact to infer negligence on the part of the defendant from the circumstances surrounding the infliction of injury on the plaintiff. In order to warrant its application, the plaintiff must establish the following: (1) the instrumentality causing the injury was under the exclusive management and control of the defendant at the time of the actual injury or at the time of the creation of the condition which resulted in the injury; and (2) the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.

{¶ 30} "The doctrine of res ipsa loquitur is premised upon the absence of direct evidence of acts or omissions constituting negligence. It raises the circumstantial inference of negligence only in those rare instances where the instrumentality was accessible only to the defendant and where the nature of the accident was such that it ordinarily would not have happened in the absence of negligent conduct." (Citations omitted.) Fleegle v. Funtime, Inc. , 11th Dist. Geauga No. 98-G-2158, 1999 WL 960575, *2-3 (Sept. 30, 1999).

{¶ 31} Injury to a gelding and death of a foal are things that can happen in any number of ways, with or without negligence. Appellant did not establish that the gelding's injury or the foal's death occurred under such circumstances that in the ordinary course of events would not have occurred but for negligence. Accordingly, the trial court did not err. Appellant's first assignment is without merit.

{¶ 32} Appellant's second assignment addresses the trial court's decision as to her wrongful disposal claim. As noted above, the court granted summary judgment due to the failure to show damages. Appellant does not contest the trial court's analysis as to the economic or emotional harm, but still maintains that she would be entitled to damages covering the costs of exhuming the foal's remains and taking them elsewhere for burial.

{¶ 33} Although appellant raised the replevin issue in her response to the second motion for summary judgment, the trial court did not address the point in its second decision. Nevertheless, for the following reasons, appellant was not prejudiced because she failed to comply with statutory requirements for obtaining replevin.

{¶ 34} Replevin is a statutory remedy that must be sought in accordance with specific procedures. Bond v. Bond , 11th Dist. Geauga No. 2001-G-2382, 2002-Ohio-3843, 2002 WL 1750897, ¶ 17. A request for the return of personal property must be made by motion with an accompanying affidavit. R.C. 2737.03. Appellant never filed such a motion in this case. Her various submissions, including her complaint, made no reference to recovery under a theory of replevin until her response to the Morgans' second motion for summary judgment. Since appellant did not comply with R.C. 2737.03, the trial court did not err in granting summary judgment on her wrongful disposal claim. Her second assignment also lacks merit.

{¶ 35} The judgments of the Portage County Court of Common Pleas are affirmed.

CYNTHIA WESTCOTT RICE, J., concurs,

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

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

{¶ 36} I respectfully dissent and would reverse the trial court's decision with respect to the injury to Paolucci's gelding. In affirming the grant of summary judgment, the majority asserts that, "[c]oncerning the breach of contract and negligence claims," Paolucci "did not present any evidence as to duty or breach." Supra at ¶23. The majority fails to recognize the substance of Paolucci's relationship with the Morgans as that of bailor and bailee and thus its analysis of the issues is deficient.

{¶ 37} Paolucci contracted with the Morgans for the care and boarding of three horses. While in the care of the Morgans, one of the horses (the gelding) "suffered a puncture and stifle injury." There is no evidence as to how the gelding was injured.

{¶ 38} "A bailment has been defined as the delivery of goods or personal property by one person to another in trust for a particular purpose, with a contract, express or implied, that the property shall be returned once the purpose has been faithfully executed." (Citation omitted.) Marculaitis v. Pisegna , 11th Dist. Ashtabula No. 2010-A-0045, 2011-Ohio-4019, 2011 WL 3558107, ¶ 31. The delivery of horses to another for a particular purpose creates such a bailment for hire, thereby obligating the bailee "by law to exercise ordinary care in the safekeeping of the bailor's property" and "to return the property undamaged upon the termination of the bailment." David v. Lose , 7 Ohio St.2d 97, 98, 218 N.E.2d 442 (1966). Accordingly:

1. In order to establish a prima facie case against a bailee in an action sounding in contract, a bailor need prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailee and (3) failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment.
2. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established, and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver. ( Agricultural Ins. Co. v. Constantine , 144 Ohio St. 275, 58 N.E.2d 658 [ (1944) ], followed.)

Id. at paragraphs one and two of the syllabus.

{¶ 39} In the present case, Paolucci has established a prima facie case of breach of the bailment contract with the Morgans. Where "the bailee cannot show how the damage occurred, he must, in order to escape liability, affirmatively prove that he took reasonable precautions under the circumstances to prevent every possibility of damage from actually occurring." Id. at 100, 218 N.E.2d 442. The Morgans have not established the affirmative defense of non-negligence on their part. Rather, they have "left the question of their conduct in a state of conjecture," relying instead on Paolucci's inability to demonstrate the cause of the injury to the gelding. Id. at 101, 218 N.E.2d 442 ; see Affidavit of Timothy Morgan, at ¶ 11 ("While Ms. Paolucci boarded her horses at my Property, I never observed a stallion make contact with and/or injure her gelding.").

{¶ 40} Given the state of the record before the court, it was error for the trial court to grant summary judgment in favor of the Morgans as to Paolucci's claim of injury to the gelding and is erroneous for this court to affirm that decision. The majority claims that the issue of bailment has been waived because it was not raised by Paolucci. But it is a matter of law, not argument, that the Morgans bore the burden of explaining their failure to redeliver the property undamaged. The Morgans moved for summary judgment and it is the duty of the court to ensure that the standards of the Rule are met before judgment is granted.

{¶ 41} For the foregoing reasons, I respectfully dissent and would reverse the trial court with respect to the claims involving the gelding.


source: Caselaw Access Project

author: TIMOTHY P. CANNON, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dennis G. COOK, Defendant-Appellant.
    NO. 2016-G-0096
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided March 5, 2018
    James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
    Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Defendant-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Dennis G. Cook, appeals from the judgment of conviction entered by the Geauga County Court of Common Pleas on October 7, 2016. The issues on appeal are solely related to the trial court's imposition of sentence. For the reasons that follow, the trial court's judgment is affirmed.

{¶ 2} On the night of November 28, 2015, appellant and two others (Mr. Heller and Mr. Johnson) parked down the street from a residence located on Tavern Road in Burton, Ohio. They kicked open the door of the residence and held the occupant at gun point. The trio was described by the victim as wearing ski masks and carrying guns. The victim was assaulted and forced into the basement at gun point; he was tied to a chair and beaten with a gun. One of the perpetrators poured lighter fluid on the victim and threatened to light it unless he told them where to find his money and marijuana. The house was ransacked, and the offenders stole money, marijuana, and a cell phone from the victim.

{¶ 3} Appellant was indicted by the Geauga County Grand Jury on February 1, 2016, in a seven-count indictment. Appellant entered a plea of guilty on July 25, 2016, to Aggravated Robbery, in violation of R.C. 2911.01(A)(1), a first-degree felony (Count 1); Kidnapping, in violation of R.C. 2905.01(A)(2), a first-degree felony (Count 5); and Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2), a fourth-degree felony (a stipulated lesser-included offense to Count 6). The remaining counts of the indictment were dismissed.

{¶ 4} A sentencing hearing was held on September 26, 2016. It was emphasized that Mr. Heller had masterminded the criminal plan; he had been at the home previously to repair the furnace, and the victim had indicated he could sell Mr. Heller marijuana. Mr. Heller received a thirteen-year prison sentence for his role in the crimes. It was also stressed that Mr. Johnson escalated the physical violence once the trio was inside the residence and that appellant did not actually inflict any physical harm on the victim. Mr. Johnson received seventeen years in prison for his role in the crimes. In addition, defense counsel argued that the Aggravated Robbery and Kidnapping counts should merge for purposes of sentencing.

{¶ 5} The trial court imposed a seven-year prison sentence for Aggravated Robbery, a six-year prison sentence for Kidnapping, and an eighteen-month prison sentence for Carrying a Concealed Weapon. The trial court rejected the merger argument and ordered the Aggravated Robbery and Kidnapping sentences to run consecutively with each other and concurrent to the sentence for Carrying a Concealed Weapon, for a total prison sentence of thirteen years.

{¶ 6} The trial court issued its judgment of conviction on October 7, 2016. Appellant timely appealed and raises two assignments of error for our review:

[1.] The trial court erred to the prejudice of the appellant by not finding that the offenses of aggravated robbery and kidnapping merge, and sentencing him separately and consecutively for a total of thirteen years.
[2.] The trial court erred to the prejudice of the appellant by sentencing him to thirteen years in prison and the sentence was therefore excessive.

Merger of Multiple Counts

{¶ 7} Under his first assignment of error, appellant asserts the trial court erred by not finding that his convictions of Aggravated Robbery and Kidnapping merge for the purpose of sentencing.

{¶ 8} R.C. 2941.25 specifies when merger is appropriate and "incorporates the constitutional protections against double jeopardy. These protections generally forbid successive prosecutions and multiple punishments for the same offense."

State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 7. We review a trial court's R.C. 2941.25 determination de novo. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.

{¶ 9} R.C. 2941.25 provides as follows:

(A) Where the same conduct by 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.
(B) 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.

{¶ 10} "When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered." State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. Two or more offenses may result in multiple convictions if any of the following are true: "(1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

{¶ 11} Appellant argues that one cannot commit Aggravated Robbery without committing Kidnapping because there is always a point in time where the robbery victim is not free to leave. In response, the State acknowledges "there is virtually always a kidnapping" during the course of a robbery "due to the fact that a person will necessarily be deprived of his freedom of movement when a criminal holds the person at gun point or threatens physical harm." Under the circumstances of this case, however, the State argues appellant's conduct went "far beyond the 'usual' robbery/kidnapping relationship."

{¶ 12} Appellant was convicted of Aggravated Robbery and Kidnapping, in violation of R.C. 2911.01(A)(1) and R.C. 2905.01(A)(2), respectfully. The relevant portions of these statutes provide:

Aggravated Robbery: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
Kidnapping: (A) No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (2) To facilitate the commission of any felony or flight thereafter[.]

{¶ 13} The trial court recognized, "[c]ertainly aggravated robbery has a component to it of limiting someone's freedom to move but this was beyond that. * * * [T]ying somebody to a chair, pouring lighter fluid on them, that's more than just hold still while I rob you. So the Court does not find that the sentences for the kidnapping and aggravated robbery should merge."

{¶ 14} We agree that it is possible for these two offenses, under certain circumstances, to merge as allied offenses of similar import. See, e.g. , In re A.G. , 8th Dist. Cuyahoga No. 101010, 2016-Ohio-5616, 2016 WL 4591890 (where the defendant approached a man as the man was opening his car door after obtaining money from an ATM, the defendant pulled a gun out of his pocket and told the man he would shoot him unless he got into the car); State v. Phipps , 10th Dist. Franklin No. 15AP-524, 2016-Ohio-663, 2016 WL 715722 (where the victims were held at gun point only for as long as necessary to commit the aggravated robbery).

{¶ 15} In State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), the Supreme Court of Ohio provided guidelines for determining whether kidnapping and another offense are allied offenses:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

Id. at syllabus. "Although Logan predates Ruff , Ohio courts continue to apply the guidelines set forth in Logan in determining whether kidnapping and another offense were committed with a separate animus, in accordance with the third prong of the Ruff test." State v. Asadi-Ousley , 2017-Ohio-7252, 102 N.E.3d 52, ¶ 47, reopened on other grounds , citing State v. Armengau , 2017-Ohio-4452, 93 N.E.3d 284, ¶ 125, State v. Williams , 2015-Ohio-4100, 43 N.E.3d 797, ¶ 18, and State v. Stinnett , 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, 2016 WL 1687031, ¶ 53. See also State v. Adams , 8th Dist. Cuyahoga No. 104331, 2016-Ohio-8330, 2016 WL 7427411, ¶ 13, and State v. Houston , 1st Dist. Hamilton No. C-130429, 2014-Ohio-3111, 2014 WL 3516596, ¶ 22.

{¶ 16} Applying these guidelines, we conclude the instant offenses were committed with a separate animus sufficient to support separate convictions. The restraint was prolonged and subjected the victim to a substantial increase in risk of harm separate and apart from that involved in the aggravated robbery. The kidnapping was complete when the victim was forced into the basement at gun point and tied to a chair; the motivation was to physically restrain and harm the victim, and the victim was in fact severely injured. Appellant then committed aggravated robbery, after kidnapping the victim, when he and the others committed a theft offense while brandishing their weapons; the motivation was to steal the victim's money and marijuana.

{¶ 17} The trial court did not err in failing to merge these convictions for purposes of sentencing, as the offenses are not allied offenses of similar import under the circumstances of this case.

{¶ 18} Appellant's first assignment of error is without merit.

Sentencing Factors

{¶ 19} Under his second assignment of error, appellant asserts his sentence of thirteen years in prison is excessive because the trial court did not properly consider certain mitigating factors.

{¶ 20} Our standard of review is set forth in R.C. 2953.08(G)(2) :

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard of review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.

{¶ 21} " 'A sentence is contrary to law if (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.' " State v. Wilson , 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, 2017 WL 3382767, ¶ 18, quoting State v. Price , 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, 2017 WL 632448, ¶ 14 (citations omitted). " 'When a sentence is imposed solely after the consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts "may vacate or modify any sentence that is not clearly and convincingly contrary to law" ' " only if the appellate court clearly and convincingly finds that the record does not support the sentence. Id. at ¶ 18, quoting Price , supra , at ¶ 14, quoting State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

{¶ 22} Appellant could have received a potential prison term of twenty-three and one-half years: a potential maximum of eleven years for Aggravated Robbery; a potential maximum of eleven years for Kidnapping; and a potential maximum of eighteen months for Carrying a Concealed Weapon. See R.C. 2929.14(A)(1)&(4). Therefore, appellant's thirteen-year sentence is within the statutory range. Additionally, the trial court considered the purposes and principles of felony sentencing, found in R.C. 2929.11, and the seriousness and recidivism factors, found in R.C. 2929.12, prior to imposing sentence. The court specifically referenced these statutes in the sentencing entry and discussed some of the R.C. 2929.12 sentencing factors during the sentencing hearing.

{¶ 23} Because appellant's prison term is not contrary to law, we must consider whether the sentence is clearly and convincingly not supported by the record. See Wilson , supra , at ¶ 20 ; Marcum , supra , at ¶ 23.

{¶ 24} Appellant argues the trial court should have considered that the victim facilitated the offense because he was a drug dealer. The trial court adequately considered this argument at sentencing and admonished trial counsel for raising the issue. The trial court stated, "Come on, * * * [e]ven drug dealers don't get to be tied up and have lighter fluid poured on them. * * * That's not that we approve of the drug dealer's activity and there will be comeuppance on those activities, but these people brought violence to this county [sic]."

{¶ 25} Appellant next contends the trial court did not give adequate weight to the fact that he did not personally cause any actual physical harm to the victim and that he expressed genuine remorse. These facts do weigh in favor of mitigation, but it is also evident from the record that the trial court considered them in that manner.

{¶ 26} Appellant further asserts the court should have accorded more weight to the fact that his most serious prior criminal conviction occurred when he was a juvenile. Appellant was 17 years old when he was convicted of his first felony, Participating in Criminal Gang Activity; the initial charges included Grand Theft Auto, Robbery, and Attempted Murder. Appellant was bound over from juvenile court and tried as an adult. His prison sentence was suspended, but he subsequently violated his community control provisions three times as an adult, which resulted in a two-year prison sentence. Then, in 2012, appellant served a nine-month prison term for another felony conviction, Carrying a Concealed Weapon. Finally, while he was being held in jail on the instant offenses, appellant was convicted of misdemeanor assault for assailing another inmate with a broomstick. Appellant's argument regarding his criminal history is unpersuasive.

{¶ 27} Appellant has failed to show that his sentence is clearly and convincingly not supported by the record.

{¶ 28} Appellant's second assignment of error is without merit.

{¶ 29} The judgment of the Geauga County Court of Common Please is affirmed.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.


text:
    FAIRPORT REAL ESTATE LLC, Plaintiff-Appellant, v. NAUTICAL RIDGE CONDOMINIUM OWNERS' ASSOCIATION, INC., et al., Defendant-Appellee.
    NO. 2017-L-048
    Court of Appeals of Ohio, Eleventh District, Lake County.
    March 5, 2018
    David M. Dvorin, 30195 Chagrin Boulevard, Suite 300, Pepper Pike, OH 44124 (For Plaintiff-Appellant).
    Steven M. Ott, Amanda Barreto, & Lindsey Wrubel, Ott & Associates Co., LPA, 1300 East Ninth Street, Suite 1520, Cleveland, OH 44114; Joseph Ferrante & Lavell Payne, Nationwide Insurance Company, 2 Summit Park Drive, Suite 540, Independence, OH 44131 (For Defendant-Appellee).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Fairport Real Estate LLC ("Fairport"), appeals from the March 13, 2017 judgment of the Lake County Court of Common Pleas. The dispute before the trial court was whether Fairport has easement rights over property owned by appellee, Nautical Ridge Condominium Owners' Association, Inc. ("the Association") for ingress and egress and for the use of a retention basin and sanitary sewer line and whether the Association has easement rights over Fairport's property for utility lines. The trial court denied Fairport's motion for summary judgment and granted, in part, the Association's motion for summary judgment. For the reasons that follow, the trial court's judgment is affirmed in part and reversed in part.

{¶ 2} In April 2006, non-party Nautical Ridge Development, LLC ("NRD" or "Declarant") recorded a Declaration of Condominium Ownership ("Declaration") for an expandable condominium development ("Development") in Fairport Harbor, Ohio. The Declaration provided for the establishment of the Association (appellee herein). NRD owned both the Phase I Parcel ("the Property") and the contiguous property defined in the Declaration as the "Additional Lands." The Declaration gave NRD the ability (but not the obligation) to submit all or a portion of the Additional Lands to the Development. The Additional Lands are landlocked by the Development's condominium units. NRD, as the Declarant, therefore reserved easement rights over the Property for ingress, egress, utilities, and construction "for the benefit of and use by Declarant, and its * * * successors and assigns[.]"

{¶ 3} After completing several phases, NRD abandoned the Development and conveyed the remaining Additional Lands to Fifth Third Bank, N.A. ("Fifth Third") by General Warranty Deed in November 2009. The General Warranty Deed designated Fifth Third as NRD's "Successor Declarant" under the Declaration with regard to the Additional Lands and declared Fifth Third to "stand in the same relation" to the Additional Lands as NRD.

{¶ 4} On October 14, 2015, Fairport (appellant herein) received conditional approval from the Planning Commission for the Village of Fairport Harbor to build apartments on the Additional Lands. To obtain approval, Fairport was required to either obtain permission from the Association or a court order to use the sanitary sewer line that services the Development, to use the Association's retention basin, and to use the roadway through the Development.

{¶ 5} On November 25, 2015, Fifth Third transferred the Additional Lands to Fairport through a Quitclaim Deed. On June 10, 2016, Fifth Third recorded an Assignment designating Fairport as its Successor Declarant under the Declaration and declaring Fairport to "stand in the same relation" to the Additional Lands as Fifth Third.

{¶ 6} The Association refused to permit Fairport to use its retention basin, roadways, or sanitary sewer lines. Thus, Fairport filed suit and, in its amended complaint, requested a declaratory judgment that it has easement rights, either express or implied by necessity, to use the sanitary sewer line, retention basin, and roadways (or, in the alternative, an order that the Association remove any utility lines from the Additional Lands). Fairport also requested preliminary and permanent injunctions allowing it to connect with and use the sanitary sewer line and storm piping, to use the retention basin, and to use the private roads for ingress and egress. Fairport raised additional claims for breach of contract, interference with the purported easements, nuisance, and trespass over the Additional Lands by the Association's utility lines. The amended complaint also named Lake County Sanitary Engineer as a defendant.

{¶ 7} The Association filed a counterclaim, requesting the following declaratory judgments: that the development period in the Declaration has ended; that Fairport is not a Successor Declarant and has no easement rights to use the sanitary sewer line, retention basin, and roadways; that Fairport cannot tie into the sanitary sewer line per the Lake County Utilities Department Rules; that the Association has easement rights, implied by prior use, to use the utility lines that run under the Additional Lands; and that if Fairport does have any easement rights, it must share expenses with the Association. The Association also sought preliminary and permanent injunctions to prevent Fairport from interfering with the utility lines that run under the Additional Lands.

{¶ 8} Fairport and Lake County Sanitary Engineer entered into an agreement, reflected in an agreed judgment entry issued by the trial court on October 24, 2016, wherein Fairport was permitted to tie into or otherwise connect to the existing sanitary sewer line on the Additional Lands owned by Fairport.

{¶ 9} Fairport moved for summary judgment on the basis that it has express easement rights either as owner of the Additional Lands or as a Successor Declarant under the Declaration or, in the alternative, that it has implied easements based on prior use because the original plan for developing the Property included use of the roads and retention basin by the Additional Lands. It did not move for summary judgment on the basis that it has implied easements by necessity, as was pled in its amended complaint.

{¶ 10} The Association moved for summary judgment on the basis that Fairport has no express easement rights because it is not a Successor Declarant and that the Association has an implied easement over the Additional Lands for the utilities. The Association also argued that Fairport should not be permitted to tie into the sanitary sewer lines, despite the agreed judgment entry with Lake County Sanitary Engineer, because doing so violates the Lake County Utilities Department Rules.

{¶ 11} The trial court denied Fairport's motion and rendered judgment in favor of the Association on Fairport's amended complaint. The trial court granted the Association's motion in part and denied it in part. The trial court held Fairport is not a Successor Declarant under the Declaration and has no easement rights for use of the sanitary sewer lines, retention basin, and roadways, and that the development period in the Declaration has ended. The trial court further held the Association has an implied easement to use the utilities that run under the Additional Lands and that Fairport is permanently enjoined from interfering with them.

{¶ 12} Fairport noticed an appeal from this entry and raises three assignments of error for our review:

[1.] The trial court committed prejudicial error in denying [Fairport's] motion for summary judgment and granting in part [the Association's] motion for summary judgment based upon the trial court's mistaken opinion that [Fairport] LLC did not have express easement rights under the Declaration either as the owner of the Additional Lands or as a successor Declarant.
[2.] The trial court committed prejudicial error in denying [Fairport's] motion for summary judgment and granting in part [the Association's] motion for summary judgment because of the trial court's mistaken opinion that [Fairport] did not have an implied easement to use the road, retention basin and utilities located on [the Association's] property.
[3.] The trial court committed prejudicial error in denying [Fairport's] motion for summary judgment and granting in part [the Association's] motion for summary judgment based upon the trial court's mistaken opinion that [the Association] has an implied easement to use the utilities [sic] lines located on [Fairport's] property.

{¶ 13} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) the evidence shows "that there is no genuine issue as to any material fact" to be litigated, (2) "the moving party is entitled to judgment as a matter of law," and (3) "it appears from the evidence * * * 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, that party being entitled to have the evidence * * * construed most strongly in the party's favor."

{¶ 14} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "Under this standard, the reviewing court conducts an independent review of the evidence before the trial court and renders a decision de novo, i.e., as a matter of law and without deference to the conclusions of the lower court." Jackson v. Moissis , 11th Dist. Geauga No. 2012-G-3070, 2012-Ohio-5599, 2012 WL 5995249, ¶ 20 (citation omitted).

{¶ 15} Under its first assignment of error, Fairport argues the trial court erred by failing to conclude that Fairport has express easement rights under the Declaration as the Successor Declarant and also as the owner of the Additional Lands.

{¶ 16} Contract principles apply to a court's interpretation of a condominium development declaration. See Williams Creek Homeowners Assn. v. Zweifel , 10th Dist. Franklin No. 07AP-689, 2008-Ohio-2434, 2008 WL 2208008, ¶ 41, citing Nottingdale Homeowners' Assn., Inc. v. Darby , 33 Ohio St.3d 32, 514 N.E.2d 702 (1987). "In construing the terms of any contract, the principal objective is to determine the intention of the parties." Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos. , 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999) (citation omitted). "We presume the intent of the parties to a contract resides in the language used in the written instrument." Oryann, Ltd. v. SL & MB, LLC , 11th Dist. Lake No. 2014-L-119, 2015-Ohio-5461, 2015 WL 9485646, ¶ 25, citing Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. "[A] court may not interpret the contract in a manner inconsistent with the clear language of the instrument." Id. at ¶ 26, citing Shifrin v. Forest City Ents., Inc. , 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992).

{¶ 17} "If a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of fact to be determined. However, if a term cannot be determined from the four corners of a contract, factual determination of intent or reasonableness may be necessary to supply the missing term."

Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. , 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984), citing Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978) and Hallet & Davis Piano Co. v. Starr Piano Co. , 85 Ohio St. 196, 97 N.E. 377 (1911).

Successor Declarant

{¶ 18} We initially analyze whether Fairport is a Successor Declarant under the Declaration. The Declaration provides that NRD is "hereinafter referred to as 'Declarant' " and that "the provisions of this Declaration shall constitute covenants to run with the land and shall be binding on Declarant and each successor of Declarant who stands in the same relation to the Property or Additional Lands as Declarant and its and their respective * * * successors and assigns * * *."

{¶ 19} Article XI, section (A), of the Declaration states that "Declarant hereby reserves the right and option, but not the obligation , to submit the Additional Lands, or any portion or portions thereof * * * to the provisions of this Declaration and the [Ohio Condominium] Act." (Emphasis added). Section (C) of Article XI provides that "Declarant has a period of seven (7) years from the date the Declaration is filed for record to expand the Condominium Property to include the Additional Lands. Other than the expiration of the time limit set forth above, there are no circumstances that will terminate the Declarant's right to expand the Condominium Property to include the Additional Lands." Further, under section (M) of Article XI, "Declarant reserves the right to assign its rights and option to expand the Condominium Property to include the Additional Lands, or any portion thereof, to any successor of the Declarant who stands in the same relationship to the Condominium Development as the Declarant."

{¶ 20} Neither the Declaration nor the Ohio Condominium Act defines "Declarant" or "successor of Declarant," nor do they explain what is meant by "stands in the same relation to." The Ohio Condominium Act uses these terms, however, in its definition of "Developer": " 'Developer' means any person who directly or indirectly sells or offers for sale condominium ownership interests in a condominium development. 'Developer' includes the declarant of a condominium development and any successor to that declarant who stands in the same relation to the condominium development as the declarant." R.C. 5311.01(S).

Fifth Third as Successor Declarant

{¶ 21} After completing several phases, NRD abandoned the Development and conveyed the remaining (landlocked) Additional Lands to Fifth Third by General Warranty Deed in lieu of foreclosure. This conveyance took place in November 2009, which was before expiration of the seven-year time limit on the Declarant's right to expand the Condominium Property. The Deed designated Fifth Third as NRD's "Successor Declarant" under the Declaration with regard to the Additional Lands and declared Fifth Third to "stand in the same relation" to the Additional Lands as NRD. Specifically, the Deed provides as follows:

Grantor [NRD] does hereby (i) designate Grantee [Fifth Third] as Grantor's successor 'Declarant' under the Declaration of Condominium Ownership for the Nautical Ridge Condominiums, which was filed for record with the Lake County, Ohio Recorder on April 20, 2006 * * *, with regard to the Premises, and solely with regard to the Premises, Grantee being hereby declared by Grantor to stand in the same relation to the Premises (which constitutes a portion of the 'Additional Lands' as that term is defined in the Declaration) as does Grantor, and (ii) assign, transfer, and set over to Grantee, and by acceptance and recording of this Deed Grantee does hereby accept and assume, all of Grantor's rights as 'Declarant' under the Declaration with regard to the Premises, and specifically all of 'Declarant's' rights with regard to the Premises under Article XI of the Declaration; provided, however, that in no event shall the foregoing designation and/or assignment and assumption constitute or in any way be deemed to be Grantee's assumption of any liabilities which Grantor has in connection with the Declaration, the Condominium Property (as defined in the Declaration), or the Common Elements (as defined in the Declaration), including, without limitation, any warranties.

{¶ 22} The Association argues this designation and assignment of Declarant's rights was ineffective because it did not also transfer the obligations under the Declaration to Fifth Third. The limiting language in the Deed, however, states that Fifth Third does not assume the Grantor's liabilities (the Grantor being defined in the Deed as NDR (i.e., the developer) ); it does not state that Fifth Third declines to assume the Declarant's liabilities. In other words, Fifth Third assumed the liabilities under the Declaration as the Successor Declarant, but did not assume liability for any past action or omission of NDR during the time NDR was the Declarant. This does not render the assignment ineffective; in fact, it is legally required under R.C. 5311.05.

{¶ 23} R.C. 5311.05(C)(15) was added in 2004 and requires the Declaration for an expandable condominium property to contain a statement that "a purchaser who acquires the property at a sheriff's sale or by deed in lieu of a foreclosure , is not liable in damages for harm caused by an action or omission of the developer or a breach of an obligation by the developer." (Emphasis added.) As one treatise explains, the purpose of this provision is to protect "a lender who foreclosed upon the additional property with the expectation that it could 'complete' the project, or could sell the property to another builder who would want to complete the project, without incurring responsibility for the acts or omissions (not to mention the warranty obligations) of the original developer." Kuehnle & Williams, Baldwin's Ohio Condominium Law , Section 13:3, 151 (2013). The trial court's and the Association's reliance on McKnight v. Bd. of Directors , 32 Ohio St.3d 6, 512 N.E.2d 316 (1987) is therefore misplaced, as R.C. 5311.05(C)(15) was not added to the Ohio Condominium Act until 2004, well after the Ohio Supreme Court's 1987 opinion.

{¶ 24} The General Warranty Deed effectively assigned the Declarant's rights under the Declaration from NRD to Fifth Third as the Successor Declarant. The trial court's conclusion to the contrary was in error.

Fairport as Successor Declarant

{¶ 25} On November 25, 2015, Fifth Third transferred title to the Additional Lands to Fairport through a Quitclaim Deed. This occurred well after expiration of the seven-year time limit on the Declarant's right to expand the Condominium Property. Over six months later, on June 10, 2016, Fifth Third recorded an Assignment designating Fairport as its Successor Declarant under the Declaration and declaring Fairport to "stand in the same relation" to the Additional Lands as Fifth Third. Specifically, the language of assignment provides:

Effective as of the date of the filing of the Deed transferring title of the Premises from Assignor [Fifth Third] to Assignee [Fairport] with the Lake County Recorder's Office (the 'Effective Date'), Assignor (i) designated its Interest to Assignee as Assignor's successor 'Declarant' under the Declaration, with regard to the Premises, and solely with regard to the Premises, Assignee being declared by Assignor to stand in the same relation to the Premises (which constitutes a portion of the 'Additional Lands' as that term is defined in the Declaration) as did Assignor, and (ii) assigned, transferred, and set over to Assignee, and by the acceptance and recording of the Deed, Assignee accepted and assumed, all of Assignor's rights as 'Declarant' under the Declaration with regard to the Premises, including, without limitation, all of 'Declarant's' rights with regard to the Premises under Article XI of the Declaration. Assignee accepts Assignor's right, title and interests as expressly set forth in this Assignment without warranties or covenants of any kind.

{¶ 26} The Association argues this designation and assignment of Declarant's rights was ineffective because Fairport does not "stand in the same relation" to the Additional Lands as did NRD, the original Declarant. The Association asserts Fairport does not "stand in the same relation" because it has no intention of submitting the Additional Lands to the condominium form of ownership and because the seven-year time limit within which to do so has expired.

{¶ 27} One of the Declarant's rights under the Declaration is found in Article XI of the Declaration: "Declarant hereby reserves the right and option, but not the obligation, to submit the Additional Lands, or any portion or portions thereof * * * to the provisions of this Declaration and the [Ohio Condominium] Act." It further provides, however, that the "Declarant is not obligated to expand the Condominium Property to include all or any portion of the Additional Lands beyond the initial forty-five (45) Units" and the "Declarant is not obligated to construct improvements on the Additional Lands." Finally, it allows that, "[i]f the Declarant does not submit all or a portion of the Additional Lands to the Condominium Development, the restrictions shall not apply to any portion of the Additional Lands that is not so submitted."

{¶ 28} If NRD had remained the Declarant without ever assigning the accompanying rights to a successor, it would have had the right, but not the obligation, to include the Additional Lands in the Development up and until April 20, 2013, i.e., seven years after the Declaration was recorded. After April 20, 2013, NRD would no longer have been permitted to include the Additional Lands in the Development. There is no provision in the Declaration or the Ohio Condominium Act, however, that states other declarant rights provided in a declaration are terminated upon the expiration of the development period. Thus, NRD would have remained the Declarant and could have exercised those other rights under the Declaration.

{¶ 29} Similarly, Fairport no longer has the right and option to include the Additional Lands in the Development because the time limit has expired. Nevertheless, it has been assigned "all of Assignor's rights as 'Declarant' under the Declaration with regard to the Premises." Thus, Fairport "stands in the same relation to" the Additional Lands as did NRD.

{¶ 30} Fairport was effectively assigned the Declarant's rights from Fifth Third and is a Successor Declarant under the Declaration. The trial court's conclusion to the contrary was in error.

Express Easement Rights

{¶ 31} As Fairport may exercise the rights of a Successor Declarant, we consider what easement rights a Successor Declarant has under the Declaration. Fairport specifically asserts it has easement rights to use the sanitary sewer line, retention basin, and roadways, and has the right of ingress and egress over the roadways.

{¶ 32} Article III of the Declaration sets forth the following provisions as to easements, in relevant part:

Declarant hereby creates by grant or reservation, as the case may be, in perpetuity, for its benefit and for the benefit of each Unit Owner, each mortgagee in whose favor a mortgage shall be granted with respect to any Unit, the Association, and to any other person now having or hereafter having an interest in the Phase I Parcel and the Additional Lands or any part thereof, and the respective heirs, devisees, executors, administrators, personal representatives, successors and assigns of the foregoing persons, the following nonexclusive rights and easements as and to the specified parties:
(A) Roadway, Utility and Other Easements. To the Declarant and the Association, the right and easement to construct, install, repair, replace, relocate, operate and maintain roadways, driveways, sidewalks, water mains with service connections, storm and sanitary sewer lines, steam, electric, gas and telephone lines, conduits, and transmission and meter devices and other utilities, in, on, under and/or over the Condominium Property; * * *.
* * *
(G) Reservation by Declarant of Easements for Ingress and Egress, Utilities and Construction. The Declarant herein hereby reserves unto itself [f]or as long as the Declarant owns a Condominium Ownership Interest in the Condominium Property or Additional Lands the easement and right for the benefit of and use by Declarant, and its agents, officers, directors, employees, licensees, servants, tenants, personal representatives, successors and assigns for ingress and egress by foot, automobile and otherwise and for utility and facility purposes, over, through and under the Condominium Property and any part thereof other than a Unit not owned by the Declarant. The Declarant further reserves easements over Condominium Property for the benefit of the Additional Lands to establish the grade of the Additional Lands and for necessary access to construct the Additional Lands Buildings and other improvements upon the Additional Lands.
* * *
(K) Easement Rights. The above easements are to be enjoyed in common with the grantees, their heirs, executors, administrators, successors and assigns, with the right reserved in the Declarant, its successors and assigns, to grant, assign, or convey or dedicate to public use all or a portion of the easement rights herein to one or more assignees or grantees as an appurtenance to the Condominium Property and Additional Lands, without it being considered by the grantees, their heirs, executors, administrators, successors and assigns, as an additional burden on said easement and/or the Condominium Property. Any assignment, conveyance or dedication of said easement rights by the Declarant may be made at the same time or at successive times, and the residuary easement rights of the Declarant shall not cease or determine until the Declarant has no remaining interest, of record, in the Condominium Development or Additional Lands. However, the rights of all assignees or grantees in the reserved easements shall remain in full force and effect.
* * *
(M) Sharing of Expenses. In the event all or any portion of the Additional Lands is not added to the Condominium Property ('Non-Added Property'), and such Non-Added Property is subsequently developed and improved by the construction thereon of dwelling units, then the fair share of the cost and expense of repairing, replacing, relocating, operating and maintaining roadways, sidewalks, water mains and service connections, storm and sanitary sewer lines, a retention basin, if any, and drainage thereto, steam, electric, gas, telephone and cable television lines, conduits, and transmission and meter devices and other utilities and facilities installed on, in, over or under the Condominium Property and/or the Additional Lands and which are utilized in common by the Condominium Property and the Non-Added Property shall be apportioned among all of the Unit Owners and/or the owner(s) of the Non-Added Property, based on the total number of Units situated within the Condominium Property plus the total number of dwelling units actually constructed on the Non-Added Property (e.g., the total number of condominium units, if the Non-Added Property is submitted to condominium ownership; the total number of residences if the Non-Added Property is improved with single-family residences; the total number of rental units if the Non-Added Property is improved with rental units); such fair share of such expenses attributable to the Non-Added Property shall be determined by a fraction, the numerator of which shall be the number of dwelling units constructed on said property and the denominator of which shall be the total number of dwelling units constructed on the Condominium Property, and the Non-Added Property. The Non-Added Property shall not be chargeable hereunder unless and until the same is improved by the construction thereon of dwelling Units and such dwelling Units utilize the above improvements. If all or a portion of the Additional Lands is not added to the Condominium Property, Declarant reserves the right to execute and record a Declaration of Easements establishing a mechanism for the governance of the rights and obligations set forth in this subsection (M).

Sanitary Sewer Lines, Roadways, and Other Utilities

{¶ 33} It is clear from this language that the successors and assigns of the original Declarant have the right and easement under section (A) to construct, install, repair, replace, relocate, operate and maintain the roadways, storm and sanitary sewer lines, and other utilities that run in, on, under, or over the Property. As stated in the preamble to Article III, these particular easement rights were granted in perpetuity. Thus, Fairport, as the Successor Declarant, has express easement rights, jointly with the Association, to construct, install, repair, replace, relocate, operate, and maintain the roadways, storm and sanitary sewer lines, and other utilities. The trial court erred in concluding otherwise.

Ingress and Egress

{¶ 34} The easement rights for ingress and egress under section (G) "by foot, automobile, and otherwise," on the other hand, were reserved to the original Declarant and its successors and assigns only for as long as that party owns a condominium ownership interest in the Property or Additional Lands. The statutory definition of "condominium ownership interest" is "a fee simple estate or a ninety-nine-year leasehold estate, renewable forever, in a unit, together with an appurtenant undivided interest in the common elements." R.C. 5311.01(N). Fairport does not own a condominium ownership interest in the Property or Additional Lands. In fact, no one owns a condominium ownership interest in the Additional Lands. Therefore, the express easement right for ingress and egress has expired.

Retention Basin

{¶ 35} The trial court held: "By its plain language the cost-sharing provision in the Declaration does not grant any easement rights, and the express easements in the Declaration do not include an easement for use of the retention basin." We disagree, however, that this justified granting summary judgment on this issue in favor of the Association.

{¶ 36} Retention basins are part of a system for managing storm water. Section (A) of Article III does not specifically mention a retention basin, but it does provide an easement for storm sewer lines, conduits, and "other utilities." Additionally, section (M) of Article III specifically mentions a retention basin and anticipates that it would be shared by the two parcels of land. Section (M) provides for the sharing of expenses, as a result of the easements, between the condominium unit owners and the owner(s) of any of the Additional Lands that were not added to the Development. One expense the owners are to apportion is the "fair share of the cost and expense of repairing, replacing, relocating, operating and maintaining * * * storm and sanitary sewer lines, a retention basin, if any, and drainage thereto[.]" It is clear, within the four corners of the Declaration, that the contracting parties intended the Declarant to include an easement right to use the retention basin, if any, on the Property.

Conclusion

{¶ 37} Fairport's first assignment of error has merit to the extent indicated. Fairport is a Successor Declarant and has express easement rights under the Declaration, as stated above, to construct, install, repair, replace, relocate, operate, and maintain the roadways, storm and sanitary sewer lines, and other utilities, including the retention basin. Fairport's express easement rights for ingress and egress over the Property have expired.

Implied Easement Rights

{¶ 38} Under its second assignment of error, Fairport argues it has implied easement rights to use the roadways, sanitary sewer lines, and retention basin. This argument is now moot as it pertains to the retention basin and the right to construct, install, repair, replace, relocate, operate, and maintain the roadways, storm and sanitary sewer lines, and utilities. We continue, therefore, to Fairport's argument only as it pertains to an implied easement for ingress and egress.

{¶ 39} The trial court held:

Because an implied easement creates a right of way over land which could have been effectuated by an express grant but was not, an express easement and an implied easement cannot exist simultaneously. Yowonski v. MDB Constr. Co. , 7th Dist. Belmont No. 09 BE 10, 2010-Ohio-4185, 2010 WL 3482692, ¶ 21. As discussed above, the Declarant (NRD) had an express easement under the Declaration to use the roadway for ingress and egress, and therefore no implied easement was created at the time of severance and Plaintiff cannot claim an implied easement now. Tiller v. Hinton , 19 Ohio St.3d 66, 70, 482 N.E.2d 946, 951 (1985).

An implied easement and an express easement cannot exist simultaneously simply because when an express easement is granted there is no need to imply one. Yowonski , supra , at ¶ 21. This does not necessarily apply here, however, where the express easement has expired.

{¶ 40} Two types of implied easements are recognized in the law-those based on prior use and those based on necessity. One of the elements of an implied easement based on prior use is that the use shall have been so long continued and obvious or manifest as to show that it was meant to be permanent. Ciski v. Wentworth , 122 Ohio St. 487, 172 N.E. 276 (1930), syllabus. We agree that an implied easement based on prior use cannot exist here because the express easement was granted with a temporal limitation-it was clearly not meant to be permanent and we cannot imply otherwise. Thus, it was not error for the trial court to deny summary judgment to Fairport on this basis.

{¶ 41} It was error, however, for the trial court to grant summary judgment in favor of the Association on the basis that Fairport did not have any implied easement rights over the Property for ingress and egress. Neither party raised the issue of whether Fairport has an implied easement by necessity in their motions for summary judgment, although it was stated as a claim in Fairport's complaint.

{¶ 42} Fairport's second assignment of error has merit to the extent indicated. The trial court did not err in its decision that Fairport does not have implied easement rights for ingress and egress based on prior use. The trial court erred, however, in granting summary judgment in favor of the Association on the issue of implied easement rights for ingress and egress, in general, because the arguments and evidentiary material were solely directed toward the prior use claim. On remand, the issue of whether there is an implied easement by necessity must be determined either in renewed motions for summary judgment or at trial.

Conclusion

{¶ 43} Under its third assignment of error, Fairport argues the trial court's determination that the Association has implied easement rights to use the utility lines on the Additional Lands is inequitable because it denied the same rights to Fairport. Based on our disposition of the first and second assignments of error, we find an argument based on equitability is moot and decline to address it herein.

{¶ 44} The judgment of the Lake County Court of Common Pleas is affirmed in part and reversed in part, and the matter is remanded for further proceedings. On remand, the trial court must determine the issue of whether Fairport has an implied easement by necessity for ingress and egress over the Property. Additionally, the trial court must compute the sharing of expenses and maintenance of the roadways and utilities, etc., as provided in Article III, section (M) of the Declaration.

CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O'TOOLE, J.,

concur.


author: DIANE V. GRENDELL, J.

text:
    In the MATTER OF: the GUARDIANSHIP OF Norma ROSENBERGER, an Incompetent Adult
    NO. 2017-L-120
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided September 4, 2018
    John Patrick Malone, Jr. and Andrew Roger Malone, Malone Law, LLC, 614 West Superior Avenue, Suite 1150, Cleveland, OH 44113 (For Appellant-Intervenor, Northwest Trustee & Management Services, LLC).
    Patricia J. Schraff and John P. Thomas, Schraff Thomas Law, LLC, 2802 S.O.M. Center Road, Suite 200, Willoughby Hills, OH 44094 (For Appellee, Norma Rosenberger).
    Glenn E. Forbes, Forbes Law LLC, 166 Main Street, Painesville, OH 44077 (For Appellee, Susan Doudican).
    OPINION ON RECONSIDERATION
   DIANE V. GRENDELL, J.

ON RECONSIDERATION

{¶ 1} Appellant, Northwest Trustee & Management Services, LLC, appeals the denial of its Motion to Intervene in the guardianship proceedings of Norma Rosenberger. The issues before this court are whether a party nominated as the guardian for a prospective ward is entitled to intervene in the guardianship proceedings when the nomination has been imperfectly executed under Ohio law and whether a power of attorney is entitled to intervene when it did not receive notice of the hearing on an application to appoint a guardian for the principal. For the following reasons, we affirm the decision of the court below.

{¶ 2} On November 16, 2016, Susan Doudican filed an Application for Appointment of Guardian of Alleged Incompetent [ R.C. 2111.03 ] on behalf of her half-sister, Norma Rosenberger, in the Lake County Probate Court.

{¶ 3} On December 16, 2016, a hearing was held on the Application before a probate court magistrate at which Rosenberger and Doudican gave testimony.

{¶ 4} On January 5, 2017, a Magistrate's Decision was issued finding, "by clear and convincing evidence that Norma Rosenberger is mentally impaired as a result of various mental and physical disabilities, and incapable of independently caring for her person and safeguarding her income and assets." The magistrate recommended Doudican "be appointed the guardian of the person and the estate of Norma Rosenberger for an indefinite period of time." The magistrate based her findings on the following testimony:

Ms. Rosenberger is an 84-year old woman diagnosed with mixed dementia according to the Statement of Expert Evaluation completed on October 14, 2016 by Dr. Ami Hall and filed with the Application on November 16, 2016. Dr. Hall noted impairments in Ms. Rosenberger's orientation, thought process, memory, concentration and comprehension, and judgment. She found Ms. Rosenberger mentally impaired and recommended the guardianship be established. * * *
Ms. Rosenberger moved to Mentor, Ohio from Spokane, Washington in August 2016. Ms. Rosenberger was living alone in Spokane prior to her move to Ohio, but Mrs. Doudican stated during the hearing that she and Ms. Rosenberger visited with each other annually in person and maintained regular telephone contact. In approximately November 2015, Mrs. Doudican noticed Ms. Rosenberger was repeating herself during telephone conversation[s] and learned Ms. Rosenberger was getting lost while driving. On or about March 2016, Mrs. Doudican offered and Ms. Rosenberger agreed to move to Ohio to be closer to Mrs. Doudican and her family which consists of adult children and younger grandchildren. Mrs. Doudican began to make arrangements for Ms. Rosenberger's move to Ohio, finding her an apartment at Parker Place in Mentor, Ohio.
However, during the process of arranging further Ms. Rosenberger's move to Ohio, Mrs. Doudican learned that Ms. Rosenberger engaged Northwest Trustee and Management Service, a trust and financial arrangement company located in Spokane, sometime in April 2016. According to a letter written to Mrs. Doudican by Cam McGillivray who is a Trust Officer and In-house Counsel for Northwest, Ms. Rosenberger named Northwest as agent under a durable general power of attorney agreement she executed on May 16, 2016 replacing Mrs. Doudican as agent in a previously executed agreement. Northwest has charged Ms. Rosenberger nearly $40,000 in account maintenance fees since April 5, 2016, for approximately $1,100,000 under its management. Mrs. Doudican explained that Ms. Rosenberger's funds are actually invested with Ameriprise, and suspects Ameriprise is also taking investment fees/commissions for its services.

{¶ 5} On January 9, 2017, the probate court adopted the Magistrate's Decision and appointed Doudican guardian of Rosenberger's person and estate.

{¶ 6} On February 9, 2017, Northwest Trustee filed a Motion to Intervene on the following grounds: "the Ward herein, Norma Rosenberger, in her Financial Durable Power of Attorney executed on May 12, 2016, named Northwest Trustee as an Agent, and instructed that any court that received or acted upon a guardianship application was to deny such application so long as the Agent (Northwest Trustee) was acting under the Power of Attorney"; "Northwest Trustee is * * * an interested party, necessary for the adjudication of the rights of all persons with an interest in the property before the Court in the instant Guardianship"; and "Northwest Trustee did not receive due process notice of the Guardianship application or the evidentiary Hearing, and was deprived of the opportunity to assert its property rights."

{¶ 7} On March 17, 2017, Doudican filed a Response to the Motion to Intervene.

{¶ 8} On August 29, 2017, the probate court denied Northwest Trustee's Motion to Intervene.

{¶ 9} On September 27, 2017, Northwest Trustee filed a Notice of Appeal. On appeal, it raises the following assignments of error:

{¶ 10} "[1.] The Probate Court erred when it denied the Motion to Intervene filed by Northwest Trustee, an Interested Party which was nominated as Fiduciary and Guardian in Norma Rosenberger's Durable Power of Attorney."

{¶ 11} "[2.] Whether the Probate Court erred in denying the Motion to Intervene when Northwest Trustee did not receive Due Process Notice of the Guardianship Application and Hearing, and was thus Denied an opportunity to submit to the Court's consideration the rights and obligations of the Principal-Agent relationship created by Ms. Rosenberger in her Durable Power of Attorney?"

{¶ 12} "Guardianship proceedings, including the removal of a guardian, are not adversarial but rather are in rem proceedings involving only the probate court and the ward." In re Guardianship of Spangler , 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, ¶ 53 ; Shroyer v. Richmond , 16 Ohio St. 455, 465 (1866) ("[p]roceedings for the appointment of guardians, are not inter partes , or adversary in their character," but, rather, "are properly proceedings in rem "). "At all times, the probate court is the superior guardian of wards who are subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all orders of the court that concern their wards or guardianships." R.C. 2111.50(A)(1). "Because the probate court is the superior guardian, the appointed guardian is simply an officer of the court subject to the court's control, direction, and supervision," and, "therefore, has no personal interest in his or her appointment or removal." Spangler at ¶ 53.

{¶ 13} The probate court's decisions in guardianship proceedings are generally reviewed under an abuse of discretion standard. In re Estate of Luoma , 11th Dist. Lake No. 2011-L-006, 2011-Ohio-4701, 2011 WL 4346403, ¶ 20 ; In re Guardianship of Bakhtiar , 9th Dist. Lorain No. 16CA011029, 2017-Ohio-8617, 2017 WL 5588485, ¶ 8. Concomitantly, "[t]he standard of review for a motion to intervene is abuse of discretion." State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas , 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 21.

{¶ 14} In its first assignment of error, Northwest Trustee asserts the probate court erred by denying its Motion to Intervene. As grounds for intervention, Northwest Trustee argues that "the Durable Power of Attorney in fact nominated and appointed Northwest Trustee to serve as guardian in the event a court found a guardianship necessary," and, therefore, "[i]t was error for the Probate court to deny Northwest Trustee's Motion to Intervene as an interested party which had been nominated as guardian." Appellant's brief at 5.

{¶ 15} Northwest Trustee relies upon the Financial Durable Power of Attorney (referenced in the Magistrate's Decision) executed by Rosenberger on May 16, 2016, which provides in relevant part:

It is Principal's intention by executing this Power of Attorney to provide for the administration of Principal's affairs without the necessity of court action or the appointment of a representative payee. Principal requests in the strongest possible terms that any court or government agency that may receive or act upon a petition to appoint a guardian, conservator, or representative payee should deny such petition so long as Agent is acting under this Power of Attorney. If any court or government agency should deem it necessary to appoint a fiduciary (including a guardian, conservator, or representative payee) in spite of this request, then Principal nominates and appoints Agent to serve, and requests Agent be given priority for appointment.

{¶ 16} Relative to a prospective ward's capacity to nominate his or her guardian, the Revised Code provides:

(A) A person may nominate in a writing, as described in this division, another person to be the guardian of the nominator's person, estate, or both * * *, subject to notice and a hearing pursuant to section 2111.02 of the Revised Code. The nomination is for consideration by a court if proceedings for the appointment of a guardian of the person, the estate, or both, for the person making the nomination * * * are commenced at a later time. * * *
(B) A person's nomination, in a writing as described in division (A) of this section, of a guardian of the nominator's person, estate, or both * * * is revoked by the person's subsequent nomination, in a writing as described in division (A) of this section, of a guardian of the nominator's person, estate, or both * * *, and, except for good cause shown or disqualification, the court shall make its appointment in accordance with the person's most recent nomination. * * *

R.C. 2111.121 ; also R.C. 1337.28(A) ("[i]n a power of attorney, a principal may nominate a guardian of the principal's person, estate, or both * * * for consideration by a court if proceedings for the appointment of a guardian for the principal's person, estate, or both * * * are commenced at a later time"); R.C. 2111.10 ("[a]ny appointment of a corporation as guardian shall apply to the estate only and not to the person").

{¶ 17} In the present case, Rosenberger had nominated Northwest Trustee as her guardian in a validly executed Durable Power of Attorney. At the December 16, 2016 hearing on the Application for Guardianship, the magistrate conducting the hearing was apprised of the existence of the Power of Attorney, although the document itself does not appear to have been entered into evidence nor were its substantive provisions considered. It was attached to Northwest Trustee's Motion to Intervene as evidence of Rosenberger's intent that "any court considering an application for Guardian (of the estate) should deny the same, and appoint Northwest Trustee to continue to serve as her financial Agent."

{¶ 18} The law is clear that a probate court, while not bound by a party's nomination of a guardian, must at least consider the nomination. In re Guardianship of MacHaney , 9th Dist. Summit No. 22088, 2004-Ohio-5956, 2004 WL 2535414, ¶ 15 ("the probate court abused its discretion in failing to dismiss the guardianship appointment of Joseph and in failing to consider Willie Mae's durable power of attorney in which she nominates Nathanial as her prospective guardian"); In re Medsker , 66 Ohio App.3d 219, 223, 583 N.E.2d 1091 (1990) ("the probate court was required to consider Papay's nomination" and "erred in selecting Daniel Medsker as guardian and in failing to consider Papay for this position").

{¶ 19} Rosenberger's nomination of Northwest Trustee as guardian, however, was not the basis on which it sought to intervene in the guardianship proceedings nor was such appointment requested. In its proposed objections to the guardianship, Northwest Trustee asserted that it "has no objection to Susan Doudican serving as the Guardian of the Person for Norma Rosenberger." Rather, it claimed that intervention was "necessary because it is the only way for intervenor Northwest Trustee to assert its property rights which are based in statute and contract."

{¶ 20} Inasmuch as Northwest Trustee disclaimed any interest in asserting its nomination as Rosenberger's guardian, the nomination provision in the May 16, 2016 Power of Attorney did not require the probate court to grant the Motion to Intervene. As explained further below, Northwest Trustee's ability to participate in the guardianship proceedings was not dependent upon it being formally granted the right to intervene. Irrespective of the Motion to Intervene, Northwest Trustee continued as Rosenberger's financial power of attorney until August 29, 2017. In these circumstances, the probate court did not err by failing to consider Northwest Trustee's nomination as guardian.

{¶ 21} The first assignment of error is without merit.

{¶ 22} In the second assignment of error, Northwest Trustee claims it was entitled to intervene as "an interested party in any application for a guardianship for Norma Rosenberger" with "the right to perform specific acts on behalf of the principal, and to receive compensation." Appellant's brief at 9. By not receiving notice that guardianship proceedings had been instituted, Northwest Trustee's rights of due process were violated.

{¶ 23} Northwest Trustee's argument largely rests on its claim to be an "interested party" under R.C. 2111.02(A), providing that "[a]n interested party includes * * * a person nominated in a durable power of attorney under section 1337.24 of the Revised Code or in a writing as described in division (A) of section 2111.121 of the Revised Code." Northwest Trustee's status as Rosenberger's power of attorney at the time the Application for Appointment of Guardian was filed is not disputed. Northwest Trustee continued to serve as power of attorney after Doudican's appointment as guardian in accord with R.C. 1337.24.

{¶ 24} Northwest Trustee's status as Rosenberger's power of attorney did not entitle it to notice of the hearing on the guardianship application under relevant statute, R.C. 2111.04(A)(2)(a)(i) and (b) : "In the appointment of the guardian of an incompetent, notice shall be served * * * [u]pon the person for whom appointment is sought by personal service," and "[u]pon the next of kin of the person for whom appointment is sought who are known to reside in this state." In re Guardianship of Baker , 5th Dist. Fairfield No. 07CA00065, 2008-Ohio-5079, 2008 WL 4415838, ¶ 38 (" R.C. 2111.04 in unambiguous terms requires service of notice of the hearing upon only (1) the proposed ward and (2) the next of kin determined by application of the statute of descent and distribution").

{¶ 25} Given that Northwest Trustee was not entitled to notice and that its status as power of attorney survived the establishment of the guardianship, we find no abuse of discretion in the probate court's denial of its Motion to Intervene on the grounds that it did not receive notice.

{¶ 26} We note that, as an interested party, Northwest Trustee was allowed to participate in guardianship proceedings even without formal intervention. For example, Northwest Trustee was statutorily authorized to motion the probate court to hold a hearing on the continued necessity of the guardianship. R.C. 2111.49(C). Even in the absence of express statutory authorization, "Ohio courts have recognized that an interested person may move for the removal of a guardian under [ R.C. 2109.24 ]." In re Guardianship of Constable , 12th Dist. Clermont Nos. CA2006-08-058 and CA2006-09-067, 2007-Ohio-3346, 2007 WL 1880706, ¶ 8. "In fact, review of Ohio case law reveals no instance in which a moving party was found to be uninterested for purposes of participating in a guardianship proceeding." Id. at ¶ 9 ;

Spangler , 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, at ¶ 58 (even in the absence of "the express or implied power to file a motion to remove a guardian, * * * the plenary power of the probate court as the superior guardian allows it to investigate whether a guardian should be removed upon receipt of sufficient information that the guardian is not acting in the ward's best interest"). The docket of the present case confirms Northwest Trustees unhindered ability to engage in motion practice before the probate court.

{¶ 27} The second assignment of error is without merit.

{¶ 28} For the foregoing reasons, the Judgment Entry of the Lake County Probate Court, denying Northwest Trustee's Motion to Intervene, is affirmed. Costs to be taxed against the appellant.

CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O'TOOLE, J.,

concur.

      The Original announcement of the decision, In the Matter of: The Guardianship of Norma Rosenberger , 11th Dist. Lake No. 2017-L-120, 2018-Ohio-2076, 2018 WL 2440498, released May 29, 2018, is hereby vacated. This Opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 26(A)(1).

      No awareness that Northwest Trustee had been nominated as guardian is evident from the record nor is it certain that a copy of the Durable Power of Attorney was given to the magistrate. Counsel for Rosenberger offered a copy to the magistrate which was declined: "I don't think so. If the judge, if he wants to see it for himself, I'll contact you, Mr. Forbes, and you can talk to your client, if you'd like to release it to the court. I don't think it's pertinent, I mean not directly relevant, but okay."

      We note that the Sixth District, in In re Guardianship of Simmons , 6th Dist. Wood No. WD-02-039, 2003-Ohio-5416, 2003 WL 22319415, stated that "in order to comply with statutory requirements, the court must provide notice to the ward and any interested parties even when sua sponte appointing a guardian." Id. at ¶ 48. The import of this statement clearly contradicts the words of the statute, which the Simmons court quotes in the preceding paragraphs. One must either decline to follow Simmons on this point or else construe "any interested parties" to mean those parties statutory entitled to notice.

      It was not until May 2, 2017, that counsel for Rosenberger moved the probate court to terminate Northwest Trustee's power of attorney. That Motion was served upon Northwest Trustee which duly opposed the same. The probate court terminated Northwest Trustee's power of attorney on August 29, 2017.


author: LUPER SCHUSTER, J.

text:
    Jeffery WOODS, Plaintiff-Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant-Appellee.
    No. 17AP-630
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 15, 2018
    On brief: Jeffery Woods, pro se.
    On brief: Michael DeWine, Attorney General, and Timothy M. Miller, Columbus, for appellee.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Plaintiff-appellant, Jeffery Woods, pro se, appeals from a judgment entry of the Court of Claims of Ohio adopting the magistrate's decision concluding Woods failed to prove his negligence claim against defendant-appellee, Ohio Department of Rehabilitation and Correction ("DRC"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} Woods is an inmate at the Marion Correctional Institution ("MCI"). On April 4, 2016, Woods filed a negligence complaint against DRC. After obtaining leave of court, Woods then filed an amended complaint against DRC on June 8, 2016. In the amended complaint, Woods alleged DRC, through its agent Aramark Corporation, served Woods an undercooked brownie, causing Woods to become constipated. DRC filed an answer on June 23, 2016 denying any negligence.

{¶ 3} At a trial conducted before a magistrate on March 16, 2017 on the issue of liability only, the magistrate heard testimony from Woods as well as from Raymond Hall, another inmate at MCI; Doug O'Dell, a corrections officer at MCI; and Anthony Franklin, an employee of Aramark Corporation who supervises the kitchen at MCI. Following the trial, the magistrate issued a decision on May 15, 2017 recommending judgment in favor of DRC. The magistrate concluded Woods failed to prove his negligence claim by a preponderance of the evidence. More specifically, the magistrate concluded Woods failed to prove DRC breached any duty owed to Woods or that Woods' consumption of the allegedly under-baked brownie was the proximate cause of his constipation.

{¶ 4} Woods filed objections to the magistrate's decision on May 30, 2017, challenging the magistrate's factual conclusions. Specifically, Woods asserted in his objections that the testimony demonstrated that DRC did not provide Woods with a fully cooked brownie and that the magistrate erroneously construed an admission from Woods that he took medication that made him constipated. Woods filed a personal affidavit along with his objections, but he did not file a transcript of the testimony before the magistrate. DRC responded with a motion to strike Woods' objections on June 30, 2017, arguing Woods' objections did not satisfy the requirements of an affidavit of evidence under Civ.R. 53(D)(3)(b)(iii) and noting Woods failed to file a transcript of the evidence.

{¶ 5} In an August 2, 2017 judgment entry, the trial court noted that Woods did not file a transcript and therefore concluded that there was no error of law or other defect evident on the face of the magistrate's decision. Thus, the trial court overruled Woods' objections. The trial court then stated it was granting DRC's motion to strike the objections, adopted the magistrate's decision as its own, and entered judgment in favor of DRC. Woods timely appeals.

II. Assignments of Error

{¶ 6} Woods assigns the following errors for our review:

[1.] The trial court commited prejudicial error when the court overrule the plaintiff written objection to the magistrate decision for failure to provide trial hearing transcripts to support the plaintiff objection to the magistrate decision pursuant to Civ.R.53(D)(3)(b)(ii)(iii).
[2.] The trial court commited prejudicial error in adopted the magistrate decision where the magistrate fail to determine ODRC defendant liability that rendered the trial court judgment not a final appealable order were appellate court have no jurisdiction over the appeal under ohio constitution Art IV § 3 (B)(2) for the purpose of R.C. 2505.02(B)(1)(4)(B).

(Sic passim.)

III. Standard of Review and Applicable Law

{¶ 7} Pursuant to Civ.R. 53, a trial court conducts a de novo review of a magistrate's decision, undertaking an independent review of the matters objected to in order to determine whether the magistrate has properly determined the factual issues and appropriately applied the law. Watson v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 11AP-606, 2012-Ohio-1017, 2012 WL 831094, ¶ 6, citing Mayle v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 09AP-541, 2010-Ohio-2774, 2010 WL 2433119, ¶ 15. By contrast, an appellate court reviews a trial court's adoption of a magistrate's decision under an abuse of discretion standard. Id. , citing Mayle at ¶ 15. An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

IV. First and Second Assignments of Error-The Trial Court's Adoption of the

Magistrate's Decision

{¶ 8} In his first and second assignments of error, Woods argues the trial court erred when it overruled his objections to the magistrate's decision and adopted the magistrate's decision. More specifically, Woods asserts in his first assignment of error that the trial court erred when it concluded that Woods' failure to file a transcript of the proceedings before the magistrate somehow limited the trial court's review. Woods asserts in his second assignment of error that the trial court erred in adopting the magistrate's decision.

{¶ 9} As we noted above, Woods filed objections to the magistrate's decision, but he did not file a transcript of the evidence submitted to the magistrate. Pursuant to Civ.R. 53(D)(3)(b)(iii), objections to a magistrate's factual findings "shall be supported by a transcript of all the evidence submitted to the magistrate relevant to [those] finding[s] or an affidavit of that evidence if a transcript is not available." Woods did not file anything to indicate a transcript is not available. Instead, however, Woods filed a personal affidavit. "An affidavit under [ Civ.R. 53(D)(3)(b)(iii) ] must contain a description of all the relevant evidence, not just the evidence deemed relevant by the party objecting to the magistrate's findings." Gumins v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 10AP-941, 2011-Ohio-3314, 2011 WL 2586355, ¶ 13. A comparison of Woods' affidavit with the magistrate's factual findings indicates that Woods' affidavit contains only partial recitations of the testimony and completely omits any mention of O'Dell's testimony. Thus, even if Woods had shown that a transcript was unavailable, due to its incomplete nature, Woods' affidavit fails to meet the requirements of the civil rules and is not a proper basis of support for his objections. Id.

{¶ 10} "If an objecting party fails to submit a transcript or affidavit, the trial court must accept the magistrate's factual findings and limit its review to the magistrate's legal conclusions." Triplett v. Warren Corr. Inst. , 10th Dist. No. 12AP-728, 2013-Ohio-2743, 2013 WL 3341193, ¶ 13, citing Ross v. Cockburn , 10th Dist. No. 07AP-967, 2008-Ohio-3522, 2008 WL 2751224, ¶ 5. Woods' failure to file a transcript of the proceedings before the magistrate ultimately limits this court's review of the trial court's decision. "On appeal of a judgment rendered without the benefit of a transcript or affidavit, an appellate court only considers whether the trial court correctly applied the law to the magistrate's factual findings." Id. , citing Gill v. Grafton Corr. Inst. , 10th Dist. No. 10AP-1094, 2011-Ohio-4251, 2011 WL 3766935, ¶ 21.

{¶ 11} Woods argued DRC was negligent in serving him an allegedly under-cooked brownie. To establish an actionable negligence action, a plaintiff must show (1) the existence of a duty, (2) a breach of the duty, and (3) injury as a proximate result of the breach. Watkins v. Scioto Downs , Inc. , 2016-Ohio-3141, 66 N.E.3d 88, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984) ; Watson at ¶ 7. As the plaintiff, Woods had the burden of proving each element of his negligence claim by a preponderance of the evidence. Watson at ¶ 7, citing Parsons v. Washington State Community College , 10th Dist. No. 05AP-1138, 2006-Ohio-2196, 2006 WL 1174501, ¶ 24.

{¶ 12} The magistrate found Woods failed to prove his consumption of the brownie was the proximate cause of his constipation. There was no evidence that the brownie as served posed an unreasonable risk of harm to Woods, and Woods acknowledged he takes prescription medication that causes constipation. Given these factual findings, we conclude the trial court correctly applied the law to determine Woods could not prevail on his negligence claim because he did not prove the brownie was the proximate result of his injury. Therefore, the trial court did not abuse its discretion in adopting the magistrate's decision. We overrule Woods' first and second assignments of error.

V. Disposition

{¶ 13} Based on the foregoing reasons, the trial court did not abuse its discretion in adopting the magistrate's decision where Woods did not support his objections to the magistrate's decision with a transcript or a properly filed affidavit of evidence under Civ.R. 53(D)(3)(b)(iii). Having overruled Woods' two assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

SADLER and DORRIAN, JJ., concur.