author: ZIMMERMAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Robert C. HELFRICH, Defendant-Appellant.
    State of Ohio, Plaintiff-Appellee, v. Robert C. Helfrich, Defendant-Appellant.
    State of Ohio, Plaintiff-Appellee, v. Robert C. Helfrich, Defendant-Appellant.
    NO. 13-17-30 NO. 13-17-31 NO. 13-17-32
    Court of Appeals of Ohio, Third District, Seneca County.
    Date of Decision: February 20, 2018
    Dorothy L. Williams for Appellant
    Charles R. Hall, Jr. for Appellee
   ZIMMERMAN, J.

{¶ 1} This matter comes before us upon three consolidated appeals. Defendant-Appellant, Robert C. Helfrich ("Helfrich"), appeals the judgments of the Seneca County Tiffin Municipal Court denying his motion to seal the record of his convictions. On appeal, Helfrich asserts that: 1) the trial court erred in making an arbitrary ruling; 2) the trial court erred in ruling that Helfrich was not an eligible offender for expungement; 3) the trial court abused its discretion in ruling that the need of society to maintain the record outweighs the benefit to Helfrich by sealing the record; 4) the trial court abused its discretion by ruling that Helfrich is not fully rehabilitated; and 5) the trial court erred by basing its decision on an error of law. For the reasons that follow, we affirm the ruling of the trial court.

Factual Background

{¶ 2} On March 3, 2002, Helfrich was suspected for shoplifting cigarettes from a Kroger grocery store located in Tiffin, Ohio. (Case Number 02CRB218, Doc. No. 1). Helfrich was detained by local law enforcement officers after a brief foot chase, and six packs of cigarettes were located on his person. (Id. ).

{¶ 3} Helfrich was arrested for theft and taken to the police station for questioning. (Id. ). During Helfrich's interrogation, the officer questioning Helfrich noticed that Helfrich had the odor of alcohol on his breath. (Id. ). Because Helfrich was only nineteen (19) years old at the time of this arrest, the officer asked Helfrich if he had been drinking. (Id. ). Helfrich admitted that he had been drinking beer at a local bar. (Id. ). Helfrich also told the officer that he was at Tiffin University just prior to being arrested for the shoplifting charge. (02CRB444, Doc. No. 1).

{¶ 4} However, Helfrich had been expelled from Tiffin University on February 5, 2002, and was informed by school officials that if he returned to school property criminal charges for trespassing would be filed against him. (Id. ). So, due to Helfrich's admission that he was on Tiffin University's property, the Tiffin police department chose to investigate Helfrich's presence on university property and subsequently obtained evidence that Helfrich was, in fact, on Tiffin University's campus on March 3 and on March 6, 2002. (Id. ; 02CRB443, Doc. No. 1).

Procedural Background

{¶ 5} On March 4, 2002, criminal charges were filed in the Tiffin Municipal Court stemming from Helfrich's shoplifting arrest. (02CRB218, Doc. No. 1). Specifically, Helfrich was charged with: Underage Consumption, in violation of R.C. 4301.632, a misdemeanor of the first degree, in case number 02CRB218 A; Theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree, in case number 02CRB218 B; and Resisting Arrest, in violation of R.C. 2921.33(A), a misdemeanor of the second degree, in case number 02CRB218 C. (Id. ). Helfrich pled not guilty to all charges and the case was set for a jury trial. (02CRB218, Doc. Nos. 4; 5). Thereafter, and on April 3, 2002, Helfrich appeared in the trial court and changed his plea from "not guilty" to "no contest" to the Underage Consumption and Theft charges. (02CRB218, Doc. No. 9). Because Helfrich entered "no contest" pleas to the charges of Underage Consumption and Theft, the prosecutor dismissed the Resisting Arrest charge. (Id. ). Helfrich was found guilty by the trial court of the Underage Consumption charge and was ordered to pay a fine of $150, plus court costs. He also received a suspended jail sentence of thirty (30) days. (Id. ). Helfrich was also placed on probation for a period of one year. (Id. ). The trial court also found Helfrich guilty of the Theft charge and he was ordered to pay a fine of $15 plus court costs. (Id. ).

{¶ 6} On May 2, 2002, two additional and separate criminal cases were filed against Helfrich in the Tiffin Municipal Court. (02CRB443, Doc. No. 1; 02CRB444, Doc. No. 1). These charges stemmed from Helfrich's trespasses on Tiffin University's property on March 3rd and March 6th, 2002. (Id. ). Helfrich was charged in each case with Criminal Trespass, in violation of R.C. 2911.21(A), misdemeanors of the fourth degree. (Id. ). Helfrich entered a plea of "not guilty" to the Criminal Trespass charge in case number 02CRB443 on May 16, 2002. (02CRB443, Doc. No. 4). On June 6, 2002, Helfrich entered a plea of "not guilty" to the Criminal Trespass charge in case number 02CRB444. (02CRB444, Doc. No. 5).

{¶ 7} However, on August 1, 2002, Helfrich changed his pleas of "not guilty" to "no contest" in both trespassing cases in the trial court. (02CRB443, Doc. No. 12; 02CRB444, Doc. No. 10). As a result, Helfrich was found guilty by the trial court in both cases and sentenced to a fine of $150, and ordered to pay court costs in Case No. 02CRB443. (02CRB443, Doc. No. 12; 02CRB444, Doc. No. 10). The trial court also ordered Helfrich to serve thirty (30) days in jail, consecutive to any other misdemeanor jail time, with such jail term being conditionally suspended. (Id. ). In case number 02CRB444, Helfrich was ordered to pay court costs, and sentenced to serve thirty (30) days in jail, consecutive to any other misdemeanor jail time, with such sentence also being suspended. (02CRB444, Doc. No. 10).

{¶ 8} Approximately fifteen (15) years later, on June 9, 2017, Helfrich filed a motion in the trial court to seal the records of his convictions in all of his Tiffin Municipal Court cases. (02CRB218, Doc. No. 11; 02CRB443, Doc. No. 14; 02CRB444, Doc. No. 12). On July 6, 2017, the State of Ohio (Appellee herein) filed its objection to Helfrich's request. (02CRB218, Doc. No. 13; 02CRB443, Doc. No. 16, 02CRB444, Doc. No. 14). Specifically, the State of Ohio argued that Helfrich was not an "eligible offender" under R.C. 2953.32, which therefore precluded the sealing of his convictions. (Id. ).

{¶ 9} A hearing on Helfrich's motions to seal was held in the Tiffin Municipal Court on July 10, 2017, and on the September 11, 2017 the trial court denied Helfrich's motions, ruling that: "[b]ased upon review of said case the Court finds that the Defendant does not qualify pursuant to ORC. [sic] and therefore said motion is DENIED." (02CRB218, Doc. No. 12; 02CRB443, Doc. No. 15; 02CRB444, Doc. No. 13).

{¶ 10} On October 11, 2017, Helfrich filed an appeal from the Tiffin Municipal Court's denial of his motion to seal his record. (02CRB218, Doc. No. 16; 02CRB443, Doc. No. 19; 02CRB444, Doc. No. 18). On appeal, Helfrich asserts the following assignments of error for review:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN MAKING A RULING THAT APPEARS TO BE ARBITRARY WITH NO STATED FOUNDATION FOR SAME.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN APPARENTLY RULING THAT APPELLANT IS NOT AN ELIGIBLE OFFENDER.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ABUSED ITS DISCRETION IN APPARENTLY RULING THAT SOME UNDISCLOSED NEED OF SOCIETY TO MAINTAIN THE RECORD AS PUBLIC [SIC] OUTWEIGHS THE BENEFIT TO APPELLANT OF SEALING THE RECORD.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ABUSED ITS DISCRETION IN APPARENTLY RULING THAT APPELLANT IS NOT FULLY REHABILITATED.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED IN RULING BASED ON AN ERROR OF LAW: NAMELY THAT THE SEALING OF RECORDS IS CHANGING HISTORY.

{¶ 11} For ease of analysis, we choose to address Helfrich's assignments of error out of order.

Appellant's Second Assignment of Error

{¶ 12} In his second assignment of error, Helfrich asserts that the trial court erred by ruling that he was not an eligible offender to have his records sealed. Specifically, Helfrich argues that the trial court's determination that Helfrich "does not qualify pursuant to ORC" suggests that Helfrich is not an eligible offender to have his records sealed, and such ruling was an error of law. For the reasons that follow, we disagree.

Standard of Review

{¶ 13} "The sealing of records of conviction, like expungement, is an act of grace created by the state, and so is a privilege, not a right." State v. Tauch, 10th Dist. Franklin No. 13AP-327, 2013-Ohio-5796, 2013 WL 6869955, ¶ 7 citing State v. Dominy, 10th Dist. Franklin No. 13AP-124, 2013-Ohio-3744, 2013 WL 4679421, ¶ 5. As such, sealing should only be granted when all the requirements for eligibility are met. Id. "If an applicant is not an eligible offender, the trial court lacks jurisdiction to grant the application." Id. "[A]n order sealing the record of one who is not an eligible offender is void for lack of jurisdiction and may be vacated at any time. Id. "[W]hether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo ." State v. Weiss, 10th Dist. Franklin No. 14AP-957, 2015-Ohio-3015, 2015 WL 4545152, ¶ 5.

Relevant Statutory Authority

{¶ 14} Under Ohio law, " 'two different statutes relate to the sealing of court documents- R.C. 2953.32, for sealing of records after conviction, and R.C. 2953.52, for sealing after disposition other than conviction.' " In re Application for the Sealing of the Records of A.H., 10th Dist. Franklin No. 15AP-555, 2016-Ohio-5530, 60 N.E.3d 60, ¶ 11quoting State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 16. Because Helfrich only petitioned the trial court to seal the record of his convictions , we will analyze this assignment of error with guidance from the statutory language contained in R.C. 2953.32.

R.C. 2953.32 provides, in its relevant part:
(A)(1) Except as provided in section 2953.61 of the Revised Code, an eligible offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of the case that pertains to the conviction. * * *
(B) Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant. The probation officer or county department of probation that the court directs to make inquiries concerning the applicant shall determine whether or not the applicant was fingerprinted at the time of arrest or under section 109.60 of the Revised Code. If the applicant was so fingerprinted, the probation officer or county department of probation shall include with the written report a record of the applicant's fingerprints. If the applicant was convicted of or pleaded guilty to a violation of division (A)(2) or (B) of section 2919.21 of the Revised Code, the probation officer or county department of probation that the court directed to make inquiries concerning the applicant shall contact the child support enforcement agency enforcing the applicant's obligations under the child support order to inquire about the offender's compliance with the child support order.
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is an eligible offender or whether the forfeiture of bail was agreed to by the applicant and the prosecutor in the case. If the applicant applies as an eligible offender pursuant to division (A)(1) of this section and has two or three convictions that result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, in making its determination under this division, the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction. If the court determines that it is not in the public interest for the two or three convictions to be counted as one conviction, the court shall determine that the applicant is not an eligible offender; if the court does not make that determination, the court shall determine that the offender is an eligible offender.
(b) Determine whether criminal proceedings are pending against the applicant;
(c) If the applicant is an eligible offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;
(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
(e) Weigh the interests of the applicant in having the records pertaining to the applicant's conviction or bail forfeiture sealed against the legitimate needs, if any, of the government to maintain those records. * * *

(Emphasis added). R.C. 2953.32.

{¶ 15} To determine whether Helfrich is an "eligible offender," pursuant to R.C. 2953.32, we look to the definition of "eligible offender" set forth in R.C. 2953.31(A), which, in its pertinent part, provides:

"Eligible offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions , or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C)(1)(a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction. * * *

(Emphasis added). R.C. 2953.31(A).

{¶ 16} Before a trial court exercises discretion in determining whether the statutory criteria permits sealing a record of conviction, the applicant must "first cross the threshold of statutory eligibility," pursuant to R.C. 2953.32(C)(1)(a). State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 13quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 1996-Ohio-440, 665 N.E.2d 669. Accordingly, a trial court must first determine whether an applicant is an eligible offender, pursuant to R.C. 2953.32(C)(1). Id. at ¶ 14.

Analysis

{¶ 17} Initially, we note that Helfrich and the State of Ohio refer to "first offender" and "eligible offender" interchangeably in their arguments. However, the Ohio Supreme Court has determined that " 'the statutory law in effect at the time of the filing of a R.C. 2953.32 application to seal a record of a conviction is controlling.' " Id. at ¶ 6quoting State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph two of the syllabus. Thus, while some appellate courts may have used "first offender" and "eligible offender" interchangeably, we must apply the controlling law in effect at the time Helfrich filed his application to seal his records. Accordingly, we will analyze Helfrich's argument to determine whether he is an "eligible offender" under R.C. 2953.31(A). See generally, Dominy, 10th Dist. Franklin No. 13AP-124, 2013-Ohio-3744, 2013 WL 4679421, ¶ 5.

{¶ 18} Helfrich argues that because he committed his four misdemeanor charges during a three-day span, all four (misdemeanor convictions) are connected by the same act or resulted from offenses committed at the same time, and therefore, should be counted as only one misdemeanor conviction. We find such interpretation of R.C. 2953.31(A) misplaced.

{¶ 19} In determining whether Helfrich's convictions are to be counted as one conviction pursuant to R.C. 2953.31(A), we must review the language of the statute and apply the rules of statutory construction to analyze the relevant portions of the eligible offender definition. See generally, Tauch, 10th Dist. Franklin No. 13AP-327, 2013-Ohio-5796, 2013 WL 6869955, ¶¶ 8-11.

When two or more convictions result from or are connected with the same act * * * they shall be counted as one conviction.

{¶ 20} In analyzing this initial portion of R.C. 2953.31(A), we note that "the 'same act' plainly refers to the 'same conduct.' " State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401. Helfrich argues that his four convictions resulted from or were connected with one act: living with his "frat brothers" for two weeks after he was dismissed from Tiffin University. Our review of the record reveals that his four misdemeanor convictions did not result from or were not connected to living with his frat brothers. When arrested for shoplifting on March 3, 2002, Helfrich admitted to trespassing on Tiffin University's property; stealing cigarettes from Kroger's; and drinking alcohol while under the legal drinking age of twenty-one (21), all on that same date. These acts ultimately resulted in three convictions in two separate criminal proceedings in the Tiffin Municipal Court.

{¶ 21} Nevertheless, on March 6, 2002, Helfrich trespassed again on Tiffin University's campus after appearing in the trial court on March 4, 2002 for his arraignment on the charges that stemmed from his March 3, 2002 arrest for shoplifting. Helfrich's trespass of March 6th resulted in a new criminal case and a subsequent separate conviction against him in the Tiffin Municipal Court.

{¶ 22} In our review, Helfrich's conduct on March 3rd was not connected to his conduct of March 6th. We find that Helfrich's convictions from trespassing on the Tiffin University campus occurred on separates dates, and are unrelated to his theft and underage drinking convictions. While Helfrich's framing of his conduct as being one continuous act of "frat life" is trying to be clever, we are not persuaded by such characterization of the facts present in this case. Thus, we find this initial portion of our "eligible offender" analysis inapplicable under the facts presented.

When two or more convictions result from or are connected * * * offenses committed at the same time, they shall be counted as one conviction.

{¶ 23} As previously discussed, Helfrich committed and was convicted of three misdemeanor crimes stemming from his behavior on March 3, 2002. Helfrich subsequently committed and was convicted of one misdemeanor crime stemming from his actions on March 6, 2002. Thus, Helfrich's crimes and acts were clearly separated by the span of three days. See generally, State v. Derugen, 110 Ohio App.3d 408, 411, 674 N.E.2d 719 (3rd Dist. 1996) (Holding that convictions of drug abuse, possessing criminal tools, theft, falsification, and obstructing official business did not meet the statutory criteria contained within R.C. 2953.31 and R.C. 2953.32 as the offenses were separate and unrelated, even though some of the offenses had been committed on the same date).

{¶ 24} Thus, in our analysis of this portion of the "eligible offender" statutory language, Helfrich had, at a minimum, two separate misdemeanor convictions from the Tiffin Municipal Court for purposes of the sealing statute. And, because Helfrich testified (at his sealing of records hearing) that he had a criminal conviction for possession of drug paraphernalia from the Portsmouth Municipal Court in 2003, his three "consolidated" convictions made him ineligible for having his records sealed under R.C. 2953.31 and R.C. 2953.32 by the trial court. (See 07/10/2017 Tr. at 8).

When two or three convictions result from * * *.

{¶ 25} Lastly, we look to the "eligible offender" statutory language contained in R.C. 2953.31(A), addressing convictions resulting from acts that were committed at the same time. In Helfrich's argument, it is evident to us that he is attempting to combine the requirements from this portion of the statute with the requirements of the previous portion (that we addressed above) to support his contention that he only had one conviction from the trial court. Such construction is not permissible, because the language of the statute is clear and unambiguous, and, as a result, we must apply the statute as written. State v. J.M., 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 12 citing Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12 ; see also Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20. Thus, because the statute clearly indicates that such criteria contained in this portion of R.C. 2953.31(A) only applies to two or three convictions, an offender having more than two or three convictions would not be eligible for the exception criteria contained in this particular section of R.C. 2953.31(A).

{¶ 26} In the case before us, Helfrich came to the Tiffin Municipal Court seeking to have four convictions sealed. Because the statutory language indicates that only two or three convictions are subject to this portion of analysis under R.C. 2953.31(A), we find that Helfrich did not meet the statutory requirement for this set of exceptions to apply. Thus, we agree with the trial court that Helfrich was not an "eligible offender" for purposes of the sealing statute.

{¶ 27} Accordingly, because Helfrich was unable to establish himself as an eligible offender (the first requirement of the sealing statute pursuant to R.C. 2953.32(C)(1) ), the trial court did not err in finding that Helfrich did not meet the statutory requirements to have his records sealed.

{¶ 28} Accordingly, we overrule Helfrich's second assignment of error.

Appellant's First, Third, Fourth, and Fifth Assignments of Error

{¶ 29} As the trial court correctly held that Helfrich was not an "eligible offender" pursuant to R.C. 2953.31 and R.C. 2953.32, it was without jurisdiction to exercise discretion and rule on the merits of Helfrich's motion. Thus, by finding that Helfrich was not an "eligible offender" to have his record of convictions sealed, Helfrich's first, third, fourth, and fifth assignments of error are therefore rendered moot.

{¶ 30} Having found no error prejudicial to Helfrich herein in the particulars assigned and argued, we overrule Helfrich's second assignment of error and moot Helfrich's first, third, fourth, and fifth assignments of error. Accordingly, we affirm the judgments of the Tiffin Municipal Court.

Judgments Affirmed

WILLAMOWSKI, P.J., and PRESTON, J., concur.

      For clarity, because this appeal is from three separate court cases, references to the record will be identified by the Municipal Court docket number and the individual document number.

      Helfrich was advised of his Miranda rights before questioning commenced. (02CRB218, Doc. No. 1).

      While R.C. 4301.632 has been repealed, it was the statute in effect at the time Helfrich was arrested in 2002.

      The remaining section of R.C. 2953.31(A) addresses minor misdemeanor convictions that do not count as convictions affecting eligibility under this section. However, since Helfrich has no minor misdemeanor convictions, we omit that statutory language from this opinion for the purposes of judicial economy.

      A prior version of R.C. 2953.31, in effect until September 27, 2012, discussed the sealing of records for "first offenders." However, on September 28, 2012, the Ohio legislature revised R.C. 2953.31(A), changing the legal standard from "first offender" to "eligible offender." See, Dominy, 10th Dist. Franklin No. 13AP-124, 2013-Ohio-3744, 2013 WL 4679421, ¶ 5.

      Helfrich testified at his hearing on his motion to seal records that he had a criminal conviction for possession of drug paraphernalia in the Portsmouth Municipal Court.

      In ruling that the trial court did not err in finding Helfrich statutorily ineligible, we acknowledge that after the trial court issued its ruling on Helfrich's motion to seal his records, the Portsmouth Municipal Court granted his motion to seal his convictions in that court. However, we note that the Portsmouth Municipal Court judgment entry, as an attachment to a motion for reconsideration of a final judgment, is not properly before us, as a motion to reconsider a final judgment is a nullity. See Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d 1105 (1981), paragraph two of the syllabus; Consol. Rail Corp. v. Forest Cartage Co., 68 Ohio App.3d 333, 340, 588 N.E.2d 263 (8th Dist.1990). Additionally, even if we were able to consider the motion and entry, we note that Portsmouth Municipal Court may have improperly analyzed Helfrich's request to seal his conviction under R.C. 2953.52, which only applies to sealing records other than convictions. We accordingly disregard the motion for reconsideration and its attachments as not properly a part of the record.


source: Caselaw Access Project

author: SHAW, J.

license: Public Domain

text:
    John A. GOERLITZ, Executor of the Estate of Joanne M. Goerlitz, Deceased, et al., Plaintiffs-Appellees, v. SCCI HOSPITALS OF AMERICA, INC., et al., Defendants-Appellants, and St. Rita's Medical Center, et al., Defendants-Appellees.
    NO. 1-17-43
    Court of Appeals of Ohio, Third District, Allen County.
    Date of Decision: February 20, 2018
    Paul W. McCartney, Cincinnati, for Appellant
    Meghan C. Lewallen, Cleveland, for Appellee
   SHAW, J.

{¶ 1} Defendants-Appellants, SCCI Hospitals of America, Inc., et al., appeal the September 13, 2017 judgment of the Allen County Court of Common Pleas overruling their "Motion to Stay Proceedings and Compel/Enforce the Alternative Dispute Resolution."

{¶ 2} On November 29, 2016, Plaintiffs-Appellees, John A. Goerlitz, as Executor of his wife Joanne M. Goerlitz's estate and John A. Goerlitz in his individual capacity, filed a complaint against sixteen (16) different defendants in Cuyahoga County, including the five parties who are Appellants in this case, SCCI Hospitals of America, Inc. dba Kindred Hospital Lima, Kindred Healthcare Operating, Inc., Angela Miller, RN, Constance J. Youngpeter, RN, and Sandra Kirwan, RN.

{¶ 3} Appellees alleged claims of wrongful death, loss of consortium, and a survival claim for Joanne's pain and suffering prior to her death. The facts alleged in the complaint stated that Joanne was admitted to SCCI Hospitals of America, Inc. dba Kindred Hospital of Lima, on October 6, 2015 following a surgery, and that Appellants were negligent in their treatment of Joanne, which caused her to suffer permanent and substantial injuries, to endure agonal pain and suffering, and to no longer be able to independently perform life sustaining functions, which required intensive medical care and treatment. Joanne died on December 2, 2015. The complaint asserted that Appellants' negligence was the direct and proximate cause of her death.

{¶ 4} Appellees also propounded written requests for discovery to Appellants at the time they filed the complaint.

{¶ 5} On December 27 and 28, 2016, Appellants filed their answers with numerous affirmative defenses stated and specifically asserting as their final and sixteenth defense, that Appellees' claims were subject to a binding arbitration agreement requiring the trial court proceedings to be stayed, as well as asserting that the case had been filed in an improper venue. Appellants attached a copy of the arbitration agreement to their answers.

{¶ 6} On January 11, 2017, Appellants filed a motion to transfer venue to Allen County, where the alleged conduct of Appellants giving rise to the claims for relief occurred. The Cuyahoga County trial court granted Appellants' motion and transferred the case to Allen County.

{¶ 7} On August 24, 2017, Appellants filed a Motion to Stay Proceedings and Compel/Enforce the Alternative Dispute Resolution.

{¶ 8} On September 13, 2017, the trial court overruled Appellants' motion to stay the proceedings and compel arbitration. The trial court distinguished the decedent's survival claim of pain and suffering brought by John as the nominal representative (i.e. executor) of Joanne's estate from the wrongful death and loss of consortium claims brought by John in his individual capacity, which were personal to him. The trial court relied on Peters v. Columbus Steel Castings Co. , in which the Supreme Court of Ohio stated that "[a] decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims" to conclude that John's personal claims were not subject to any arbitration agreement. Id. , 115 Ohio St. 3d 134, 2007-Ohio-4787, 873 N.E.2d 1258, ¶ 19.

{¶ 9} The trial court also found that even if there were at one time an enforceable arbitration agreement, Appellants had waived their right to arbitration by taking actions inconsistent with that right. In reaching its conclusion, the trial court highlighted a portion of Appellants' own arbitration agreement, which provides that the "arbitration shall convene not later than sixty (60) days after the conclusion or termination of mediation." See Voluntary Alternative Dispute Resolution Agreement Between Patient and Hospital, ¶ I.(F). The trial court noted that mediation of the case had been unsuccessfully terminated on June 29, 2016 and none of the parties convened arbitration within sixty days of that date.

{¶ 10} Rather, five months later Appellees initiated a lawsuit in Cuyahoga County. The trial court also pointed to the Appellants' decision to invoke the Allen County trial court's jurisdiction by filing a motion to transfer venue, rather than filing a motion for a stay and to compel arbitration when the litigation had commenced in Cuyahoga County. The trial court acknowledged that Appellants had raised the affirmative defense of arbitration in their answers filed in the Cuyahoga County case on December 27 and 28, 2016. However, the trial court found it significant that Appellants had nevertheless waited nearly eight months after filing their answers, and nearly a year after the sixty-day timeline to convene arbitration had expired before attempting to convene arbitration by filing a motion for a stay and to compel arbitration on August 24, 2017.

{¶ 11} Appellants subsequently filed this appeal, asserting the following assignment of error.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S-APPELLANT'S [SIC] MOTION TO STAY PROCEEDINGS AND COMPEL/ENFORCE ALTERNATIVE DISPUTE RESOLUTION AGREEMENT.

{¶ 12} In their sole assignment of error, Appellants challenge the trial court's decision to overrule their motion to stay the proceedings and compel arbitration. As previously discussed, the trial court overruled the motion on the grounds that John's personal claims of wrongful death and loss of consortium were not subject to arbitration and that Appellants waived the right to arbitration as to the remaining claim by acting inconsistent with that right. We note that despite Appellants devoting the majority of their brief to the contention that the underlying arbitration agreement in this case was valid due to John's actual and/or apparent authority to consent to arbitration when he signed the agreement on his wife's behalf, the trial court did not address the issue of authorization or other matters affecting enforceability of the arbitration agreement because it found the issue of waiver to be dispositive.

{¶ 13} We further note that Appellants appear to concede that the wrongful death claim and loss of consortium claims are not subject to the arbitration agreement. See Appellants' Reply Brief, at 3, citing Peters, 115 Ohio St. 3d 134, 2007-Ohio-4787, 873 N.E.2d 1258 at ¶ 2. Therefore, the only issue before us is whether the trial court erred in concluding that Appellants waived their right to arbitration of the survival claim asserted by Joanne's estate.

Standard of Review

{¶ 14} The issue of whether Appellants have waived any right to arbitration is fact driven and reviewed by an abuse of discretion standard. Glass v. Kindred Transitional Care & Rehab , 10th Dist. Franklin No. 15AP-940, 2016-Ohio-3188, 2016 WL 3019025, ¶ 16, citing Pinnell v. Cugini & Cappoccia Builders, Inc. , 10th Dist. No. 13AP-579, 2014-Ohio-669, 2014 WL 742430, ¶ 17 ; see also Hunter v. Rhino Shield , 10th Franklin Dist. No. 15AP-172, 2015-Ohio-4603, 2015 WL 6779395, ¶ 17 ("The standard under which an appellate court reviews an order granting or denying a stay pending arbitration depends on the nature of the issues involved."). Appellate courts apply this standard because resolution of the waiver issue requires a fact-intensive analysis. Pinnell at ¶ 17 ; The term "abuse of discretion" connotes that the trial court's attitude was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 15} "A party asserting waiver must prove that the waiving party knew of the existing right to arbitrate and, based on the totality of the circumstances, acted inconsistently with that known right." U.S. Bank Natl. Assn. v. Allen , 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 13, citing Dispatch Printing Co. v. Recovery Ltd. Partnership , 10th Dist. Franklin No. 10AP-353, 2011-Ohio-80, 2011 WL 199120, ¶ 21. In determining whether the totality of the circumstances includes actions inconsistent with the right to arbitrate, a court may consider: (1) whether the party seeking arbitration invoked the court's jurisdiction by filing a complaint or claim without first requesting a stay, (2) the length of the delay, if any, in seeking arbitration, (3) the extent to which the party seeking arbitration has participated in the litigation, and (4) whether prior inconsistent acts by the party seeking arbitration would prejudice the party asserting waiver. Dispatch Printing Co., 2011-Ohio-80, 2011 WL 199120 at ¶ 21.

{¶ 16} In the case at bar, the parties do not dispute that Appellants knew of their right to arbitrate. The trial court, therefore, focused its attention on whether Appellants acted inconsistently with their known right. The trial court answered that question affirmatively because Appellants: (1) failed to abide by its own terms set forth in the Arbitration Agreement, which required that "[t]he Arbitration shall convene not later than sixty (60) days after the conclusion or termination of mediation," which the record indicates occurred on June 29, 2016, (2) invoked the trial court's jurisdiction by filing a motion to transfer venue, despite referencing arbitration in its answer and without first requesting a stay of the litigation, and (3) waited nearly eight months before filing the motion for a stay after they filed their answer and successfully transferred the case to Allen County.

{¶ 17} It is our conclusion that considering the totality of the circumstances in this particular case, the trial court's decision with regard to Appellants' right to arbitrate is not unreasonable, arbitrary, or unconscionable. Thus, in addition to the reasons articulated by the trial court in its judgment entry, we also find it compelling that there are eleven other defendants in the case whom the record suggests have continued to work towards a resolution on the same claims based upon the same facts asserted against Appellants through the judicial proceedings with Appellees in Allen County. In sum, the record indicates that enforcement of the arbitration agreement, assuming it to be valid, would engender contemporaneous proceedings in two different forums not only with respect to the non-arbitrable claims, but also with respect to the multiple parties involved in the case.

{¶ 18} Based on the forgoing, we conclude that the trial court acted within its discretion in denying the stay pending arbitration based upon waiver, and we refuse to substitute our judgment for that of the trial court. Accordingly, the assignment of error is overruled and the trial court's judgment is affirmed.

Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

      We note that Appellants contend on appeal that the correct standard of review in this instance is de novo . The question whether the arbitration agreement is valid or enforceable is a matter of law for de novo review. See Taylor Bldg. Corp. of Am. v. Benfield , 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 37. However, because we concur with the trial court's conclusion that the issue of waiver is dispositive in this case, we do not reach the de novo review of the agreement itself, but rather presume arguendo its validity as to the survival claim.

      Arbitration Agreement, at ¶ F


author: FRANK D. CELEBREZZE, JR., J.:

text:
    STATE of Ohio, Plaintiff-Appellant v. Brandon M. HARPER, Defendant-Appellee
    No. 105961
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 22, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jennifer King, Anthony Thomas Miranda, Assistant Prosecuting Attorneys, The Justice Center, 8th & 9th Floors, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Joseph C. Patituce, Catherine Meehan, Patituce & Associates, 26777 Lorain Road, Suite 1, North Olmsted, Ohio 44070, ATTORNEYS FOR APPELLEE.
    BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, the state of Ohio, brings this appeal challenging the trial court's judgment granting the motion to suppress filed by defendant-appellee, Brandon Harper ("Harper"). The state argues that the results of Harper's blood test were admissible pursuant to R.C. 4511.19(D)(1)(a) and that the trial court erroneously held that the state should have obtained search warrants to conduct the blood test and obtain the test results. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant criminal proceedings arose from a motor vehicle accident that Harper was involved in on June 22, 2016. Harper sustained a head injury during the accident and the responding Fairview Park police officers transported him to the emergency department at Fairview Hospital where he was treated. Hospital personnel decided to perform a blood draw in the course of Harper's medical treatment. The blood test revealed that Harper had an ethanol alcohol level of 308, which converts to a blood alcohol concentration of .256. (Tr. 85.) The state obtained the results of Harper's blood test through a subpoena.

{¶ 3} In Cuyahoga C.P. No. CR-16-609724-A, the Cuyahoga County Grand Jury returned a four-count indictment on September 22, 2016, charging Harper with (1) aggravated vehicular assault, a third-degree felony in violation of R.C. 2903.08(A)(1)(a), (2) aggravated vehicular assault, a fourth-degree felony in violation of R.C. 2903.08(A)(2)(b), (3) driving while under the influence, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a), and (4) driving while under the influence, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(g). Harper was arraigned on October 6, 2016; he pled not guilty to the indictment.

{¶ 4} On November 29, 2016, Harper filed a motion to exclude certain testimony pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Specifically, Harper sought to prohibit the state from introducing testimony and evidence regarding the blood draw, the results of the blood draw, and the derivation of his blood alcohol content.

{¶ 5} On January 20, 2017, Harper filed a motion to suppress (1) the results of the tests pertaining to his coordination, sobriety, and alcohol or drug consumption, (2) any observations or opinions of the responding police officers, (3) any statements made by Harper, and (4) any physical evidence obtained by the responding officers. Harper argued, in relevant part, that the results of his blood test should be suppressed because the officers lacked probable cause to arrest him, he had not been placed under arrest when the blood draw was performed, his blood was taken without a warrant in violation of the Fourth Amendment to the United States Constitution, his blood sample was not properly collected, contained, sealed, and stored as required by Ohio Administrative Code Section 3701-53-05, and the "chemical test" was not admissible pursuant to Evid.R. 702 and Daubert .

{¶ 6} On June 20, 2017, the trial court held a hearing on Harper's motion to suppress. The state called the following four witnesses at the suppression hearing: (1) Karen Patel, a physician assistant in the emergency department at Fairview Hospital, (2) Dena Allen, Fairview Hospital laboratory manager, (3) Dr. Harold Schueler, chief toxicologist with the Cuyahoga County Medical Examiner's Office, and (4) Fairview Park Police Officer Richard Rutt, who responded to the scene of the motor vehicle accident.

{¶ 7} At the close of the suppression hearing, the trial court concluded that "there is no expert testimony that the Court could rely on to determine the validity of the blood alcohol test." (Tr. 156.) Furthermore, the trial court held that the blood draw should have been conducted pursuant to a search warrant, and that the results of the blood draw should also have been obtained through a search warrant, rather than a subpoena. Accordingly, the trial court granted Harper's motion to suppress in part, suppressing the results of the blood test.

{¶ 8} It is from this judgment that the state filed the instant appeal on June 30, 2017. The state assigns two errors for review:

I. Because Harper's blood was drawn and analyzed by a health care provider pursuant to R.C. 4511.19(D)(1)(a), the trial court erred in suppressing the results due to non-compliance with regulations.
II. The trial court erred in suppressing blood results on the basis that they were obtained without a search warrant because the blood draw was done for a medical purpose by a non-governmental actor and obtained by police through lawful subpoena pursuant to R.C. 2317.02(B)(2)(a).

II. Law and Analysis

A. Standard of Review

{¶ 9} This court's review of a decision on a motion to suppress is a mixed question of law and fact. State v. Lennon , 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, 2017 WL 1957124, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

"In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). Therefore, a reviewing court must accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. [ Burnside at ¶ 8 ]. Accepting the facts as true, the reviewing court then must independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. Id. An appellate court reviews the trial court's application of the law to its factual findings, however, based on a de novo standard of review. State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 100.

State v. Riedel , 2017-Ohio-8865, --- N.E.3d ----, ¶ 30.

B. R.C. 4511.19(D)(1)(a)

{¶ 10} In the first assignment of error, the state argues that the trial court erred by granting Harper's motion to suppress the results of his blood test because the test results were admissible pursuant to R.C. 4511.19(D)(1)(a).

{¶ 11} In State v. Mayl , 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, the Ohio Supreme Court held that in order for blood test results to be admissible in a prosecution for a violation of R.C. 4511.19(A), the blood test results must substantially comply with the administrative requirements of R.C. 4511.19(D). Id. at paragraphs one and two of the syllabus. The court explained that even when the blood test is taken and analyzed by a health care provider in connection with medical treatment, rather than law enforcement, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Administrative Code Chapter 3701-53. Id. at ¶ 55. The court expressly noted that "[n]o portion of R.C. 4511.19(D)(1) distinguishes between the admissibility of test results obtained by hospitals and the admissibility of those obtained by law enforcement." Id. at ¶ 56.

{¶ 12} Nearly two years after the Ohio Supreme Court's Mayl decision, the Ohio General Assembly passed Am.Sub.H.B. No. 461, effective April 4, 2007, which amended R.C. 4511.19 by enacting R.C. 4511.19(D)(1)(a). R.C. 4511.19(D)(1)(a) provides,

In any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(a) of this section or for an equivalent offense that is vehicle-related, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in section 2317.02 of the Revised Code, may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant.

(Emphasis added.)

{¶ 13} As an initial matter, Harper argues that the state failed to establish that Fairview Hospital is a health care provider as defined in R.C. 2317.02. Specifically, Harper asserts that the state did not elicit any testimony regarding the type of facility that Fairview Hospital is. We disagree.

{¶ 14} R.C. 2317.02(B)(5)(b) defines a health care provider as "a hospital, ambulatory care facility, long-term care facility, pharmacy, emergency facility, or health care practitioner." The record reflects that the state presented sufficient evidence during the suppression hearing to establish that Fairview Hospital is a health care provider as defined in R.C. 2317.02.

{¶ 15} Karen Patel, a physician assistant in Fairview Hospital's emergency department, testified that Fairview Hospital is part of the Cleveland Clinic system. She explained that her duties as a physician assistant are to "see patients, assess patients, order testing, medications, [and] treatment plans." (Tr. 16.) Dena Allen, Fairview Hospital's laboratory manager, testified that Fairview Hospital is "a 500 bed acute care hospital. It's part of Cleveland Clinic Health System." (Tr. 46.)

{¶ 16} Officer Rutt asserted that when he arrived at the scene of the motor vehicle accident, Harper and the other female motorist who had been involved in the accident were in ambulances being treated by emergency medical services ("EMS") personnel. Both Harper and the other motorist were transported to the emergency department at Fairview Hospital following the accident. When Officer Rutt arrived at Fairview hospital, he spoke with Harper and the female motorist. The female motorist "was in the trauma room and her-they had her neck-she was in like a neck brace. I believe EMS put her in the neck brace and she was in the trauma area [at Fairview Hospital]." (Tr. 116.) The first responders were concerned about the female motorist because she was pregnant. Harper was also in the emergency department and "[h]e was laying down, in a bed, in a hospital gown, he was pretty much immobilized as well." (Tr. 117.) First responders were concerned about Harper because he struck his head during the motor vehicle accident.

{¶ 17} The testimony of Patel, Allen, and Officer Rutt sufficiently demonstrates that Fairview Hospital is a hospital and an emergency facility. Therefore, we find no merit to Harper's assertion that the state failed to establish that Fairview Hospital is a health care provider as defined in R.C. 2317.02.

{¶ 18} In its reply brief, the state acknowledges that " R.C. 4511.19(D)(1)(a) does not require trial courts to admit all blood test results generated by health care providers." (Emphasis added.) Appellant's reply brief at 3. Nevertheless, the state argues that the statute "forecloses the exclusion of the blood test results on the basis that regulations were not followed." Id. In other words, the state asserts that the trial court did not have discretion to exclude the blood test results for failure to comply with Ohio regulations because the General Assembly, through the passage of H.B. 461 and the enactment of R.C. 4511.19(D)(1)(a), legislatively resolved the issues of reliability and admissibility regarding blood tests performed and analyzed by health care providers. The state further contends that any deficiencies regarding the blood test and test results, such as chain of custody issues and compliance with regulations, pertains to the weight of the evidence, not the admissibility of the evidence.

{¶ 19} Harper, on the other hand, argues that the trial court's judgment focused on the reliability of the blood test and the test results, rather than compliance with regulations. Specifically, Harper asserts that the state failed to present expert testimony or otherwise demonstrate that the results of Harper's blood test, including Harper's ethanol value, were reliable. Harper emphasizes that compliance with regulations need not be considered because the state failed to demonstrate (1) who drew the blood and how the blood was drawn, (2) who tested the blood sample and how the sample was tested, and (3) that the test results were reliable. Harper argues that these deficiencies cast doubt on the reliability of the blood draw and test results.

{¶ 20} We must note that the state presumes that the trial court granted the motion to suppress the results of the blood test based on the failure to comply with regulations. This presumption is not supported by the record.

{¶ 21} The trial court did not specifically cite the failure to comply with testing regulations as its basis for suppressing the test results. The trial court explained that the testimony of Dr. Schueler, the state's expert witness, was "crucial" to the state's case and the admissibility of the test results under R.C. 4511.19(D)(1)(a). The trial court concluded, however, that the state, through the expert testimony of Dr. Schueler, failed to present expert testimony "determin[ing] the validity of [Harper's] blood alcohol test." (Emphasis added.) (Tr. 156.)

{¶ 22} In support of this conclusion, the trial court explained that Dr. Schueler did not perform any analysis to come to a conclusion regarding Harper's ethanol value, the only thing he had available to him was a document indicating Harper's ethanol value, he could not verify that the 308 ethanol value was accurate or scientifically valid, and he could not confirm that no mistakes were made during the testing process. The trial court went on to explain that Patel had no independent recollection about the blood draw, and that Allen had no documentation indicating that the laboratory's quality control procedures were in effect when Harper's blood was tested.

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583.

Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.

{¶ 23} As noted above, when considering a motion to suppress, the trial court is in the best position to resolve factual questions and evaluate the witnesses' credibility. Id. We must accept the trial court's factual findings if they are supported by competent, credible evidence in the record. Id.

{¶ 24} In the instant matter, the trial court was in the best position to make these factual determinations and evaluate the credibility of the witnesses that testified at the suppression hearing, including the state's expert witness, Dr. Schueler. We find that the trial court's factual finding that the state failed to establish that Harper's blood test results were valid is supported by competent, credible evidence in the record.

{¶ 25} Dr. Schueler acknowledged that he did not perform any independent testing or analyses of Harper's blood sample in order to reach the conclusion about Harper's ethanol value. Dr. Schueler had no firsthand knowledge regarding Harper's blood draw or the testing of Harper's blood sample. Dr. Schueler simply converted Harper's ethanol value to determine his blood alcohol concentration level.

{¶ 26} Dr. Schueler could not testify regarding the reliability or accuracy of Harper's ethanol value because he did not perform any independent testing or analyses, but merely took the ethanol value and converted it to a blood alcohol level. Furthermore, Dr. Schueler testified that when he reviews reports from the Cleveland Clinic, he typically gets "a full laboratory report or a full medical chart, which would include a lot of chemistries." (Tr. 84.) He explained that in this case, he did not receive Harper's full laboratory report or medical chart; he only received Harper's ethanol level.

{¶ 27} Dr. Schueler acknowledged during the suppression hearing that he had not performed any of his own work in the case. He did not author the document that identified Harper's ethanol value nor verify that Harper's ethanol value was accurate. Dr. Schueler acknowledged that he could not confirm to a reasonable degree of scientific certainty that Harper's ethanol value was, in fact, 308. Dr. Schueler could not confirm that the test results were scientifically legitimate, that the blood test was run correctly, that there were no mistakes made during the testing process, what machine was used to run the test, or whether the machine was functioning properly. Dr. Schueler testified that he had not seen the quality control records from Fairview Hospital.

{¶ 28} Aside from Dr. Schueler's testimony, Patel testified that the Cleveland Clinic has specific policies and procedures for drawing blood, these policies and procedures apply to all Cleveland Clinic personnel, and that these policies and procedures are strictly adhered to. Allen testified that Fairview Hospital has specific nursing policies and procedures for drawing blood, the laboratory has standard operating procedures for processing samples, and that the laboratory has quality control measures in place for processing samples. Neither Patel nor Allen had firsthand knowledge that these policies and procedures were, in fact, followed when Harper's blood was drawn or when his blood sample was tested.

{¶ 29} There was no direct evidence or testimony indicating that the policies and procedures were followed when Harper's blood was drawn and tested. The staff member that drew Harper's blood did not testify at the suppression hearing, nor is there any evidence that establishes who performed the blood draw. The staff member that tested Harper's blood sample did not testify at the suppression hearing.

{¶ 30} Based on the foregoing analysis, we find that the trial court's factual finding that the state failed to establish that the test results were valid is supported by competent, credible evidence in the record. Accordingly, we must accept the trial court's findings of fact.

{¶ 31} Accepting these facts as true, we then must independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. The state directs this court to State v. Davenport , 12th Dist. Fayette No. CA2008-04-011, 2009-Ohio-557, 2009 WL 295397.

{¶ 32} In Davenport , the Twelfth District held that R.C. 4511.19(D)(1)(a) allows the admission of blood test results conducted by a health care provider, even if the state fails to demonstrate compliance with testing regulations. Id. at ¶ 16. The director of clinical chemistry and toxicology at the hospital where the defendant's blood was tested testified at the trial court's suppression hearing that "all of the proper protocol was complied with in regard to the collection of [the defendant's] blood sample." Id. at ¶ 21.

{¶ 33} After review, we find this case to be distinguishable from Davenport . Here, unlike Davenport , the Fairview Hospital staff members that drew and tested Harper's blood did not testify at the trial court's suppression hearing, and thus, there was no evidence or testimony indicating that proper protocol was followed.

{¶ 34} Furthermore, the Davenport court did not hold that the admission of blood test results conducted by a health care provider is mandatory. Rather, "the Twelfth District held that a trial court has discretion to admit test results of any blood draw as contemplated in R.C. 4511.19(D)(1)(a)." (Emphasis added.) State v. Oliver , 9th Dist. Summit No. 25162, 2010-Ohio-6306, 2010 WL 5421401, ¶ 7, citing Davenport .

{¶ 35} As noted above, R.C. 4511.19(D)(1)(a) provides that the result of any blood test withdrawn and analyzed by a health care provider may -not shall -be admitted with expert testimony. We find that the statute's use of the permissive word "may" vested the trial court with discretion to admit the results of the blood test. The admission of the test results was not mandatory.

{¶ 36} We cannot say that the trial court abused its discretion by granting Harper's motion to suppress the results of the blood test based on Dr. Schueler's lack of firsthand knowledge about the testing and analyses of Harper's blood sample, and his inability to confirm that the test results were accurate or reliable to a reasonable degree of scientific certainty. Accordingly, the state's first assignment of error is overruled.

III. Conclusion

{¶ 37} After thoroughly reviewing the record, we cannot say that the trial court abused its discretion by granting Harper's motion to suppress the results of his blood test. R.C. 4511.19(D)(1)(a) provides that the results of a blood test conducted by a health care provider may be admitted with expert testimony. The expert testimony that the state presented during the trial court's suppression hearing failed to indicate that the results of Harper's blood test were, in fact, valid, accurate, or reliable. Therefore, the trial court properly exercised its discretion by granting Harper's motion to suppress.

{¶ 38} Our disposition of the first assignment of error renders the state's second assignment of error moot.

{¶ 39} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and LARRY A. JONES, SR., J., CONCUR


text:
    Arnold BLACK, Plaintiff-Appellee v. Det. Randy HICKS, et al., Defendants-Appellants
    No. 105248
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 22, 2018
    Willa M. Hemmons, Director of Law, East Cleveland, 14340 Euclid Avenue, Cleveland, Ohio 44112, ATTORNEY FOR APPELLANTS
    Robert F. DiCello, Mark A. DiCello, Justin Hawal, DiCello Levitt & Casey, 7556 Mentor Avenue, Mentor, Ohio 44060, David E. Weisblatt, Jackson Lewis P.C., Park Center Plaza I, 6100 Oak Tree Boulevard, Suite 400, Independence, Ohio 44131, ATTORNEYS FOR APPELLEE
    Randy Hicks, pro se, 1020 Lonetree Court, Brunswick, Ohio 44212
    BEFORE: Celebrezze, J., Laster Mays, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendants-appellants, East Cleveland Police Officer Jonathan O'Leary, East Cleveland Police Chief Ralph Spotts, the city of East Cleveland, and John Does 1-10 (collectively "appellants"), bring the instant appeal challenging the jury's verdict in favor of plaintiff-appellee, Arnold Black ("Black"), on Black's claims for malicious prosecution, abuse of process, spoliation, battery, false imprisonment, supervisory liability, reckless/wanton/willful conduct pursuant to R.C. 2921.52, and civil conspiracy. Appellants further challenge the trial court's dismissal of their cross-claim against defendant-appellee, Randy Hicks, a former East Cleveland Police Detective ("Hicks"). Appellants argue that the trial court violated Civ.R. 39(A) and Loc.R. 21 by conducting an ex parte jury trial, their constitutional due process rights were violated when the trial court failed to provide them notice of the trial date, and that the trial court issued orders and conducted a jury trial during the pendency of appeals that were inconsistent with this court's and the Ohio Supreme Court's exercise of jurisdiction. After a thorough review of the record and law, this court reverses and remands for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} The instant matter arose from an incident that occurred on April 28, 2012, during which Black alleged that appellants arrested him without probable cause and used excessive force in doing so. On April 28, 2014, Black filed a complaint against Hicks and appellants in which he asserted claims for malicious prosecution, abuse of process, spoliation, battery, false imprisonment, supervisory liability, reckless/wanton/willful conduct pursuant to R.C. 2921.52, and civil conspiracy.

{¶ 3} On May 6, 2014, appellants filed an answer and a cross-claim against Hicks, alleging that Hicks was not acting as an agent of the East Cleveland Police Department on April 28, 2012. On December 15, 2014, Hicks, acting pro se, filed an answer to Black's complaint and appellants' cross-claim.

{¶ 4} On October 1, 2015, the trial court set the matter for trial on April 11, 2016, at 9:00 a.m.

{¶ 5} On March 24, 2016, Black filed (1) a motion for default judgment or, in the alternative, a motion to preclude appellants from presenting evidence and witnesses at trial that were not disclosed during the exchange of discovery; (2) a motion in limine to exclude character evidence; (3) a motion in limine to exclude evidence regarding defendants' inability to satisfy a judgment; and (4) a motion in limine to exclude evidence in support of affirmative defenses.

{¶ 6} On April 4, 2016, the trial court cancelled the trial set for April 11, 2016. Trial was rescheduled for May 23, 2016.

{¶ 7} On April 19, 2016, the trial court issued an order requiring appellants to respond to Black's discovery requests on or before May 2, 2016. The trial court indicated that appellants' failure to respond to the discovery requests would result in sanctions, including the exclusion of the evidence and witnesses at trial that defendants failed to produce during discovery.

{¶ 8} On April 20, 2016, the trial court vacated its April 19, 2016 order and set a show cause hearing requiring appellants to show cause why they failed to respond to Black's discovery requests. The trial court's journal entry stated that appellants' failure to show cause would result in sanctions, including appellants being precluded from offering evidence, witnesses, and arguments at trial that they failed to produce during discovery.

{¶ 9} On May 6, 2016, appellants filed an appeal challenging the trial court's April 20, 2016 order. Black v. Hicks , 8th Dist. Cuyahoga No. 104453 ("Black I "). On May 10, 2016, this court dismissed the appeal for lack of a final appealable order.

{¶ 10} On May 9, 2016, the trial court denied Black's motion for default judgment. The trial court granted, however, Black's motion to preclude appellants from offering evidence and witnesses at trial that were not disclosed during discovery. The trial court concluded that appellants failed to respond to Black's requests for discovery, failed to respond to Black's motion to exclude evidence, and failed to provide a reason or excuse for their failure to respond to discovery. On the same date, the trial court granted Black's motions in limine to exclude character evidence, evidence regarding appellants' inability to satisfy a judgment, and evidence in support of affirmative defenses; the trial court also granted Black's request to have admissions deemed admitted against Hicks.

{¶ 11} On May 10, 2016, appellants filed an appeal challenging the trial court's May 9, 2016 orders. Black v. Hicks, 8th Dist. Cuyahoga No. 104461 ("Black II "). On May 24, 2016, this court dismissed the appeal for lack of a final appealable order.

{¶ 12} On May 25, 2016, appellants filed an appeal to the Ohio Supreme Court challenging this court's dismissal in Black II . Black v. Hicks, Ohio Supreme Court Case No. 2016-0805, 146 Ohio St.3d 1503, 2016 -Ohio- 5792, 58 N.E.3d 1174 (" Black III "). Appellants assert that this appeal was perfected at approximately 9:36 a.m. The Ohio Supreme Court subsequently declined to accept jurisdiction of the appeal and denied Black's motion for sanctions against appellants on September 14, 2016.

{¶ 13} The case was set for trial on May 23 and May 24, 2016. On both dates, trial was continued. Despite the appeal pending in the Ohio Supreme Court, a jury trial commenced on May 25, 2016, at approximately 11:50 a.m. Neither appellants nor counsel appeared in court on May 23, 24, or 25.

{¶ 14} The jury trial concluded on May 31, 2016. The jury returned a verdict in favor of Black, which the trial court journalized on June 3, 2016. The trial court's judgment entry provides:

Trial start date May 25, 2016, and end date May 31, 2016, before eight jurors and two alternate jurors. * * * The jury finds $10,000,000.00 (ten million dollars) in compensatory damages for [Black] against the following defendants arising out of the following claims: (1) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] first claim for violation of [Black's] federal civil rights; (2) for [Black] against defendant City of East Cleveland as to [Black's] second claim for municipal liability; (3) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] third claim for false imprisonment/arrest; (4) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] fourth claim for battery; joint and several liability as to Claims 1, 2, 3 and 4[;] (5) for [Black] against defendant Chief Spotts as to [Black's] fifth claim for supervisory liability; and (6) for [Black] against defendant Chief Spotts as to [Black's] sixth claim for spoilation.
Furthermore, the jury finds $12,000,000.00 (twelve million dollars) in punitive damages for [Black] as follows: (1) for [Black] against defendant Officer Jonathan O'Leary in the amount of 1,000,000.00 (one million dollars) as to [Black's] first claim for violation of [Black's] federal civil rights, as to [Black's] third claim of false imprisonment/arrest, and as to [Black's] fourth claim for battery; and, (2) for [Black] against defendant Chief Spotts in the amount of $11,000,000.00 (eleven million dollars) as to [Black's] fifth claim for supervisory liability and as to [Black's] sixth claim for [spoliation].

{¶ 15} On June 15, 2016, appellants filed an appeal challenging the trial court's judgment. Black v. Hicks, 8th Dist. Cuyahoga No. 104613 ("Black IV "). On November 8, 2016, this court dismissed the appeal for lack of a final appealable order, finding that judgment was not entered on all of Black's claims.

{¶ 16} On November 14, 2016, Black filed a notice of voluntary dismissal of Counts 7 (reckless/wanton/willful conduct pursuant to R.C. 2921.52 ) and 8 (civil conspiracy). On June 20, 2017, Black filed a notice of voluntary dismissal of Counts 7 and 8 of his complaint with prejudice. On June 29, 2017, the trial court issued a journal entry confirming that Black dismissed Counts 7 and 8 of his complaint. The trial court indicated that these counts were dismissed with prejudice.

{¶ 17} On December 12, 2016, appellants filed an appeal challenging the trial court's judgment. Black v. Hicks, 8th Dist. Cuyahoga No. 105248 ("Black V "). This court dismissed the appeal, sua sponte, on March 21, 2017, due to appellants' failure to file an appellate brief. This court granted appellants' motion to reinstate the appeal on March 28, 2017.

{¶ 18} In the instant appeal, appellants assign four errors for review:

I. The lower court's conduct of an ex parte jury trial was in violation of Civ.R. 39(A) and Loc.R. 21.0.
II. The lower court's notices failed to provide reasonable, constructive, and/or actual notice that trial was [set] for May 25, 2016; [a]ccordingly, appellants' constitutional right to due process was violated.
III. The lower court's May [9], 2016, May 2[5], 2016 and J[uly] 7, 2016 orders must be vacated as such rulings, entered during the pendency of appeals, were not made in execution, and thus were inconsistent with the reviewing courts' exercise of jurisdiction.
IV. The lower court lacked authority to conduct the May 25, 2016 ex parte jury trial, as such trial proceeded during the pendency of appeal to the Ohio Supreme Court.

II. Law and Analysis

A. Trial Court's Jurisdiction

{¶ 19} We will address appellants' third assignment of error first, because it is dispositive of the appeal. In the third assignment of error, appellants argue that the trial court was without jurisdiction to issue the May 9, 2016 orders, commence a jury trial on May 25, 2016, and dismiss appellants' cross-claim on July 7, 2016.

It is well settled that "the filing of the notice of appeal divests the trial court of jurisdiction to proceed with the adjudication during the pendency of the appeal." State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas , 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 16. With respect to the trial court's jurisdiction, it is irrelevant that the appellate court later dismisses the action, after making the determination that the appeal was perfected from an order that was not a final appealable one . Id. The determination as to "the appropriateness of an appeal lies solely with the appellate court[.]" Id. , quoting In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 10-11. Upon the filing of the appeal, the trial court is without jurisdiction to proceed on the merits of the remaining claims until the case is remanded by the appellate court. Story v. Price-Story , 8th Dist. Cuyahoga No. 94085, 2010-Ohio-4675, 2010 WL 3814500, ¶ 7.

(Emphasis added.) Sunshine L.P. v. C.A.S.T.L.E. High School, Inc. , 8th Dist. Cuyahoga No. 104912, 2017-Ohio-1557, 2017 WL 1507701, ¶ 4.

{¶ 20} " '[O]nce an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment.' " Electronic Classroom of Tomorrow at ¶ 13, quoting State ex rel. Rock v. School Emps. Retirement Bd. , 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8. In other words, once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas , 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978).

1. May 9, 2016 Orders

{¶ 21} In the instant matter, appellants first argue that the trial court was without jurisdiction to issue the May 9, 2016 orders because Black I was pending. On May 9, 2016, the trial court granted (1) Black's motion to preclude appellants from offering evidence and witnesses at trial that were not disclosed during discovery; (2) Black's motions in limine to exclude evidence in support of affirmative defenses, character evidence, and appellants' inability to satisfy a judgment; and (3) Black's motion to have admissions deemed admitted.

{¶ 22} Appellants filed a notice of appeal in Black I on May 6, 2016, challenging the trial court's April 20, 2016 judgment order, which provided, in relevant part:

[Appellants] have failed to produce responses to the discovery that [Black] served upon them on 8-8-14 and 9-4-14. Failure to show cause as to why these responses were not served and why discovery was never propounded upon [Black] shall result in sanctions as provided in Civil Rule 41(B) and 37(D) and will include precluding [appellants] from offering at trial evidence, witnesses, argument or comment regarding the evidence and witnesses they failed to so produce. A show cause hearing is scheduled for May 2, 2016 @ 10 am.

This court dismissed the appeal on May 10, 2016 for lack of a final appealable order.

{¶ 23} After reviewing the record, we find that the trial court lacked jurisdiction to issue the May 9, 2016 orders. When the trial court issued these orders, Black I was still pending. The May 9, 2016 orders were inconsistent with this court's jurisdiction to reverse, modify, or affirm the trial court's April 20, 2016 judgment that appellants appealed to this court.

{¶ 24} "An adjudication entered by a court without jurisdiction is a nullity and is void." Story , 8th Dist. Cuyahoga No. 94085, 2010-Ohio-4675, 2010 WL 3814500, at ¶ 7, citing Fifth St. Realty Co. v. Clawson , 9th Dist. Lorain No. 94CA005996, 1995 WL 353722, 1995 Ohio App. LEXIS 2565 (June 14, 1995) ; Lambda Research v. Jacobs , 170 Ohio App.3d 750, 2007-Ohio-309, 869 N.E.2d 39, ¶ 22 (1st Dist.). Accordingly, the trial court's May 9, 2016 orders are void.

2. Jury Trial

{¶ 25} Appellants further contend that the trial court was without jurisdiction to commence a jury trial on May 25, 2016, because appellants had perfected an appeal to the Ohio Supreme Court.

{¶ 26} Appellants filed a notice of appeal in Black II on May 10, 2016, challenging the trial court's aforementioned May 9, 2016 orders granting Black's motions in limine, to have matters admitted, and to preclude appellants from offering evidence that was not produced during discovery. On May 24, 2016, this court dismissed Black II for lack of a final appealable order.

{¶ 27} On May 25, 2016, appellants filed an appeal in the Ohio Supreme Court challenging this court's dismissal of Black II for lack of a final appealable order. Black III . Although we are unable to determine the exact time that appellants' notice of appeal was filed, appellants assert that they filed the notice of appeal at approximately 9:36 a.m.

{¶ 28} We are also unable to determine the exact time that the trial court commenced the jury trial. Appellants assert that the jury trial commenced at approximately 11:50 a.m., after the notice of appeal was filed in the Ohio Supreme Court. Black offers no evidence to the contrary.

{¶ 29} After reviewing the record, we find that the filing of the notice of appeal with the Ohio Supreme Court divested the trial court of jurisdiction to proceed on the merits of Black's claims. Before the trial commenced, the appeal in the Ohio Supreme Court had already been filed, and was still pending. The trial court's commencement of the jury trial was inconsistent with the Ohio Supreme Court's jurisdiction to reverse, modify, or affirm this court's May 24, 2016 dismissal of Black II for lack of a final appealable order that appellants appealed.

{¶ 30} We further find that the jury's May 31, 2016 verdict, and the trial court's June 3, 2016 order journalizing the verdict, are also void. The appeal in the Ohio Supreme Court was pending from May 25, 2016 until September 14, 2016, when the court declined to accept jurisdiction of the appeal.

3. July 7, 2016 Order

{¶ 31} Finally, appellants argue that the trial court was without jurisdiction to issue the July 7, 2016 order dismissing appellants' cross-claim.

{¶ 32} On May 3, 2016, Hicks filed a motion to dismiss appellants' cross-claim pursuant to Civ.R. 41(B) and (C) for failure to prosecute. Therein, Hicks argued that he was unable to defend against the cross-claim based on appellants' failure to provide discovery to him and Black. Specifically, Hicks asserted that appellants failed to produce police reports, detective reports, and dash camera footage. On July 7, 2016, the trial court granted Hicks's motion to dismiss appellants' cross-claim.

{¶ 33} As noted above, appellants' appeal to the Ohio Supreme Court was pending from May 25, 2016 to September 14, 2016. When the trial court granted Hicks's motion to dismiss the cross-claim, the Ohio Supreme Court appeal was still pending. Because Hicks's motion to dismiss was premised on appellants' failure to provide discovery to Hicks and Black, the trial court's order granting Hicks's motion to dismiss the cross claim was inconsistent with the Ohio Supreme Court's jurisdiction to reverse, modify, or affirm this court's May 24, 2016 dismissal of Black II for lack of a final appealable order that appellants appealed. Accordingly, the trial court's July 7, 2016 order is void.

{¶ 34} Black maintains that appellants' May 6, 2016 and May 10, 2016 appeals to this court, and appellants' May 25, 2016 appeal to the Ohio Supreme Court did not divest the trial court of jurisdiction because appellants knew that the orders from which they appealed were not final appealable orders. Black further contends that appellants filed the appeals for the sole purpose of delaying the trial court proceedings.

{¶ 35} After reviewing the record, we find that appellants engaged in questionable conduct throughout the trial court proceedings. Appellants failed to respond to Black's and Hicks's discovery requests, failed to produce evidence requested by Black and Hicks, and failed to appear for trial on multiple occasions. Most importantly, there is no evidence in the record that appellants informed the trial court on May 25, 2016, that they had filed an appeal in the Ohio Supreme Court before the jury trial commenced.

{¶ 36} The record reflects that the May 25, 2016 notice of appeal in Black III was sent by ordinary U.S. mail to Black's counsel. The Ohio Supreme Court docket indicates that a copy of the notice of appeal in Black III was sent to this court's clerk of courts on May 26, 2016. This notice of appeal is reflected on this court's docket in Black II on May 31, 2016. The notice of appeal to the Ohio Supreme Court is not, however, reflected on the trial court's docket. Had appellants made the trial court aware of the appeal to the Ohio Supreme Court, we presume that the trial court would not have commenced the jury trial, which lasted five days.

{¶ 37} If a party files an appeal for improper purposes, such as delaying the final resolution of the case, or files a frivolous appeal, the party may be subject to sanctions and/or disciplinary action. See, e.g. , App.R. 23 ("[i]f a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs.").

{¶ 38} Nevertheless, even if appellants' appeals were frivolous or filed for improper purposes, when appellants perfected the appeals to this court and the Ohio Supreme Court, the trial court was required to stay the proceedings, except to take action in aid of the appeals, until the resolution of the appeals. We must emphasize that this unfortunate waste of judicial time and resources could have been avoided had appellants appeared in court on May 25, 2016, or informed the trial court or Black's counsel that the appeal to the Ohio Supreme Court had been perfected.

{¶ 39} For all of the foregoing reasons, appellants' third assignment of error is sustained.

III. Conclusion

{¶ 40} The trial court was divested of jurisdiction to issue the May 9, 2016 orders because Black I was pending in this court. The trial court was divested of jurisdiction to commence a jury trial on Black's claims, to journalize the jury's verdict, and to issue the July 7, 2016 order dismissing appellants' cross-claim because Black III was pending in the Ohio Supreme Court. Accordingly, these orders and the jury's verdict are void and must be vacated.

{¶ 41} This case essentially remains at the state of the proceeding as it existed on May 10, 2016, when this court dismissed Black I for lack of a final appealable order. See Sunshine L.P. , 8th Dist. Cuyahoga No. 104912, 2017-Ohio-1557, 2017 WL 1507701, at ¶ 7. Based on our resolution of appellants' third assignment of error, appellants' first, second, and fourth assignments of error are rendered moot.

{¶ 42} Judgment reversed and remanded for further proceedings.

ANITA LASTER MAYS, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR