COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74273 and 75116 KIMBERLY BADOVICK : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GREGORY BADOVICK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 18, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. D-242458 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: JOYCE E. BARRETT, ESQ. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CHARLES H. BRAGG, ESQ. LORETTA A. COYNE, ESQ. The Courtyard Office Park 7055 Engle Road, Ste. 1-0103 Middleburg Heights, Ohio 44130 PATRICIA ANN BLACKMON, J.: -2- On September 21, 1998, we sua sponte consolidated Gregory Badovick's appeal (App. No. 742731) and Kimberly Badovick's appeal (App. No. 75116)2. We now dismiss both Gregory and Kimberly Badovick's appeals. Gregory Badovick's appeal (App. No. 74273) is moot. We conclude the trial court's August 4, 1998 order mooted that appeal. The trial court's August 4, 1998 order complied with our remand order issued in Gregory Badovick's original appeal in Badovick v. Badovick (May 4, 1998), Cuyahoga No. 72317, unreported. (Herein Badovick I). Kimberly Badovick's appeal (App. No. 75116) is dismissed because she apparently abandoned that appeal by failing to file a brief. Gregory Badovick did, however, cross appeal3 in App. No. 75116, and argued one error challenging the trial court's August 4, 1998 property division order. We uphold the trial court's property division in its August 4, 1998 order and overrule Gregory Badovick's cross-appeal. The apposite facts follow. Gregory Badovick filed his original appeal in 1997 challenging the trial court's March 13, 1997 order, which granted the parties' divorce and settled the child support and property division issues. 1Gregory Badovick's assigned errors. See Appendix. 2Kimberly Badovick's assigned but not briefed errors. See Appendix. 3Gregory Badovick's cross-appeal. See Appendix. -3- Gregory Badovick assigned seven (7) errors for this court in that appeal, which is Badovick I. In Badovick I, we upheld the trial court's visitation order and custody order to Kimberly Badovick. However, on the remaining issues, we reversed and remanded with instructions. We held the trial court erred in imputing Gregory Badovick's income for purposes of child support calculations and erred in not giving Gregory Badovick access to the child's day care facility. We ordered the trial court to clarify that the child was the irrevocable beneficiary of the father's life insurance policy during the duration of the child support order and remanded for redetermination of marital property, marital debts, and attorney fees awards. Ironically, on June 4, 1997 while that appeal was pending and before our Badovick I decision, Kimberly Badovick filed in the trial court a motion to show cause against Gregory Badovick for failure to pay child support and for attorney fees. Gregory countered with a motion to modify visitation and support. While the 1997 appeal on the child support, attorney fees, and other matters remained pending, the trial court issued its March 5, 1998 order. The trial court found Gregory Badovick in contempt for failure to pay child support and attorney fees. Gregory Badovick filed an appeal of the trial court's March 5, 1998 order; we assigned his appeal App. No. 74273. While App. No. 74273 remained pending, we released Badovick I. In response to Badovick I, the trial court issued its August 4, 1998 order without a hearing. In the August 4, 1998 order, the -4- trial court set Gregory Badovick's income at minimum wage, reduced child support payments from approximately $700/month to approximately $117/month,set a value for certain property given to Kimberly Badovick in the original divorce but did not order a redistribution based on the valuation, gave Gregory Badovick birthday visitation and access to the child's records and ordered him to name the child as irrevocable beneficiary of his insurance policy. Gregory Badovick did not directly appeal the trial court's August 4, 1998 order; however, Kimberly Badovick did, and we assigned her appeal App. No. 75116. Kimberly Badovick failed to file her brief in App. No. 75116. Accordingly, we conclude Kimberly Badovick abandoned her appeal in App. No. 75116 when she failed to file a brief. As we stated earlier in this opinion, Gregory Badovick's appeal App. No. 74273 is moot. The trial court's August 4, 1998 order effectively mooted that appeal. We note, however, Gregory Badovick's cross-appeal under App. No. 75116 lacks merit. Gregory Badovick argues the trial court erred in the distribution of marital assets. We conclude the trial court properly distributed the marital property as we had required in Badovick I. Appeal dismissed. -5- It is ordered that appellee and appellant share the costs of this appeal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, A.J., and LEO M. SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APENDIX ASSIGNMENTS OF ERROR -6- I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DETERMINING THAT THE APPELLANT WAS IN ARREARS IN CHILD SUPPORT, AND IN CALCULATING THAT ARREARS, AND IN ADDING INTEREST TO THOSE ARREARS AND IN ENTERING JUDGMENT IN FAVOR OF THE APPELLEE FOR THOSE ARREARS. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THE APPELLANT IN CONTEMPT OF COURT FOR FAILURE TO PAY CHILD SUPPORT WHEN IN FACT THE APPELLANT WAS NOT IN ARREARS. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING THE APPELLEE'S MOTION FOR ATTORNEYS' FEES WHEN THE APPELLANT WAS IN FACT NOT IN ARREARS OF CHILD SUPPORT. IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THE APPELLANT IN CONTEMPT OF COURT FOR FAILURE TO PAY CHILD SUPPORT WHEN THE APPELLANT WAS UNEMPLOYED AND HAD USED WHAT MONEY HE DID HAVE IN PROPER EXERCISE OF HIS CONSTITUTIONAL RIGHTS. V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THE APPELLANT WAS UNEMPLOYED AND HAD USED WHAT MONEY HE DID HAVE IN PROPER EXERCISE OF HIS CONSTITUTIONAL RIGHTS. VI. THE TRIAL COURT'S ORDER REGARDING VISITATION IS ERRONEOUS AND AN ABUSE OF DISCRETION BECAUSE IT IS UNCLEAR AS TO WHAT HOLIDAYS THE APPELLANT IS TO HAVE VISITATION. VII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SETTING CHILD SUPPORT IN THE AMOUNT OF $808.91 PER MONTH. FOOTNOTE #2 KIMBERLY BADOVICK'S ASSIGNED ERRORS I. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS IMPUTATION OF MINIMAL INCOME TO THE APPELLEE. -7- II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS ORDER THAT APPELLEE HAVE VISITATION WITH THE MINOR CHILD ON HIS BIRTHDAY AND ON THE CHILD BIRTHDAY. FOOTNOTE #3 GREGORY BADOVICK'S CROSS ASSIGNED ERROR ON REMAND, THE TRIAL COURT ERRED AND ABUSED PARTIES. ITS DISCRETION IN ITS DIVISION AND DISTRIBUTION OF THE MARITAL PROPERTY OF THE PARTIES. #####20000518 75508SHERYL S. DARDEN v THOMAS V. DARDEN COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75508 SHERYL S. DARDEN : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THOMAS V. DARDEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 18, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-076923 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: JOHN J. READY, ESQ. 500 Courthouse Square 310 Lakeside Avenue, West Cleveland, Ohio 44113 For Defendant-Appellant: RAYMOND J. COSTANZO, ESQ. Costanzo & Lazzaro 13317 Madison Avenue Lakewood, Ohio 44107-4814 PATRICIA ANN BLACKMON, J.: -2- Appellant Thomas Darden appeals a decision by the trial court in favor of Appellee Sheryl Darden (nka Sheryl Sutler) on her motions to show cause and for attorney fees. Thomas Darden assigns the following three errors for our review: I. THE TRIAL COURT ERRED IN FINDING APPELLANT IN CONTEMPT OF ITS PRIOR ORDERS ENTERED JUNE 9, 1994, VOL. 2392, PG. 262 AND JANUARY 17, 1995, VOL. 2534, PG. 958. II. THE TRIAL COURT ERRED IN CALCULATING APPELLANT'S OBLIGATION TO PAY PAST DUE CHILD SUPPORT, ATTORNEY FEES AND ACCRUED INTEREST FROM THE TRIAL COURT'S JUDGMENT ENTRIES DATED JUNE 9, 1994, VOL. 2392, PG. 262 AND JANUARY 17, 1995, VOL. 2534, OG. 958. III. THE TRIAL COURT ERRED IN AWARDING APPELLEE ATTORNEY FEES AND IN FAILING TO REVIEW ITS PRIOR AWARDS OF ATTORNEY FEES RETROACTIVE TO THE JUDGMENT ENTERED MARCH 5, 1992, VOL. 1936, PG. 494. Sheryl Darden cross-appeals and assigns the following four errors for our review: I. THE TRIAL COURT ERRED TO THE APPELLEE'S DETRIMENT BY DISREGARDING THE MAGISTRATE'S CALCULATIONS WHERE PAYMENTS WERE APPLIED TO ACCRUED INTEREST AND THEN PRINCIPAL. II. THE TRIAL COURT ERRED IN REDUCING APPELLEE'S ATTORNEY FEE AWARD FOLLOWING A FINDING THAT APPELLANT WAS IN CONTEMPT. III. THE COURT ERRED BY REDUCING THE PURGE AMOUNT FOR APPELLANT'S ONGOING CONTEMPT OF THE COURT'S ORDERS. IV. THE COURT ERRED BY FAILING TO ORDER THE PAYMENT OF ATTORNEY FEES FOR APPELLANT'S CONTEMPT BY MEANS OF A WAGE WITHHOLDING ORDER. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. -3- On February 14, 1977, the trial court granted Thomas Darden and Sheryl Darden a divorce award and custody of the minor child, Todd, (D.O.B. 01/02/76) to Sheryl Darden, with an order for Thomas Darden to pay child support. Sixteen years later on May 7, 1993, Thomas Darden filed a motion to reduce the child support. Darden argued his income had been reduced, his living and other expenses increased; additionally, he argued from his second divorce the court had imposed a $303.00 per month child support order for another child. He also argued the trial court should re-evaluate Sheryl Darden's earning capacity. On March 4, 1994, Sheryl Darden filed motions for contempt of court and for attorney fees due to Thomas Darden's failure to pay child support as ordered. In its June 9, 1994 order, the trial court found Darden in contempt and found that he owed back child support in the amount of $64,994.30. To pay this arrearage off, the trial court ordered him to pay Sheryl Darden through CSEA $10,000 by July 31, 1994; pay 65% of his income or maximum allowed by law towards the arrearage; and to assign to Sheryl all commission due him as an professional athlete. The court scheduled a hearing on Sheryl Darden's motion for attorney fees for January 17, 1995. Neither Thomas Darden nor his attorney appeared at the fee hearing. The court determined that Darden failed to satisfy his $64,994.30 arrearage or to make the payments mandated by the court's order that he pay CSEA 65% of his net income. The court ruled that Sheryl Darden had incurred attorney fees totaling $54,390 plus $229.00 in costs for a total of -4- $54,619.00 and ordered Thomas Darden to pay those fees and costs. The trial court found that Thomas Darden had amassed more than two dozen contempt findings and sentenced him to 90 days in jail. On May 24, 1995, Thomas Darden filed a motion for relief from judgment, a motion to suspend execution of his jail sentence pendente lite and, in the alternative, a motion to modify the trial court's judgments. Thomas Darden argued that the trial court's contempt finding was erroneous and that he had, in fact, made a $20,000 payment to CSEA in April 1993 and a $10,000 payment to CSEA on February 28, 1995. Thomas Darden also argued he was not properly served with notice of the January 17, 1995 hearing. The trial court granted Thomas Darden's motion to suspend execution of his jail sentence. In a July 10, 1995 journal entry, the trial court denied Darden's other motions and denied his claim of lack of personal jurisdiction. The court held that the court's prior order sentencing defendant to 90 days in jail shall be enforced unless Defendant purges his contempt by paying $10,000 toward his arrearages within 30 days of journalization of this entry. Darden was ordered to return to court on August 10, 1995 for a review of his compliance with the court's orders. On July 20, 1995, Darden filed an appeal (App. No. 69322) of the trial court's decision. In a journal entry dated August 10, 1995, the trial court found that Darden failed to purge himself of his contempt, and ordered the immediate execution of his jail sentence. On August 21, 1995, Thomas Darden filed a motion to stay execution of the jail sentence and a motion for bond. Darden filed -5- another notice of appeal (App. No. 69453) challenging the court's August 10, 1995 order. In Darden v. Darden (May 2, 1996), Cuyahoga App. Nos. 69322, 69453, this court affirmed the trial court's judgment. We held that, since Thomas Darden appeared at the May 18, 1994 hearing, he was precluded from raising the lack of personal jurisdiction in the case. We also held that Thomas Darden invoked the continuing jurisdiction of the domestic relations court by filing a motion to modify child support. In upholding the trial court's finding that Thomas Darden failed to purge himself of contempt, we noted that Thomas Darden failed to appear at the hearing on January 17, 1995 and that he failed to make any support payments after the May 18, 1994 hearing. We also upheld the trial court's decision to order Thomas Darden's jail term into execution. Citing Thomas Darden's long- standing history of failing to meet his child-support obligations, we reasoned that Thomas Darden failed to comply with the stipulations he made at the May 18, 1994 hearing and presented no competent evidence that he was financially unable to meet his obligations. On December 2, 1996, Sheryl Darden filed a motion to show cause and a motion for attorney fees. A hearing on the motion was originally set for February 18, 1997. The hearing was continued several times, finally being conducted on August 11, 1997. On February 19, 1998, the Magistrate issued his report and recommendation. -6- The Magistrate found that Thomas Darden had $10,110.84 in income for 1996 from the Bert Bell NFL Players Retirement Trust and that he failed to pay at least 65% of that income to Sheryl Darden as required by the trial court's order of June 9, 1994. The Magistrate also found that Thomas Darden was required to make two lump sum payments of $10,000 each and one payment of $12,500 in addition to the 65% of his income. The Magistrate also found Thomas Darden in contempt of court for failing to obey the trial court's order of January 17, 1995 and recommended that Thomas Darden be sentenced to 90 days in jail or 500 hours of community service which was to be suspended if Thomas Darden purged his contempt by paying a lump sum of $11,492.05 plus 2% processing fee and by making monthly payments of $547.67 plus 2% processing fee through CESA for 12 months or until the arrearage is fully paid, whichever comes first. The Magistrate also calculated the amount of interest on the unpaid support award and on the attorney fee award as $12,387.22. He also ordered Thomas Darden to continue to pay at least $547.67 per month plus a processing fee on his support obligation. The Magistrate also ordered Thomas Darden to pay $21,863.56 towards Sheryl Darden's attorney fees. The Magistrate also ordered that additional interest would accrue on the judgment effective August 11, 1997. In an amended journal entry filed March 16, 1998, the Magistrate again found Thomas Darden to be in contempt and recommended that he be sentenced to 90 days in jail. The -7- Magistrate stated that Thomas Darden could purge his contempt by making a lump sum payment of $11,492.05. After calculating the accrued interest on the judgment and deducting the payments made to CSEA by Thomas Darden, the Magistrate concluded that total unpaid accrued interest on the court's prior judgments was $12,387.22. The Magistrate also found that, as of August 11, 1997, Thomas Darden was in arrears in the amount of $114,920.49. The Magistrate sentenced Thomas Darden to 90 days in jail or 500 hours community service and ordered that the contempt could be purged if Thomas Darden paid $11,492.05 plus a 2% processing charge to CSEA within 30 days. The Magistrate ordered Thomas Darden to continue paying at least $547.67 through CSEA until his arrearage was fully paid. The Magistrate also ordered that, effective August 11, 1997, additional interest would accrue on the principal balance of $60,301.49. The Magistrate also ordered Thomas Darden to pay $21,863.56 to Sheryl Darden for attorney fees as additional spousal support. On April 23, 1998, the trial court issued an order adopting the Magistrate's decision, but that order was vacated on April 30, 1998 under Civ.R. 60(A). On April 29, 1998, Thomas Darden filed objections to the amended Magistrate's decision. In a journal entry dated October 13, 1998, the trial court sustained Thomas Darden's objections and modified the Magistrate's decision finding Thomas Darden in contempt of the trial court's prior orders and that he had a child support arrearage of $39,429.58 as of August 11, 1997. The court found that the magistrate erroneously -8- concluded that Darden was required to make two lump sum payments of $10,000 each and one payment of $12,500 and found that Darden was ordered to make one lump sum payment of $10,000. The trial court ordered that Thomas Darden could purge his contempt by paying $5,000. The interest accrued on the prior judgment through August 11, 1997 was calculated as $16,677,28. Sheryl Darden was awarded $10,000 in additional attorney fees. Thomas Darden was ordered to continue paying $547.67 plus 2% processing charge to CSEA until his arrearage was fully paid. These appeals followed. In his first assignment of error, Thomas Darden argues the trial court erred in finding him in contempt of its June 9, 1994 and January 17, 1995 orders. Thomas Darden argues that he paid the $10,000 purge amount plus an additional $15,588.80. Thomas Darden acknowledges that this court added $5,000 to the original $10,000 supersedeas bond amount imposed in connection with a stay of the trial court's order pending his first appeal to this court. Nevertheless, he argues that his payments of $10,558.80 amounted to more than 65% of his gross income between June 4, 1994 and December 6, 1996 and, therefore, constituted compliance with the trial court's orders. He further argues that, since there was no set installment plan for Thomas Darden to pay 65% of his net income, his failure to make any payments from January 1, 1997 through August 11, 1997 was not a proper basis for a contempt finding. Contempt is the disobedience of a lawful court order. Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus. Contempt actions are -9- authorized under R.C. 2705.031(B)(1) which provides that any party who has a legal claim to any support ordered for a child *** may initiate a contempt action for failure to pay the support. In order to prove contempt for failure to comply with a court order of support, the movant must prove, by clear and convincing evidence, that the defendant violated the court's order at issue. Rinehart v. Rinehart (1993), 87 Ohio App.3d 325, 328, 622 N.E.2d 359, 360. Thereafter, the non-movant must establish, by a preponderance of the evidence, a defense for his nonpayment. State ex rel. Thurman v. Thurman (May 12, 1999), Medina App. No. 2765-M, unreported, citing Rinehart, 87 Ohio App.3d at 328, 622 N.E.2d at 361. A trial court's contempt finding will not be reversed on appeal absent an abuse of discretion. State ex rel. Delco Moraine Div., General Motors Corp. v. Indus. Comm. (1990), 48 Ohio St.3d 43, 44, 549 N.E.2d 162, 163; Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16, 520 N.E.2d 1362, 1364; State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 11, 417 N.E.2d 1249, 1250; State v. Moody (1996), 116 Ohio App.3d 176, 181, 687 N.E.2d 320, 323;State v. McDermott (1991), 73 Ohio App.3d 689, 692, 598 N.E.2d 147, 149. Our review of the trial court's journal entry of June 9, 1994 reveals that Thomas Darden was ordered to pay Sheryl Darden the sum of $10,000 by July 31, 1994. The record reveals that no payments were received by that date. In its January 17, 1995 order, the trial court found Darden in contempt of the June 9, 1994 order and sentenced him to 90 days in jail. In its July 10, 1995 order, the -10- trial court held that Thomas Darden could purge his contempt by paying $10,000 toward his arrearages within 30 days. In order to purge his contempt, Thomas Darden would have had to pay $10,000 by August 10, 1995. The record is undisputed that he failed to do so. Darden did eventually obtain a stay of the July 10, 1995 judgment pending appeal, but the motion for stay was not filed until August 21, 1995, well after the court's August 10, 1995 deadline for Thomas Darden to purge his contempt. Thomas Darden also argues that, from June 4, 1994 to December 6, 1996, he made payments totaling $25,588.80. The record shows that Darden made a payment of $10,000 on March 1, 1995 and a payment of $15,000 on November 8, 1996. Darden argues that those payments amounted to more than 65% of his gross income for that time period and, consequently, he was not in contempt of the court's June 9, 1994 order to pay Sheryl Darden 65% of his net income. The record revealed that Thomas Darden was sentenced to 90 days in jail on August 16, 1993 for contempt. While serving his sentence, Darden pleaded guilty to a criminal nonsupport charge. On October 12, 1993, Darden was sentenced to six months in jail for the criminal non-support. Execution of the sentence was suspended and Darden was placed on two year's probation beginning November 16, 1993. Darden was ordered to pay $10,000 to the probation department by October 15, 1993. The money was to be transferred to CSEA for distribution to Sheryl Darden. Darden completed his sentence for the contempt charge and was released from jail on -11- November 14, 1993. On October 12, 1994, Darden was found to be in violation of his probation. His probation was continued and Darden was ordered to pay $10,000 to the probation department by January 17, 1995. The money was to be paid in three installments the first of which was due by November 15, 1994. Another probation violation hearing was held on December 8, 1994. However, Darden failed to appear. The court found him to be a probation violator, sentenced him to six months in jail, and issued a capias for his arrest. The record shows that Darden made a payment of $10,000 on March 1, 1995. Two months later, he filed a motion in common pleas court seeking to vacate the judgment that he was a probation violator. The judgment was vacated on May 25, 1995. This sequence of events makes clear that the $10,000 payment on March 1, 1995 was made in order to avoid serving six months in jail for the criminal non-support conviction. We turn now to the $15,000 payment made by Darden on November 8, 1996. After the 90 day jail sentence imposed upon Thomas Darden for contempt was affirmed by this court on May 2, 1996, a capias was ordered for his arrest. On October 4, 1996, Sheryl Darden moved for judgment against the company that wrote the $15,000 supersedeas bond posted by Thomas Darden while his appeal was pending. In an agreed judgment entry signed on November 7, 1996 and filed on November 8, 1996, Darden agreed to pay $15,000 to CSEA. Upon CSEA's receipt of the payment, the agreed entry provided that Fidelity and Deposit Company of Maryland would be released from its obligation on the supersedeas bond. The agreement also provided -12- that, upon CSEA's receipt of the $15,000, Thomas Darden would be released from the remainder of his 90 day jail sentence. (R. 335.) The agreement further provided that if Defendant fails to comply with this order, and/or a judgment is rendered against the bonding company *** Defendant Darden shall immediately serve the remainder of his 90 day jail sentence. Thereafter, on November 8, 1996, Darden made a payment of $15,000. However, as of August 11, 1997, Darden remained in arrears on his support obligation in the amount of $39,429.58. His failure to satisfy his support obligation authorized the trial court to find him in contempt. Accordingly, the trial court's contempt finding did not constitute an abuse of discretion. Thomas Darden's first assigned error is overruled. In his second assigned error, Thomas Darden argues the trial court erred in calculating his obligation to pay past due child support, attorney fees, and accrued interest from the trial court's June 9, 1994 and January 17, 1995 journal entries. Thomas Darden argues the trial court erroneously relied on a statement in its June 9, 1994 judgment entry which provided that Thomas Darden's arrearages totaled $64,994.30 without differentiating between child support and attorney fee judgments. However, our review of the record makes clear that the trial court calculated Thomas Darden's attorney fee judgment separately at the hearing held on January 17, 1995. The journal entry contained the following provision as to attorney fees: Finally, the Court finds that Plaintiff has incurred attorney fees in the prosecution of her many motions, dating back to June 14, 1991, totaling three hundred sixty-two and six -13- tenths (362.6), plus costs advanced by Plaintiff's counsel in the amount of $229.00. The court further finds that the hourly rate charged by Plaintiff's attorney, $150.00 is reasonable in the greater Cleveland area ***. (Journal entry of 1/17/95 at 4-5.) The court multiplied $150.00 by 362.6 to arrive at its total of $54,390 in attorney's fees. We reject Thomas Darden's attempt to challenge the trial court's calculation of his child support arrearage as of June 9, 1994. Because Thomas Darden did not timely appeal from the trial court's judgment, he is barred from asserting any error in the trial court's calculations. Though Darden asserts that the June 9, 1994 and January 17, 1995 journal entries were the subject of his prior appeal to this court, we must note that in Darden v. Darden (May 2, 1996), Cuyahoga App. Nos. 69322, 69453, unreported, we specifically rejected his attempts to challenge those orders. Thomas Darden's [May 24, 1995] motion [for relief from judgment] generally requested the court reconsider several of its prior rulings and raised issues which should have been raised in prior direct appeals. It is well settled, however, that motions for relief from judgment are not a substitute for timely direct appeals. Darden. Darden's second assigned error is overruled. In his third assigned error, Thomas Darden argues the trial court erred in awarding Sheryl Darden attorney fees and in failing to review its prior awards of attorney fees retroactive to its March 5, 1992 judgment. As we did in our discussion of Darden's second assigned error, we again refuse Darden's request that we -14- review orders from which no appeal was taken. Darden's third assigned error is overruled. In her first cross-assigned error, Sheryl Darden argues the trial court erred to the appellee's detriment by disregarding the Magistrate's calculations where payments were applied to accrued interest and then principal. We disagree. Sheryl Darden argues that, where interest is payable annually, payments should be applied first to interest due upon interest, then to interest due upon the principal, and finally to the principal.Sys. Data, Inc. v. Visi Trak Corp. (Ohio Mun. 1995), 72 Ohio Misc.2d 8, 10, 655 N.E.2d 287, 288, citing Prepakt Concrete Co. v. Koski Constr. Co. (1989), 60 Ohio App.3d 28, 31, 573 N.E.2d 209, 213; Anketel v. Converse (1866), 17 Ohio St. 11 at paragraph four of the syllabus. See, also, Evans v. Buckeye Union Ins. Co. (1993), 94 Ohio App.3d 378, 381, 640 N.E.2d 1153, 1155; Viock v. Stowe-Woodward Co. (1989), 59 Ohio App.3d 3, 8, 569 N.E.2d 1070, 1075. However, in this case, the payments rendered by Thomas Darden were made through CSEA. OAC 5101:1-31-14 sets forth the proper sequence for applying payments made through CSEA. Under OAC 5101:1-31-14(A), payments through CSEA are to be applied to child support arrearages before being applied to interest on arrearages. The trial court did not err in first applying Thomas Darden's payments to the principal amount of his arrearage. Accordingly, we reject Sheryl Darden's first cross-assigned error. -15- In her second cross-assigned error, Sheryl Darden argues the trial court erred in reducing her attorney fee award following a finding that Thomas Darden was in contempt. Our review of the trial court's decision on Thomas Darden's request for attorney fees must be guided by an abuse of discretion standard. Dunbar v. Dunbar(1994), 68 Ohio St.3d 369, 371, 627 N.E.2d 532, 534, citing Rand v. Rand (1985), 18 Ohio St.3d 356, 481 N.E.2d 609; Slowbe v. Slowbe (Jan. 13, 2000), Cuyahoga App. No. 75520, unreported; Parzynski v. Parzynski (1992), 85 Ohio App.3d 423, 439, 620 N.E.2d 93, 104, appeal dismissed (1993), 67 Ohio St.3d 1450, 619 N.E.2d 419. The court's decision will be upheld unless its ruling evidences an unreasonable, arbitrary, or unconscionable attitude. In this case, the trial court heard testimony from Sheryl Darden's trial counsel, John Ready, describing the work he performed on the case. Ready testified that he was seeking nearly $22,000 in attorney fees for services rendered since January 17, 1995. However, Sheryl Darden's motion for attorney fees was not filed until December 2, 1996. It has been held to be improper for a court to award fees incurred prior to the filing of a motion for fees. Seagraves v. Seagraves (1997), 125 Ohio App.3d 98, 102, 707 N.E.2d 1165, 1167. Our holding is based upon the premise that the party against whom relief, in this instance an award of fees, is sought is entitled to timely notice of the intent to seek such relief. Without notice, we conclude that it would be unfair to require a party to pay for fees which may, as is the case here, have been incurred by the other party over a period of years. However, once notice of the intent to seek attorney fees is given, the party against -16- whom the motion is made acts at his own risk if he continues to engage in protracted litigation. Id. Because the Magistrate's attorney fee award included amounts for services rendered prior to the date Sheryl Darden filed her motion for attorney fees, the attorney fee award was properly reduced by the trial court. Sheryl Darden's second cross-assigned error is overruled. In her third assigned error, Sheryl Darden argues the court erred by reducing the purge amount for appellant's ongoing contempt of the court's orders. A reviewing court will not reverse a lower court's decision in a contempt proceeding absent an abuse of discretion. State ex rel. Delco Moraine Div., General Motors Corp. v. Indus. Comm. (1990), 48 Ohio St.3d 43, 44, 549 N.E.2d 162, 163; Briede v. Heaberlin (Feb. 19, 1991), Butler App. No. CA90-08-157, unreported. Sheryl Darden's conclusory assertion that the trial court erred in reducing the purge amount falls far short of establishing an abuse of discretion that would necessitate a reversal. Sheryl Darden's third cross-assigned error is without merit. In her fourth cross-assigned error, Sheryl Darden argues that the trial court erred by failing to order the payment of attorney fees for appellant's contempt by means of a wage withholding order. Sheryl Darden cites Hamilton v. Hamilton (1998), 40 Ohio App.3d 190, 532 N.E.2d 213 and argues that, under R.C. 3113.21, attorney fee awards in child support enforcement proceedings constitute -17- additional child support and are subject to mandatory wage withholding orders. R.C. 3113.21 provides that in actions where support is ordered under specified sections of the Ohio Revised Code including R.C. 3105.21 (Child Support), the court shall require the withholding or deduction of the obligor's income or assets by a wage order or other appropriate order. Also, R.C. 3105.21 provides that each order for child support made or modified under this section shall include as part of the order a general provision, as described in division (A)(1) of Section 3113.21 of the Revised Code, requiring the withholding or deduction of income or assets of the obligor under the order as described in division (D) of Section 3113.21 of the Revised Code, or another type of appropriate requirement. In Hamilton, the court ruled that attorney fees necessitated by noncompliance with a child support order are child support and are subject to the wage withholding provisions of R.C. 3113.21. Hamilton, 40 Ohio App.3d at 193, 532 N.E.2d at 216. See, also, Bratton v. Frederick (1996), 109 Ohio App.3d 13, 17, 671 N.E.2d 1030, 1033. While we agree that the attorney fee award could properly be subject to a wage withholding order, we must point out that the withholding order already in place provides for payment of 65% of Thomas Darden's monthly income the maximum allowable by law. During oral argument before this court, Sheryl Darden's attorney argued that state law should control when determining the maximum amount of an obligor's income that can be subject to a wage -18- withholding y support orders without reference to the wage withholdinorder. He also limits set forth by federal law. We agree that a trial court may properly order support in excess of the withholding limits imposed by R.C. 3113.21 and Section 1673(B), Title 15, U.S. Code. However, those provisions do restrict the trial court's ability to order wage withholdings beyond those limits. Arthur v. Arthur (Oct. 22, 1998), Fairfield App. Nos. 97CA0071, 98CA0023, unreported. In Roach v. Roach (1989), 61 Ohio App.3d 315, 322, 572 N.E.2d 772, 776, this court noted that Ohio's garnishment statute (R.C. 3113.21) expressly adopted the withholding limits set forth in Section 1673(b), Title 15, U.S. Code.1 See R.C. 3113.21(E) ( In no case shall the sum of the amount specified in the order to be withheld and any fee withheld by the person paying or otherwise distributing the obligor's income as a charge for its services exceed the maximum amount permitted under Section 303(b) of the `Consumer Credit Protection Act,' 15 U.S.C. 1673(b). ) 15 U.S.C. S 1673(b)(2)(A) defines the maximum allowable garnishment as follows: The maximum part of the aggregate disposable earnings2 of an individual for any workweek 1 Roach referred to an earlier version of R.C. 3113.21. The relevant section, then listed as R.C. 3113.21(D)(4) is now R.C. 3113.21(E). 2 With respect to garnishment proceedings, `disposable earnings' are net earnings which are payable after the deduction of those items required by law. Deductions required by law do not include any prior support orders, nor do they include voluntary -19- which is subject to garnishment to enforce any order for the support of any person shall not exceed -- (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and (B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek. See, also, Hockenberry v. Hockenberry (1992), 75 Ohio App.3d 806, 809, 600 N.E.2d 839, 841. Because the amount of the wage withholding order issued by the trial court for child support arrearages amounted to the maximum allowable by statute, we conclude that the trial court's decision not to issue an additional withholding order for attorney fees was proper. Sheryl Darden's fourth cross-assigned error is overruled. Finding no merit to any of the assigned errors or cross- assigned errors, we affirm the decision of the trial court. Judgment affirmed. payroll deductions. Nurse v. Portis (1987), 36 Ohio App. 3d 60, 520 N.E.2d 1372, at paragraph two of the syllabus. It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Domestic Relations Division of Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 75580ROBERT E. SWEENEY v J. WILLIAM PETRO, ET AL COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75580 ROBERT E. SWEENEY, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : J. WILLIAM PETRO, ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 2000 CHARACTER OF PROCEEDING: : Civil appeal from : Cleveland Municipal Court : Case No. 97 CV 13718 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Thomas J. Roche, Esq. ROBERT E. SWEENEY CO., L.P.A. 55 Public Square 1500 Illuminating Building Cleveland, Ohio 44113 Robert B. Weltman, Esq. WELTMAN, WEINBERG & REIS CO. Lakeside Place #200 323 Lakeside Avenue, West Cleveland, Ohio 44113 For defendants-appellants: William E. Gerstenslager, Esq. GERSTENSLAGER & OBERT CO. 1995 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 -2- MICHAEL J. CORRIGAN, J.: J. William Petro, defendant-appellant, appeals from the judgment of the Cleveland Municipal Court, Case No. 97-CV-13718, in which the trial court granted summary judgment on a cognovit note in favor of Robert E. Sweeney, plaintiff-appellee. Defendant- appellant also appeals from the trial court's dismissal with prejudice of his third party complaint against Robert E. Sweeney Co., L.P.A. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is affirmed in part, reversed in part and remanded. On November 15, 1994, defendant-appellant executed a cognovit note payable to plaintiff-appellee in the amount of $10,000 with 6% interest per annum. The cognovit note contains the following clause: WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. A personal check in the amount of $10,000 was issued by plaintiff-appellee to defendant-appellant on November 15, 1994. On the memorandum line of the check the words personal loan appear. At the time the cognovit note and personal check were issued, defendant-appellant was an employee of Robert E. Sweeney Co., L.P.A. -3- On June 16, 1997, plaintiff-appellee filed the underlying lawsuit against defendant-appellant in Cleveland Municipal Court seeking to collect upon the unpaid cognovit note. On September 15, 1997, defendant-appellant filed an answer, counterclaim and third party complaint against Robert E. Sweeney Co., L.P.A. On December 11, 1997, plaintiff-appellee and Robert E. Sweeney Co., L.P.A., filed an answer to the counterclaim and third party complaint of defendant-appellant. Defendant-appellant maintained that the cognovit note in question was actually an advance on work done for plaintiff- appellee, not a personal loan. Defendant-appellant also contended that the cognovit note was invalid since it was executed as part of what defendant-appellant terms a personal consumer transaction. Disputes developed during the lower court proceedings regarding the extent of allowable discovery into the business affairs of Robert E. Sweeney Co., L.P.A. in light of the contention that the cognovit note represented a personal loan and given that defendant-appellant had formerly been employed by Robert E. Sweeney Co., L.P.A. Ultimately, the trial court granted defendant- appellant's motion to compel discovery thereby allowing defendant- appellant wide latitude during the discovery phase of the proceedings. No sanctions were granted against plaintiff-appellee. On July 31, 1998, plaintiff-appellee filed a motion for summary judgment in which he sought judgment on the cognovit note. On August 6, 1998, defendant-appellant filed a brief in opposition in which he maintained that the motion for summary judgment was not -4- properly filed since prior leave of court was not obtained. Defendant-appellant argued further that discovery still needed to be completed before he could adequately respond to the motion and that the motion itself was not supported by appropriate evidentiary materials as required by Civ.R. 56(E). Final depositions took place on October 16, 1998. The case came on for trial on October 22, 1998. At that time, defendant-appellant failed to appear, although defense counsel and plaintiff-appellee were present. Defense counsel was unable to explain defendant-appellant's absence from the proceedings and moved for a continuance of trial. The trial court denied defense counsel's motion for continuance and oral arguments proceeded on plaintiff-appellee's summary judgment motion. At the conclusion of oral arguments, the trial court granted plaintiff-appellee's motion for summary judgment in the amount of $10,000 plus $2,300 in interest. Defendant-appellant's third party complaint was dismissed with prejudice. On October 28, 1998, the trial court journalized its judgment entry in the case. In its judgment entry, the trial court deemed plaintiff-appellee's summary judgment motion as filed with leave of court as of the date of filing and denied all pending motions not previously ruled upon. It is from this judgment entry that defendant-appellant now appeals. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY -5- JUDGMENT RELYING ON THE CONFESSION OF JUDGMENT CLAUSE (O.R.C. 2323.13) IN A PERSONAL CONSUMER LOAN. Defendant-appellant argues, through his first assignment of error, that the confession of judgment clause contained in the underlying cognovit note is invalid since the loan in question is a consumer loan intended for primarily personal or household purposes. It is defendant-appellant's position that since the loan is of a personal nature to an individual, the loan is not subject to the cognovit provisions of R.C. 2323.13 and, therefore, summary judgment was improperly granted. Initially, this court notes that the standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (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 viewing such evidence most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), -6- 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(C), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(E) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. R.C. 2323.13 deals with warrants of attorney to confess judgment. R.C. 2323.13(E) provides in pertinent part: -7- A warrant of attorney to confess judgment contained in any instrument executed on or after January 1, 1974, arising out of a consumer loan or consumer transaction, is invalid and the courts shall have no jurisdiction to render a judgment based upon such a warrant. This section defines consumer loan as a loan to a natural person and the debt incurred is primarily for a personal, family, educational, or household purpose. R.C. 2323.13(E). There are four elements to the definition of a consumer loan: (1) there must be a loan; (2) to a natural person; (3) by which a debt is incurred; and (4) for primarily personal, family, educational, or household purposes. Shore West Constr. Co. v. Sroka (1991), 61 Ohio St.3d 45, 48, 572 N.E.2d 646; Dodick v. Dodick (Jan. 25, 1996), Cuyahoga App. Nos. 67385, 68588, unreported. In the case sub judice, defendant-appellant attempts to characterize the underlying loan obligation as a personal consumer loan based upon the fact that the $10,000 check issued by plaintiff-appellee contains the phrase personal loan on the memorandum line. Defendant-appellant offers no other evidence in support of his contention that the loan in question qualifies as a consumer loan. Contrary to defendant-appellant's contention, the mere fact that plaintiff-appellee, i.e., the lender, designated the loan as a personal loan from plaintiff-appellee to defendant- appellant does not conclusively establish that the loan satisfies the four necessary elements of a consumer loan. Plaintiff- appellee's characterization only demonstrates that the loan originated from plaintiff-appellee's personal funds. There was no -8- evidence presented to satisfy the fourth element of a consumer loan; that the loan was for primarily personal, family, educational or household purposes. In fact, there was no evidence before the lower court as to the defendant-appellant's ultimate use of the loan. Therefore, it cannot now be said that the underlying note involved a consumer loan pursuant to R.C. 2323.13(E). See Brown v. Hunter (May 23, 1997), Darke App. No. 1394, unreported; Ginn v. Eaton (Nov. 3, 1994), Cuyahoga App. No. 66493, unreported. Therefore, the trial court possessed subject matter jurisdiction over the cognovit note. In addition, a further review of the record demonstrates that, although the note was designated as a cognovit note, the trial court, as well as the parties, actually proceeded as if the note were a promissory note. Clearly, defendant-appellant had ample opportunity to answer the complaint, file a counterclaim, file a separate third party complaint, conduct discovery and respond to plaintiff-appellee's summary judgment motion. The trial court did not proceed merely upon the warrant of attorney to confess judgment. See Svete & Co., L.P.A. v. Ferrara (Aug. 11, 1994), Cuyahoga App. No. 65133, unreported. However, a review of plaintiff-appellee's motion for summary judgment reveals that it was not supported with proper evidentiary material as required under Civ.R. 56(E) such as an affidavit attesting to the authenticity of both the copy of the cognovit note and personal check attached to the motion for summary judgment. Without such an -9- authenticating affidavit, the trial court could not properly enter summary judgment upon the motion as presented. For the foregoing reasons, defendant-appellant's first assignment of error is well taken. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-APPELLANT'S THIRD PARTY COMPLAINT WITH PREJUDICE. Defendant-appellant argues, through his second assignment of error, that the trial court improperly dismissed his third party complaint against Robert E. Sweeney Co., L.P.A. with prejudice after defendant-appellant inexplicably failed to appear for trial in the underlying matter. Specifically, defendant-appellant maintains that no motion to dismiss was filed by plaintiff-appellee and the trial court never provided notice to defendant-appellant of its intention to dismiss, as required under Civ.R. 41(B)(1), prior to entering the subject dismissal with prejudice. It is defendant- appellant's position that a dismissal with prejudice under the present circumstances constitutes an abuse of the trial court's discretion. Civ.R. 41(B)(1) provides: Failure to Prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. Ohio courts have consistently held that the failure to give such prior notice of the trial court's intention to dismiss with prejudice is critical and constitutes reversible error. Logsdon v. -10- Nichols(1995), 72 Ohio St.3d 124, 128, 647 N.E.2d 1361, 1365. In Logsdon, the Ohio Supreme Court determined that it was error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel failed to appear for the assigned trial date. See, also, Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101, 488 N.E.2d 881, 883; Shoreway Circle v. Gerald Skorich Co. (1994), 92 Ohio App.3d 823, 830, 637 N.E.2d 355. The notice requirement exists in order to insure that, to the extent possible, cases are decided on the merits and that a party facing dismissal is given the opportunity to obey the court order in question by either curing the defect, proceeding with the matter or voluntarily dismissing the case without prejudice. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 454 N.E.2d 951. In cases such as the one at bar, Ohio courts have also held that a party is entitled to a hearing prior to a dismissal with prejudice for failure to appear for a scheduled trial date in order to determine if the party's nonappearance at trial was in any way justified. Carr v. Green (1992), 78 Ohio App.3d 487, 605 N.E.2d 431; Weiler v. Department of Liquor Control (June 27, 1995), Franklin App. No. 95AP101-126. In the case sub judice, a review of the record demonstrates that the trial court erred in dismissing defendant-appellant's counterclaim and third party complaint with prejudice without first conducting a hearing in order to determine if defendant-appellant's nonappearance was in any way justified. It should be noted that the trial court is not required to proceed on the merits of the -11- case if defendant-appellant's failure to appear for trial or even notify the trial court that he would not be appearing is found to be unjustified. See FordMotor Credit Co. v. Potts (1986), 28 Ohio App.3d 93, 95, 502 N.E.2d 255. In Heard v. Sharp (1988), 50 Ohio App.3d 34, this court determined that a trial court does not abuse its discretion by dismissing a plaintiff's complaint with prejudice for failure to prosecute where the plaintiff fails to appear, without explanation, at a properly scheduled trial. However, the Heard decision is distinguishable from the facts of the instant case in that the plaintiff in Heard not only failed to appear at trial as scheduled, but was living out of the area, had not been in contact with his attorney for a prolonged period of time and there was no indication that the plaintiff would appear had the trial been rescheduled. In this instance, defendant-appellant had only missed one scheduled court date and there was every indication he would appear had the matter been rescheduled on the third-party complaint. Therefore, Heard is inapplicable. In addition, plaintiff-appellee's reliance upon Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 648 N.E.2d 319, is misplaced. In Quonset Hut, the Ohio Supreme Court found that notice of the trial court's intent to dismiss could be implied, when reasonable, under the circumstances. Such circumstances include a party's continued failure to comply with an outstanding order of the trial court. This pattern of disregard for an order of the trial court is not present in this case. Accordingly, it is -12- apparent that the trial court abused its discretion by dismissing defendant-appellant's claims without notice of its intention to dismiss and a hearing to allow defendant-appellant an opportunity to explain his noncompliance. Defendant-appellant's second assignment of error is well taken. Defendant-appellant's third and final assignment of error states: III. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT, THEN GRANTING LEAVE TO FILE SAME AND DENYING ALL OUTSTANDING MOTIONS NOT PREVIOUSLY RULED UPON WITHOUT HEARING. Defendant-appellant argues, through his third and final assignment of error, that the trial court erred in allowing plaintiff-appellee leave of court to file his motion for summary judgment. Defendant-appellant argues further that the trial court erred by summarily dismissing all remaining motions not previously ruled upon at the time the trial court granted plaintiff-appellee's motion for summary judgment. The decision as to whether to grant a party leave to file a summary judgment motion is left to the sound discretion of the trial court and such decision will not be reversed absent an abuse of that discretion. Smith v. Cincinnati Gas & Elec. Co. (1991), 75 Ohio App.3d 567, 572, 600 N.E.2d 325, 329. Abuse of discretion connotes more than an error in law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. American Process Design, Inc. v. DeBoer (Oct. 30, -13- 1998), Hamilton App. No. C-971045, unreported. In addition, there is no procedural abuse of discretion in the trial court's ruling on a summary judgment motion without first journalizing its ruling on the motion for leave to file. Indermill v. United Savings (1982), 5 Ohio App.3d 243; Bonilla v. Caraballo (June 11, 1992), Cuyahoga App. No. 62887, unreported. Accordingly, the trial court did not err in determining that plaintiff-appellee's motion for summary judgment was filed with leave of court as of the date of filing. This is particularly true in light of the fact that the motion was filed approximately three months prior to the ultimate trial date in this matter thereby allowing defendant-appellant ample time to respond to the merits contained within plaintiff-appellee's motion if he so desired. Finally, this court can find no abuse of discretion by the trial court in denying all remaining pending motions at the time it granted plaintiff-appellee's motion for summary judgment. The remaining motions dealt with costs and sanctions arising out of discovery disputes which had been resolved through previous court orders. Clearly, the trial court determined that sanctions were not warranted in this instance. Defendant-appellant's third assignment of error is not well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for further proceedings consistent with this court's opinion. -14- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee and defendants-appellants. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE TERRENCE O'DONNELL, P.J., CONCURS. DIANE KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART (See attached Concurring and Dissenting Opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75580 ROBERT E. SWEENEY, : : : CONCURRING Plaintiff-Appellee : : and v. : : DISSENTING J. WILLIAM PETRO, ET AL. : : OPINION : Defendants-Appellants : DATE: MAY 18, 2000 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully concur in part and dissent in part.1 I would affirm the judgment of the trial court in its entirety. The majority opinion contradicts established practice governing summary judgment on negotiable instruments under the Uniform Commercial Code, as well as opinions of this court, and other courts throughout Ohio. It then ignores Supreme Court Rules and existing authority of this court to reinstate dismissed claims for further proceedings, even though the trial court provided notice of the potential dismissal and already held the hearing the majority requires before dismissing them. Background 1 I concur in the majority's disposition of the third assignment, which finds no error in the trial court's denial of all pending motions other than for summary judgment and to dismiss. I dissent from the first and second assignments, which assert error in the trial court's grant of summary judgment and dismissal. -2- On November 15, 1994, defendant Petro signed a demand cognovit note in Cleveland in the principal amount of $10,000, with interest of 6% payable annually to the order of plaintiff Sweeney. By doing so Petro irrevocably consented in advance to Sweeney obtaining a judgment without notice or hearing. The entire purpose of such a confession of judgment provision is not to require the formality, expense, or delay involved in ordinary proceedings. Sweeney filed a complaint on the promissory note in the Cleveland Municipal Court and, nevertheless, served Petro. He attached a photocopy of the cognovit note as well as a copy of the check for the loan proceeds drawn on his personal out-of-town bank account. Petro twice requested and was twice granted leave for additional time to file his pleadings. The municipal court's docket reflects that the case was twice scheduled for default proceedings because of Petro's failure to timely file an answer. Petro's final leave to plead expired on September 10, 1997. On September 15, 1997, without showing good cause or excusable neglect, Petro belatedly filed an answer, counterclaim and third- party complaint. Although Petro listed virtually all affirmative defenses set forth in Civ.R. 8, he never denied signing the demand cognovit promissory note attached to the complaint. Petro's belated counterclaims and third-party claims were filed against Sweeney and his law firm, respectively.2 Petro 2 Petro never served the law firm with a summons and his claims against it were not a proper third-party complaint under Civ.R. 14(A) because the complaint was based on independent claims against the law firm and recovery was not dependent upon recovery by Sweeney against him on the personal loan. -3- alleged that he was hired in a professional relationship as an attorney by Sweeney's law firm. Petro asserted that the personal loan constituted a payment or advance for professional services. Petro sought to recover additional damages and an accounting. During the proceedings, Petro twice filed motions to transfer the case from the municipal court to the common pleas court. The second motion raised the same grounds as the first motion after the first had already been denied. Sweeney and his law firm filed an answer denying the allegations in the counterclaim and third-party complaint and requested the municipal court to dismiss them. For approximately the next year, the case was consumed with discovery and related disputes, with no proceedings on the merits or payments on the cognovit note. Petro sought extensive discovery of Sweeney's law firm files for a period of several years from August 1, 1992 through April 1995. Sweeney objected, arguing Petro was abusing the discovery process by seeking law firm documents protected by attorney-client privilege and work product doctrine which were not relevant to the pending claims. Sweeney also requested the trial court first rule on his pending request to dismiss Petro's claims. The trial court nevertheless ordered production of the requested information without limitation of any kind and without ruling on Sweeney's pretrial request to dismiss Petro's claims.3 3 Sweeney's response to Petro's motion to compel stated in part: it is requested that the Court *** rule on the plaintiff's request to dismiss the defendant's [Petro's] Counterclaim, Third- Party Complaint and Complaint for Accountancy [sic] ***. -4- Although each party made similar claims about his adversary, on at least one occasion Petro impeded Sweeney's discovery. At the last minute, on the eve of Petro's deposition, as Sweeney returned from out-of-town, Petro suddenly notified Sweeney that he was scheduled to undergo surgery and had to reschedule the deposition. The parties' depositions were rescheduled for approximately one week thereafter, after Petro completed his medical treatment. Before the delayed depositions were conducted, more than one year after the action had been filed and approximately four years after no payment had been made on the note, Sweeney filed a motion for summary judgment, supported by an attached copy of the cognovit note and loan proceeds check. Sweeney argued that he was entitled to judgment in accordance with the documents as a matter of law. Petro filed a two-page motion in opposition to summary judgment. Petro's brief did not address the merits of the motion for summary judgment, but argued that the motion was not filed with leave of court, that the case had been scheduled for trial, that he had not yet deposed Sweeney, and that copies of documents attached to his motion have not even been validated by anyone and are not of the evidentiary quality required by Rule 56(E), O.R. Civ. P. (Id. at pp. 1-2.) The trial court scheduled the matter for hearing on all pending motions and, in the event that such hearing was not dispositive of the case, for trial. The trial court's orders scheduling the matter for trial specifically stated, No continuances without compliance with M.C. Supp. Rule 16. Three -5- weeks before one scheduled date, in compliance with Mun.Ct.Loc.R. 7.01 and M.C. Supp.R 16, Sweeney filed a written motion for continuance, stating that he had oral surgery scheduled for that time. He requested the matter be reset sometime during the week of October 19, 1998. The trial court granted the request, stating as follows: Plaintiff's Motion for Continuance is hereby granted. The matter is reset for a motion hearing and/or trial on the merits on October 22, 1998 at 1:00 p.m. The Court is also available on October 23, 1998 at 1:00 p.m. if necessary. On the rescheduled date, approximately one and one-half years after the case was originally filed, Sweeney, his counsel, and Petro's counsel appeared, but Petro himself did not. At the outset of the hearing, the trial court called the case as follows: THE COURT: This matter is set for this date, August 20th. You selected this day. PETRO'S COUNSEL: Yes, your Honor. THE COURT: Is the plaintiff ready to proceed? SWEENEY'S COUNSEL: Yes, your Honor. THE COURT: And defense, do you want to make a statement? * * * THE COURT: Now, Mr. Gerstenslager [Petro's counsel], is pleading without his client. And he has made several phone calls and he was anticipating that his client was going to be here. PETRO'S COUNSEL: No. Right, yes. There is always an anticipation on the attorneys, your Honor. (Tr. 2, emphasis added.) The parties thereafter orally argued the merits of the pending motion for summary judgment on the cognovit note. At the end of -6- the discussion of the motion for summary judgment, in response to an inquiry by the trial judge, Petro's counsel conceded that his client signed the note. Following the hearing, the trial court announced that it was going to grant summary judgment for Sweeney on the cognovit promissory note. After further discussion with Petro's counsel, the trial court also announced its intention to dismiss Petro's counterclaims and third-party claims with prejudice for failure by Petro or his counsel to prosecute them at the scheduled trial. Petro's counsel participated in the hearing without objection and took no further action of any kind. Eight days thereafter the trial court journalized an order granting summary judgment for Sweeney and dismissing Petro's claims. Summary Judgment The majority reverses the trial court's grant of summary judgment on the grounds that plaintiff did not properly authenticate the evidence. (Ante at pp. 10-11.) It is not clear exactly what the majority believes should have been authenticated, but, regardless of how its argument is construed, the claim is unfounded. What makes the argument even more untenable is the fact that Petro does not even raise it in his brief on appeal. The majority's argument ignores the Uniform Commercial Code, set forth in R.C. 1303.36(A), which provides in pertinent part as follows: Proof of signatures and status of holder in due course (A) Unless specifically denied in the pleadings, in an action with respect to an instrument, the authenticity -7- of, and authority to make, each signature on an instrument is admitted. (Emphasis added.) E.g., Dryden v. Dryden (1993), 86 Ohio App.3d 707, 711-712, citing this court's opinion in Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223. Petro's answer did not specifically deny the authenticity of his signature on the note and loan proceeds check attached to the complaint in the case at bar. Evid.R. 902(9) further defeats any conceivable authentica- tion argument. It specifically provides as follows: Self-authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (9) Commercial paper and related documents Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. E.g., Rizzen v. Spaman (1995), 106 Ohio App.3d 95, 110 (negotiable instruments are self-authenticating ). Petro's counsel complained essentially that the original negotiable promissory note was not stapled to plaintiff's motion -8- for summary judgment.4 After conducting the oral hearing on the motion, the trial court held in its judgment entry as follows: Plaintiff [Sweeney] has presented the court with an original check in the amount of $10,000. made out to the defendant [Petro] along with an original note also signed by the defendant. Copies of these documents were substituted in the court files and stipulated to by counsel. The transcript of proceedings fully supports these conclusions. (Tr. 15-16.) Predicating reversal on authentication grounds is without any basis, therefore, because there was never any dispute whatsoever concerning the authenticity of the documents and signatures. Petro's counsel specifically stipulated, twice, that defendant's signature appears on the note.5 Finally, even if the original documents had not been presented to the trial court and the trial court had not made these express findings, photocopies and other duplicates of original documents are admissible to the same extent as the originals unless there is a genuine question concerning authenticity of the originals. 4 Petro's brief in opposition in the trial court before the hearing argued that (1) the motion for summary judgment was not filed with leave of court and that the case had been scheduled for trial, (2) he had not yet deposed Sweeney, and (3) copies of documents attached to his motion have not even been validated by anyone and are not of the evidentiary quality required by Rule 56(e), O.R.Civ.P. (Id. at pp.1-2.) By the time of the hearing, the trial court granted leave to file the motion for summary judgment and Petro had deposed Sweeney. His one and one-half page argument in his brief on appeal focuses solely on the validity of the cognovit provision in the note and does not raise any of these arguments. 5 Petro's counsel stated in part: Our real response to the motion is, that he did sign a note. *** He can acknowledge that he signed, or it is his signature on bottom of the note. (Tr. 9, 15- 16.) -9- Evid.R. 1003.6 Because there is no such issue in the case at bar, the trial court would not have abused its discretion by admitting into evidence the photocopies of the original. E.g., State v. Fricke (1984), 13 Ohio App.3d 331, 333 (holding the argument against admissibility of photocopy to be feckless ); see also Fogg v. Freisner (1988), 55 Ohio App.3d 139, 141 (photocopy of cognovit note). The majority also ignores that by producing the note in both original and duplicate Sweeney made a prima facie case of liability on the note according to its terms. R.C. 1303.36(B) provides in pertinent part: If the validity of signatures is admitted or proved and there is compliance with division (A) of this section, a plaintiff producing the instrument is entitled to payment *** unless the defendant proves a defense or claim in recoupment. E.g., Sur-Gro Plant Food Co., Inc. v. Morgan (1985), 29 Ohio App.3d 124, 129; Ross v. Brown-Holcomb (Feb. 4, 1993), Cuyahoga App. No. 63277, unreported at p. 2. Petro never claimed or presented any evidence that he paid the note or other defense or claim in recoupment in response to the motion for summary judgment. Accordingly, the trial court properly entered summary judgment for Sweeney as a matter of law. 6 Evid.R. 1003 provides as follows: Admissibility of duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. -10- The Uniform Commercial Code and Evidence Rules were designed to avoid precisely the hurdles erected by the majority in this case. The entire purpose of summary judgment is to terminate litigation and to avoid a formal trial where there is nothing to try. Norrisv. Ohio Standard Oil Co. (1982), 70 Ohio St.2d 1, 2. Because the trial court made no error, its judgment for Sweeney on the note should be affirmed. Remanding the matter for further proceedings as the majority proposes makes no sense because the trial court would have to duplicate what it already did, namely, enter judgment for Sweeney on the note. No error occurred and no conceivable claim of prejudice exists. The majority recognizes that the cognovit provision of the promissory note was valid in this case because there is no evidence the transaction was a consumer loan under R.C. 2323.13(E). (Ante at 10.) Thus, judgment was warranted for Sweeney on the note without any of the elaborate adversary proceedings conducted in this case.7 Moreover, at the hearing already held in the trial court, Petro's counsel merely requested that the court decide on the basis of a hearing rather than on summary judgment. (Tr. 13.) The transcript shows the trial court conducted a hearing as it would have in an ex parte trial after Petro failed to appear. Judgment for Sweeney on the note, therefore, was warranted on this basis as well. See Ohio Valley Radiology Associates, Inc. v. Ohio 7 Ironically, when signing Ohio Legal Blank standard form Cognovit Note No. 18-B (1974)(Other than consumer loans and consumer transactions), Petro specifically agreed to release all errors and waive all right to appeal. -11- Valley r the trial court in favor of Sweeney on the demand cognovit note should be affirmed. DismissalHosp. Ass'n (1986), 28 Ohio St.3d 118. I also dissent from the majority's order reversing the dismissal of Petro's claims. Notably, Petro's second assignment of error challenges only the dismissal of his third party complaint against the Sweeney law firm. By failing to object to the dismissal of his counterclaim against Sweeney individually, Petro waived any claim of error concerning it and the majority errs by sua sponte raising this unbriefed issue and reinstating the counterclaim. This is an easy case. The trial court bent over backwards to accommodate Petro throughout the proceedings, which lasted more than one and one-half years.8 When judgment day finally arrived, Petro's counsel appeared at the trial scheduled on the date Petro requested without his client or an explanation for his absence, belatedly sought to reschedule, declined to prosecute or introduce Petro's deposition testimony in his absence, and discussed with the trial court the impending dismissal of his claims for failure to prosecute them. 8 Petro's claims were filed out of rule. He did not even properly serve his third-party complaint. The third-party complaint was not within the scope of Civ.R. 14(A). Petro announced at the last minute he would not attend his own deposition. In addition to his unannounced and unexplained failure to attend or prosecute his claims at trial, his counsel made a belated oral motion for continuance which did not comply with the rules. -12- Now, Petro contends, in two sentences of his brief, for the first time on appeal, that he did not get sufficient notice before the dismissal journalized eight days later. This belated argument lacks merit for both procedural and substantive reasons. The Ohio Supreme Court recently declined to consider the adequacy of notice concerning a dismissal for failure to prosecute at trial when the complaining party did not raise the issue in the lower courts. Jones v. Hartranft (1997), 78 Ohio St.3d 368, 371 n. 2. Standard principles of waiver dictate that a party waives a claim of error concerning the adequacy of notice when counsel participates in a hearing on the issue without first raising an objection to the alleged lack of notice in the trial court. A party whose counsel attended a hearing and discussed an impending dismissal cannot validly claim for the first time on appeal, after an adverse decision, that notice of the impending dismissal was defective. By ignoring this waiver, the majority grants a civil litigant even greater protection than that afforded to a criminal defendant whose counsel is routinely found to waive errors and constitutional rights by failing to object during a hearing in a client's absence. E.g., State v. Carr (1995), 104 Ohio App.3d 699, 703. Even if Petro had not waived this claim of error concerning the adequacy of notice, however, it lacks merit. Civ.R. 41(B)(1) provides as follows: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to -13- plaintiff's counsel, dismiss an action or claim. (Emphasis added.) The trial court in the case at bar complied, literally, in all respects, with this rule by dismissing Petro's claims after notice to plaintiff's counsel. Rather than relying on the express terms of this rule, the majority obscures the issue by citing nine cases, only one of which is relevant. Four cases, Quonset Hut, Mindala, Perroti, and Shoreway Circle, involve the dismissal of claims for violation of pre-trial orders, on motion papers without any oral hearings attended by counsel. Because there were no oral hearings, the question in each case was whether there was written notice to inform plaintiff's counsel of the impending dismissal. Quonset Hut Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46 summarizes this line of authority as follows: For purposes of Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice for failure to comply with a discovery order when counsel has been informed that dismissal is a possibility and has a reasonable opportunity to defend against dismissal. Id. at syllabus. Four more cases, Logsdon, Carr, Weiler, and Potts, involved the failure by both a party and his counsel to appear for trial. As in the above cases, the trial court held no oral hearing. There was no discussion by the judge with plaintiff's counsel concerning the impending dismissal in any of these cases, because plaintiff's counsel did not appear for the scheduled trial. Again, because there was no oral hearing on the matter, the question in each case was whether there was written notice to inform plaintiff's counsel -14- of the impending dismissal. Logsdon summarizes this line of authority as follows: [i]t is error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned trial date. Id. at 128. The only relevant case cited by the majority is Heard v. Sharp (1988), 50 Ohio App.3d 34, which reaches a result contrary to the majority opinion. Heard involved the dismissal of claims for failure to prosecute after plaintiff's counsel appeared without his client at the scheduled trial. The trial court conducted an oral hearing with plaintiff's counsel, denied his belated motion for a continuance, and dismissed plaintiff's claims. This court affirmed the trial court's judgment in its entirety. The principle of oral notice is well established. Even cases cited by the majority and by Petro likewise recognize this basic principle that oral notice in the presence of plaintiff's counsel complies with Civ.R. 41(B)(1). Carr, cited by the majority ante at pp. 12-13, provides: We furthermore recognize that, if a plaintiff or his counsel actually appears at trial, it is sufficient that the motion to dismiss be made in their presence for plaintiff to receive the required notice. Thus, formal written notice is not mandated by Civ.R. 41(B)(1). Carr v. Green (1992), 78 Ohio App.3d 487, 490. Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App.3d 166, cited in Petro's brief on appeal at p. 5, likewise provides: Had counsel actually appeared at trial, it would have been sufficient that the motion to dismiss be made in his presence for him to have received the required notice. -15- Id. at 167 (citation omitted.) This court recognized this same principle in Ham v. Park (1996), 110 Ohio App.3d 803, 809, and many other cases which have followed Heard.9 Ham quotes the leading treatise cited in Civ.R. 41(B)(1) dismissal cases for this precise proposition. See McCormac, Ohio Civil Trial Practice (2d ed. 1992) Section 13.07 at 356-357. Civ.R. 41(B)(1) provides only one limitation on the power to dismiss for failure to prosecute: An action may be dismissed only after notice to plaintiff's counsel. The rule does not require any particular form, content, time, place, or manner of such notice. The majority's demand for more formalized or elaborate notice than occurred in this case is contrary to Civ.R. 1(B), which provides as follows: These rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice. I am aware of no case until the majority today which holds that oral notice to counsel on the record in open court during a hearing is insufficient to comply with Civ.R. 41(B)(1). The express terms of the rule, after notice to plaintiff's counsel, do not dictate such a conclusion. 9 Shoreway Circle Inc. v. Gerald Skoch Co., LPA (1994), 92 Ohio App.3d 823, cited by the majority, cites Heard as good authority. To date, we have consistently followed Heard. See e.g., Murphy v. Industrial Comm. of Ohio (Feb. 27, 1997), Cuyahoga App. No. 71149, unreported; Sato v. City of Brooklyn (Nov. 12, 1992), Cuyahoga App. No. 61067, unreported. -16- [T]he purpose of notice is to `provide the party in default a y to explain the default or correct it, or to explain hy the case should not bn opportunitw e dismissed with pre at 48 (citations omitted.) The notice provided by the trial judge to Petro's counsel fully satisfied this purpose. The record shows that every one was aware of this in the case at bar, including Petro's counsel, who took advantage of the opportunity to explain his views to the trial judge without raising any objection to the notice.10 The majority's opinion is directly contrary to our opinion in Heard which follows these well-established principles. The court in Heard summarized the facts of that case as follows: [P]laintiff's counsel was present for trial, but plaintiff was apparently in Atlanta, Georgia. Plaintiff's counsel did not have a permanent address for his client, but did contact plaintiff's sister, who said that plaintiff was aware of the trial date. Counsel could only theorize that the head injuries plaintiff had allegedly sustained caused him to blank out and forget the trial. Counsel asked that trial be continued. Id.at 34-35. The trial court denied the continuance and dismissed Heard's claims with prejudice for lack of prosecution. This court affirmed the dismissal. In the case at bar, Petro's counsel appeared for trial, as in Heard, without his client, who also was aware of the trial date. The trial court called the case as follows: 10 If there had in fact ever been any doubt about whether the issue of dismissal would arise at the hearing, it should have been dispelled by the fact that Sweeney filed and served on Petro's counsel two written requests that the trial court dismiss Petro's claims on other grounds. -17- THE COURT: This matter is set for this date, August 20 . You selected this day. PETRO'S COUNSEL: Yes, your Honor. THE COURT: Is the plaintiff ready to proceed? SWEENEY'S COUNSEL: Yes, your Honor. THE COURT: And defense, do you want to make a statement? *th* * THE COURT: Now, Mr. Gerstenslager [Petro's counsel], is pleading without his client. And he has made several phone calls and he was anticipating that his client was going to be here. PETRO'S COUNSEL: No. Right, yes. There is always an anticipation on the attorneys, your Honor. (Tr. 2, emphasis added.) Petro's counsel likewise theorized, as in Heard, that his client's absence may have been due to illness: THE COURT: And he had an opportunity to be here. He is not here for whatever reason. The matter was set and he is not here. If I find out at some point later [PETRO'S COUNSEL:] He just had a knee replacement. He was having quite some difficulty with it. He may be back in the hospital. I don't know. THE COURT: Well, that is what phones are for. PETRO'S COUNSEL: Yes. (Tr. 16, emphasis added.) Petro's counsel, as counsel in Heard, likewise provided nothing to substantiate his claim that his client's absence may have been due to illness.11 11 Petro made the same health claim two months earlier on the eve of his deposition when the case was last scheduled for trial. The parties agreed at that time to reschedule his deposition for one week later when he was better to accommodate him. Petro's explanation differed in an affidavit stapled for the -18- Finally, as in Heard, Petro's counsel thereafter orally requested a continuance: PETRO'S COUNSEL: With regard to the Defendant's Third Party Complaint, I would ask respectfully ask a continuance be granted until I can find out where he is. THE COURT: Case was set for trial. I'm going to dismiss it for want of prosecution. Case was set for today. PETRO'S COUNSEL: Okay. SWEENEY'S COUNSEL: Thank you, your Honor. THE COURT: I'm going to dismiss it with prejudice. (Tr. 17, emphasis added.) The trial court, as in Heard, thereafter denied the continuance and dismissed the claims with prejudice. The majority nevertheless declines to follow Heard and finds that the trial court committed reversible error by adhering to such precedent. In an effort to distinguish Heard, the majority observes that Heard was living out of the area, and was not in contact with his attorney for a prolonged period of time, and there was no indication that he would appear at a new trial if a continuance had been granted. (Ante at pp. 13-14.) first time to his brief on appeal: 2. On or about October 21, 1998 while I was on business in Columbus, Ohio I became violently ill with the flu, and 3. I was unable to attend the trial of the above captioned matter due to my illness and was unable to even return to Cleveland or contact my attorney until after the time of the trial scheduled for 1:00 P.M. on October 22, 1998 ***. We are unable, however, to consider material which is appended to a brief on appeal but not presented to the trial court. State v. Ishmail (1978), 54 Ohio St.2d 402. -19- Even if these were viable grounds for distinguishing Heard, however, the record does not support them because: (1) the record contains no information concerning Petro's residence,12 (2) the record does not reveal when Petro's counsel last spoke to Petro,13 and (3) the record contains nothing whatsoever to indicate that Petro would attend a new trial if a continuance had been granted. I have quoted each excerpt of the transcript concerning these matters, and the majority's conclusory argument to the contrary is simply unsupported by the record. More importantly, however, the majority does not address any of the authorities other than Heard that recognize oral notice to counsel is sufficient for purposes of Civ.R. 41(B)(1). Even if this case were not identical to Heard, the principle that oral notice to counsel is sufficient for purposes of Civ.R. 41(B)(1) is well established. If anything, the facts of this case are much worse than in Heard. Throughout the proceedings, however, the trial court accommodated Petro's requests. The trial court twice granted his requests for more time to plead, even though the case had been set for a default hearing because Petro did not timely answer. After obtaining these extensions, Petro still belatedly 12 The complaint against Petro was served at a business address in Cleveland. The record refers to his purchase of real estate in Florida. The only other information is the affidavit filed with his brief on appeal, which states he was in Columbus, Ohio, at the time of trial. 13 The record shows only that counsel anticipated his client was going to appear, made calls during the delay before the proceedings began on the record, and left his cellular phone on in the court room in case his client called. -20- filed his claims. The record shows that Petro's deposition had to be rescheduled when, at the last minute before it was set to begin, he informed Sweeney that he had scheduled a medical procedure for the same time. Approximately one and one-half years elapsed since the case was filed, and trial had already been continued several times. Moreover, Sweeney requested twice, in written documents served on Petro's counsel, that the trial court dismiss the action.14 The trial court ultimately cleared its calendar of all other matters on its docket so that it could decide this case, because it was ripe for disposition. Petro, who was himself an attorney, admittedly knew of the scheduled trial, yet did not attend, and did not even call anyone to inform his attorney, the court, or opposing counsel that he would not appear or to suggest an alternative date. Petro's counsel did not seek to proceed with the scheduled trial by introducing the deposition testimony of Petro or offer to go forward without him. Instead counsel sought another continuance. In suggesting the court could have granted a continuance, the majority overlooks applicable rules governing the scheduling of cases. Municipal Court Loc.R. 7.01 provides: All motions for continuances shall be served seven (7) days prior to hearing or trial. The seven (7) day period shall not include the hearing or trial date. (Emphasis added.) 14 Although neither request contemplated Petro would fail to appear for trial, the requests provided further notice of a possible dismissal and notified Petro of the need to defend against dismissal. -21- Rule 16 of the Supreme Court Rules for the Superintendence of Municipal Courts provided in part as follows: (A) Continuances. No party shall be granted a continuance of a trial or hearing without a written motion from the party or his counsel stating the reason for the continuance. No court shall grant a continuance to any party without first setting a definite date for the trial or hearing. (Emphasis added.) An oral motion for continuance, after trial was already scheduled to begin, does not comply with either of these rules. Even after the oral hearing between the trial judge and his counsel discussing the impending dismissal, Petro had yet another opportunity to persuade the trial court before it dismissed his claims. Despite actual notice that the trial court intended to dismiss his claims after counsel failed to prosecute them at the scheduled trial, Petro did not offer to voluntarily dismiss them without prejudice. Nor did Petro subsequently offer any evidence after the hearing to explain why he failed to prosecute his claims or to seek reconsideration of the trial court's intended disposition. The record shows that the trial court did not dismiss Petro's claims by journal entry until eight days after he failed to prosecute them and eight days after he failed to offer any proof to excuse his failure to do so. In summary, the trial court already provided the requisite notice, conducted one hearing and Petro had a second opportunity to request the trial court consider any other information he desired before it dismissed his claims. Remanding this matter for a third -22- opportunity to permit him to explain why he did not appear or proceed at the scheduled trial is unsound and will be unavailing. See Weiler v. State (May 14, 1996), Franklin App. No. 95API11-1419, unreported. It serves only to further delay, to increase expense, and to further multiply the proceedings in this case. I am unable to concur in the majority opinion because it fails to follow well established authority recognizing the effectiveness of oral notice of impending dismissal by the trial judge on the record in open court, because it substantially deviates from an extensive body of law under the Uniform Commercial Code governing commercial instruments, and because it does not satisfactorily explain its deviance. I would affirm the judgment of the trial court in its entirety. #####20000518 75636SOLOMON DORSEY v FORD MOTOR COMPANY, ET AL COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75636 SOLOMON DORSEY : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : FORD MOTOR COMPANY, ET AL. : OPINION : Defendants-Appellees : : DATE OF ANNOUNCEMENT : MAY 18, 2000 OF DECISION : : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas : Court Case No. CV-306698 JUDGMENT : VACATED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiff-Appellant: Thomas W. Bevan David S. Bates Bevan Professional Building 10360 Northfield Road Northfield, Ohio 44067 For Defendants-Appellees: Timothy J. Krantz Office of General Counsel Ford Motor Company P.O. Box 9900 Brookpark, Ohio 44142 For Industrial Commission, et al.: Betty Montgomery Attorney General of Ohio Robert J. Marek Assistant Attorney General State Office Bldg., 12th Floor 615 West Superior Avenue Cleveland, Ohio 44113-1899 ANNE L. KILBANE, J.: Appellant Solomon Dorsey dismissed his complaint, filed in response to Appellee Ford Motor Company's ( Ford ) notice of appeal -2- from the Industrial Commission's allowance of his occupational disease claim, before an order granting judgment for Ford was journalized. Judge Burt W. Griffin then made a ruling correcting the entry to reflect it was made before Dorsey's dismissal. Dorsey claims the judge abused his discretion in denying his motion for relief from that judgment under Civ.R. 60(B). We will not address that issue because we vacate the judgments as void ab initio. On November 16, 1995, a District Hearing Officer for the Ohio Industrial Commission ruled that Dorsey was entitled to participate in the claim fund for the condition of deQuervain's tenosynovitis right wrist and right shoulder impingement. When the Staff Hearing Officer affirmed the allowance and the Commission refused to hear Ford's subsequent appeal, Ford filed its notice of appeal on April 12, 1996, in the Cuyahoga County Common Pleas Court. On June 19, 1998, Dorsey filed his complaint in response, alleging that he sustained an occupational disease in the course of and arising out of his employment and requesting judgment against Ford, and finding that he may continue to participate in the Ohio Workers' Compensation System. Pursuant to Loc.R. 21, part I, a case management conference was held on August 5, 1996, and a resultant order, journalized on August 6, 1996, indicated that Dorsey's lawyer had failed to appear. It further provided: Pretrial set 1-7-97 at 3:00 p.m. All clients must be present. Defense counsel to notify PLTF counsel of Pretrial & discovery schedule. -3- The record reflects the postcard containing this information and addressed to Dorsey, the individual, was returned by the U.S. Postal Service on August 22, 1996. Dorsey's lawyer received a letter from Ford's notifying him of the scheduled pretrial but not that his client was to be present. An entry journalized January 8, 1997, stated: P.T. held. Pltf. & pltfs-counsel fail to appear. Defense counsel is present[.] Judgment will be granted for deft on 1/27/97 at 8:30 am unless both pltf & pltfs counsel appear & show good cause for their non-appearance on 8/5/96 & 1/7/97, their failure to take any action in this case since 7/5/96 [sic] & failure to respond to defts requests for discovery. Dorsey's lawyer wrote to the judge on January 9, 1997, explaining that an accident on Interstate 77 prevented him from being present on January 7, 1997; he had not received any notices from the clerk of court's office because he was not noted as an attorney on the case; he had provided discovery to Ford; and as he understood the judge was inclined to grant judgment for Ford, he requested that a hearing or another pretrial be scheduled. The letter was also sent to Ford. On January 27, 1997 at 10:52 a.m., Dorsey's lawyer filed a notice of dismissal without prejudice pursuant to Civ.R. 41(A)(1). In an entry journalized January 28, 1997, the judge noted: Judgment granted for deft inasmuch as neither pltf. nor pltfs' counsel have appeared to show cause for their non-appearance on 1/7/97. On the pre-printed entry the judge checked the disposition box as court trial and marked the order final although the record indicates it was without prejudice. On March 19, 1997, Ford filed a motion for judgment suggesting -4- that the judge supplement his January 28, 1997 order and specifically indicate that Dorsey did not have the right to participate in the Workers' Compensation Fund for his alleged work- related injuries. While Ford acknowledged receipt of some discovery materials before January 13, 1997, it contended that, because Dorsey failed to appear before the court on three occasions, he should not be allowed to re-file this action within one year through the use of his Civ.R. 41 (A)(1) dismissal. In opposition, Dorsey's attorney reiterated the contents of his January 9, 1997 letter: the clerk's office never entered my name in the court's computer[;] therefore, I have never received notice of the case management conference or the pretrial because of a now-corrected procedural error in the clerk's office; that an Interstate 77 accident on January 7, 1997 caused him to be 30 minutes late and miss that pretrial; that the answers to interrogatories provided to Ford were only two days past the discovery deadline; that he had responded to all discovery requests; and he did not believe that Dorsey should be sanctioned in such a harsh manner. In a three-page written opinion and order journalized May 7, 1997, the judge corrected the January 28, 1997 journal entry to reflect that it was journalized on January 27, 1997 at 8:30 a.m. It noted that [s]ince this was a judgment for the defendant pursuant to notice, it was issued pursuant to Common Pleas Rule 21, Part III (H)(2). A judgment for the defendant is, by definition, with prejudice as to the plaintiff's claim. The judge contended -5- he had jurisdiction to enter the judgment because he amended his January 28, 1997 journal entry to reflect that it was filed before Dorsey's voluntary dismissal. Dorsey filed his Civ.R. 60(B) request for relief from judgment on May 22, 1997. He asserted, again, the reasons his lawyer failed to appear and that he had a meritorious claim because the occupational disease claim had been allowed at all administrative levels. Ford countered arguing that Dorsey failed to provide any exhibits or affidavits in support of his motion and that the judge should summarily deny his request. On June 6, 1997, Dorsey responded and provided an affidavit from his lawyer and information from the clerk's office to support his assertion that he did not receive notice of the case management conference or other dates. Seventeen months later, on November 3, 1998, the judge denied Dorsey's request for relief from judgment. Inasmuch as PLTF. has failed to submit any affidavits or other evidentiary documents a required to support motions and inasmuch as the motion for relief from judgment does not set forth facts showing a basis for prevailing on the merits[,] the motion for relief from judgment filed 5- 22-97 is denied. See, East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216; GTE Automatic Electric v. ARC Industries[] (1978)[,] 47 Ohio St.2d 146. Dorsey raises a single assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60. Dorsey asserts he has a meritorious claim, the motion was timely, and his neglect was excusable. Therefore, the judge erred in preventing his case from being determined on its merits. Ford contends that the record reflects that Dorsey's lawyer had notice -6- of all the dates and that there is no proper evidentiary support showing his claim has merit. Civ.R. 41(A)(1) permits a plaintiff to voluntarily dismiss his or her action without order of the court by filing a notice of dismissal any time `before the commencement of trial unless the case involves a counterclaim which cannot be independently adjudicated.'" Goble v. Univ. Hosp. of Cleveland (1997), 119 Ohio App.3d 555, 557, 695 N.E.2d 1171, quoting Holly v. Osleisek (1988), 40 Ohio App.3d 90, 91, 531 N.E.2d 766, 768. A worker's compensation claimant may employ Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer under R.C. 4123.512. Kaiser v. Ameritemps, Inc. (1999), 84 Ohio St.3d 411, syllabus. The right to voluntarily dismiss an action under Civ.R. 41(A)(1) exists even when a plaintiff files a notice of dismissal after the court announced its intent to grant motions to dismiss and instructed counsel to prepare a judgment entry but before that final judgment entry is journalized. Kracht v. Kracht (June 5, 1997), Cuyahoga App. Nos. 70005, 70009, unreported, citing Conley v. Jenkins (1991), 77 Ohio App.3d 511. `A court speaks only through its journal entry, and until journalized, a court's decision can have no effect on a party's right to voluntarily dismiss an action pursuant to Civ.R. 41(A).' Id., quoting Bank One v. O'Brien (Dec. 31, 1991), Franklin App. Nos., 91 AP-165, 91AP-440, unreported at 11; see, also, Civ.R. 58(A) ( A judgment is effective only when entered by the clerk upon the journal. ). Once a plaintiff files a voluntary dismissal, the -7- trial judge is immediately divested of jurisdiction. Goble, supra; see Page v. Riley (1999), 85 Ohio St.3d 621, 623, 710 N.E.2d 690 ( When a trial court unconditionally dismisses a case or a case has been properly voluntarily dismissed pursuant to Civ.R. 41(A)(1), the trial court patently and unambiguously lacks jurisdiction to proceed, and a writ of prohibition will issue to prevent the exercise of jurisdiction. ). A judgment rendered by a court lacking subject matter jurisdiction is void ab initio. Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus. The question of subject matter jurisdiction may be raised for the first time on appeal, or the court may raise it sua sponte at any stage of the proceedings. Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, 358 N.E.2d 536; see Civ.R. 12 (H)(3). The authority to vacate a void judgment is not derived from Civ.R. 60(B); rather, it constitutes an inherent power possessed by Ohio courts. Patton, 35 Ohio St.3d 68 at paragraph four of the syllabus. A motion to vacate a void judgment, therefore, need not comply with the requirements of Civ.R. 60(B) which the petitioner ordinarily would assert to seek relief from a jurisdictionally valid judgment. Demianczuk v. Demianczuk (1984), 20 Ohio App.3d 244, 485 N.E.2d 785. As noted above, the time stamp on Dorsey's notice of dismissal, which was without prejudice pursuant to Civ.R. 41(A)(1), is 10:52 a.m. on January 27, 1997. As such, the judge lost jurisdiction of the action as of that date and time. Goble, 119 -8- Ohio App.3d at 557. When the clerk received and journalized the judge's January 28, 1997 order which purportedly granted judgment in favor of Ford, that order had no legally binding effect. See id.; Kracht, supra. Moreover, the judge had no jurisdiction to amend the time-stamp on the January 28 order to circumvent Dorsey's right under Civ.R. 41(A)(1). Cf. R.C. 2303.14,-.26 (clerk of court of common pleas statutorily charged with duty to keep journal). These orders are, therefore, void ab initio, and Dorsey's request for relief from judgment need not have complied with Civ.R. 60(B). Pursuant to the inherent powers of this court, we vacate the orders of January 28, 1997, vol. 2041, pg. 750; May 7, 1997, vol. 2083, pgs. 250-252, 252A; and November 3, 1998, vol. 2276, pg. 189. -9- It is ordered that the appellant recover from the appellee their costs herein taxed. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JUDGE ANNE L. KILBANE PATRICIA ANN BLACKMON, J., CONCUR; TERRENCE O'DONNELL, P.J. CONCURRING IN JUDGMENT ONLY. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75636 SOLOMON DORSEY : : Plaintiff-Appellant : CONCURRING : vs. : OPINION : : FORD MOTOR COMPANY, ET AL. : : Defendant-Appelleess : : DATE: MAY 18, 2000 TERRENCE O'DONNELL, P.J., SEPARATELY CONCURRING: While I agree with the conclusion reached in the majority opinion, I write separately to articulate my view of the unique facts and disposition of this case. Here, Ford had filed a notice of appeal in the Court of Common Pleas from the Industrial Commission seeking to challenge Dorsey's allowance of his occupational disease claim. By statute, it became Dorsey's obligation to file a complaint in the common pleas court and he did so in timely fashion. However, when Dorsey failed to attend scheduled court appearances, the court notified all parties of its intention to grant judgment to Ford on January 27, 1997. However, before the court journalized that entry, Dorsey filed a Civ.R. 41(A)(1)(a) notice of dismissal of its complaint on January 27, 1997, and on the next day, January 28, 1997, the court journalized judgment for Ford. In May, Dorsey filed a motion for relief from that judgment and now appeals from the trial court's -2- denial of that relief. In my view, the dispositive authority before us is found in Kaiser v. Ameritemps, Inc. (1999), 84 Ohio St.3d 411, which authorizes an employee to voluntarily dismiss an employer's appeal to common pleas court. Therefore, when Dorsey filed his Civ.R. 41(A)(1)(a) dismissal on January 27, 1997, the case terminated, and the court had no jurisdiction to take any subsequent action. The May 7, 1997 journal entry of the court correcting the January 28 journal entry to change the date and time it was journalized is contradicted by the actual entry itself. A court speaks through its journal. Accordingly, the May 7, 1997 judgment from which Dorsey appeals is void as the court had no authority to enter it. Hence, in my view, this appeal should be dismissed. #####20000518 76065MARLENE A. KOZLEVCHAR v FRANK A. KOZLEVCHAR COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76065 MARLENE A. KOZLEVCHAR : : JOURNAL ENTRY Plaintiff-Appellee : Cross-Appellant : AND : vs. : OPINION : FRANK A. KOZLEVCHAR : : Defendant-Appellant : Cross-Appellee : DATE OF ANNOUNCEMENT MAY 18, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Case No. D-200088 JUDGMENT: MODIFIED IN PART AND AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee JOSEPH A. MAMONE Cross-Appellant: Gurney, Miller & Mamone 75 Public Square, #525 Cleveland, Ohio 44113 For Defendant-Appellant KIM R. RUSHWORTH Cross-Appellee: 8228 Mayfield Road Chesterland, Ohio 44026 TERRENCE O'DONNELL, PRESIDING JUDGE: Frank Kozlevchar appeals from a judgment of the domestic relations court which increased the amount of spousal support to -2- his ex-wife, Marlene Kozlevchar, from $705.00 per month to $950.00 per month; on appeal, he argues that the court abused its discretion in considering his wife's objections to the magistrate's report because she did not support them with a complete transcript and because she did not properly serve the transcript on him. Marlene Kozlevchar cross-appeals from the same judgment arguing that the court failed to restore her husband's spousal support obligation to the original amount of $1,500.00 per month and she contends the court miscalculated his arrearage on those payments. After reviewing the record, we have concluded that the court abused its discretion when it raised the husband's support obligation from $705.00 to $950.00 per month. Therefore, we modify the decision of the trial court in accordance with this opinion. The facts of this case reveal that the parties divorced in 1991, and at that time the court ordered the husband to pay spousal support to the wife in the amount of $1,500.00 per month for ten years. At that time, the husband worked at Eaton Corporation earning approximately $60,000.00 per year, and his wife had been unemployed. In August 1995, at the age of fifty-five and one-half, he retired from Eaton, because of failing health and job-related stress. Due to his unexpected retirement, his monthly income decreased from $5,000.00 per month to $2,366.00 per month. Because he could no longer afford to pay spousal support of $1,500.00 per month, he filed a motion with the court to modify it. The court -3- referred the matter to a magistrate, who heard the motion on the following dates: July 1, 1997; July 14, 1997; September 22, 1997; October 27, 1997; December 17, 1997; December 18, 1997; and January 20, 1998. More than a year later, on July 10, 1998, the magistrate ordered the spousal support reduced to $705.00 per month, denying attorney fees to the wife. She then filed objections to the magistrate's report, but only filed a partial transcript of both the July 1, 1997 and the January 20, 1998 hearings. On February 2, 1999, the trial court, after considering the matter, modified the magistrate's recommendation, increased the husband's spousal support obligation to $950.00 per month, and awarded the wife $1,000.00 in attorney fees. Both parties now appeal and each sets forth two assignments of error. The husband's first assignment of error states: THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION BY CONSIDERING APPELLEE'S OBJECTIONS TO THE MAGISTRATE'S DECISION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW. Here, the husband is challenging the court's ability to review the wife's objections without the benefit of a full transcript of the evidence from all the dates of the hearing. The issue presented to us here concerns whether the court may consider objections to a magistrate's report that had been supported by a partial transcript. Civ.R.53(E)(3)(b) provides that objections to a magistrate's report shall state with particularity the grounds for the objection. Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate -4- relevant to that fact. In Purpura v. Purpura (1986), 33 Ohio App.3d 237, the court stated: A trial court may properly adopt a referee's factual findings without further consideration where the person objecting to the referee's findings of fact fails to provide the court with a transcript of the referee's hearing or other evidentiary material to contest the referee's findings. Further, in Wade v. Wade (1996) 113 Ohio App.3d 414, citing Hearn v. Broadwater (1995) 105 Ohio App.3d 586, the court stated: Regardless of whether a transcript has been filed, the trial judge always has the authority to determine if the referee's findings of fact are sufficient to support the conclusions of law drawn therefrom and come to a different legal conclusion if that conclusion is supported by the referee's findings of fact. The record here reveals the wife's objections contended that the magistrate erred in determining the following issues: whether a change in circumstances involving spousal support had been contemplated at the time of the divorce; whether the husband's retirement had been early and voluntary; whether the husband could afford to pay $1,500.00 per month in spousal support; whether the wife's educational degree constituted a change in her circumstances; and whether the husband should have been ordered to pay the wife's attorney fees. We have concluded that the partial transcript submitted by the wife provides testimony relevant to each objection she has made to the magistrate's report. Therefore, we have concluded that in accordance with Civ.R. 53(E)(3)(B), Purpura and Wade, the court did not abuse its discretion when it considered appellee's objections -5- to the magistrate's report. Thus, this assignment of error is not well taken. A TRIAL COURT ABUSES ITS DISCRETION WHEN IT CONSIDERS OBJECTIONS TO A MAGISTRATE'S DECISIONS, WHICH OBJECTIONS ARE SUPPORTED BY PARTIAL TRANSCRIPTS THAT WERE NOT SERVED ON THE OPPOSING PARTY AND DO NOT BEAR A PROOF OF SERVICE. The husband claims that Civ.R. 5(D) required his wife to serve him with a copy of the transcript she filed. Alleging that the transcript did not bear a proof of service, he believes the court improperly considered it when it adjudicated this case. In this instance, the husband has misread Civ.R. 5(D); the civil rules do not provide that transcripts must be served on parties. Accordingly, this assignment of error is not well taken. The cross-assignments of error state: THE TRIAL COURT ERRED WHEN IT DID NOT RESTORE CROSS APPELLEE'S SPOUSAL SUPPORT OBLIGATION. THE TRIAL COURT ERRED WHEN IT MISCALCULATED THE NUMBER OF MONTHS THROUGH WHICH AN ARREARAGE OF SPOUSAL SUPPORT WOULD EXIST. Marlene Kozlevchar urges that the court abused its discretion when it failed to restore the spousal support order to $1,500.00 per month, asserting that voluntary retirement does not warrant a modification of support; that her husband misrepresented his financial position; and that early retirement had been contemplated at the time of the divorce. She also maintains that the court miscalculated the amount in arrearage. Frank Kozlevchar maintains the court properly reduced his support obligation and correctly calculated his amount in arrearage. -6- The issue, then, concerns whether the court erred when it failed to raise cross-appellee's spousal support award to $1,500.00 and whether it properly calculated the arrearage. In Roach v. Roach (1989) 61 Ohio App.3d 315, the court stated: Where modification of an existing order for the payment of sustenance alimony is requested, the threshold determination is whether there has been a substantial change in circumstances which was not contemplated at the time of the original order. In addition, the alleged change in circumstances must not have been purposely brought about by the party seeking modification. (Citations omitted). Regarding the wife's claim that the court erred when it failed to restore the award of spousal support to $1,500.00 per month, the evidence presented reveals that the husband's income had been approximately $5,000.00 per month at the time of the original decree due to his employment at Eaton Corporation. After retirement, the record reveals that his gross income decreased to $2,366.00 per month. Such a decrease constituted a substantial change in circumstances which had not been contemplated at the time of the original order and justified a reduction in the husband's spousal support obligation. The magistrate reduced the obligation from $1,500.00 per month to $705.00 per month, proportionate to the reduction in the husband's income. The trial court, however, after considering the wife's objections to the magistrate's recommendation, increasedthe spousal support obligation to $950.00 per month and also ordered payment of $1,000.00 toward the wife's attorney fees. Here, the record supports the court's conclusion that the husband's retirement had not been voluntary; that he could not have -7- contemplated the state of his health nine years after the date of the divorce; and that the husband's income had been reduced by more than half following his retirement. Based on the testimony presented, we have concluded that the record supports the actions taken by the magistrate in this case. However, the record presented to us does not contain evidence to justify the trial court's increase of $705.00 per month to $950.00 per month. Accordingly, we are constrained to vacate the support order of $950.00 per month and to reinstate the $705.00 per month order of spousal support. Regarding the wife's claim that the court miscalculated the husband's amount in arrearage, we begin by noting that pursuant to App.R. 9(B), it is incumbent upon the appellant to file a complete transcript of the proceedings upon which the assignments of error are predicated. In this instance, the wife failed to file a copy of the September 22, 1997 transcript or to demonstrate the manner in which the court miscalculated the husband's arrearage. Accordingly, we cannot determine this assignment of error to be well taken. We do however recognize that the court ordered the husband to pay an additional $100.00 per month to the wife toward the arrearage until all sums are paid in full. This alone provides a basis for the award of $1,000.00 in attorney fees. We have therefore concluded that the assignments of error presented by the wife are not well taken. Accordingly, the judgment of the trial court awarding spousal support of $950.00 per month is modified to $705.00 per month in conformity with the evidence; said judgment is -8- affirmed in all other respects. Judgment accordingly. -9- It is ordered that defendant-appellant cross-appellee recover of plaintiff-appellee cross-appellant costs herein. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing Domestic Relations Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, J., and MICHAEL J. CORRIGAN, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(a). #####20000518 76074MARTIN G. KRIST v RICHARD W. CURTIS, ET AL COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76074 MARTIN G. KRIST : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : RICHARD W. CURTIS, ET AL. : : Defendants-appellants : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-365364 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DANIEL T. TODT, ESQ. DANIEL T. TODT & ASSOC. 20th Floor, Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 For Defendants-Appellants: GREGORY R. GLICK, ESQ. GREGORY R. GLICK, L.L.C. 23240 Chagrin Blvd. Sixth Floor Beachwood, Ohio 44122 (continued) For Defendants-Appellants: GREGORY M. LICHKO, ESQ. ROY J. SCHECHTER, ESQ. LICHKO & SCHECHTER 1422 Euclid Avenue 1510 Hanna Building Cleveland, Ohio 44115 -3- ANN DYKE, A.J.: Defendants Richard W. Curtis, Randy Curtis and Intercon Financial Corp. appeal from the order of the trial court which denied their motion to stay litigation of an action filed by plaintiff Martin G. Krist in order to arbitrate the matter. For the reasons set forth below, we affirm. On September 18, 1998, Krist filed a three claim complaint against Richard Curtis, Intercon Financial Corp. and Randy Curtis. In his first claim for relief, Krist asserted that he entered into a series of agreements with defendants, that he performed all obligations required of him pursuant to the terms of the agreements, and that he is now entitled to over $10,000,000 in compensation. In his second claim for relief, Krist alleged that defendants owed him $241,900 on an account stated. In his third claim for relief, Krist asserted that defendants Richard Curtis and Randy Curtis falsely and fraudulently induced plaintiff to invest $100,000 with defendants by, inter alia, falsely claiming that Randy Curtis was a vice president of the Federal Reserve of Chicago, and that they successfully ran investment programs which yield returns of 40% per week. Defendants submitted an answer in which they denied liability and denied plaintiff's claims regarding the existence of the agreements. Defendants asserted, however, that they were entitled to arbitrate this dispute pursuant to the terms of a contract which plaintiff signed on March 25, 1994. Defendants moved to stay the proceedings pending such arbitration. -4- On February 17, 1999, the trial court denied defendants' motion to stay the proceedings, citing plaintiff's allegations of fraud and the joinder of parties who were not parties to the contract. Defendants now appeal pursuant to R.C. 2711.02, and assign four errors for our review. Defendants' first, second and third assignments of error assignments are interrelated and state: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS- APPELLANTS, INTERCON FINANCIAL CORP., RICHARD W. CURTIS, AND RANDY P. CURTIS BY (1) REFUSING TO ENFORCE THE WRITTEN CLAUSE IN THE CONTRACT BETWEEN THE PARTIES MAN- DATING ARBITRATION OF ALL DISPUTES BEFORE THE AMERICAN ARBITRATION ASSOCIATION, AND (2) REFUSING TO STAY THE COMMON PLEAS COURT CASE PENDING ARBITRATION. BECAUSE THE COMPLAINT CONTAINS NO ALLEGATION OF FRAUD WITH RESPECT TO THE MAKING OF THE ARBITRATION PROVISION FOUND AT PARAGRAPH 3 OF THE SUBJECT AGREEMENT, APPELLEE'S CLAIM FOR FRAUD ARISING FROM THE INDUCEMENT OR PERFOR- MANCE OF THE AGREEMENT MUST BE ARBITRATED. ALL OF APPELLEE'S CLAIMS AGAINST ALL DEFENDANTS MUST BE RESOLVED THROUGH ARBITRATION. Within these assignments of error, defendants maintain that the trial court erred in refusing to stay this matter because the parties' contract requires the arbitration of all disputes, and because plaintiff's fraud claim does not contain allegations that the arbitration provision was fraudulently induced. In Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270, the Supreme Court held that a charge of fraud in the inducement of a contract containing an arbitration clause was a question for arbitrators and not for -5- the court, unless the claimant can demonstrate specifically that the arbitration clause itself was fraudulently induced. However, it has been held that where the allegation is that of fraud in the factum, i.e., ineffective assent to the contract, the intent to arbitrate will not be presumed. See Roberts v. Bank of Am. NT & SA (1995), 107 Ohio App.3d 301, 305; Cancanon v. Smith Barney, Harris, Upham & Co. (C.A.11, 1986), 805 F.2d 998, 1000; T & R Enterprises, Inc. v. Continental Grain Co. (C.A.5, 1980), 613 F.2d 1272, 1278. The Roberts Court noted that under Ohio law, fraud in the factum is defined as an "intentional act or misrepresentation of one party [which] precludes a meeting of the minds concerning the nature or character of the purported agreement." (Citing Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 13). Thus, the decisive factor is whether the allegation is that of fraud in the factum which attacks the effectiveness of the assent. Moreover, this matter involves a series of agreements, not all of which include arbitration clauses. In ACRS, Inc. v. Blue Cross & Blue Shield of Minnesota (1998), 131 Ohio App.3d 450, 457, this court stated: [T]he fact that ACRS and NPMC possibly entered into a written contract for marketing a different pharmaceutical rebate program than the one designated in the complaint does not lead one to conclude, as defendants-appellants maintain, that the agreement applies to the underlying disputes in the subject matter. The fact remains that defendants-appellants failed to produce an authenticated copy of a written arbitration clause that was applicable to the R.Ph.'s Choice program which is the subject of the plaintiffs-appellees' complaint. The possible existence of other contracts has no bearing on the arbitration of -6- this dispute. A party cannot be forced to submit to arbitration a dispute which it has not agreed to submit. In this instance, plaintiff's complaint asserts various claims which are derived from a series or agreements and the facts surrounding the making of those agreements. Not all of the agreements require arbitration. Defendants have therefore failed to demonstrate that they are entitled to arbitration of the matter and the trial court properly denied defendants' motion to stay the proceedings. In accordance with the foregoing, the first, second and third assignments of error are overruled. Defendants' fourth assignment of error states: AS APPELLANTS IMMEDIATELY RAISED ARBITRATION AS AN AFFIRMATIVE DEFENSE IN THEIR ANSWER, AND PROMPTLY MOVED FOR A STAY PENDING ARBITRATION SOON THEREAFTER, THERE HAS BEEN NO WAIVER OF THE RIGHT TO COMPEL ARBITRATION. Herein, defendants insist that they have not waived the arbitration provision herein. In light of our disposition of the previous assignments of error, this claim is obviously rendered moot and we will not address it herein. App.R. 12(A)(1)(c). In accordance with the foregoing, the judgment of the trial court which denied defendants' motion to stay this matter and to compel arbitration is affirmed. -7- It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ROCCO, J., CONCURS. (SEE ATTACHED CONCURRING OPINION) KILBANE, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76074 MARTIN G. KRIST : : Plaintiff-appellee : CONCURRING : vs. : OPINION : RICHARD W. CURTIS, et al : : Defendants-appellants : DATE: MAY 18, 2000 KENNETH A. ROCCO, J. CONCURRING: Although I concur in the majority opinion's decision to affirm the trial court's order, I write separately in order to more fully address some issues raised in the spirited dissenting opinion. This case presents facts that differ in significant ways from those presented in both ABM Farms, Inc. v. Woods (1998), 81 Ohio St.3d 498 and Krafcik v. USA Energy Consultants, Inc. (1995), 107 Ohio App.3d 59, upon which the dissenting opinion primarily relies. First, appellants, in their answer, denied the existence of any agreement between themselves and appellee. It seems illogical, therefore, to permit appellants to assert appellee is bound by an arbitration clause which, incidentally, fails to provide any procedure for the parties to follow in invoking it and is contained in only one of the documents he attached to his complaint. Second, unlike the cases relied upon by the dissenting opinion, a factual question exists concerning exactly which of the -2- appellants supposedly is bound by the Consulting Account Management Agreement. Thus, while in Krafcik the trial court simply could enforce the arbitration clause contained in the plaintiff's written agreement with the defendant/general contractor and direct the remaining party to await resolution of that controversy, in this case, the trial court inappropriately would be required to conduct a preliminary factual determination. For these reasons, I concur with the majority's opinion's disposition of this appeal and believe the trial court correctly denied appellants' motion to stay the proceedings pending arbitration. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76074 : MARTIN G. KRIST : DISSENTING : Plaintiff-Appellee : : : OPINION -vs- : : RICHARD W. CURTIS, ET AL. : : Defendants-Appellants : DATE: MAY 18, 2000 ANNE L. KILBANE, J., DISSENTING: I dissent from the majority. I would reverse the decision of Judge Christine McMonagle and remand for imposition of a stay pending arbitration of Martin Krist's dispute because the law unambiguously requires it. Sometime between July and August 1994, Krist entered into a Consulting & Account Management Agreement with Mr. Richard W. Curtis, Intercon Financial Corp. through which Krist invested $100,000 in a private trading program purportedly involving pre- sold bank negotiable instruments from the top one-hundred world banks. 1 The agreement was for a term of one year and to yield a profit of 40% per week. All disputes arising in connection with the 1While March 25, 1994 is typed at the top of the agreement with Krist's signature, it is accepted and initialed by Curtis on July 19, 1994 and initialed by Krist on August 1, 1994. Krist claimed, however, the $100,000 was invested on March 25, 1994. -2- agreement were to be settled under the rules of the American Arbitration Association in St. Louis, Missouri. By August 23, 1994 Krist was advised his investment had earned almost $175,000 but, over the succeeding months and years, he received increasingly creative excuses and no profit or even return of his initial investment. On September 18, 1998, he brought suit against Curtis, Intercon and Randy P. Curtis, Curtis' son with whom he had some dealings. Curtis and his co-defendants answered with a general denial and among various affirmative defenses asserted the right to arbitrate under the terms of the agreement. When the judge denied the motion to stay proceedings pending arbitration, this appeal followed. The majority opinion sidesteps the Ohio Supreme Court's most recent opinion on enforcement of arbitration clauses in ABM Farms, Inc. v. Woods (1998), 81 Ohio St.3d 498, 692 N.E.2d 574, which reaches several issues raised in this case and similar facts. It also evades this court's holdings in Krafcik v. USA Energy Consultants, Inc. (1995), 107 Ohio App.3d 59, 667 N.E.2d 1027, which ABM Farms cited with approval. It is clear that in order to defeat an arbitration clause based upon a claim of fraudulent inducement, a party must show that the arbitration clause itself was fraudulently induced and not some other provision or the contract in general. ABM Farms, supra. The majority's opinion is the result of legerdermain raising the specters of fraud in the factum and a series of agreements out of thin air; neither claim ever existed, nor was either pleaded or briefed. -3- Krist argues that ABM Farms does not apply because he asserted a rescission claim and the dispute cannot be submitted to arbitration until it is first determined by trial whether the contract is valid and enforceable. His reliance upon Rolling v. Ohio State Home Services, Inc. (July 14, 1993), Medina App. No. 2157, unreported, is misplaced. Although a party may elect to rescind a fraudulently induced contract, it is irrelevant to the enforceability of the arbitration clause. In Beecher v. Ohio State Home Services, Inc. (Dec. 10, 1997), Summit App. No. 18439, unreported, the Ninth District Court of Appeals expressly declined to overrule its earlier decision in Rolling and certified a conflict between its decision in Beecher and this court's decision in Krafcik, supra. The Ohio Supreme Court reversed Beecher and necessarily overruled Rolling as well. Beecher v. Ohio State Home Services, Inc. (1998), 81 Ohio St.3d 599, 693 N.E.2d 212. The only relevant issue is whether the arbitration clause itself was fraudulently induced and even Krist makes no such claim. Thus, the majority was faced with the need to create the illusion of fraud in the factum. An agreement obtained through fraud in the factum would void an arbitration clause because such an agreement is considered void ab initio and does not constitute any agreement whatsoever. The difference between fraud in the factum and fraud in the inducement is often poorly stated and frequently misconstrued. Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 13, 552 N.E.2d 207, 210, provides an example: -4- A release is obtained by fraud in the factum where an intentional act or misrepresentation of one party precludes a meeting of the minds concerning the nature or character of the purported agreement. Thus, when the actions or representations of the release so impair the mind and judgment of the releasor that he fails to understand the nature or consequence of his release, there has been no meeting of the minds. Ballentine's Law Dictionary provides a definition: fraud in the factum. Fraud exercised in reference to the manual acts of signing and delivering an instrument, sometimes by a substitution of the documents accomplished by deception. The distinguishing factor of fraud in the factum is its direction toward the nature of the instrument; if a party signs a brokerage agreement under the impression that it is an insurance form or signs a release of liability under the belief it is a tolling agreement, it is fraud in the factum. It can only arise when a party is under the belief that a document he signed was something entirely different from what it turned out to be. However, fraud in the factum cannot be maintained when a complaining party had the opportunity to read and understand the document before signing. Haller, supra at 14, 552 N.E.2d at 210. An agreement caused by fraud in the factum is void ab initio because there has been no meeting of the minds. This does not, however, mean that any failure in the meeting of the minds results in fraud in the factum because then there would be no difference between fraud in the factum and fraud in the inducement. In fraud in the inducement there has been, in fact, a meeting of the minds and the defrauded party has made an agreement although it is based upon a misrepresentation. The party committing the -5- fraud cannot void the agreement based upon his own misrepresentation and must honor the contract as though the misrepresentation was true or allow rescission at the defrauded party's option. In situations where the parties have not agreed to anything or one party is so misled that he might not understand that he is entering into any agreement, there is fraud in the factum. Krist alleges in his complaint that Curtis falsely told him: (1) he and his corporation had operated investment programs under authority created for them by the Federal Reserve Bank; and (2) the investments in his programs were returning profits of 40% weekly. Krist alleges that based upon these misrepresentations he entered into the agreement with Curtis which contained the arbitration clause and gave Curtis a $100,000 investment. Krist never alleges or claims he was unaware that he was signing a Consulting & Account Management Agreement or that he was unable to read or understand the agreement before signing; rather, he claims only that he was fraudulently induced into signing the agreement by the Curtis' misrepresentations on investment risks and profits. Clearly Krist would not have entered into the agreement if he had known the representations were false and that reliance is an element of his fraudulent inducement claim. It does not follow, however, that there was no meeting of the minds. Krist agreed to invest money in exchange for the promise to return his original investment and a weekly 40% profit. Curtis agreed to provide a weekly 40% profit on Krist's investment and, after one year, return -6- the investment and the profits. The only question was whether Curtis misrepresented his ability to perform his side of the bargain. This is fraud in the inducement. In order to justify the denial of the motion to stay, the majority alludes to Krist's various claims derived from a series of agreements that do not contain the arbitration clause. However, the documents referred to are not agreements at all. A. Sample Letter of Intent. The paper, dated March 25, 1994, is a form with blanks to be filled in, addressed to Richard Curtis and signed by Krist, expressing Krist's intention to invest $100,000 in the Accumulation Plan/250 Program. It is not an agreement but only a letter requesting Curtis to prepare a customized agreement for Krist's signature. B. Attachment Special Power of Attorney. The paper, another form with blanks, dated March 25, 1994, signed by Krist in the presence of a Notary Public, purports to give Curtis a power of attorney over Krist's investment. C. AccumulationPlan/250. This paper is a form with the only blank being the rate of return. 35% to Martin Krist, 5% to Janet Eckert is written in below 40% percent per week. It explains that minimum investment as being $250,000, that participants can cominngle funds to achieve the $250,000 minimum, and identifies a procedure through which Intercon initially sends the prospective client a Letter of Intent, Specimen Contract and Limited Power of Attorney. The prospective participant first signs the letter of intent and power of attorney and returns them to Intercon. Intercon then prepares and sends a customized contract for the client's signature. D. Agreement. This form has typed-in data and is dated June 24, 1994. It contains the signature of Janet Eckert and appears to state that $100,000 is invested for 40 weeks, that participant Martin Krist is entitled to 35% -7- and representative Janet Eckert is entitled to 5%. E. Account Statement Martin Krist. A document on Intercon Financial Corp. Stationary dated August 23, 1995, bears the signature of Richard Curtis and purports to show the state of Krist's investment, $174,400 in profit, on that date. These five documents do not represent a series of agreements but a series of documents leading to the single Consulting & Account Management Agreement. This is the only agreement/contract upon which Krist bases his complaint and this is the agreement he claims was fraudulently induced. It is the only document signed by two parties. It is also the agreement that contains an arbitration clause. The majority's citation to ACRS, Inc. v. Blue Cross & Blue Shield of Minnesota (1998), 131 Ohio App.3d 450, 722 N.E.2d 1040, has no application to the instant case. In ACRS, the defendants claimed the existence of an agreement containing an arbitration clause but failed to provide an authenticated copy of the entire contract. This court could not order arbitration under that contract when it was not part of the record. That factual situation has nothing to do with the instant case. Krist's claims are based upon but a single agreement containing the arbitration clause. Perhaps recognizing the weakness of the majority opinion's reasoning, the concurring opinion seeks alternative justifications for the judgment in this case. These, unfortunately, are equally unconvincing. -8- The concurrence first states that the three defendants denied the existence of a contract in their joint answer, thus precluding their reliance on the arbitration clause. This is incorrect because they also asserted the arbitration clause in an agreement as an affirmative defense. A party is absolutely privileged to state claims in the alternative and may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds. Civ.R. 8(E)(2). The defendants, therefore, had every right to deny the existence of the contract as one defense while claiming the protection of the arbitration clause within a contract as an alternative. Furthermore, as Krist asserted that Randy Curtis was a party to the written agreement, but his name and signature are absent from the document, it is reasonable to deny such a contract's existence in a joint answer. Although specific answers pertaining to each defendant are preferable, Krist did not object to the form of the answer or request more specific responses pursuant to Civ.R. 8(B) or 10(B). Because public policy favors enforcement of arbitration clauses, the burden of proof is on the party asserting waiver. Griffith v. Linton (1998), 130 Ohio App.3d 746, 751, 721 N.E.2d 146, 149. The party asserting waiver must prove that the defendant was aware of the right to arbitrate, and that it acted inconsistently with that right. Id. (citing Phillips v. Lee Homes, Inc.(Feb. 17, 1994), Cuyahoga App. No. 64353, unreported. Whether -9- a party acted inconsistently with the right to arbitrate is determined by the totality of the circumstances. Phillips, supra. Nowhere has the majority or concurring opinion set forth any circumstances on which to base a waiver, other than the belated claim that the defendants denied the existence of a contract in addition to asserting the arbitration clause as an affirmative defense. The assertion of an affirmative defense followed by a timely motion to stay is sufficient to defeat a claim of waiver. Rock v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1992), 79 Ohio App.3d 126, 128-29, 606 N.E.2d 1054, 1055; Harsco Corp. v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 415-16, 701 N.E.2d 1040, 1046-47 (citing Phillips, supra). The concurrence also claims that a stay pending arbitration would inappropriately require the trial judge to determine which defendants were parties to the agreement and entitled to take advantage of the arbitration clause. If it is inappropriate for a judge to determine who are the parties to a contract, a plaintiff would be able to defeat an arbitration provision by alleging the existence of phantom agreements and factual disputes concerning the parties thereto. Allowing such a result would eviscerate Krafcik's holding that the joinder of additional parties to a lawsuit cannot preclude enforcement of an arbitration clause between parties to an agreement. Krafcik, 107 Ohio App.3d at 63-64, 667 N.E.2d at 1030. I would, therefore, reverse, remand for a determination of which defendants are parties to the Consulting & Accounting -10- Management Agreement and stay the litigation pending outcome of the arbitration with respect to those parties. #####20000518 76094ALAN TANOH, ET AL v RICK STRAWBRIDGE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76094 ALAIN TANOH, et al. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION RICK STRAWBRIDGE, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT MAY 18, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-312495 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: JOSEPH P. O'MALLEY, ESQ. THOMAS F. O'MALLEY, SR., ESQ. 2401 Superior Viaduct Cleveland, Ohio 44113 For Defendant-Appellee: JOHANNA M. SFISCKO, ESQ. Rick Strawbridge Terrence J. Kenneally & Assoc. 20525 Center Ridge Road, Ste. 505 Rocky River, Ohio 44116 For Defendant Star Bank: BENJAMIN OCKNER, ESQ. Kahn, Kleinman, Yanowitz & Arson The Tower at Erieview 1301 East Ninth Street, Ste. 2600 Cleveland, Ohio 44114 - i - For Defendants: Robert Krupitzer TIMOTHY T. BRICK, ESQ. MARK J. SAVAGE, ESQ. PAUL J. SCHUMACHER, ESQ. Gallagher, Sharp, Fulton & Norman 7th Floor - Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 Ohio Farmers Ins. Co. DAVID J. FAGNILLI, ESQ. Davis & Young 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, J.: Appellants Alain and Karen Tanoh appeal a decision by the trial court granting summary judgment in favor of Appellees Star Bank, Rick Krupitzer, Ohio Farmers Insurance and Westfield Insurance Company on their claim for damages arising from the breach of a construction contract. The Tanohs assign the following three errors for our review: I. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO STAR BANK SINCE IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER STAR BANK WAS GROSSLY NEGLIGENT IN DISBURSING ANY FUNDS FROM A CONSTRUCTION LOAN AGREEMENT WITHOUT FIRST OBTAINING THE REQUIRED AFFIDAVITS PER O.R.C. 1311.01. ALSO, IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER STAR BANK WAS NEGLIGENT IN HIRING KRUPITZER TO PERFORM THE INSPECTION WORK ON THE TANOH'S [sic] PROPERTY. II. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO RICK KRUPITZER BECAUSE IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER THEY AGREE WITH THE TANOH'S [sic] ASSERTION THAT THEY WERE A THIRD PARTY BENEFICIARY TO THE CONTRACT BETWEEN STAR BANK AND KRUPITZER AND WHETHER KRUPITZER WAS NEGLIGENT WITH REGARD TO HIS DUTIES AS AN INSPECTOR. III. OHIO FARMERS INSURANCE AND WESTFIELD INSURANCE COMPANY ARE NOT ENTITLED TO SUMMARY JUDGMENT SINCE THERE ARE QUESTIONS OF MATERIAL FACTS ABOUT WHETHER THE TANOH'S [sic] WERE THIRD PARTY BENEFICIARIES TO THE CONTRACT BETWEEN OHIO FARMERS INSURANCE CO. AND STRAWBRIDGE, WHETHER THERE WAS COVERAGE AT THE TIME OF THE OCCURRENCE, AND WHETHER THE DAMAGE IS COVERED UNDER THE POLICY. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. -3- On October 16, 1995, Alain and Karen Tanoh purchased a home located at 262 E. 150th Street. The sale price of the home was $54,900. The Tanohs decided to rehabilitate the home and obtained an estimate from appellee Rick Strawbridge dba Spirit Construction for renovation of the house. Strawbridge submitted a detailed estimate totaling $23,875. The Tanohs borrowed a total of $78,300 in the form of a construction loan from Star Bank to finance the purchase and renovation of the home. The loan documents provided that construction loan disbursements would be made in accordance with the following procedure: Disbursements of the Loan shall be made upon the written request of the Borrower in the form attached hereto as Exhibit A and the submission of an affidavit of the general contractor under applicable mechanic's lien laws satisfactory to the Lender, at the time and in the amount set forth below: 1. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 25% complete; and 2. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 50% complete; and 3. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 75% complete; and 4. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is totally complete. A Construction Loan Disclosure form signed by the Tanohs provided that there were three essential components to each disbursement (1) a request from the Tanohs for disbursement of funds with an attached affidavit from the builder and supporting -4- documentation listing the names of sub-contractors, material providers, and laborers and the amounts due to each; (2) an inspection of the work completed from the bank's appraiser which should support the amount of work completed as disclosed by the builder's affidavit; (3) an update of the title to the property from the bank title company to confirm that there were no mechanic's liens or adverse filings. The Construction Loan Disclosure form also provided: In spite of what this procedure may suggest to you, IT IS YOUR RESPONSIBILITY TO SUPERVISE YOUR BUILDER'S WORK AND TO VERIFY THAT CONSTRUCTION IS BEING DONE IN ACCORDANCE WITH THE PLANS AND SPECIFICATIONS UNDER YOUR CONSTRUCTION CONTRACT AND TO YOUR SATISFAC- TION. The Tanohs entered into a verbal agreement with appellee Rick Strawbridge dba Spirit Construction for rehabilitation of the home. The parties agreed on a price of $23,875 and agreed that much of the work on the house would be completed by December 1, 1995. The Tanohs took possession of the home on October 16, 1995. Strawbridge began work on the Tanohs' home on November 15, 1995. As of December 1, 1995, the work had not been completed as agreed. Strawbridge failed to complete the following repairs: installation of new appliances in kitchen; updating of electrical system throughout house; painting of walls, refinishing of floors, installation of tile in kitchen and bathrooms, removal of washer and dryer hookups from kitchen, insulation of walls. On or after December 1, 1995, Strawbridge and Alain Tanoh entered into an agreement providing that work on the home would be completed by -5- April 30, 1996. The Tanohs moved into the home on December 22, 1995. Two construction loan disbursements totaling $15,500 were made to Spirit Construction in December 1995 and January 1996. The first disbursement of $7,500 was for work performed from November 15, 1995 to December 22, 1995. The second disbursement of $8,000 was for work performed from December 22, 1995 to January 4, 1995. For each disbursement, the Tanohs submitted a request form containing the following language: Borrower represents and warrants that I/we personally inspect the improvements upon the Property, and that quality of the work and materials, and/or the engineering of same, for which payment is hereby authorized, have been satisfactorily performed and/or supplied. Each time, the form was accompanied by an affidavit from Strawbridge providing that he did not owe any amounts to any subcontractors and a single page report from Krupitzer in which he assessed the percentage of work that had been completed. The Tanohs contacted an attorney in early 1996 because they were unsatisfied with Strawbridge's work. On March 11, 1996, the Tanohs' attorney sent a letter to Strawbridge demanding specific performance of the contract and detailing the numerous aspects of the work that had not been satisfactorily performed. As of April 30, 1996, Strawbridge had still not completed the renovations as agreed. The Tanohs told him they did not want to work with him anymore. On July 26, 1996, the Tanohs filed a complaint against Strawbridge and Spirit Construction for breach of contract. The -6- Tanohs sought $49,317.40 in damages the cost of completing the job. The Tanohs later amended their complaint to add claims against Star Bank for negligent disbursement of the construction loan funds and for negligent hiring of Krupitzer. The Tanohs also added claims against Krupitzer as well as Ohio Farmers Insurance Co. (Spirit Construction's liability insurance carrier) and Westfield Insurance Company (the issuer of Spirit Construction's bond). Summary judgment was later granted in favor of Star Bank, Krupitzer, Westfield, and Ohio Farmers. The case was called for trial against Strawbridge and Spirit Construction on February 2, 1999. Strawbridge and Spirit Construction failed to appear. After taking evidence, the trial court issued a judgment in favor of the Tanohs against Strawbridge and Spirit Construction in the amount of $49,317.40. This appeal followed. In their first assignment of error, the Tanohs argue the trial court erred by granting summary judgment in favor of Star Bank where questions of fact existed as to whether the bank was grossly negligent in disbursing funds from a construction loan without first obtaining the affidavits required by R.C. 1311.01 and whether Star Bank was negligent in hiring Krupitzer to perform the inspection work on the Tanohs' property. In its motion for summary judgment, Star Bank argued that the Tanohs could not show that it acted negligently in disbursing funds -7- to the builder because each disbursement was made upon the Tanohs' written request and was supported both by the affidavit of the builder and the inspection of the bank's independent contractor. The bank also argued that the Tanohs' claim was barred because of the language in the construction loan disclosure agreement which provided that it was the Tanohs' responsibility to supervise the builder's work to ensure that the work was being done properly. In response to the bank's motion, the Tanohs argued that the builder's affidavits were incomplete and incorrect and that the bank acted negligently when it approved the disbursements based upon the incorrect affidavits and the report of the inspector instead of requiring the submission of supporting documentation. The Tanohs conceded that the Request for Disbursement forms they submitted contained preprinted language indicating their satisfaction with the work, but maintained that they were not satisfied with the work and only submitted the forms because they felt like they were in a corner because Defendant Strawbridge assured them he needed the money to complete the job. (Plaintiff's Brief Opp. Star Bank's Motion for Summary Judgment at 4.) The Tanohs further argued that they relied on the bank's expertise in evaluating the progress of the work and whether to make a disbursement. The Tanohs' response to the motion for summary judgment and their brief before this court fail to address the provision in the construction disclosure form which provided that the Tanohs were responsible for supervising the builder's work and to verify that -8- construction was being done in accordance with the plans and specifications and to the Tanohs' satisfaction. The Tanohs argued that the bank's use of an inspector caused them to believe that the bank would ensure that the work was proceeding properly. However, in an apparent effort to dissuade borrowers from such an assumption, the construction disclosure form specified that inspecting the builder's work was the borrowers' responsibility in spite of what this procedure may suggest to you. (Construction Disclosure Form at 2.) The disclosure forms made clear that it was the Tanohs' responsibility to ensure that the work was progressing satisfactorily before requesting construction disbursements. Accordingly, their reliance on the inspector's report was not reasonable. Furthermore, under Ohio law, a lender's liability for improper disbursements is limited to instances of gross negligence or fraud. R.C. 1311.011(B)(5) provides: When making any payment under the home construction contract, the lending institution may accept the affidavit of the original contractor required by division (B)(4) of this section and act in reliance upon it, unless it appears to be fraudulent on its face. The lending institution is not financially liable to the owner, part owner, purchaser, lessee, or any other person for any payments, except for gross negligence or fraud committed by the lending institution in making any payment to the original contractor. Accordingly, in order to survive Star Bank's summary judgment, the Tanohs would have had to demonstrate gross negligence by the bank in disbursing the construction funds. See St. Henry Tile Co. v. Schleiger (Jan. 16, 1998), Darke App. No. 1431CA, unreported -9- (R.C. 1311.011(B)(5) limits a bank's liability for making any payments to a contractor to claims for fraud or gross negligence on the bank's part.) Gross negligence is defined as the failure to exercise any or very slight care or a failure to exercise even that care which a careless person would use. Thompson Electric, Inc. v. Bank One, Akron, N.A. (1988), 37 Ohio St.3d 259, 265; 525 N.E.2d 761, 768, citing Johnson v. State (1902), 66 Ohio St.59, 67, 63 N.E. 607, 609; Cleveland, C., C. & I. Ry. Co. v. Elliott (1876), 28 Ohio St. 340, 356-357; Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85; Prosser & Keeton, Law of Torts (5 Ed. 1984) 212, Section 34. We conclude that the Tanohs failed to establish a material issue of fact with respect to their negligence claim against Star Bank. The record makes clear that, before each disbursement, the Bank obtained the affidavits required by R.C. 1311.011. The Tanohs argued that the affidavits were incorrect and invalid. However, R.C. 1311.011 provides: When making any payment under the home construction contract or on behalf of the owner or part owner under a home purchase contract, the lending institution may accept the affidavit of the original contractor required by division (B)(4) of this section and act in reliance upon it, unless it appears to be fraudulent on its face. See, also ERB Lumber Co. v. First Fed. S. & L. Assn. Of Lima (1990), 67 Ohio App.3d 836, 843, 588 N.E.2d 935, 940. The Tanohs failed to present any evidence that the affidavits are facially invalid and our examination of the affidavits reveals nothing apparently fraudulent about the affidavits. -10- The Tanohs' failure to go forward with any evidence of gross negligence by Star Bank precluded a finding that the bank was liable for improper disbursement of the construction loan funds. Accordingly, the trial court did not err in granting Star Bank's motion for summary judgment. The Tanohs also argue that the trial court erred in granting summary judgment in favor of the bank on their claim for negligent hiring. A plaintiff alleging negligent hiring must establish: (1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries. Walters v. Hawken School (Jan. 28, 1999), Cuyahoga App. No. 75274, unreported, citing Ruta v. Breckenridge- Remy Co. (1982), 69 Ohio St.2d 66, 69, 430 N.E.2d 935. See, also Steppe v. K-Mart Stores (Nov. 18, 1999), Cuyahoga App. No. 74884, unreported. Even if, construing the evidence most strongly in favor of the Tanohs, we assume that Krupitzer was incompetent because he miscalculated the degree of completion of the work, there is no evidence to support a finding that Star Bank knew or should have known of such incompetence. Krupitzer's inspection reports were buttressed by affidavits by the Tanohs and by the builder that the work was progressing satisfactorily. The documentation provided to -11- the bank contained nothing that would put the bank on notice that Krupitzer was incompetent. Furthermore, the Tanohs have not shown that any alleged negligence by Krupitzer or Star Bank proximately caused their injuries. As discussed above, the Tanohs expressly agreed that supervision of the builder's work was their responsibility. Accordingly, we are unable to conclude that the Tanohs have gone forward with evidence as to each of the elements necessary for a claim of negligent hiring. The Tanohs' first assignment of error is overruled. In their second assignment of error, the Tanohs argue the trial court erred in granting summary judgment in favor of Krupitzer where questions of fact existed as to whether the Tanohs were third-party beneficiaries to the contract between Star Bank and Krupitzer and whether Krupitzer was negligent with regard to his duties as an inspector. This court recently held that only a party or an intended beneficiary may exert rights under a contract. Shaker Courts Condominium Unit Owners Assoc., Inc. v. Industrial Energy Systems, Inc. (Feb. 24, 2000), Cuyahoga App. No. 75378, unreported. See, also, Thornton v. Windsor House, Inc. (1991), 57 Ohio St.3d 158, 161, 566 N.E.2d 1220, 1223, certiorari denied (1991), 502 U.S. 822, 112 S.Ct. 84, 116 L.Ed.2d 57. The so-called intent to benefit test provides that there must be evidence, on the part of the promisee, that he intended to directly benefit a third party, and not simply that some incidental benefit was conferred on an unrelated party by the promisee's actions under the contract. There must be evidence that the promisee assumed a duty to the third -12- party. Norfolk & W. Ry. Co. v. United States (C.A.6, 1980), 641 F.2d 1201. Shaker Courts. In terms of this case, in order to establish a material issue of fact as to whether they are third party beneficiaries to the contract between Star Bank and Krupitzer, the Tanohs would have to go forward with evidence that Star Bank, as promisee, intended to directly benefit them by its contract with Krupitzer. In light of the express provision in the construction loan disclosure form that the Tanohs were responsible for supervising the builder's work and verifying that the work was being done according to specifications, we conclude the Tanohs failed to present evidence indicating that Star Bank intended to benefit them by its contract with Krupitzer. During oral argument, this panel posed several questions to both parties as to the application of Scott v. Walden (June 27, 1991), Pickaway App. Nos. 90-Ca-16, 90-CA-22, unreported, jurisdictional motions overruled (1991), 62 Ohio St.3d 1465, 580 N.E.2d 786. In that case, the Scotts hired contractor James Walden to build them a new home. The Scotts then contacted N.L. Stevens & Associates ( Stevens ), a mortgage broker, to help them obtain a construction loan. Stevens found a lender, Landmark Savings Association ( Landmark ), that agreed to enter into a loan agreement with the Scotts. Stevens informed the Scotts that the lender would not release any money to Walden until after an inspection of the property was performed. Stevens hired Arthur Nibert to perform the inspections. The record showed the inspections were performed and that Nibert signed draw sheets -13- authorizing disbursementsto Walden. Four disbursements were made. Three of the four draw checks were endorsed by the Scotts. However, construction of the house was never completed and the Scotts filed suit against Stevens, Walden, Nibert, and Landmark Savings. Summary judgment was entered in favor of all defendants except Walden. On appeal, the court reversed and remanded the order of summary judgment in favor of Nibert concluding that a material issue of fact remained as to whether Stevens' contract with Nibert was intended to benefit the Scotts. The court held that [t]he trier of fact must be left to determine whether Stevens' statements to Mr. Scott that no money would be released without inspection are sufficient evidence to show an intent by Stevens to benefit [the Scotts]. Id. Here, however, the facts are quite different. As part of the bank's contract with the Tanohs, the construction loan disclosure form specifically provided that it was the Tanohs' responsibility to inspect the builder's work. In light of the construction disclosure form's express provision that the Tanohs were responsible for inspecting the builder's work despite what the disbursement procedure might suggest to them, we find that no reasonable juror could find that the bank intended to directly benefit the Tanohs by hiring Krupitzer to inspect the property. Each disbursement of funds was initiated by a signed request from the Tanohs. Each request included an averment by the Tanohs that they personally inspected the property and that the work was satisfactorily performed. The Tanohs cannot now claim that the -14- bank should have protected them from themselves. Accordingly, no material issue of fact existed as to whether the Tanohs were third party beneficiaries of the bank's contract with Krupitzer. In order to prevail on their negligence claim against Krupitzer, the Tanohs had to establish that Krupitzer owed them a duty, that he breached that duty, and that the breach proximately caused their injuries. See Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198, 200, reconsideration denied (1998), 83 Ohio St.3d 1453, 700 N.E.2d 334; Westfield Ins. Co. v. Huls Am. Inc. (1998), 128 Ohio App.3d 270, 284, 714 N.E.2d 934, 942, appeal dismissed (1998), 83 Ohio St.3d 1460, 700 N.E.2d 877. In this case, there was no agreement between the Tanohs and Krupitzer that would give rise to a duty. Furthermore, as discussed above, because the Tanohs failed to establish a material issue of fact as to whether they were third party beneficiaries of the bank's contract with Krupitzer, they cannot recover damages for any alleged negligence by Krupitzer. The Tanohs' second assign- ment of error is without merit. In their third assignment of error, the Tanohs argue that the trial court erred in granting summary judgment in favor of Ohio Farmers Insurance and Westfield Insurance where questions of fact existed as to whether the Tanohs were third party beneficiaries to the contract between Ohio Farmers Insurance and Strawbridge, whether there was coverage at the time of the occurrence, and whether the damage was covered under the policy. We disagree. -15- Contrary to the statement made in the Tanohs' brief, the construction of an insurance contract is a question of law. State Automobile v. Dolosich (Nov. 4, 1999), Cuyahoga App. No. 75060, unreported, citing Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd.(1992), 64 Ohio St.3d 657, 597 N.E.2d 1096, certiorari denied (1993), 507 U.S. 987, 113 S.Ct. 1585, 123 L.Ed.2d 152 and Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146. See, also Gomolka v. State Auto. Mutl. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347. Furthermore, a standard liability insurance policy is not a contract for the benefit of a third person. The contract is made with the intention of benefitting the insured, not someone whom he injures. Reynolds v. Lake Mohawk Property Owners' Association, Inc. (March 31, 1989), Carroll App. No. 552, unreported, citing Chitlik v. Allstate Ins. Co.(1973), 34 Ohio App.2d 193, 299 N.E.2d 295, at paragraph one of the syllabus. We also reject the Tanohs' claim that they were third party beneficiaries of the contract between Ohio Farmers and Strawbridge. The Tanohs base their argument on the fact that the bond issued by Ohio Farmers was intended to ensure compliance with Cleveland's building code and the Tanohs were cited for building code violations as a result of Strawbridge's work. While a liability insurance carrier may have a duty outside the terms of its insurance contract to deal in good faith with the public, including those persons injured by the actions of its insured, such duty does not create an independent cause of action that may be enforced by -16- the injured party through a direct action against the insurance carrier. Secrest Trucking, Inc. v. Szerzinski (Jan. 25, 1988), Stark App. No. CA-7298, unreported. See also Braswell v. Duncan (Nov. 26, 1997), Cuyahoga App. No. 72038, unreported. ( An insurance company's liability is derivative only. ) We therefore hold that personal injury actions must first be brought by the injured party against the alleged tortfeasor. He is the one whose wrongdoing is alleged to have caused the injury, and if the facts are found as alleged, he will be primarily liable. Further, the policy of excluding any reference to the existence of insurance in an action to determine liability for personal injury would be circumvented by permitting the injured person to sue the insurance company and could constitute a prejudicial or harmful effect against the insurer. Chitlik, 34 Ohio App.2d at 197-198, 299 N.E.2d at 298. The Tanohs' third assignment of error is overruled. Finding no merit to any of the Tanohs' assignments of error, we affirm the decision of the trial court. Judgment affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, P.J., and KENNETH A. ROCCO, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76219STATE OF OHIO v CHARLES E. WELLMAN JR. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76219 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES E. WELLMAN, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-366,644 JUDGMENT : AFFIRMED IN PART; : VACATED IN PART. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DONALD GREEN, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 KENNETH A. ROCCO, J.: -2- Defendant-appellant Charles E. Wellman, Jr. appeals from his convictions after a jury trial on one count of rape and one count of felonious sexual penetration. Appellant also appeals from the trial court's subsequent determination classifying him as a sexual predator. In his five assignments of error, appellant challenges the trial court's instructions to the jury, the effectiveness of his trial counsel's assistance, the weight of the evidence upon which his convictions are based, and the trial court's ultimate classifi- cation of him. This court has examined the record and finds that although appellant's conviction for rape was based upon the evidence, his conviction for felonious sexual penetration was improper. This court further finds appellant's defense counsel rendered appellant adequate assistance at trial. Finally, the trial court's determi- nation finding appellant to be a sexual predator is appropriate. Appellant's conviction for rape and the trial court's order of classification, therefore, both are affirmed. Appellant's convic- tion for felonious sexual penetration is vacated. The record reflects that in the spring of 1988 appellant, who was born in 1970, met a thirty-four-year-old woman, Carolyn Huisman, at his brother's funeral. Carolyn recently had separated from her husband of approxi- mately thirteen years, Stephan Huisman. As a result of the estrangement, Stephan had moved out of the couple's home, the upper -3- portion of a double house located at 10605 McCracken Road in the City of Garfield Heights, Ohio. The Huismans had two children: Angel, born in May, 1976, and Stephan II, born in 1979. After their father moved from the home, the children remained with Carolyn, who obtained employment at a nearby service station. Shortly after meeting Carolyn, in spite of the age difference between them, appellant began to see her socially. Carolyn's friends and family soon thought of appellant as her boyfriend. 1 By the summer of 1988, appellant had moved in with Carolyn and her children. This arrangement did not meet with the approval of Carolyn's friend, Sheryl Majoros. Majoros was uncomfortable with appellant; she did not like the way he was looking at [twelve-year-old] Angel. Although Carolyn disbelieved her, Majoros thought appellant was looking at [Angel] hungrily and that he occasion- ally stared at her with lust in his eyes. To Angel, appellant's presence in Carolyn's life seemed ini- tially beneficial since Carolyn did not argue with him a much as she had with her husband. However, appellant's behavior began to cause Angel to feel funny ; he seemed to be [a]lways trying to get close to her and often would find ways to touch her. Appellant eventually was able to approach Angel when she was alone in the bathroom. At that time, appellant pulled [her] pants 1Quotes are taken from the transcript of appellant's trial. -4- down and put his finger inside [her]. Appellant stated he wanted to show [Angel] how [sex] would be, how it would feel. Thereafter, sometime in early 1989, appellant came into Angel's attic bedroom, pinned her to her bed, and put his penis in [her] vagina. Angel struggled and began to cry out. In response, appellant obtained the small throw pillow Angel kept on her bed and placed it over her face and mouth. Appellant sought to prevent Angel's brother from hearing her. When appellant had finished, he ordered Angel to go take a bath, then watched over her until she had finished bathing. On March 3, 1989 some members of the Garfield Heights Police Department responded to Carolyn's home in response to a domestic complaint. Although no charges were filed, Carolyn went to a hos- pital emergency room to be treated for an injury to her hand. The younger Stephan Huisman observed that his mother had been scream- ing real loud at appellant and had attempted to strike appellant but missed him and instead struck a wooden clock, thereby frac- turing her hand. Appellant moved out of Carolyn's home that evening. Within a week or two, the Huismans lost contact with appel- lant. Approximately one year later, Angel informed her younger brother of the incidents appellant had perpetrated upon her, but she requested secrecy concerning them since she was afraid her mother would not understand how they had occurred. Angel eventually conveyed some information about the incidents to her father; however, by that time, appellant's whereabouts were -5- unknown and Huisman was unaware of any further action he could take on his daughter's behalf. During her high school years, Angel confided the details of the incidents to her girlfriend, Laura Trabert. On September 24, 1997 Trabert requested Angel accompany her to a blood bank located on West 25th Street in the City of Cleve- land. While the two young women were waiting to give blood, Angel indicated to Trabert a man standing nearby, said appellant's name, and stated, That's him. Trabert immediately realized Angel was referring to the confidences she had shared; therefore, Trabert watched appellant closely while Angel attempted to summon someone in her family. Angel was eventually able to contact her boyfriend. Upon the boy- friend's arrival, the two of them left Trabert and followed appellant as he left the blood bank. Angel and her boyfriend drove away after they observed appellant enter the yard of a house located on West 7th Street. Angel's encounter with appellant reawakened strong feelings that she found hard to ignore. On April 24, 1998 Angel went to the Garfield Heights Police Department. On that date, she made a statement to Det. William Disbrow concerning the incidents that had occurred when appellant lived with Carolyn. Disbrow thereafter obtained photographs of appellant. When Disbrow displayed the photographs to the female resident of the house located on West 7th Street in Cleveland, Disbrow was told appellant was unknown to her. However, it was later determined -6- both the woman and her husband were close friends of appellant. Appellant subsequently was arrested as the result of a traffic matter. On August 19, 1998 the Cuyahoga County Grand Jury issued an indictment against appellant charging him with two counts as follows: (1) rape, R.C. 2907.02(A) and (2) felonious sexual penetration, R.C. 2907.12. The dates of the offenses were stated as 1988 or 1989. Appellant entered pleas of not guilty to the charges and retained counsel to represent him. Following several pretrial hearings, appellant's case proceeded to a jury trial on January 25, 1999. The state presented the testimony of Det. Disbrow, Sheryl Majoros, Angel Huisman, Stephan Huisman, Stephan Huisman II, Laura Trabert, and the records custodian of the West 25th Street blood bank. Appellant presented the testimony of his forty-one-year-old wife, his wife's two daughters, and his younger brother. Appel- lant, twenty-nine years old by the time of trial, also testified on his own behalf. The jury subsequently returned verdicts of guilty on both counts. Following a presentence investigation and report, the trial court sentenced appellant to consecutive terms of incarcera- tion of eight to twenty-five years. The trial court also held a hearing to determine appellant's status pursuant to R.C. 2950.09(B)(1). Thereafter, the trial court determined appellant to be a sexual predator. -7- Appellant has filed a timely appeal from both his convictions and the trial court's classification of him as a sexual predator. He presents five assignments of error for review. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN INSTRUCTING THE JURY ON FELONIOUS SEXUAL PENE- TRATION UNDER R.C. 2907.12 BECAUSE A FINGER WAS NOT AN OBJECT AS THE CRIME WAS DEFINED AT THE TIME OF THE OFFENSE. Appellant argues the trial court improperly instructed the jury concerning the elements of the crime of felonious sexual penetration. He contends that since the evidence established the crime was committed prior to September 27, 1989, the jury should not have been instructed that the insertion of a part of the body *** to wit, a finger into the victim's vaginal cavity constituted prohibited conduct pursuant to R.C. 2907.12. Appellant is correct. Prior to September 27, 1989, the crime of felonious sexual penetration was defined thusly: (A) No person without privilege to do so shall insert any instrument, apparatus, or other object into the vaginal or anal cavity of another, when any of the following apply: (1) the offender purposely compels the other person to submit by force or threat of force. * * * (3) The other person is less than thirteen years of age, whether or not the offender knows the age of such person. -8- The Ohio Supreme Court specifically interpreted the words of this statute to exclude animate objects such as fingers. State v. Hooper(1979), 57 Ohio St.2d 87. Therefore, since it was committed before March 1989, appellant's specific action upon Angel in the bathroom of her home was not in violation of R.C. 2907.12. State v. Dehler (July 14, 1994), Cuyahoga App. No. 65716, unreported; cf., State v. Mruk (May 9, 1997), Lucas App. No. L-96-075, unre- ported. Plain error exists when a jury receives improper instruction concerning an essential element of a crime and it is clear that, but for the error, the outcome clearly would have been otherwise. State v. Cooperrider (1983), 4 Ohio St.3d 226 at 227; State v. Brown(1993), 85 Ohio App.3d 716 at 723; State v. Burgun (1976), 49 Ohio App.2d 112 at 121; State v. Mulford (Mar. 18, 1993), Franklin App. No. 92AP-667, unreported. Since the jury in this case could not have found appellant guilty of the second count of the indictment had it received proper instruction concerning what constituted the specific elements of the offense at the time it was committed, appellant's first assignment of error is sustained. Appellant's second assignment of error states: CHARLES WELLMAN WAS DENIED EFFECTIVE ASSIS- TANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEEN AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. Appellant argues his trial counsel was ineffective for his level of advocacy during his representation of appellant. -9- Appellant cites several instances that he claims illustrate counsel's deficient performance; however, this court does not agree with appellant's criticisms. A claim of ineffective assistance of counsel requires proof that counsel's performance has fallen below an objective standard of reasonable representation and, in addition, that prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, syllabus 2; see, also, State v. Lytle (1976), 48 Ohio St.2d 391. The establishment of prejudice requires proof that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been differ- ent. State v. Bradley, supra, syllabus 3. The burden is on appellant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Trial counsel is strongly presumed to have rendered adequate assistance. Id.; see, also, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. Id. The record in this case fails to demonstrate both requirements of a successful challenge to trial counsel's actions. Appellant first takes issue with counsel's failure to request dismissal of count two of the indictment on the appropriate grounds. Appellant asserts counsel's failure both precludes an appellate argument disputing the sufficiency of the evidence and proves counsel had an inadequate familiarity with the applicable law. However, in view of this court's disposition of appellant's -10- first assignment of error, appellant cannot establish his counsel's actions in this regard are prejudicial. State v. Mruk, supra. Appellant next asserts counsel's examination and cross- examination of certain witnesses at trial, including Angel, were both impotent and "cursory." The record does not support this assertion. The record reflects counsel merely was careful not to alienate the jury by either wasting its time or attacking witnesses to whom the jury might be sympathetic. Furthermore, counsel sought to bolster the credibility of his own defense witnesses by emphasizing the detailed nature of their memories. These matter are decisions left to counsel's discretion as ones within the ambit of trial strategy. State v. Sandy (1982), 6 Ohio App.3d 37; State v. Reese (1982), 8 Ohio App.3d 202; State v. Hunt (1984), 20 Ohio App.3d 310; State v. Saah (1990), 67 Ohio App.3d 86; State v. Coulter (1992), 75 Ohio App.3d 219; State v. Gearing (Apr. 8, 1993), Cuyahoga App. No. 62202, unreported. Finally, although appellant asserts counsel failed to adequately prepare for trial, the indications are otherwise. Counsel filed appropriate motions, participated in several pretrial hearings, and, on the day of trial, was not only fully prepared to proceed but gave a succinct and eloquent opening argument. On the record before this court, therefore, appellant cannot demonstrate he received ineffective assistance of counsel at his trial. State v. Bradley, supra; State v. Corruthers (Feb. 12, 1998), Cuyahoga App. No. 72064, unreported. -11- Appellant's second assignment of error, accordingly, is over- ruled. Appellant's third assignment of error states: CHARLES WELLMAN WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the evidence cannot support his conviction for rape, essentially on the basis that the testimony of the victim, as to events that she claimed took place many years ago, was uncorroborated and thus unreliable pursuant to the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10. Appellant's argument is unpersuasive. In Mattison, this court stated that in making the determina- tion of whether a jury's decision is against the manifest weight of the evidence, several factors should be taken into account by a reviewing court. The stated factors were, however, merely guide- lines and were not considered to be hard and fast rules. Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. The relevant test to be applied when reviewing a claim that a conviction is against the manifest weight of the evidence was stated in State v. Martin (1983), 20 Ohio App.3d 172 at 175 as follows: There being sufficient evidence to support the conviction as a matter of law, we next con- sider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity of witnesses and determines whether in resolving conflict in the evidence, the jury clearly lost its way and created such a mani- -12- fest miscarriage of justice that the convic- tion must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42, 192 S.Ct. 2211, 72 L.Ed.2d 652. (Emphasis added.) See, also, State v. Thompkins (1997), 78 Ohio St.3d 380. This court must be mindful that the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. In this case, Angel testified that during the time appellant lived with them, she and her brother were disciplined only by their parents and that the children [g]ot along with appellant. Thus, Angel had no motivation to lie about the incidents. Moreover, Angel's testimony on this and many other points was corroborated by that of her brother, father and girlfriend, Laura Trabert. Angel's testimony concerning the encounter with appellant at the blood bank also was supported by documentary evidence. Finally, testimony at trial established the house on West 7th Street at which she observed appellant upon his departure from the blood bank was the residence of his best friends. In short, the jury properly could determine the testimony of the state's witnesses was more believable than that of appellant and his witnesses. The jury, therefore, reasonably could conclude appellant was guilty of the crime of rape. State v. Gingell (1982), 7 Ohio App.3d 364; State v. Gearing, supra. Since the factors of State v. Mattison, supra are met in this case, appellant's conviction is not against the manifest weight of the evidence. State v. Martin, supra. -13- Accordingly, appellant's third assignment of error is over- ruled. Appellant's fourth assignment of error states: THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO PROVE BY CLEAR AND CONVINCING EVI- DENCE THAT APPELLANT IS LIKELY TO ENGAGE IN THE FUTURE IN ONE OR MORE SEXUALLY ORIENTED OFFENSES. Appellant challenges the evidentiary basis for the trial court's decision to classify him as a sexual predator; however, in view of the applicable analysis set forth in State v. Cook (1998), 83 Ohio St.3d 425, together with the record of the trial court's consideration of the issue in this case, appellant's challenge is rejected. The trial court ordered a presentence investigation and report and stated it considered the relevant factors as set forth in R.C. 2950.09(B)(2). The trial court thereafter gave as its reasons for the determination the following: Angel's age at the time of the offenses; the fact that appellant used his relationship with the victim's mother to facilitate the offenses; the fact that appel- lant committed two separate acts over a period of time; and also appellant's use of force during the rape to ensure Angel's silence. The trial court further cited additional evidence adduced at trial, viz. appellant's pattern of engaging in relationships with older women whereby he would have access to young females. Thus, since the record demonstrates the trial court's determi- nation had an adequate basis, appellant's fourth assignment of error is overruled. State v. Rice (Feb. 18, 1999), Cuyahoga App. -14- No. 72685, unreported; cf., State v. McKinsey (July 1, 1999), Cuyahoga App. No. 72798, unreported. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED WHEN IT CLASSIFIED THE APPELLANT AS A SEXUAL PREDATOR BECAUSE THE LABEL IS UNREASONABLE OR ARBITRARY IN VIOLA- TION OF SECTION 1 AND 2 OF ARTICLE I OF THE OHIO CONSTITUTION. Appellant argues R.C. 2950 et seq. violate the inalienable rights provision of the Ohio Constitution. Appellant cites State v. Williams (Jan. 29, 1999), Lake App. No. 97-L-191, unreported. Appellant's argument, however, is rejected. The appellate decision appellant employs to support his argument, which this court and other Ohio appellate districts previously have declined to follow, recently has been reversed by the Ohio Supreme Court. State v. Williams (2000), 88 Ohio St.3d ____; see, also, State v. Eppinger (Mar. 11, 1999), Cuyahoga App. No. 72686, unreported; State v. Bolster (Sep. 20, 1999), Stark App. No. 1998CA00136, unreported. Therefore, appellant's fifth assignment of error also is overruled. Appellant's conviction and sentence for rape, and the trial court's subsequent decision to classify him as a sexual predator, are affirmed. Appellant's conviction and sentence for felonious sexual penetration are vacated. -15- It is ordered that appellant and appellee share equally in the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76221STATE OF OHIO v RYAN HLAVSA COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76221 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : RYAN HLAVSA : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-36462 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: DEBORAH NAIMAN, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DARIN THOMPSON, ESQ. ASST. PUBLIC DEFENDER 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113 ANN DYKE, A.J.: Defendant Ryan Hlavsa appeals from his convictions for five -2- counts of raping his six year-old son, five counts of raping his four year-old daughter, one count of gross sexual imposition and six counts of endangering children. For the reasons set forth below, we affirm. On June 22, 1998, defendant and his wife, Dawn Hlavsa were jointly indicted pursuant to a twenty-one count indictment. The indictment charged defendant with six counts of raping his six year-old son, six counts of raping his four year-old daughter, two counts of raping his one year-old daughter, and one count of gross sexual imposition upon his four year-old daughter. Twelve of the rape charges and the gross sexual imposition charge alleged that defendant is a sexually violent predator. The indictment also charged defendant and Dawn Hlavsa with six counts of endangering children. Defendant pleaded not guilty to all charges and the matter proceeded to a jury trial on December 7, 1998. The state's evidence established that in May, 1997, the Children and Family Hotline received reports concerning defendant's children. All of defendant's children were subsequently placed in the foster care of Denise and Dan Oestricher. While residing with the Oestrichers, the six year-old boy and four year-old girl spontaneously told Mrs. Oestricher that their father had engaged in sexual activities with them. Both children also acted out in a manner which displayed sexual knowledge. Mrs. Oestricher contacted Children and Family Services and the children were subsequently interviewed by Teriea Anderson, a social worker, and were examined by Dr. Mark Feingold of the Alpha Clinic. There were no physical -3- findings of abuse, but Dr. Feingold opined that in light of the reported behavior and remarks of the children, it is highly likely that they were abused. There was also evidence that the children are presently suffering from an adjustment disorder as a result of their experiences. The boy testified that his dad put his peter in his mouth and in his butt approximately twenty times. The girl testified that her dad put his peter up [her] coochie, and peed in [her] mouth. In addition, both children related other instances of abuse from other family members. Defendant presented evidence to indicate that another family member had shown the children pornography and that, to a reasonable degree of medical certainty, this could cause acting out of a sexual nature. Defendant also presented testimony from Sandra McPherson, Ph.D., a psychologist, who outlined what she described as the rates of false allegations of sexual abuse. She explained, however, that the highest rate of false allegations occurs in the context of divorce actions involving custody disputes. Defendant was subsequently convicted of five counts of raping his son, five counts of raping his four year-old daughter, the count of gross sexual imposition, the sexually violent predator specifications attendant to these charges, and all of the counts of endangering children. The trial court sentenced defendant to ten concurrent life terms on the rape charges, a consecutive term of three years to life on the gross sexual imposition charge, and concurrent two year terms on the charges of endangering children. -4- Defendant now appeals and assigns four errors for our review. Defendant's first assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THE JURY THAT PENETRATION OF THE BUTTOCKS IS SUFFICIENT TO ESTABLISH RAPE BY ANAL INTERCOURSE. Within this assignment of error, defendant asserts that the trial court committed plain error when it instructed the jury that penetration of the buttocks is sufficient to establish the element of penetration, and that penetration of the anus was not required. R.C. 2907.01 provides: As used in sections 2907.01 to 2907.37 of the Revised Code: (A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. In State v. Allen (May 8, 1985), Hamilton App. No. C-840479, unreported, the court stated: While we have been unable to find pertinent case law construing what constitutes penetration sufficient to support a finding that anal intercourse has been consummated, we take guidance from the following analogous consideration of what constitutes penetration sufficient to support a finding of vaginal intercourse: In accordance with the general rule that the slightest penetration is sufficient to constitute carnal knowledge in a prosecution for rape or statutory rape, courts in numerous cases have stated or recognized that, although the vagina is intact and not penetrated in the least, entry of the anterior of the female genital organ, known as the vulva or labia, is sufficient penetration to constitute rape. -5- Annotation, What Constitutes Penetration in Prose- cution for Rape or Statutory Rape (1977), 76 A.L.R. 3d 163, 178. The evidence stating there was penetration by the boy's penis between Allen's buttocks is sufficient to support a finding that anal intercourse had been consummated. With respect to Allen's claim that his convictions are unsupported by sufficient evidence in other respects, we find substantial evidence in the record upon which the trier of fact could reasonably conclude that all the elements of the offenses for which Allen was convicted have been proven beyond a reasonable doubt. See State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132. Accordingly, the first assignment of error is not well taken. Accord State v. Turvey (1992), 84 Ohio App.3d 724, 747-748. By application of the foregoing, we find no error in connection with the trial court's instructions. Moreover, we note that although defense counsel repeatedly cross-examined the boy about defendant putting his penis on the boy, the boy stated that defendant put it in his butt. The boy also stated that he screamed and cried in pain and that defendant also put it in his mouth many times. This assignment of error is without merit. Defendant's second assignment of error states: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL ACQUIESCED TO A JURY INSTRUCTION PROVIDING FOR AN INCORRECT, LESSER REQUIREMENT OF PENETRATION TO ESTABLISH RAPE BY ANAL INTERCOURSE. Defendant next asserts that his trial counsel was ineffective for failing to object to the instructions regarding penetration with regard to the charges of rape concerning defendant's son. As we have determined that no error occurred in connection with the instruction, as was set forth in this court's discussion of the first assignment of error, this claim of ineffective -6- assistance must likewise fail. State v. Henderson (1988), 39 Ohio St.3d 24, 33. Defendant's third assignment of error states: APPELLANT'S CONVICTION OF THE SEXUALLY VIOLENT PREDATOR SPECIFICATION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE THAT APPELLANT WAS LIKELY TO COMMIT ANOTHER SEXUALLY VIOLENT OFFENSE. Within this assignment of error, defendant contends that his convictions of the sexually violent predator specifications are not supported by sufficient evidence. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Court described the role of the appellate court in reviewing a challenge to the sufficiency of the evidence supporting a conviction: An appellate court's function when reviewing the suf- ficiency of evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., at paragraph two of the syllabus, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 520,. Pursuant to R.C. 2971.01(H)(1), a sexually violent predator is defined as "a person who has been convicted of or pleaded guilty to committing, on or after the effective date of this section, a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." A sexually violent offense -7- is defined in R.C. 2971.01(G) as a "violent sex offense, or a designated homicide, assault, or kidnapping offense for which the offender also was convicted of or pleaded guilty to a sexual motivation specification." In determining whether defendant is a sexually violent predator, the jury may consider the six factors set forth in R.C. 2971.01(H)(2): (a) The person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense. For purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction. (b) The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior. (c) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation. (d) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims. (e) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim's life was in jeopardy. (f) Any other relevant evidence. In this instance, the evidence demonstrated that defendant repeatedly raped his own son and his own daughter over an extended period of time and that only the removal of the children from the home ended the abuse. He was undeterred by the tender ages of the children and the presence of his wife. The evidence also demonstrated that defendant was sexually gratified from the attacks, and overwhelming statistical evidence supports the high -8- potential of recidivism among sex offenders whose crimes involve exploiting young children. State v. Stauter (July 17, 1998), Greene App. No. 97CA72, unreported. Defendant also appeared before California juvenile authorities on sexually oriented charges involving his own sisters. The evidence was therefore sufficient to establish beyond a reasonable doubt that defendant is likely to engage in the future in one or more sexually violent offenses. This assignment of error is without merit. Defendant's fourth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THAT A SIX (6) AND A FIVE (5) YEAR-OLD CHILD WAS (SIC) COMPETENT TO TESTIFY BECAUSE THEY LACKED SUFFICIENT ABILITY TO RECEIVE A JUST IMPRESSION OF THE FACTS, TO COLLECT THESE IMPRESSIONS, AND TO COMMUNICATE THOSE IMPRESSIONS. Defendant maintains that the trial court erroneously determined that his six year-old son and his daughter, who was five years-old at the time of trial, were competent to testify in this matter. In State v. Frazier (1991), 61 Ohio St.3d 247, 250, the Supreme Court stated: Evid.R. 601 provides that "[e]very person is com- petent to be a witness except: (A) *** children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly ***." It is the duty of the trial judge to conduct a voir dire examination of a child under ten years of age to determine the child's competency to testify. Such deter- mination of competency is within the sound discretion of the trial judge. The trial judge has the opportunity to observe the child's appearance, his or her manner of responding to the questions, general demeanor and any -9- indicia of ability to relate the facts accurately and truthfully. Thus, the responsibility of the trial judge is to determine through questioning whether the child of tender years is capable of receiving just impressions of facts and events and to accurately relate them. See State v. Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552. In this matter, the boy told the judge that he had to tell the truth. He stated the names and ages of his real and foster sisters. He identified an example of a lie and explained that a lie is a bad thing. The trial court clearly did not abuse its discretion in determining that the boy was competent to testify. The girl testified that the truth is something that you mean, and a lie is something that is not really so. She stated that it is bad to tell a lie. She identified her school, and her age and identified and distinguished her biological and foster families. Both children possessed the ability to relate the facts accurately and truthfully. This assignment of error is without merit. Affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., AND ROCCO, J., CONCUR. ANN DYKE ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76226ATTILA BETHLENFALVY, ET AL v SUN NEWSPAPERS COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76226 ATTILA BETHLENFALVY, et al. : : Plaintiff-appellants : : JOURNAL ENTRY vs. : and : OPINION SUN NEWSPAPERS : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 2000 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 337,044 JUDGMENT : APPEAL DISMISSED; : FINAL JUDGMENT FOR APPELLEE. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: DENNIS R. LANSDOWNE RHONDA BAKER DEBEVEC Attorneys at Law Spangenberg, Shibley & Liber 2400 National City Center 1900 East Ninth Street Cleveland, Ohio 44114 HENRY J. HILOW Attorney at Law McGinty, Gibbons, Hilow & Spellacy 614 West Superior Avenue Suite 1300 Cleveland, OH 44113 (Continued) -2- APPEARANCES (Continued): For defendant-appellee: ALAN M. RAUSS SUSAN L. JOPLIN Attorneys at Law Kohrman, Jackson & Krantz 1375 East Ninth Street, Suite 2000 One Cleveland Center Cleveland, Ohio 44114 -3- KENNETH A. ROCCO, J.: This case is before the court on appeal from a decision by the common pleas court granting a directed verdict at the close of plaintiffs' case in favor of defendant-appellee Sun Newspapers on plaintiffs-appellants' claims for age discrimination, discharge in violation of public policy, and loss of consortium. Plaintiffs- appellants, Attila and Santa Maria Bethlenfalvy, present three assignments of error for our review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING A DIRECTED VERDICT TO THE APPELLEE-EMPLOYER AT THE CONCLUSION OF THE APPELLANT-EMPLOYEE'S CASE BECAUSE APPELLANTS HAD ESTABLISHED A PRIMA FACIE CASE OF AGE DISCRIMINATION AND THE PRESUMPTION OF AGE DISCRIMINATION HAD NOT BEEN REBUTTED BY THE APPELLEE-EMPLOYER'S ARTICULATION OF A NON-DISCRIMINATORY LEGITIMATE REASON FOR HIS TERMINATION. II. THE COURT BELOW COMMITTED REVERSIBLE ERROR BY GRANTING THE APPELLEE-EMPLOYER'S MOTION FOR DIRECTED VERDICT, BECAUSE EVEN IF IT WAS ASSUMED THAT THE APPELLEE- EMPLOYER HAD ARTICULATED PERFORMANCE DEFICIENCIES AS THE REASON FOR APPELLANT- EMPLOYEE'S DISCHARGE, THE REASONABLE TRIER OF FACT COULD HAVE CONCLUDED, AND SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CONCLUDE, THAT THIS REASON WAS MERELY PRETEXT FOR AGE DISCRIMINATION. III. THE TRIAL COURT'S EXCLUSION OF THE APPELLEE-EMPLOYER'S HANDBOOK, WHICH OUT- LINED ITS PROTOCOL FOR DISCHARGING EMPLOYEES BECAUSE OF PERFORMANCE DEFI- CIENCIES, WAS REVERSIBLE ERROR WHERE APPELLANT PROFFERED EVIDENCE THAT THE PROTOCOL APPLIED TO HIM BUT WAS NOT FOLLOWED. -4- We find the trial court lacked jurisdiction to proceed to trial in this case. The court granted summary judgment to the defendants on each of plaintiffs-appellants' claims. Having entered a final judgment, the court had no jurisdiction to reconsider its decision as it did. All proceedings after the entry of summary judgment were a nullity. Accordingly, we must dismiss this appeal, vacate the trial court's judgment following trial, and reinstate the final judgment granting summary judgment. PROCEDURAL HISTORY The complaint in this case was filed on July 7, 1997, and asserted three claims: (1) age discrimination; (2) discharge in violation of public policy; and (3) loss of consortium. On April 14, 1998, defendant-appellee moved for summary judgment on each of these claims. Plaintiffs opposed this motion. The court granted defendant's motion in a final order entered September 30, 1998, which stated: Defendant's Motion for Summary Judgment is hereby granted. Plaintiffs, Attila Bethlenfalvy & Santa Maria Bethlenfalvy's claims against Defendant are hereby dismissed, with prejudice. The Court hereby finds that reasonable minds can come to but one conclu- sion, and that Plaintiffs have failed to prove that his [sic] age was a determining factor in Defendant's decision to terminate Plaintiff's employment. Plaintiff has also failed to prove a violation of public policy via his termination. Additionally, Plaintiff Santa Maria Bethlenfalvy's claim for loss of consortium is also dismissed, with prejudice, as it is derivative of Plaintiff Attila Bethlenfalvy's claims. -5- Plaintiffs filed a motion for relief from judgment on October 13, 1998. Defendant responded, asserting that plaintiffs had failed to demonstrate that they were entitled to relief from judgment under Civ.R. 60(B). The court entered the following ruling on plaintiffs' motion on October 29, 1998: Motion for Relief from Judgment is hereby treated as a Motion for Reconsideration of this Court's grant of Defendant's Motion for Summary Judgment, and is hereby granted. Upon reconsideration, the Court hereby finds that genuine issues of material fact exist as to whether Plaintiff Attila Bethlenfalvy's age was a determining factor in his termination. Case is hereby reinstated onto the Court's active docket. A pretrial is hereby set on November 18, 1998 at 10:00 a.m., at which time a new trial date will be set. The case proceeded to trial in February 1999. At the close of the plaintiffs' case, defendant moved for a directed verdict, which the trial court granted on February 24, 1999. LAW AND ANALYSIS This court may consider its subject matter jurisdiction sua sponte. Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238. Sub- ject matter jurisdiction cannot be waived, nor can the parties confer subject matter jurisdiction on a court by stipulation or agreement. Id.; Springfield Local School Dist. Bd. of Edn. v. Lucas Cty. Budget Comm. (1994), 71 Ohio St.3d 120, 121. Therefore, even if the issue is not raised by the parties, it may be raised by the court at any stage of the proceedings, even on appeal. The trial court's order granting summary judgment to the defendant disposed of all claims as to all parties and was -6- therefore a final order, subject to appeal. See Civ.R. 54(B). Though appellants filed a document styled as a motion for relief from judgment, it met none of the requirements of Civ.R. 60(B),1 and the court chose to treat it as a motion for reconsideration. A motion for reconsideration of a final judgment in the trial court is a nullity, as is any order granting such a motion and the orders following such reconsideration. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 379; also see State ex rel. Pendell v. Bd. of Elections (1988), 40 Ohio St.3d 58, 60. The common pleas court judgment of February 24, 1999 is null and must be vacated; the entry filed September 30, 1998 is rein- stated. See VFW Post 1238 v. Ohio Liquor Control Comm. (1997), 78 Ohio St.3d 1482. No appeal was filed from the court's final order of September 30, 1998. Therefore, this court lacks jurisdiction and must dismiss this appeal. 1The motion for relief from judgment restates the reasons cited in appellants' brief in opposition to summary judgment and argues that the defendant has not established that all reasonable minds would conclude that [appellant's] age was not a reason in [his dismissal] and thus, [appellee's] motion for summary judgment should have been denied. This argument is patently insufficient to meet the requirements of Civ.R. 60(B). -7- This appeal is dismissed. The trial court's judgment of February 24, 1999 is vacated, and the judgment filed September 30, 1998 is reinstated. It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, P.J. and JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76262SAMUEL J. HERMAN, ET AL v DAN CHUN, ET AL COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 76262 SAMUEL J. HERMAN, ET AL. : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION DAN CHUN, ET AL. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : MAY 18, 2000 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-345136 : JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: SCOTT H. BALLOU 1370 Ontario Street, #1520 Cleveland, OH 44113-1747 DENNIS R. SPIRGEN 629 Euclid Avenue, #1000 Cleveland, OH 44114 ROBERT J. HANNA KRISTEN L. MAYER 1100 Huntington Building 925 Euclid Avenue Cleveland, OH 44115-1475 -2- JOHN T. PATTON, J.: Defendants-appellants Dan Chun and Duk Chan ( defendants ) appeal the decision of the trial court granting plaintiffs- appellees Samuel J. Herman's, et al., ( plaintiffs ) Civ.R. 60(B) motion to vacate judgment. The record reveals this case arose from a car accident that occurred on July 9, 1993, between a car driven by Samuel Herman and a second car driven by Dan Chun.1 Plaintiffs filed their complaint against defendants alleging negligence and negligent entrustment on June 30, 1995. Approximately two years later, on March 19, 1997, the case was voluntarily dismissed without prejudice by plaintiffs as a subsequent medical examination of Herman revealed further injuries were developing as a result of the car accident. Thereafter, on December 12, 1997, plaintiffs refiled their complaint, adding their insurer Ohio Casualty Insurance Company as a party-defendant based on an underinsured motorist claim. The docket shows service on the complaint was perfected on defendants on December 24, 1997, as signed by other. Three months later, on March 23, 1998, defendants filed a motion to dismiss for failure of service and lack of personal jurisdiction. In support, defendants attached the affidavit of a Reverend Choong Duk Moon who averred he resided at defendants' former residence, he signed when service was attempted, and defendants no longer lived in this country. Plaintiffs, pursuant to R.C. 2703.20, filed a notice of construc- tive service on the Secretary of State on April 6, 1998. Plain- 1Duk Chun owned the car driven by Dan Chun. -3- tiffs also caused a subpoena to be served on Rev. Moon for the purposes of taking his deposition. The deposition never occurred as the Rev. Moon failed to appear for the scheduled deposition. On November 3, 1998, the trial court granted defendants' motion to dismiss. In response, plaintiffs filed a Civ.R. 60(B) motion for relief from judgment. Plaintiffs argued they had a meritorious claim as liability had previously been established. Further, plaintiffs claimed good service had been established on defendants by virtue of the constructive service perfected on the Secretary of State and the service obtained by certified mail on December 24, 1997, at defendants' residence. A hearing on the Civ.R. 60(B) motion was held. The trial court heard arguments from all the parties and then granted plaintiffs' Civ.R. 60(B) motion for relief from judgment. Defendants timely filed a notice of appeal based from the granting of the Civ.R. 60(B) motion and now present a single assignment of error. Defendants' single assignment of error states as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEES' RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT WHERE APPELLEES FAILED TO OFFER EVIDENCE SUPPORTING TWO OF THE THREE PRONGS OF THE TEST SET FORTH IN GTE AUTO- MATIC ELECTRIC V. ARC INDUSTRIES (1976), 47 OHIO ST.2D 146. Defendants present a tripartite argument. First, defendants argue plaintiffs never presented a meritorious claim. Defendants contend plaintiffs never perfected service. They maintain [v]alid service of process is only presumed when an envelope is received by -4- any person at the Defendant's residence. And since they had moved out of the country it was impossible for Rev. Moon to sign for the certified mail as an attestation that the house was their residence. Rev. Moon signed for the certified mail at his own residence, not that of defendants. Second, defendants argue plaintiffs did not perfect service pursuant to R.C. 2703.20 by serving the Secretary of the State. Defendants claim plaintiffs did not serve the Secretary of State by the officer to whom service was directed or by the Sheriff of Franklin County. Instead, plaintiffs served the Secretary of State via certified mail which is not the proper method. In addition, defendants contend plaintiffs never sent registered mail to them or Rev. Moon which again is inadequate under R.C. 2703.20. Lastly, defendants argue plaintiffs failed to establish entitlement to relief under any of the grounds in Civ.R. 60(B). They claim plaintiffs have simply reformulated old arguments without any new facts in support thereof. The question of whether a motion for relief from judgment should be granted is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The phrase "abuse of discretion" implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court in reaching its judgment. Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App.3d 482, 491. When applying this standard of review, we may not -5- freely substitute our judgment for that of the lower court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138. The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. In regard to the first prong the movant's burden is only to assert a meritorious claim or defense supported by operative facts and not to necessarily prevail with respect to the truth of the claim or defense. McCann v. Lakewood (1994), 95 Ohio App.3d 226. As to the first prong, plaintiffs attached to their motion to vacate two letters from a Dr. Ruch. Dr. Ruch described the neck, shoulder, and arm pain that Samuel Herman was experiencing as a result of a car accident that occurred on July 3, 1993. Dr. Ruch explained that an MRI revealed Herman has a herniated disc and cervical myelopathy. Lastly, Dr. Ruch stated with a reasonable degree of medical certainty the disc herniation is a result of his automobile accident ***. Defendants have not admitted liability in this matter, but have not presented any evidence contravening the opinion of Dr. Ruch. Therefore, we find plaintiffs have -6- demonstrated a meritorious claim supported by sufficient operative facts. The second prong of the test in GTE states the movant must demonstrate that he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Plaintiffs maintain they are entitled to relief under the fifth ground which states any other reason justifying relief from the judgment. This fifth ground is the catch-all provision and applies only when any of the other grounds do not. Moreover, it reflects the inherent power of courts to relieve a person from the unjust operation of a judgment and should only be used in rare cases, where substantial grounds exist to justify relief. Wiley v. Gibson (1997), 125 Ohio App. 3d 77, 81. Regarding the second prong, defendants maintain plaintiffs are not entitled to relief from judgment because service was never perfected. They argue the Rev. Moon signed for the certified mail but he was not at their residence and plaintiffs failed to properly serve the Secretary of State. The record shows plaintiffs obtained effective service on defendants on the first complaint at 6842 Karen Drive, Seven Hills, Ohio. Approximately two years later, a second complaint was filed and plaintiffs attempted service at the same address. The docket reflected that certified mail service was perfected as signed by other. Defendants then filed a motion to dismiss, arguing service had not been perfected because Rev. Moon accepted service but not at defendants' residence. In support, defendants attached the -7- affidavit of Rev. Moon who averred he accepted service but that defendants no longer lived in this country. In response, plain- tiffs filed a notice of constructive service upon the Secretary of State. Plaintiffs then subpoenaed Rev. Moon but he never appeared for a deposition. In Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 51, the Court held *** certified mail service under Civ.R. 4.3(B)(1) is valid where the envelope containing the documents to be served is delivered to a person other than the defendant, at the defendants' address. We agree with the reasoning of defendants that service was never perfected at defendants' residence. Rev. Moon was served with the certified mail, but he was not served at defendants' residence. He was served at his own residence. In light of Mitchell, the instant facts amount to ineffective service. Regarding service of the Secretary of State via R.C. 2703.20, we find this service was also ineffective. R.C. 2703.20 describes service of process upon nonresident owners or operators of motor vehicles and states: Such process shall be served, by the officer to whom the same is directed, or by the sheriff of Franklin County, who may be deputized for such purposes by the officer to whom the service is directed, upon the secretary of state by leaving at the office of the secretary of state, at least fifteen days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy, with an indorsement thereon of the service upon said secretary of state, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process. (Italics added). -8- The statute prescribes the method by which the Secretary of State is to be served. There are two options for delivery of service: (1) by the officer to whom the same is directed or (2) by the sheriff of Franklin County. Plaintiffs' NOTICE of CONSTRUC- TIVE SERVICE on the SECRETARY of the STATE of OHIO PURSUANT TO O.R.C. 2703.20" reveals the complaint was sent by certified mail directly to the Secretary of State and to defendants at their last known address. As this service attempt does not comply with either of the options provided in R.C. 2703.20, we find plaintiffs never perfected service on the Secretary of State; i.e., constructive service on defendants. See Matthews v. Kinn (May 2, 1988), Seneca App. No. 12-87-05, unreported. Based on the above analysis, we find service was never perfected on defendants. Therefore, plaintiffs did not meet their burden of proving they were entitled to relief under the fifth ground of Civ.R. 60(B). Accordingly, the trial court abused its discretion in granting plaintiffs' Civ.R. 60(B) motion for relief from judgment. Defendants' sole assignment of error is sustained. Judgment reversed. -9- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, ADMINISTRATIVE JUDGE JAMES D. SWEENEY, J., CONCURS. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76286WILLIAM D. WOODS v PHOENIX SOCIETY OF CUYAHOGA CO COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 76286 WILLIAM D. WOODS : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION PHOENIX SOCIETY OF CUYAHOGA : COUNTY : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : MAY 18, 2000 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-370763 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: LOUIS J. LICATA Licata & Associates Suite 390 6480 Rockside Woods Blvd., W. Independence, OH 44131 WALTER F. EHRNFELT TIMOTHY P. LUBBE Waldheger & Coyne Co. Gemini Tower I, #550 1991 Crocker Road Westlake, OH 44145 -2- JOHN T. PATTON, J.: Plaintiff-appellant William Woods ( plaintiff ) appeals the trial court's decision to grant defendant-appellee Phoenix Society of Cuyahoga County's ( Phoenix ) motion to dismiss. The record shows that Phoenix is a non-profit, publicly funded agency which provides job training and peer support for people diagnosed with or recovering from a mental health disorder. Plaintiff accepted employment with Phoenix in October 1997, as an administrative assistant. On August 18, 1998, plaintiff was discharged from Phoenix. On November 27, 1998, plaintiff filed a complaint alleging he was wrongfully discharged based on discrimination he experienced because he was not mentally handicapped or disabled. In the complaint, plaintiff claimed he was the only person employed by Phoenix who did not have a prior mental health problem. He argued that when the executive director of Phoenix discovered he did not have a prior mental health problem his work environment deterio- rated. Specifically, plaintiff complained the director became hostile towards him, the director would not communicate directly with him but only through notes, he was excluded from meetings, his job responsibilities were transferred to others, and his hours were decreased. In addition, plaintiff stated the director issued several disciplinary write-ups that were fabricated and pretextual. Phoenix filed a motion to dismiss claiming plaintiff was dismissed for legitimate, nondiscriminatory reasons. Moreover, Phoenix argued even if plaintiff's allegations are taken as true, -3- he still did not state a claim upon which relief could be granted. Plaintiff filed a brief in opposition to Phoenix's motion to dismiss. However, on March 18, 1999, the trial court, without an opinion, granted Phoenix's motion to dismiss. Subsequently, plaintiff filed a timely notice of appeal and now presents two assignments of error. Since appellant's two assignments of error involve the propriety of the trial court's decision to grant dismissal, they will be jointly addressed. Plaintiff's first and second assignments of error state as follows: THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION TO DISMISS WHEN APPELLANT'S COMPLAINT CONFORMED TO THE NOTICE PLEADING REQUIREMENTS OF OHIO CIVIL RULE 8. THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S COMPLAINT BECAUSE HE STATED A COGNIZABLE CLAIM FOR RELIEF UNDER A PUBLIC POLICY EXCEPTION TO THE EMPLOYMENT AT-WILL DOCTRINE. Plaintiff argues he satisfied the requirements of Civ.R. 8(A) in his complaint by submitting a short and plain statement of the facts which gave Phoenix fair notice of his claim for relief under the public policy exception to the employment at-will doctrine. Plaintiff maintains he was terminated because he did not have a prior mental health problem which constitutes discrimination in violation of the public policy articulated in R.C. 4112, the Americans with Disabilities Act, and the case law. Specifically, he claims his termination based on his non-disabled status violates public policy favoring equal employment opportunity. -4- A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545. [W]hen a party files a motion to dismiss for failure to state a claim, all the factual allega- tions of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60. The issue for this court's determination is whether appel- lants' complaint included a statement of claim against Phoenix pursuant to Civ.R. 8(A). All that the civil rules require is a short, plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. Patrick V. Wertman (1996), 113 Ohio App.3d 713. It is well-settled law that for a court to properly grant a motion to dismiss for failure to state a claim, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245. Treating this as a de novo review, only the complaint can be reviewed to test the sufficiency of the allegations. Thus, we must determine whether plaintiff's complaint substantiates a claim for wrongful discharge in contravention of public policy based on his discriminatory allegation that he was fired because he never had a prior mental health problem. -5- In his complaint, plaintiff argues his status as a non- disabled employee caused his discharge. Essentially, plaintiff complains because he was not a part of a minority class; i.e., a person with a prior mental health problem, he was discriminated against during his job tenure and was eventually fired based on his non-minority status. Plaintiff is asking this court to carve out an exception to the employment at-will doctrine, based on public policy, because of his status as a non-disabled employee. Plaintiff's claim is a reverse discrimination claim; i.e., he was discriminated against because he was part of a majority. The Ohio Supreme Court has numerous cases which note the existence of a strong public policy against work-place discrimination. Genaro v. Cent Transport, Inc., (1999), 84 Ohio St.3d 293, 296; Collins v. Rizkana (1995), 73 Ohio St.3d 65; Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486. Specifically, in White v. Fed. Res. Bank (1995), 103 Ohio App.3d 534, 538, we held *** discrimination is much more than public policy in Ohio, it is clearly in and of itself an exception to any at-will employment agreement. White clearly stands for the proposition that a claim for discrimination is an exception to the at-will employment doctrine. In the present case, plaintiff's claim is for reverse discrimination. While this is not the exact same type of discrimi- nation that was discussed in White, it is nonetheless a form of discrimination and therefore it falls under the parameters of the abovementioned White holding. -6- Having found that reverse discrimination is a viable exception to the at-will employment doctrine, we next discuss whether, based on the complaint, plaintiff can prove no set of facts entitling him to relief. The basic elements of a reverse discrimination case against an employer were set forth in Wagner v. Allied Steel & Tractor Co., (1995), 105 Ohio App.3d 611, 614-615. In order to make a prima facie case of reverse discrimination, the employee must show (1) background circumstances supporting the inference that his employer was the unusual employer who discriminated against nonminority employees; (2) he was discharged from his job by the employer; (3) he was qualified for the position; and (4) either he was replaced by a person not belonging to the protected class or his discharge enabled the employer to retain such a person. Id. Plaintiff's complaint states he was hired as an administra- tive assistant/officer manager. He alleges a non-mental health employee he worked with at Phoenix was replaced by Phoenix in June 1998. He claims he was then the only non-mental health employee working for Phoenix. Two months later, on August 18, 1998, plaintiff claims he was discharged by Phoenix because he was a non- mental health employee. Based on the above analysis, we find that the trial court erred in granting Phoenix's motion to dismiss. Accordingly, plaintiff's assignments of error are sustained and this case is remanded to the trial court for further proceedings. Reversed and remanded. -7- -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, ADMINISTRATIVE JUDGE JAMES D. SWEENEY, J., CONCURS. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 76536ANNA MARIE BARBATO, ET AL v CATHERINE EILEEN MILLER COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76536 ANNA MARIE BARBATO, ET AL. : : Plaintiffs-Appellees : JOURNAL ENTRY : : AND -vs- : : OPINION CATHERINE EILEEN MILLER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : MAY 18, 2000 OF DECISION : : CHARACTER OF PROCEEDING : Civil appear from Common : Pleas Court Case No. CV- 363816 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiffs-Appellees: Alan S. Levine Paul W. Flowers Paul W. Flowers Co., LPA 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-Appellant: Kerry Randall Lewis Law Office of Jan A. Saurman 14650 Detroit Avenue Suite 450 Cleveland, Ohio 44107-4210 ANNE L. KILBANE, J.: Defendant-appellant Catherine Miller, 89 years old and in failing health, claims Judge Nancy Margaret Russo abused her -2- discretion when she entered a $375,000 judgment against her as a sanction for her failure to appear at trial. We agree, reverse and remand. On February 6, 1996, appellees Anna Marie Barbato and her husband, Raymond Slater, filed a complaint with jury demand against Miller praying for a total of $375,000 for the personal injury and property damage claims of Barbato and the loss of consortium claim of Slater. They alleged that on September 6, 1995, while Barbato was operating a car eastbound on Harvard in Oakwood Village, Miller, operating her car westbound on Harvard, went left of center causing a collision and serious injuries to Barbato. Miller answered, denied negligence and affirmatively pleaded that Barbato was solely negligent or more comparatively negligent; negligence of a third party; substantial intervening superseding cause; and sudden emergency. The case was set for trial on October 7, 1997, but voluntarily dismissed on September 25, 1997 through a Civ.R. 41(A)(1) entry. The identical complaint was refiled on September 1, 1998, and placed on the docket of Judge Nancy McDonnell, but reassigned to Judge Russo on September 18, 1998, pursuant to Sup.R. 36. Miller refiled her answer and asserted the same affirmative defenses of intervening superseding cause and sudden emergency as before.1 1By affidavit Miller claims that, while westbound on Harvard in a westbound lane and prior to the collision she sustained an unpredictable stroke and a sudden and unexpected blackout. -3- At a case management hearing on December 4, 1998, the judge entered the following order journalized on December 11, 1998: Pltf to complete expert discovery on or before 2-5-99 Deft to complete expert discovery on or before 4-5-99. Trial set for 5-10-99. Final pretrial set 4-26-99 at 3:00 p.m. clients, counsel and adjustors, to appear in person at final pretrial / hr. before trial with ful l settlement authority. Failure to appear will result in sanctions and/or judgment ***. On April 16, 1999, Barbato's lawyer filed a copy of Miller's deposition, taken in the earlier case, and issued a subpoena to her at the Somerset Point Skilled Nursing Facility, commanding her appearance for trial.2 In an order journalized April 27, 1999, the judge noted FPT held. All dates and orders remain in effect. 3 On April 29, 1999, Miller's lawyer filed a motion to quash the subpoena, asserting that Miller's attendance at trial would cause an undue burden to her health. In support of the motion to quash the subpoena was a copy of a March 30, 1999 letter/report from Miller's attending physician, Dr. Charles C. Sevatos, D.O. In pertinent part, the letter stated: I have been Ms. Miller's attending physician since September 16, 1995, when she was admitted to Somerset Point Skilled Nursing Facility. Since that time Ms. Miller has been treated for a heart condition including an atrial fibrillation, osteoporosis, pernicious anemia, hypothyroidism, urinary incontinence, and arthritis. Ms. Miller is currently being treated with multiple medications for the above noted conditions. 2Miller has lived at this facility since her discharge from Meridia Hillcrest where she was hospitalized on September 6, 1995. 3Apparently Miller was not present at this final pretrial but no contempt was found. -4- In addition, Ms. Miller has been treated by an audiologist for her hearing deficits. In 1997, Ms. Miller suffered a transient aschemic attack, or a small stroke for which she was hospitalized. A brain waive study, or an EEG[,] was performed at that time which showed a bihemispheric cortical dysfunction. Having known Ms. Miller since 1995, it is of concern, in my medical opinion, that the stress and excitement of a trial or being called as a witness may very well exacerbate Ms. Miller's atrial fibrillation or heart problem. The stress could very well increase her heart rate which is the most serious complication of atrial fibrillation. The abnormal heart rhythm at a increased rate can make the patient more susceptible to a stroke or heart attack. I am also concerned that while Ms. Miller on most occasions is neurologically stable and appears to be alert and oriented to person, place and time, I have found her to be emotionally labile as well as to have short term memory deficit. * * * In closing, I feel that it would be detrimental to Ms. Miller's significant medical conditions to go through the stress and tension associated with any litigation. I also would express my concern of her qualifications as any type of witness in a trial as her memory, while at times seems in tact [sic], has shown over time to have some short term deficits with underlying confusion, most likely related to senile or multi infarct dementia arising from her abnormal heart rhythm. If any further information is required please do not hesitate to contact me. Miller's personal lawyer provided an affidavit, through which he verified that he had told Barbato's lawyer as early as March 30, 1999, that Miller's medical conditions prevented her from appearing at trial and had provided a copy of Dr. Sevatos' report to him. On that same day, Barbato filed a Notice of Intent to Read Deposition into Evidence Pursuant to Rule 32 of the Ohio Rules of Civil Procedure stating that, if Miller failed to appear at trial, her October 29, 1996 deposition would be read into the record. -5- Miller's attorney filed a trial brief on April 30, 1999, and identified two eyewitnesses and two expert witnesses, one of whom would testify about the sudden emergency defense. Barbato's trial brief, filed May 3, listed Miller as a witness if the court compels her attendance. Barbato also responded to Miller's Motion to Quash Subpoena, stating that [w]hile plaintiffs do not necessarily contest defendant's Motion to Quash, plaintiffs do however respectfully request that if this Honorable Court determines that defendant's Motion to Quash is well taken, *** they be allowed to read portions of her deposition into the record and introduce the transcript as an exhibit in trial. By journal entry dated May 5, 1999, a Wednesday, the judge issued the following order: [Defendant's] motion to quash subpoena of Catherine Miller is denied. The Court has not received any motion or supporting information alleging the defendant is unable to testify. Defendant ordered to appear for trial, per prior order. On May 7, 1999, a Friday, Miller's personal lawyer filed a Motion For Reconsideration of the denial in which he referred to Dr. Sevatos' report attached to the original motion to quash and strongly contended that Miller's appearance at trial would endanger her already declining health. In a journal entry dated the same day, the judge issued the following ruling: Defendant's motion for reconsideration is denied at this time. As stated in this Ct's 5/4/99 ruling, Ct has not received supporting medical documentation. Ct will reconsider this motion upon receipt of medical documentation (i.e. medical records) and testimony, in person, of a person qualified to testify as to the -6- contents of the medical records and condition of Catherine Eileen Miller on morning of trial, 5/10/99 at 8:30 a.m. Miller's lawyer received notice of this order by telephone, contacted Dr. Sevastos, explained the situation and requested his appearance in court on Monday. He refused, claiming his patient schedule could not be changed on such short notice. On Monday, May 10, 1999, both Miller's lawyer and insurance claims adjuster appeared in court at 8:00 a.m., pursuant to the December 11, 1998 order, but no settlement was reached. Miller's lawyer telephoned Dr. Sevastos and again requested his appearance; and again he refused. Dr. Sevastos' lawyer then called and reiterated to Miller's lawyer that the doctor would not appear on such short notice. Miller's lawyer then suggested that the judge could speak to the doctor by telephone in the presence of a court reporter but the judge refused this alternative. Miller's lawyer then advised the judge that she was prepared to try the case and requested that it go forward but the judge advised that she was entering judgment against Miller as a sanction for her failure to appear. No hearing was held or evidence produced on the issues of liability or damages. Judge Russo then entered judgment in favor of Barbato and Salter: Trial called in this case per Court's Order; [Defendant] fails to appear; produce attending physician &/or medical records re: alleged inability to appear, despite Court's numerous orders. Judgment entered against [Defendant] as and for a sanction as follows: in the amount of $350,000, together with costs in favor of [Plaintiff] Anna Marie Barbato; and in the amount of $25,000 against [Defendant] and in favor of [Plaintiff] Ray Slater, together with costs herein. -7- Miller filed a Motion For Relief From Judgment pursuant to Civ.R. 60(B) and then this appeal. We will address Miller's assignments of error together: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SUMMARILY ENTERED JUDGMENT AS A SANCTION FOR DEFENDANT'S FAILURE TO APPEAR AT TRIAL. THE TRIAL COURT ABUSED ITS DISCRETION WHEN, AFTER IT WAS PRESENTED WITH THE UNCONTROVERTED MEDICAL REPORT OF DEFENDANT'S PERSONAL PHYSICIAN, IT REQUIRED THAT THE DEFENDANT APPEAR AT TRIAL, OR IN THE ALTERNATIVE THAT THE PHYSICIAN APPEAR WITH SUPPORTING MEDICAL DOCUMENTATION. Miller contends: (1) that the sanction was a default judgment and Civ.R. 55 permits a judge to issue a default judgment only in cases where the opponent has failed to plead or otherwise defend the action; (2) that imposing a sanction in the total amount of the prayer for damages was not only the most drastic and outrageous of remedies, it is not authorized under any rule of law; (3) that the judge should have allowed her to proceed with trial and present her defense; and (4) that the judge should have granted her motion to quash based upon her physician's report. Barbato and Slater assert that the judge did not enter a default judgment; rather, she entered an appropriate sanction against Miller for her contempt in failing to abide by the judge's repeated orders. Moreover, they argue, the only thing Miller submitted to the judge to substantiate her alleged infirmity was an unauthenticated letter from her doctor; she never offered a reasonable alternative to her appearance at trial. They conclude that the judge was completely within the bounds of her authority when she imposed the sanction against Miller. -8- The judge did not enter a default judgment against Miller. As we noted in Card v. Tatum (May 14, 1998), Cuyahoga App. No. 73678, unreported, judgment by default is improper where a party has answered. See Civ.R. 55(A). It is black-letter law that [t]he proper action for a court to take when a defending party who has pleaded fails to show for trial is to require the party seeking relief to proceed ex parte in the opponent's absence. Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 122, 502 N.E.2d 599. In the present case, the judge implicitly found Miller in contempt for violating the order requiring her attendance at trial. But in what type of contempt was Miller found? R.C. 2705.01 defines direct contempt as misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. Should such a situation occur, the judge may summarily punish the offender without a hearing. When, however, a person is accused of committing indirect contempt of court as defined by R.C. 2705.02, a charge in writing shall be filed with the clerk of court, an entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel. R.C. 2705.03; see, R.C. 2705.05(A). Indirect contempt may occur, inter alia, by [d]isobedience of, or resistance to, a lawful writ, process, order rule, judgment, or command of a court or an officer, or by [a] failure to obey a subpoena duly served, or a refusal to be sworn or to answer as a witness, when lawfully required. R.C. 2704.02(A), (C); see Civ.R. 45(E). -9- As a general rule, unless it is void, an order must be obeyed until it is set aside by orderly and proper proceedings, and a person may be found in contempt for violating that order. Arthur Young & Co. v. Kelly (1990), 68 Ohio App.3d 287, 295, 588 N.E.2d 233, citing State ex rel. Beil v. Dota (1958), 168 Ohio St. 315, 154 N.E.2d 634; Cloverleaf Restaurants, Inc. v. Lenihan (1947), 80 Ohio App. 477, 75 N.E.2d 477. However, [i]mpossibility of compliance [with an order] is an affirmative defense for which the alleged contemnor has the burden of proof. Olmsted Twp. v. Riolo (1988), 49 Ohio App.3d 114, 117, 550 N.E.2d 507, citing Smedley v. State (1916), 95 Ohio St. 141, 143, 115 N.E. 1022, 1023. If Miller's alleged disobedience was a violation of the judge's order, it would constitute indirect contempt which is subject to a charge in writing and a hearing before the imposition of sanctions. Because the judge entered judgment and sanctions summarily, and did not afford Miller a hearing, the judgment and sanctions should be reversed and the matter remanded for a separate hearing. But this finding does not conclude the appeal. We address whether the judge abused her judicial discretion when she denied Miller's motion to quash Barbato's subpoena and, thereafter, mandated that Miller, or later, that her physician, appear for trial. ` The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. ' Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1, quoting State v. Jenkins(1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d -10- 264, 313, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. To abuse that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff, 75 Ohio St.3d at 256. Pursuant to Civ.R. 45(C)(1), [a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. However, upon timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production *** if the subpoena *** [s]ubjects a person to undue burden. Civ.R. 45(C)(3)(d). Subdivision (C)(5) further provides: If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated. It is painfully obvious from Miller's motion to quash, the medical report and subsequent affidavit, her appearance at trial would exacerbate her already deteriorated condition in such a way as to make her more susceptible to a stroke or heart attack. When a party is in ill health, the probability of severe physical injury or death resulting from appearing at trial is an undue burden under Civ.R. 45(C)(3)(d). A judge must quash or modify the -11- subpoena unless the person issuing the subpoena shows sub need for the testimony or material that cannot be otherwiseastantialmet without undue hardship. Civ.R. 45(C)(5). Barbato clearly and unambiguously did not contest the motion to quash and was quite willing to use Miller's deposition transcript at trial. Because Miller presented evidence of undue burden and Barbato did not show a substantial need for her testimony under Civ.R. 45(C)(5), we find the judge's continued disregard of Dr. Sevatos' medical report, and demand that Miller's physician testify regarding her infirmity to be an abuse of discretion.4 The judge erred when she denied the motion to quash. But the judge did not impose sanctions for Miller's failure to obey a subpoena, rather it was expressly for violations of her orders. Loc.R. 21 Part III(H)(2) provides: (H) Any judge presiding at a pretrial conference or trial shall have authority: *** (2) After notice, order the plaintiff to proceed the case and decide and determine all matters ex-parte upon failure of the defendant to appear in person or by counsel any pretrial or trial, as required by Part III(B) of this Rule. Loc.R. 21, adopted by the common pleas judges, governs the practice and procedures in the general division, and cannot to be ignored or 4In Card v. Tatum (May 14, 1998), Cuyahoga App. No. 73578, unreported, we found an abuse of discretion when the judge denied the defendant's motion for a continuance of a settlement conference when the defendant had produced a doctor's note indicating that she could not travel from Florida to Cleveland due to the nature of her condition and the possibility of surgery. We concluded that the doctor's note constituted sufficient documentation to support her motion. -12- abrogated by an individual judge's particular rule or order. Bognar v. Quarries Co. (1966), 7 Ohio App.2d 187, 219 N.E.2d 827. Because nothing within the rule permits a judge to impose any sanction should an attorney appear for trial without his client, a Draconian order requiring a party's presence for trial is contrary to both the letter and spirit of the local rule and Civ.R. 39. While a judge has discretion in maintaining and controlling his docket and may impose sanctions for violation of proper orders, he does not have the authority to find a party in contempt for failing to obey an invalid order. Miller's attorney was present and prepared for trial. It was error to hold Miller in contempt and impose any sanction for failing to appear. Miller's assignments of error are well taken. In accordance with the foregoing opinion, the judgment is reversed and remanded. -13- It is ordered that the appellant recover from the appellees her costs herein taxed. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JUDGE ANNE L. KILBANE PATRICIA ANN BLACKMON, J., CONCUR; TERRENCE O'DONNELL, P.J. CONCURRING IN JUDGMENT ONLY. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 77222LEROY PAYTON v UNEMPLOYMENT COMP. REVIEW COMM COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77222 LEROY PAYTON : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY -vs- : : AND UNEMPLOYMENT COMP. REVIEW : COMMISSION : : OPINION Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-387098 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN WOOD, ESQ. 115 Hunt Club Drive, Ste. 2-D Bath, Ohio 44321 For Defendant-Appellee: BETSEY NIMS, ESQ. Assistant Attorney General 12th Floor, State Office Building 615 West Superior Avenue Cleveland, Ohio 44113-1899 FRED J. POMPEANI, ESQ. MICHAEL J. REIDY, ESQ. Millisor & Nobil Co., L.P.A. 9150 South Hills Blvd, Suite 300 Cleveland, Oho 44147 -2- PATRICIA ANN BLACKMON, J.: Appellant Leroy Payton appeals the trial court's decision affirming the Ohio Unemployment Compensation Review Commission's denial of his request for his employment benefits. Appellant assigns the following three errors for our review: I. IT IS UNREASONABLE ERROR TO HOLD THAT A MULTIPLY [sic] REDUNDANT ACTION IS AN INFERABLY [sic] ESSENTIAL DUTY. II. IT IS ERROR TO HOLD THAT AN EMPLOYEE WHO UNDERTAKES A TASK AND REASONABLY BELIEVES IT FULLY PERFORMED IS GROSSLY NEGLIGENT WHERE THE PERFORMANCE FAILS OF ITS INTENDED EFFECT. III. IT IS ERROR TO HOLD THAT CLAIMANT DESERVED FIRING WHERE THE EVIDENCE IS THAT THE EMPLOYER UNFAIRLY DID NOT FIRE THOSE EVEN MORE AT FAULT, AND WAS UNFAIR IN ITS CONDUCT WITH THE BUREAU. Having reviewed the record and the legal arguments of the parties, we affirm the trial court's decision. The apposite facts follow. The Cleveland Heights University Heights City School District employed appellant Leroy Payton from October 19, 1993 through December 7, 1998. During the 1997-1998 school year, Payton began working as a school bus driver's assistant on a school bus route transporting traditional students, ages thirteen and fourteen. The next school year, Payton worked as a school bus driver's assistant on route for preschool children with special needs. The District terminated Payton's employment for leaving a three-year-old special needs student unattended for approximately two hours on Payton's assigned bus on November 20, 1998. The District characterized Payton's actions in leaving the child on the bus as neglect of -3- duty, misfeasance, and a violation of rules and regulations for transportation. On February 19, 1999, Payton applied for unemployment benefits from the Ohio Bureau of Employment Services (OBES). OBES disallowed Payton's application, finding the District discharged Payton for just cause in connection with work. On March 23, 1999, Payton appealed OBES' decision to the Unemployment Compensation Review Commission's Review Board (Board). The Board held a hearing of Payton's appeal on April 28, 1999, and Patricia Horton, Assistant Director of Human Resources, testified on behalf of the school district. Horton testified the job description for a bus driver's assistant included the duty to assure that children in the assistant's care are received at the school by a responsible and familiar adult, which in this case is a teacher or teacher's aid. Horton testified the duty to search the bus to make sure all the children have gotten off rests with the drivers and bus driver assistants, not the teachers. Horton testified both the bus driver and the bus driver's assistant bear the responsibility to make certain that the children they pick up are dropped off at the school. Horton testified bus drivers and assistants are told to walk the aisles of the bus, looking from side to side to see if a child is there, and to place an empty sign on the back of the bus indicating that it has been checked. Horton stated that on the morning of November 20, 1998, while dropping off the children at the school, Payton and the bus driver received a call that they needed to go pick up another child and take that -4- child to another school. They left to pick up this child not realizing that the three-year-old remained on the bus. Payton and the bus driver picked up the other child, dropped that child off at the other location and returned the bus to the bus compound, never realizing that the three-year-old child still remained on the bus. The three-year-old child remained on the bus until another bus driver and assistant discovered him at 11:30 am. Horton testified the school district fired both Payton and the bus driver for failing to assure that the child was received by a teacher or other responsible adult at the school. Payton testified he assisted the bus driver by receiving the children onto the bus, strapping them into their seats, watching their behavior, and releasing the children to the teachers at the school. Payton maintained that although he had not been instructed to do so, it was his practice to check the bus to make sure that all the children had been released before he left the school. Payton testified he checked the bus on November 20, 1998. Payton admitted he overlooked the child. He stated, he was a small kid but actually I didn't see the kid. I looked and I didn't see the kid. Following the hearing, the Board issued a decision finding that the District discharged Payton for just cause in connection with work. The Board reasoned that although Payton's employer may not have explicitly instructed him to make sure all the children were taken off the bus at the school, this duty was inherent in the position of the school bus driver assistant; therefore, specific -5- instructions were unnecessary. The Board concluded that Payton's failure to see the child when he inspected the bus on November 20, 1998 constituted gross negligence. Payton appealed the Board's decision to the Cuyahoga County Court of Common Pleas on July 7, 1999. The court affirmed the Board's decision concluding that Payton's failure to remove the three-year-old special needs child from the school bus, thereby causing the child to be alone in the bus compound for two hours, exhibited an unacceptable disregard for his employer's best interest and justified his termination. This appeal followed. In unemployment compensation cases, there is no distinction between the scope of review of the common pleas and appellate courts. Tzangas, Plakas & Mannos v. Admr., Ohio Bur. of Emp. Svcs. (1995), 73 Ohio St.3d 694, 697, 653 N.E.2d. 1207, 1210. The reviewing court must not substitute its own findings of fact for those of the board; and may reverse the decision of the Board only if the decision is unlawful, unreasonable, or against the manifest weight of the evidence. Id. While appellate courts are not permitted to make factual findings or to determine the credibility of witnesses, they do have the duty to determine whether the Board's decision is supported by the evidence in the record. Id. at 696, 653 N.E.2d at 1210. Although Payton states three assignments of error, they each have a common basis in law and in fact. Therefore, we review Payton's errors concurrently. -6- In the instant case, the Board decided that the school district discharged Payton for just cause. This Court must determine whether the evidence in the record supports the Board's decision. The Ohio Supreme Court defines just cause as that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. Id. at 697, 653 N.E.2d at 1211, citing Irvine v. Unemp. Comp. Bd. Of Review (1985), 19 Ohio St.3d 15, 17, 482 N.E.2d 587, 589. A just cause determination requires fault on the part of the discharged employee. Id. at 698, 653 N.E.2d at 1211; Lee v. Nick Mayer Lincoln (1991), 74 Ohio App.3d 306, 309, 598 N.E.2d 1238, 1240, Piazza v. Ohio Bur. Of Emp. Serv. (1991), 72 Ohio App.3d 353, 594 N.E.2d 695. Fault contemplates culpable actions within the employee's ability to control. When an employee, by his actions, demonstrate[s] an unreasonable disregard for his employer's best interest, Ohio law considers the discharge to have been with just cause. Lee, supra at 309, 598 N.E.2d at 1240, citing Kiikka v. Bur. Of Emp. Svcs. (1985), 21 Ohio App.3d 168, 169, 486 N.E.2d 1233, 1234. Payton argues the Board and the trial court erred in finding that, as a school bus driver's assistant, he possessed an essential duty to assure that all children got off the bus after it arrived at the school. Based on the evidence in the record, we disagree. At the hearing, Patricia Horton, Assistant Director of Human Resources, testified the responsibility for checking the bus to make sure all the children were off the bus rested with Payton and -7- the school bus driver. Additionally, Payton testified his job responsibilities included removing the children's seatbelts and releasing the children to the teachers after the bus arrived at the school. Inherit in this responsibility is the duty to verify that all the children are dropped off at the school. Payton acknowledged this inherent duty in his practice of checking the bus for children before leaving the school for the bus compound. Hence, we conclude that there is sufficient evidence in the record to support the Board's and the trial court's finding that Payton possessed an essential duty to verify that all the children were dropped off at the school. Payton argues that the Board's just cause determination is unreasonable because the school district did not have a rule or policy assigning such duty to school bus driver assistants. However, [t]he critical issue is not whether the employee has technically violated some company rule, but whether the employee by his actions demonstrated an unreasonable disregard for his employer's interest. Piazza, supra at 357, 594 N.E.2d at 698. It was in the school district's best interest for Payton to have performed his duty by verifying that he transferred all children in his care to the teachers at the school. See Turner v. Central Local School District (1999), 85 Ohio St.3d 95, 706 N.E.2d 1261 (school district potentially liable in nine year-old child's death if found that bus driver failed to leave child in place of safety). Both the Board and the trial court characterized Payton's role in failing to discover the three-year-old child as grossly -8- negligent, implying an intentional failure to perform his duty.1 Payton argues his failure to see the child was not intentional, but rather the result of an honest mistake. However, the record does not reveal any circumstance, had Payton checked the bus as he claims, that prevented Payton from discovering the child. On the record in this case, we cannot say that the Board or the trial court erred in finding Payton grossly negligent in failing to discover the child. Additionally, Payton argues the school district acted unfairly in discharging him and not discharging the child's teacher. Payton claims that this differing treatment precludes a finding that the school district terminated his employment for just cause in connection with work. This argument lacks merit. The record reveals that Payton's responsibility differed from that of the child's teacher. In the event that a child did not arrive at the school, the school district required the teacher to call the child's home. According to the record, the teacher called the child's home. Unlike Payton and the bus driver, the teacher did not have responsibility for conducting a final check for children when the bus arrived at the school. Thus, the responsibilities of Payton and the teacher differed sufficiently to justify differing treatment. 1 Gross negligence is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is materially more want of care than constitutes simple inadvertence. Black's Law Dictionary (5 Ed.1979) 931-932. -9- Additionally, during oral argument, Payton argued the bus driver was awarded compensation and he was not.2 The record establishes this fact. However, the record is insufficient for us to conclude that this fact constituted disparate treatment. Any number of reasonable explanations exist as to why the bus driver might have received unemployment compensation. For example, he may have settled with the Board on that issue. In any event, the burden is on Payton to establish the facts supporting disparate treatment. Accordingly, we overrule Payton's assignments of error. Judgment affirmed. 2 In his statement of facts, Payton states [t]he bus driver received unemployment benefits. The appellant was denied benefits. However, Payton chose not to raise this point as an issue nor does he argue it in his brief. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, P.J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 77319STATE OF OHIO v DONALD L. RICHARD, SR. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77319 STATE OF OHIO : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND DONALD L. RICHARD, SR. : : OPINION DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-215283. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RENEE L. SNOW Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: DONALD L. RICHARD, SR., Pro se Inmate No. A197-168 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044 -2- SWEENEY, JAMES D., J. This appeal arises from the denial of Appellant's Motion for Leave of Court to File a Delayed Motion for a New Trial. This is appellant's fourth attempt to accomplish that end. On February 5, 1987, appellant Donald Richard, Sr. was indicted for aggravated murder, and having a weapon while under disability. Both parties stipulated to a bifurcated trial, wherein the murder charge was to be tried to a jury and the weapon while under disability charge was to be tried to the court. Thereafter, the state amended count one to murder with a gun specification. On April 24, 1987, a jury found appellant guilty of murder (R.C. 2903.02) with a firearm specification, as charged in the indictment. Subsequently, the court found appellant guilty of having a weapon while under disability (R.C. 2823.13) with a firearm specification, as charged in the indictment. Appellant then filed a motion for a new trial in which he alleged that the trial court erred in its instructions to the jury. The court denied this motion. On May 7, 1987, appellant was sentenced to prison for consecutive terms of fifteen years to life on the murder charge, plus three years for the firearm specification, and three to five years on the weapon disability charge. Appellant's conviction and sentence was affirmed by this court. State v. Richard (Oct. 20, 1988), Cuyahoga App. No. 54228, unreported. Thereafter, on January 4, 1990; May 3, 1991; May 11, 1992; July 8, 1992; December 11, 1995; January 5, 1996; and February 6, -3- 1996, appellant filed motions for post-conviction relief; all of which have been denied, the appeals having been either affirmed or dismissed. In addition, on December 26, 1990 and November 21, 1991, appellant filed motions for a new trial based on newly discovered evidence, Crim R. 33(B). The trial court denied both motions. The trial court's denial of appellant's December 26, 1990 motion was affirmed by this court. State v. Richard (Dec. 5, 1991), Cuyahoga App. No. 61730, unreported. Again, on October 3, 1997, appellant filed a Motion for a New Trial based on the claim of newly discovered evidence. On October 15, 1997, appellant's motion was denied. The trial court's finding was affirmed by this court. State v. Richard (May 7, 1998), Cuyahoga App. No. 73499, unreported. In addition, this court denied appellant's App.R. 25 motion to certify a conflict. Appellant's appeal to the Ohio Supreme Court was denied. Furthermore, since 1988, appellant has filed thirteen affidavits of disqualification with the Ohio Supreme Court seeking to disqualify all judges of the Cuyahoga County Common Pleas Court from further proceedings regarding his case. In denying the thirteenth affidavit, Chief Justice Moyer stated that appellant's allegations do not support a finding of bias, prejudice, or other disqualifying interest on the part of the judges of the Common Pleas Court. The case sub judice arises from the trial court's denial of appellant's Motion for Leave of Court to File a Delayed Motion for -4- New Trial: Newly Discovered Evidence, Crim. R. 33(B), filed on June 22, 1999. The facts of the underlying crime are stated in our initial review. See State v. Richard (Oct. 20, 1988), Cuyahoga App. No. 54228, unreported. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR LEAVE OF COURT TO FILE A DELAYED MOTION FOR NEW TRIAL, WHERE MISCONDUCT BY OFFICERS OF THE COURT AND OTHERS MATERIALLY AND PREJUDICIALLY INTERFERED WITH APPELLANT'S FUNDAMENTAL RIGHT TO A FAIR AND IMPARTIAL JURY-TRIAL AS MANDATED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, AND THE TRIAL COURT FAILED TO MAKE THE DETERMINATION OF WHETHER APPELLANT WAS UNAVOIDABLY PREVENTED FROM DISCOVERY OF NEW EVIDENCE WITHIN THE STATUTORY TIME. CRIM. R. 33(B). A motion for new trial based upon newly discovered evidence must be filed within one-hundred-twenty (120) days of the end of the proceedings. Crim.R. 33(B). If the motion is not made within this time-frame, a defendant is required to request the trial court's leave to file a motion for a new trial. The defendant must demonstrate by clear and convincing evidence that he or she was unavoidably prevented from discovering the evidence within the one- hundred-twenty (120) day period. Clear and convincing evidence is that measure of proof that is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Clear and convincing evidence produces in the mind of the fact-finder a firm belief or conviction as to the facts sought to be established. State v. Schiebel (1990), 55 -5- Ohio St.3d 71, 74. This standard of proof requires more than a mere allegation that a defendant was unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial motion. State v. Kiraly (1977), 56 Ohio App.2d 37, 55. Where there is competent and credible evidence supporting the trial court's decision, an appellate court should not substitute its judgment for that of the trial court. Schiebel, supra, at 74. The allowance or denial of a motion for a new trial is within the competence and discretion of the trial judge. The trial court's decision will not be disturbed absent a showing of an abuse of discretion. State v. Hill (1992), 64 Ohio St.3d 313, 333. An abuse of discretion connotes more than a mere error of law or even an error in judgment. Abuse of discretion implies an arbitrary, unreasonable or unconscionable attitude on the part of the trial court. State v. Keenan (1998), 81 Ohio St.3d 133, 137. In the case sub judice, appellant alleges a web of judicial and prosecutorial misconduct. In the affidavit attached to his Motion for Leave, appellant alleges a tenuous string of events that, in his mind, suggest judicial and prosecutorial misconduct. Appellant suggests that a former appellate judge conspired to plant a juror at appellant's trial. Appellant's allegation is based on appellant's own discovery that the judge and the victim's parents shared the same vacation destination. Appellant's affidavit further states that an alleged planted juror was a law student at the same school as the conspiring judge's son and, further, this juror was employed at AT&T, the employer of the victim's brother as -6- well. In addition, appellant's affidavit alleges a more intricate conspiracy regarding the prosecution of his son, which for purposes of this case are irrelevant. Appellant fails to show how or why he was unavoidably prevented from obtaining the newly discovered evidence as required by Crim. R. 33(B). Assuming arguendo, appellant has presented evidence that is sufficient to meet a clear and convincing standard of proof showing he was unavoidably prevented form obtaining newly- discovered evidence within a one-hundred-twenty (120) day period, appellant's evidence does not rise to the standard that warrants the granting of a new trial. The evidence presented does not disclose a strong probability that it will change the result if a new trial is granted. See State v. Petro (1947), 148 Ohio St. 505. Appellant's assignment of error is not well taken. Judgment of the trial court is affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #####20000518 77375S/O EX REL.,ANDRE C. CRAWFORD v GERALD E. FUERST CLERK OF COUR COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77375 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF ANDRE C. CRAWFORD : MANDAMUS : Relator : MOTION NO. 16971 : vs. : JOURNAL ENTRY AND OPINION : GERALD E. FUERST, CLERK : COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : Respondent : : DATE OF JOURNALIZATION : MAY 18, 2000 JUDGMENT : WRIT DENIED. APPEARANCES: For Relator : ANDRE C. CRAWFORD, Pro Se No. 372-842 15708 State Route 78 West Caldwell, Ohio 43724-8902 For Respondent : WILLIAM D. MASON, Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 ANN DYKE, A.J.: -2- Relator avers that he has paid respondent clerk for copies of various filings in State v. Crawford, Cuyahoga County Court of Common Pleas Case Nos. CR-298403 and 298553, and State v. Crawford, Cuyahoga App. No. 66245, but has not received the copies. Relator requests that this court compel respondent clerk to forward to relator copies of the documents which he has requested. Respondent has filed a motion for summary judgment. Attached to the motion for summary judgment is a copy of a letter transmitting to relator copies of the items identified in the complaint. Respondent argues that this action in mandamus is, therefore, moot. We agree. See State ex rel. Blackwell v. Fuerst (Jan. 14, 1999), Cuyahoga App. No. 75316, unreported. Relator also complains that respondent is charging an excessive amount for copies. Yet, also attached to the motion for summary judgment is a copy of an order of the court of common pleas authorizing the charges. See also R.C. 2303.26 which provides, in part: The clerk of the court of common pleas *** shall be under the direction of his [sic] court. As a consequence, any right which relator may have to relief is less than clear. Accordingly, respondent's motion for summary judgment is granted. Respondent to pay costs. Writ denied. TERRENCE O'DONNELL, J., CONCURS. ANN DYKE, ADMINISTRATIVE JUDGE -3- #####20000518 77509S/O EX REL., TERRY WALLS v OHIO ADULT PAROLE AUTHORITY COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77509 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF TERRY WALLS : MANDAMUS : Relator : MOTION NO. 17167 : vs. : JOURNAL ENTRY AND OPINION : OHIO ADULT PAROLE AUTHORITY : : Respondent : : DATE OF JOURNALIZATION : MAY 18, 2000 JUDGMENT : CASE IS TRANSFERRED TO THE TENTH DISTRICT COURT OF APPEALS FOR VENUE. APPEARANCES: For Relator : TERRY WALLS, Pro Se No. 375-974 Belmont Correctional Institution P. O. Box 540, St. Rte. 331 St. Clairsville, Ohio 43950-0540 For Respondent : BETTY D. MONTGOMERY, Attorney General ANDREA F. ROCCO, Assistant Corrections Litigation Section 615 West Superior Ave., 12th Floor Cleveland, Ohio 44113-1899 ANN DYKE, A.J.: On January 14, 2000, the relator, Terry Walls, commenced this mandamus action against the respondent, the Ohio Adult Parole -2- Authority. Mr. Walls claims that because this court in State v. Jones (Sept. 2, 1999), Cuyahoga App. No. 74247, unreported, declared R.C. 2967.28, the Post Release Control statute, unconstitutional, this court should issue a mandamus ordering the Adult Parole Authority not to put him on post release control, as it indicated that it would do. On February 22, 2000, the Adult Parole Authority, through the Ohio Attorney General, filed a motion to dismiss. It argued, inter alia, that venue was improper; it is located in Franklin County. Mr. Walls never filed a response. Because venue is improper in Cuyahoga County, this court transfers this case to the Tenth District Court of Appeals in Franklin County. Civil Rule 3(B)(1),(4) and (6) provide that proper venue lies in the county in which the defendant resides, in which a public officer maintains his or her principal office if suit is brought against the officer in the officer's official capacity, and in which all or part of the claim for relief arose. In State ex rel. Davis v. Ghee (1998), 126 Ohio App.3d 569, 710 N.E.2d 1178, the relator commenced a mandamus action in Mahoning County to force the Adult Parole Authority to hold a revocation hearing. The Court of Appeals ruled that venue was improper in Mahoning County because the claim arose in Franklin County where the Adult Parole Authority conducted its business. The court explicitly rejected the principle that venue was proper where the defendant was sentenced. The court, pursuant to Civil Rule 3(C)(1), transferred the case to the Court of Appeals for Franklin County. See, also, Terrell v. -3- White(1995), 104 Ohio App.3d 789, 663 N.E.2d 397, and Dayton City School District v. Cloud (1971), 26 Ohio Misc. 133, 266 N.E.2d 273, First Paragraph of the Syllabus - Where an action is filed against a state officer in a county other than where he maintains his principal office, contrary to Civil Rule 3(B)(4), the court shall order the transfer of the action to the proper county pursuant to Civil Rule 3(C)(1). Accordingly, the court transfers this case to the Tenth District Court of Appeals where venue is proper. The clerk of this court is directed to forward the file to the Clerk of the Tenth District Court of Appeals for further proceedings according to law. This matter is dismissed from the docket of this court. No costs assessed. TERRENCE O'DONNELL, J., CONCURS. ANN DYKE, ADMINISTRATIVE JUDGE #####20000518 77621S/O EX REL., KEVIN WAGNER v OHIO ADULT PAROLE AUTHORITY COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77621 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF KEVIN WAGNER : MANDAMUS : Relator : MOTION NO. 17168 : vs. : JOURNAL ENTRY AND OPINION : OHIO ADULT PAROLE AUTHORITY : : Respondent : : DATE OF JOURNALIZATION : MAY 18, 2000 JUDGMENT : CASE IS TRANSFERRED TO THE TENTH DISTRICT COURT OF APPEALS FOR VENUE. APPEARANCES: For Relator : KEVIN WAGNER, Pro Se No. 375-769 Belmont Correctional Institution P. O. Box 540, St. Rte. 331 St. Clairsville, Ohio 43950-0540 For Respondent : BETTY D. MONTGOMERY, Attorney General ANDREA F. ROCCO, Assistant Corrections Litigation Section 615 West Superior Ave., 12th Floor Cleveland, Ohio 44113-1899 ANN DYKE, A.J.: On February 17, 2000, the relator, Kevin Wagner, commenced this mandamus action against the respondent, the Ohio Adult Parole -2- Authority. Mr. Wagner claims that because this court in State v. Jones (Sept. 2, 1999), Cuyahoga App. No. 74247, unreported, declared R.C. 2967.28, the Post Release Control statute, unconstitutional, this court should issue a mandamus ordering the Adult Parole Authority not to put him on post release control, as it indicated that it would do. On March 20, 2000, the Adult Parole Authority, through the Ohio Attorney General, filed a motion to dismiss. It argued, inter alia, that venue was improper; it is located in Franklin County. Mr. Wagner never filed a response. Because venue is improper in Cuyahoga County, this court transfers this case to the Tenth District Court of Appeals in Franklin County. Civil Rule 3(B)(1),(4) and (6) provide that proper venue lies in the county in which the defendant resides, in which a public officer maintains his or her principal office if suit is brought against the officer in the officer's official capacity, and in which all or part of the claim for relief arose. In State ex rel. Davis v. Ghee (1998), 126 Ohio App.3d 569, 710 N.E.2d 1178, the relator commenced a mandamus action in Mahoning County to force the Adult Parole Authority to hold a revocation hearing. The Court of Appeals ruled that venue was improper in Mahoning County because the claim arose in Franklin County where the Adult Parole Authority conducted its business. The court explicitly rejected the principle that venue was proper where the defendant was sentenced. The court, pursuant to Civil Rule 3(C)(1), transferred the case to the Court of Appeals for Franklin County. See, also, Terrell v. -3- White(1995), 104 Ohio App.3d 789, 663 N.E.2d 397, and Dayton City School District v. Cloud (1971), 26 Ohio Misc. 133, 266 N.E.2d 273, First Paragraph of the Syllabus - Where an action is filed against a state officer in a county other than where he maintains his principal office, contrary to Civil Rule 3(B)(4), the court shall order the transfer of the action to the proper county pursuant to Civil Rule 3(C)(1). Accordingly, the court transfers this case to the Tenth District Court of Appeals where venue is proper. The clerk of this court is directed to forward the file to the Clerk of the Tenth District Court of Appeals for further proceedings according to law. This matter is dismissed from the docket of this court. No costs assessed. TERRENCE O'DONNELL, J., CONCURS. ANN DYKE, ADMINISTRATIVE JUDGE #####20000518 77805S/O EX REL., LONNIE BELL v JUDGE CHRISTOPHER A. BOYKO COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77805 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF LONNIE BELL : PROCEDENDO : Relator : MOTION NO. 17211 : vs. : JOURNAL ENTRY AND OPINION : CHRISTOPHER BOYKO, JUDGE : COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : Respondent : : DATE OF JOURNALIZATION : MAY 18, 2000 JUDGMENT : WRIT DISMISSED. APPEARANCES: For Relator : LONNIE BELL, Pro Se No. 378-665 P. O. Box 901 Leavittsburg, Ohio 44430-0901 For Respondent : WILLIAM D. MASON, Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 ANN DYKE, A.J.: On March 31, 2000, the relator, Lonnie Bell, commenced this procedendo action against the respondent, Judge Christopher Boyko, -2- to compel the judge to rule on a motion for jail time credit. In the underlying case, State of Ohio v. Lonnie Bell, Cuyahoga County Common Pleas Court Case No. CR-369124, Mr. Bell was convicted of possession of drugs, sentenced to eleven months and received twenty-six days of jail time credit. However, because Mr. Bell believed that he was entitled to ninety-four days of credit, on December 23, 1999, he moved the trial court for the additional credit. In a December 29, 1999 order the respondent granted Mr. Bell sixty-four days of credit. However, this entry was interpreted to mean that Mr. Bell was entitled to a total of sixty- four days of credit. Thus, on February 1, 2000, Mr. Bell moved the court to clarify that he is entitled to a total of ninety-four days of jail time credit. When the respondent did not quickly rule on this motion, Mr. Bell commenced this writ action. Moreover, in the prayer for relief, Mr. Bell, through the inmate paralegal who assisted in drafting the procedendo petition, noted that since the amendment of Cr.R. 32.2, trial judges throughout the state have not been correctly calculating the number of jail time credit days. Thus, the prayer also asked this court to order all inferior courts within its jurisdiction to faithfully perform the clear, legal duty to state the number of jail time credit days or alternatively to bring this matter to the attention of the Supreme Court of Ohio so that it may promulgate an appropriate rule of practice. On April 24, 2000, the respondent, through the Cuyahoga County Prosecutor, moved to dismiss on the grounds of mootness. Attached to the motion was a copy of a certified, signed and file-stamped -3- order in the underlying case granting Mr. Bell a total of ninety- four days of jail time credit. On May 2, 2000, Mr. Bell responded to the motion to dismiss. This reply admitted that Mr. Bell has received that which he originally sought, ninety-four days of jail time credit. Thus, that claim is moot. However, Mr. Bell vigorously argued for the second claim. He asserted that the respondent ignored this claim and that the failure of trial judges to grant jail time credit results in many prisoners remaining improperly incarcerated. However, a writ action is not the proper remedy for such a request. In State ex rel. Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 343-344, 423 N.E.2d 482, the Supreme Court of Ohio ruled that Mandamus will not lie to remedy the anticipated nonperformance of a duty. `*** The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application is made.' State, ex rel. Federal Homes Properties, Inc., v. Singer (1967), 9 Ohio St. 2d 95, 96. *** the writ relators request would do nothing more than order respondents to comply with an existing statute. It is well-established that `a writ of mandamus will not issue to compel the observance of law ***.' State, ex rel. Kay, v. Fuerst (1951), 156 Ohio St. 188. Thus, Mr. Bell's second claims is not well founded. Nor is a request that this court petition the Supreme Court of Ohio for a rule, compelling prompt and complete rulings on jail time credit, a proper subject for mandamus. Petitioner may do so himself. Accordingly, the motion to dismiss is granted, and this case is dismissed. Costs assessed against relator. -4- TERRENCE O'DONNELL, J., CONCURS. ANN DYKE, ADMINISTRATIVE JUDGE .