Smith v. Allstate Ins. Co. , 2019 Ohio 4557 ( 2019 )

[Cite as Smith v. Allstate Ins. Co., 2019-Ohio-4557.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ANDRE SMITH C.A. No. 29339
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALLSTATE INSURANCE COMPANY, et COURT OF COMMON PLEAS
al. COUNTY OF SUMMIT, OHIO
CASE No. CV-2018-04-1531
Appellees
DECISION AND JOURNAL ENTRY
Dated: November 6, 2019
CALLAHAN, Judge.
{¶1} Appellant, Andre Smith, appeals from the judgment of the Summit County
Common Pleas Court granting summary judgment in favor of Appellees, Allstate Insurance
Company, Starr Robinson, Deconda Cleary, Cindy Henson, and Chris Durfee (collectively “the
Allstate parties”), as to his claim for retaliation. For the reasons set forth below, this Court
affirms.
I.
{¶2} Mr. Smith was hired by Allstate Insurance Company (“Allstate”) on October 6,
2014. Mr. Smith was a Coaching Partner, which required him to sit with new customer service
employees, listen to their calls, and provide coaching and feedback on how to handle calls.
{¶3} During the next two years, Mr. Smith, an African American male, applied for and
was denied six promotions. The promoted employees were Caucasian and/or female. On
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November 25, 2016, Mr. Smith voiced his concerns about racial and sexual discrimination to
Allstate’s management.
{¶4} On the same day that Mr. Smith lodged his discrimination complaint, Starr
Robinson, a Senior Manager at Allstate, learned that Mr. Smith made threatening comments to
another employee. Although Ms. Robinson was a Senior Manager, there is uncontested evidence
that she was not aware of Mr. Smith’s discrimination complaints.
{¶5} The allegation of Mr. Smith making threatening comments was referred to
Allstate’s Centralized Employee Relations Team (“CERT”)1 for an internal investigation. Mr.
Smith was instructed not to return to work on November 27, 2016 and was placed on paid leave
pending CERT’s investigation into the alleged threats. CERT began its investigation on
November 28, 2016, which lasted for two weeks. The CERT investigation validated that Mr.
Smith made threats in the workplace and recommended he be terminated. Mr. Smith was
terminated the following day, December 15, 2016. The complaint alleges Mr. Smith was
“effectively terminated” on November 27, 2016 and “officially terminated” on December 9,
2016.
{¶6} Mr. Smith filed a complaint alleging retaliation and wrongful termination,
discriminatory hiring practices, and multiple counts of racial and sexual discrimination. The
Allstate parties moved for partial summary judgment as to Mr. Smith’s retaliation and wrongful
termination claim (count 8). Mr. Smith filed a brief in opposition. The trial court granted
summary judgment in favor of the Allstate parties as to that claim only, but did not include the
Civ.R. 54(B) certification on the order.
1
CERT is an independent division at Allstate that conducts neutral internal investigations
regarding employment matters concerning performance, behavior, misconduct, and other related
personnel issues.
3
{¶7} The Allstate parties then filed a supplemental motion for summary judgment as to
the discrimination claims in counts 1-7. Additionally, the Allstate parties filed a motion to
dismiss the action for failure to prosecute based upon Mr. Smith’s failure to respond to discovery
and comply with the trial court’s discovery orders. In lieu of responding to these motions, Mr.
Smith filed a Civ.R. 41(A)(1)(a) notice of voluntary dismissal without prejudice as to “all
unadjudicated claims (1 through 7)” against the Allstate parties. However, Mr. Smith’s
voluntary dismissal without prejudice of the remainder of his claims against the Allstate parties
pursuant to Civ.R. 41(A)(1)(a) was ineffective to create a final, appealable order. See Pattison v.
W.W. Grainger, Inc., 120 Ohio St. 3d 142, 2008-Ohio-5276, ¶ 1.
{¶8} Following the filing of Mr. Smith’s notice of dismissal, the trial court entered an
order which incorporated its earlier disposition of count 8 and added the Civ.R. 54(B)
certification. This order converted the earlier summary judgment ruling on count 8 in favor of
the Allstate parties into a final, appealable order. See Ningard v. Shin Etsu Silicones, 9th Dist.
Summit No. 24524, 2009-Ohio-3171, ¶ 6, 9.
{¶9} Nine days later, Mr. Smith filed a motion for reconsideration relative to the partial
summary judgment against him and the Allstate parties filed a brief in opposition. The trial court
did not rule on the motion for reconsideration. Mr. Smith timely appealed the judgment entries
granting partial summary judgment, asserting one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING PARTIAL SUMMARY
JUDGMENT WITHOUT CITING TO ANY EXHIBITS OR DOCUMENTS
CONTAINING FACTUAL ASSERTIONS.
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{¶10} Mr. Smith argues that the trial court erred in granting summary judgment as to
count 8 to the Allstate parties because there was no evidence in the record supporting the
decision and the trial court failed to cite the evidence it relied upon when rendering its decision.
Mr. Smith also argues summary judgment is improper because his trial counsel provided
ineffective representation relative to conducting discovery and responding to the summary
judgment motion. This Court disagrees with each of Mr. Smith’s arguments.
Summary Judgment Standard
{¶11} This Court reviews an order granting summary judgment de novo. See Bonacorsi
v. Wheeling & Lake Erie Ry. Co., 95 Ohio St. 3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v.
Shaffer, 90 Ohio St. 3d 388, 390 (2000). Summary judgment is proper under Civ.R. 56(C) when:
(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is
entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can only reach one conclusion, and that conclusion is
adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St. 2d 317,
327 (1977).
{¶12} Summary judgment consists of a burden-shifting framework. The movant bears
the initial burden of demonstrating the absence of genuine issues of material fact concerning the
essential elements of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St. 3d 280, 292
(1996). Specifically, the moving party must support the motion by pointing to some evidence in
the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this
burden, the nonmoving party has a “reciprocal burden” to “‘set forth specific facts showing that
there is a genuine issue for trial.’” Id. at 293, quoting Civ.R. 56(E). The non-moving party may
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not rest upon the mere allegations or denials in the pleadings, but must point to or submit
evidence of the type specified in Civ.R. 56(C). Dresher at 293; Civ.R. 56(E).
The Evidence
{¶13} On appeal, Mr. Smith contends that the trial court erred in granting summary
judgment due to the complete absence of any evidence. Mr. Smith “suggests that neither the
exhibits attached to [the Allstate parties’] motion for partial summary judgment nor [the] exhibits
attached to [Mr. Smith’s trial] counsel’s ‘motion for reconsideration’ are properly before this
Court.” We disagree with Mr. Smith as it pertains to the Allstate parties’ exhibits, but agree with
respect to the exhibits attached to the motion for reconsideration.
{¶14} Mr. Smith acknowledges that there were affidavits and other documents attached
to the Allstate parties’ motion for summary judgment, but claims they are not “properly in the
record.” In his assignment of error, Mr. Smith fails to present any reason or legal authority as to
why the attachments to the summary judgment motion are not proper evidentiary materials under
Civ.R. 56(C) and (E) and it is not this Court’s duty to create an argument for him. See App.R.
16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,
1998) (“If an argument exists that can support this assignment of error, it is not this [C]ourt’s
duty to root it out.”).
{¶15} Moreover, Mr. Smith is precluded from challenging on appeal the moving parties’
summary judgment evidence as he failed to make an objection to the trial court regarding any
alleged nonconforming evidence. Wolford v. Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-
Ohio-6992, ¶ 21. As Mr. Smith did not object to the Allstate parties’ evidence in support of the
summary judgment motion and the trial court referenced the same in its order, we will consider
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those affidavits and documents in our de novo review. Id.; Brunke v. Ohio State Home Servs.,
Inc., 9th Dist. Lorain No. 13CA010500, 2015-Ohio-2087, ¶ 11, fn. 2.
{¶16} Next, Mr. Smith argues that the documents attached to his motion for
reconsideration are not proper summary judgment evidence. We agree. Motions for
reconsideration only allow relief from non-final orders. Flood Co. v. St. Paul Fire & Marine Ins.
Co., 9th Dist. Summit Nos. 21679, 21683, 2004-Ohio-1599, ¶ 8. As addressed above, the partial
summary judgment ruling is a final, appealable order; therefore, Mr. Smith’s motion for
reconsideration, including the attachments thereto, is a nullity. Pitts v. Ohio Dept. of Transp.,
67 Ohio St. 2d 378, 379 (1981). See State v. Babb, 9th Dist. Summit No. 23631, 2007-Ohio-
5102, ¶ 5. See also State v. Helfrich, 3d Dist. Seneca Nos. 13-17-30, 13-17-31, 13-17-32, 2018-
Ohio-638, ¶ 27, fn. 7; Ayers v. Precision Environmental Co., 8th Dist. Cuyahoga No. 93559,
2010-Ohio-4479, ¶ 22-23. Accordingly, the exhibits attached to the motion for reconsideration
were not properly before the trial court, or this Court. See Babb at ¶ 5; Helfrich at ¶ 27, fn. 7;
Ayers at ¶ 23.
Factual Citations
{¶17} Mr. Smith also contends that the trial court’s order prohibits a meaningful review
by this Court because the trial court did not provide factual citations to any evidence in the
record that supports its decision to grant partial summary judgment. Mr. Smith’s reliance upon
Kokoski v. Kokoski, 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, for such a proposition
is misplaced. Kokoski involved a remand of a post-trial decision regarding the division of
property in a divorce action because the trial court’s order did not contain sufficient detail
explaining how certain debts were calculated in order for this Court to determine whether the
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trial court’s finding was supported by the record, and not because there were “no factual
citations” in a partial summary judgment order. Id. at ¶ 3, 11.
{¶18} Mr. Smith misconstrues the trial court’s duty in ruling on a summary judgment
motion. “Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly examine all
appropriate materials filed by the parties before ruling on a motion for summary judgment.”
Murphy v. Reynoldsburg, 65 Ohio St. 3d 356 (1992), syllabus. The trial court is presumed to
have met this duty when there is no record that affirmatively indicates otherwise. See McNeil v.
Case W. Res. Univ., 105 Ohio App. 3d 588, 593 (8th Dist.1995).
{¶19} In this matter, the trial court’s order identified the evidence attached to the
Allstate parties’ motion, noted the failure of Mr. Smith to attach any evidence in his opposition
brief, and summarized the facts contained within the submitted evidence. While the trial court’s
order did not provide official “factual citations” to the evidence it used, the trial court’s
identification and discussion of the evidence adequately identified the sources of the facts upon
which it relied. Thus, the trial court’s order reflects that it complied with its mandatory duty
under Civ.R. 56(C) and we conclude that the order is sufficient for this Court to conduct a
meaningful de novo review.
Retaliation
{¶20} In count 8, Mr. Smith alleged that in response to his “voicing concerns to
management about [the] likelihood of racial and sexual discrimination,” Allstate retaliated
against him by telling him not to return to work and then officially terminating him. The Allstate
parties confined their summary judgment motion to the issue of the lack of causal connection
between the protected activity and the adverse employment action by asserting that “[Mr. Smith]
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simply cannot establish he would not have been terminated but for his alleged engagement in
protected activity.” (Emphasis deleted.) We will limit our review accordingly.
{¶21} R.C. 4112.02(I) is an antiretaliation provision. Greer-Burger v. Temesi, 116 Ohio
St.3d 324, 2007-Ohio-6442, ¶ 13. Under this provision, it is
an unlawful discriminatory practice * * * [f]or any person to discriminate in any
manner against any other person because that person has opposed any unlawful
discriminatory practice defined in this section or because that person has made a
charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.
R.C. 4112.02(I). Federal case law regarding Title VII of the Civil Rights Act of 1964 generally
applies to R.C. Chapter 4112 violations, including retaliation claims. Varner v. The Goodyear
Tire and Rubber Co., 9th Dist. Summit No. 21901, 2004-Ohio-4946, ¶ 10, citing Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St. 2d 192, 196
(1981).
{¶22} An employee must prove the following elements to establish a prima facie case of
retaliation: “(1) [he] engaged in a protected activity, (2) the defending party was aware that the
claimant had engaged in that activity, (3) the defending party took an adverse employment action
against the employee, and (4) there is a causal connection between the protected activity and
adverse action.” Greer-Burger at ¶ 13, citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d
1064, 1066 (6th Cir.1990). Once the plaintiff demonstrates a prima facie case of retaliation, then
the burden shifts to the defendant to offer a “‘legitimate, nondiscriminatory reason’ for its
actions.” Greer-Burger at ¶ 14, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). After the defendant satisfies this burden, then the plaintiff must demonstrate that the
proffered reason for the adverse action was pretext. Greer-Burger at ¶ 14, quoting Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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{¶23} “Ultimately, [the plaintiff] will have ‘to establish that * * * [his] protected activity
was a but-for cause of the alleged adverse action by the employer.’” Montell v. Diversified
Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir.2014), quoting Univ. of Texas S.W. Med. Ctr. v.
Nassar, 570 U.S. 338, 362 (2013). See Smith v. Dept. of Pub. Safety, 10th Dist. Franklin No.
12AP-1073, 2013-Ohio-4210, ¶ 60 (The Plaintiff must “prove that retaliation is the but-for cause
of adverse employment action.”). This means that “the plaintiff must ultimately prove, by a
preponderance of the evidence, that the plaintiff’s protected activity was the determinative factor
in the employer’s adverse employment action.” Wholf v. Tremco, Inc., 8th Dist. Cuyahoga No.
100771, 2015-Ohio-171, ¶ 43. Thus, even if the plaintiff is able to establish a prima facie case of
retaliation, the plaintiff’s retaliation claim fails when “‘it appears from the evidence that the
employer would have made the same decision regardless of the plaintiff’s participation in the
protected activity.’” Goad v. Sterling Commerce, Inc., 10th Dist. Franklin No. 99AP-321, 2000
WL 756386, *10, quoting Neal v. Hamilton Cty., 87 Ohio App. 3d 670, 678 (1st Dist.1993). See
Hall v. Banc One Mgmt. Corp., 10th Dist. Franklin No. 04AP-905, 2006-Ohio-913, ¶ 44-45, 52,
rev’d on other grounds by 114 Ohio St. 3d 484; Boggs v. The Scotts Co., 10th Dist. Franklin No.
04AP-425, 2005-Ohio-1264, ¶ 23.
{¶24} In support of their motion for summary judgment, the Allstate parties submitted
the affidavit of Ms. Robinson, a Senior Manager at Allstate. On November 25, 2016, Ms.
Robinson learned of a complaint from a Customer Service Representative about a threatening
comment made by Mr. Smith. Ms. Robinson averred that Mr. Smith was placed on paid leave
pending an investigation of this complaint by CERT.
{¶25} The Allstate parties also presented the affidavit of T.J., who was the CERT Senior
Consultant assigned to investigate the report that Mr. Smith made a threatening comment to a
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Customer Service Representative. Attached to T.J.’s affidavit was the CERT Termination
Request, which consisted of a written report of her investigation and findings and CERT’s
recommendation. Additionally, T.J.’s affidavit attached Chapters 12 and 14 of Allstate’s Human
Resource Policy Guide.
{¶26} Allstate’s Human Resource Policy Guide, Chapter 12, titled Employee Relations,
contains a section governing “Employee Security and Workplace Violence.” This section
defines workplace violence as direct or implied threats and intentional acts or other conduct that
would arouse fear, hostility, intimidation, or apprehension of harm in another person. Covered
under the policy are threats and acts that cause fear in a person for his/her personal safety and the
safety of his/her family, friends, coworkers, clients, employer, and property. A violation of this
section will result in discipline, up to or including termination. Moreover, Chapter 14, which
governs the termination of employees, reiterates that “[t]hreats or acts of physical harm or
violence * * * to any person, regardless of whether he/she is employed by Allstate” could result
in the employee’s immediate termination.
{¶27} T.J.’s investigation consisted of interviewing three Customer Service
Representatives, a Team Lead, and Mr. Smith regarding the alleged threatening comments. In
his interview with T.J., Mr. Smith denied making some of the alleged statements, but admitted to
making other statements.
{¶28} Specifically, Mr. Smith admitted to T.J. that the week before Thanksgiving he
said “‘I kill you’”2 to two Customer Service Representatives that he coached, but claimed he was
2
We recognize that the trial court quoted Mr. Smith as saying “‘I’ll kill you[,]’” while the
Allstate parties quoted Mr. Smith as stating “‘I kill you’” and “‘I’ll kill you’” interchangeably in
their summary judgment motion and exhibits. Mr. Smith does not challenge the discrepancy in
the quoted language.
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“jokingly quoting a movie.” Mr. Smith conceded during the investigation that such a statement
“could be perceived as threat[en]ing,” but the individual to whom he was speaking knew it was a
joke. Also, Mr. Smith admitted that a Team Lead heard his comment and advised him “that he
can’t say that in the workplace.”
{¶29} T.J.’s CERT investigation confirmed that “[Mr.] Smith made verbal threats of
physical harm in the workplace” which was a violation of Allstate’s “Employee Security and
Workplace Violence” policy and recommended that he be terminated. On December 15, 2016,
Ms. Robinson reviewed and approved CERT’s Termination Request. Further, the evidence is
uncontested that Ms. Robinson was unaware of Mr. Smith’s earlier racial and sexual
discrimination complaints when she approved the request to terminate Mr. Smith.
{¶30} Based upon the evidence presented by the Allstate parties, they have pointed to
Mr. Smith’s paid leave and termination as being a direct result of his violation of Allstate’s
workplace violence policy. Thus, the Allstate parties have presented evidence that Mr. Smith
would have been placed on paid leave and his employment terminated regardless of whether he
had made complaints of racial and sexual discrimination. Accordingly, the Allstate parties met
their initial burden under Dresher and demonstrated that no genuine issue of material fact existed
regarding retaliation being the “but for” cause of Mr. Smith’s paid leave and termination.
{¶31} The burden then switched to Mr. Smith to point to or present evidence to show the
existence of a genuine issue for trial regarding retaliation being the “but for” cause of his paid
leave and termination. See Dresher, 75 Ohio St. 3d at 293; Civ.R. 56(E). As the non-moving
party, Mr. Smith had “‘“a burden of rebuttal to supply evidentiary materials supporting his
position”’” when the Allstate parties produced evidentiary materials denying the retaliation
claim. See Kelvon Props., Ltd. v. Medina Automotive, LLC, 9th Dist. Medina No. 18CA0062-M,
12
2019-Ohio-584, ¶ 6, quoting Firth v. Hazlett, 9th Dist. Summit No. 12972, 1987 WL 14039, *2
(July 8, 1987), quoting Whiteleather v. Yosowitz, 10 Ohio App. 3d 272, 275 (8th Dist.1983). Mr.
Smith could not rely solely upon the allegations and denials in the pleadings to meet his burden,
and instead was required to also present evidentiary materials. See Kelvon Props., Ltd. at ¶ 8.
See also Smith v. Wayne Cty. Dept. of Human Servs., 9th Dist. Wayne No. 02CA0013, 2003-
Ohio-364, ¶ 20.
{¶32} In his brief in opposition to summary judgment, Mr. Smith did not deny that he
made the alleged threatening statements, nor did he dispute that Allstate has a workplace
violence policy and the terms of the policy. Instead, Mr. Smith disputed that his behavior or
activity was a violation of Allstate’s workplace violence policy. He challenged CERT’s finding
and conclusion by arguing that the coworkers to whom he made the alleged threatening
statements did not view or acknowledge the statements as constituting a threat. Mr. Smith also
argued that the alleged threats were made several weeks prior to his discrimination complaint
and termination. Lastly, Mr. Smith indicated that the Ohio Department of Job and Family
Services Office of Unemployment Compensation determined that he was discharged without just
cause.
{¶33} Mr. Smith’s brief neither presented nor pointed to any evidence in the record in
support of his arguments or as to any discriminatory intent by the Allstate parties. Instead, his
brief relied solely upon bald assertions and generalizations, conclusory statements, and his own
subjective belief, none of which were sufficient to show the existence of a genuine issue of
material fact that he would not have been placed on paid leave and terminated but for his alleged
engagement in protected activity. As Mr. Smith did not produce any evidentiary materials in
support of his position, he has failed in his reciprocal burden under Civ.R. 56(E) to show the
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existence of a genuine issue of material fact that retaliation was the “but for” cause of his paid
leave and termination. See Kelvon Props., Ltd. at ¶ 8.
{¶34} Upon careful review of the record as it existed at the time the trial court ruled on
the Allstate parties’ motion for summary judgment and viewing the evidence in the light most
favorable to Mr. Smith, we conclude that Mr. Smith failed to raise a genuine issue of material
fact as to his retaliation claim. Accordingly, the trial court did not err in granting the Allstate
parties’ motion for partial summary judgment as to count 8.
Ineffective Assistance of Counsel
{¶35} Lastly, Mr. Smith acknowledges that ineffective assistance of counsel in civil
cases has not been recognized by Ohio courts, but nonetheless suggests that this Court reverse
the trial court’s summary judgment decision on that basis. This Court and our sister courts have
universally held that “[a]n unsuccessful civil litigant, * * * may not obtain the reversal of a trial
court’s judgment based upon the fact that his attorney was ineffective[]” and instead “‘remedies
are available in a malpractice action.’” Dunn v. State Auto. Mut. Ins. Companies, 9th Dist.
Lorain No. 12CA010332, 2013-Ohio-4758, ¶ 10-11, quoting Goldfuss v. Davidson, 79 Ohio
St.3d 116, 122 (1997). See Lykes v. Akron Dept. of Public Serv., 9th Dist. Summit No. 26570,
2014-Ohio-578, ¶ 14; Smith v. Cindy Lucky 7’s LLC, 9th Dist. Summit No. 29065, 2019-Ohio-
1157, ¶ 7. See also D.O.I.T., LLC v. Bd. of Wright Dunbar Technology Academy, 2d Dist.
Montgomery No. 23250, 2011-Ohio-4538, ¶ 5; Guendelsberger v. Ng, 3d Dist. Hardin No. 6-93-
4, 1993 WL 542490, *1 (Dec. 30, 1993); Dantzig v. Biron, 4th Dist. Highland No. 07CA1, 2008-
Ohio-209, ¶ 9; Clark v. Boals, 5th Dist. Licking No. 06CA104, 2007-Ohio-2319, ¶ 68; Roth v.
Roth, 65 Ohio App. 3d 768, 776 (6th Dist.1989); DeSarro v. Larkins, 7th Dist. Columbiana No.
15 CO 0021, 2017-Ohio-726, ¶ 24; Myers v. O’Rourke, 8th Dist. Cuyahoga No. 53576, 1988 WL
14
37125, * 1 (Apr. 7, 1988); Bonn v. Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-Ohio-2313, ¶
17; Mayle v. Ravenna Aluminum, 11th Dist. Portage No. 98-P-0103, 1999 WL 1073805, *2
(Nov. 5, 1999); Garabedian v. Garabedian, 12th Dist. Butler No. CA90-02-037, 1990 WL
179592, *4 (Nov. 19, 1990). Mr. Smith has not provided a compelling argument or any legal
authority to persuade this Court to depart from this well-settled position. Accordingly, Mr.
Smith’s request for reversal of the partial summary judgment based upon his trial counsel’s
alleged ineffective assistance of counsel is not well-taken.
{¶36} Mr. Smith’s assignment of error is overruled.
III.
{¶37} Mr. Smith’s assignment of error is overruled. The judgment of the Summit
County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DONALD GALLICK, Attorney at Law, for Appellant.
EDWARD H. CHYUN and INNA SHELLEY, Attorneys at Law, for Appellee.