[Cite as LeFever v. State, 2013-Ohio-4606.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Virginia LeFever,                                 :

                 Plaintiff-Appellant,             :
                                                                  No. 12AP-1034
v.                                                :           (C.P.C. No. 12CVH-01-973)

State of Ohio,                                    :          (REGULAR CALENDAR)

                 Defendant-Appellee.              :


                                         D E C I S I O N

                                     Rendered on October 17, 2013


                 Cooper & Elliott, LLC, Rex H. Elliott, Charles H. Cooper, Jr.,
                 Bradley A. Strickling and Barton R. Keyes, for appellant.

                 Michael DeWine, Attorney             General, and Debra Gorrell
                 Wehrle, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Plaintiff-appellant, Virginia LeFever ("appellant"), appeals from a decision
of the Franklin County Court of Common Pleas granting summary judgment in favor
defendant-appellee, State of Ohio ("the State"), as to her complaint for wrongful
imprisonment brought pursuant to R.C. 2743.48.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellant and William LeFever were getting a divorce. The final hearing
was scheduled for September 27, 1988. Once the divorce was final, appellant planned to
move to California with her children Alex, Sarah and Cory.                     William died on
September 22, 1988, one week before the hearing.
No. 12AP-1034                                                                       2


      {¶ 3} The Sixth Circuit Court of Appeals summarized the facts surrounding
William's death and appellant's prosecution for aggravated murder in LeFever v. Money,
225 F.3d 659 (6th Cir.2000), as follows:
             On September 19, 1988, [appellant], who is a registered nurse,
             went to the office of her then-employer, Medical Personnel
             Pool. She told Anita Cullison, the staff coordinator there, that
             she was looking for a specific type of syringe for use on a Pool
             patient whom [appellant] was scheduled to see later that day.

             The next afternoon, [appellant] called Cullison * * * and * * *
             brought up a conversation they had several months before in
             which they discussed the fact that someone could be
             "eliminated" for $50 and a bus ticket. That same afternoon,
             William [LeFever] arrived at [appellant]'s home to pick up his
             tools. * * * At 8:30 that evening, [appellant] called Cullison,
             this time at home, and explained to her that she was not
             serious about eliminating anyone. [Appellant] also said that
             William had nothing to offer her except a life insurance policy,
             and that he would likely remove her as beneficiary after the
             divorce. William fell asleep on the family room couch and was
             still asleep when [appellant] went upstairs to bed at 10:30.

             Around midnight, Cory LeFever heard loud banging and then
             saw William running around naked and grabbing and talking
             to the trash. When Cory told [appellant] how William was
             acting, she told him that his dad would be all right. After
             hearing more banging, Cory went to [appellant] again, and
             this time she got up and went downstairs to check on William.
             When she and Cory went downstairs, they saw the bathroom
             in a state of disarray, and William had bruises and a big gash
             on his knee. [Appellant] then took William upstairs to her
             bedroom.

             At 6 a.m. that morning [appellant] noticed that her bottle of
             Elavil was missing. When she returned to her bedroom, she
             saw the bottle containing one-half tablet of Elavil on the floor
             near the nightstand. At that point, she surmised that William
             had taken 20, 100 mg tablets of Elavil. At 8:30 a.m.,
             [appellant] called Cullison, again at home, and said that she
             let William in because he was making a scene, and that he had
             taken an overdose of pills. [Appellant] said she monitored his
             vitals and he would be all right, but she could not report to
             work that day. At 10:30 a.m. [appellant] called Cullison again,
             this time at the office, and asked her if she had called
             [appellant] at home, because she was keeping a "low profile."
No. 12AP-1034                                                                     3


           That afternoon, between 2:15 and 2:30, [appellant] and her
           children went into the Pool office looking for a bandage.
           William was left behind at her home.

           Later that same afternoon, [appellant] telephoned Vernon
           Breese, William's best friend, and said that William was
           "pretty bad off," and that he was bruised and beaten up from
           bumping around the house. He told her to call the emergency
           squad. She said she did not want to do that, because she did
           not want people to know about the overdose, especially
           because of their impending divorce. When he arrived at
           [appellant]'s home, Breese found William lying in a supine
           position on the bathroom floor with pale gray skin, bruises,
           and a bad, unbandaged cut below his knee. As he began
           wiping William down in an effort to revive him, he told
           [appellant] to call the emergency squad. She offered to call a
           doctor she knew instead.

           [Appellant] told Breese that Dr. Wesley Filipow told her that
           "it would pass," to wait it out, and that, if he did not get better,
           to then bring him to the hospital. At that point, Breese
           insisted that she call the emergency squad, which she did.

           At the hospital William * * * said that his bruises were from
           [appellant] who would "beat the shit out of him" whenever he
           passed out. William died that morning at 11:37.

           Pursuant to a warrant, the police later found the following
           items while searching [appellant]'s bags of garbage: a can of
           poison peanuts used to kill rodents; a 35 mm film canister
           with a residue consistent with the strychnine-laced peanuts; a
           can of Forces Ro-Dex used to kill pocket gophers, which
           contains a strychnine base; a pink dye consistent with that
           used in Ro-Dex; an empty bottle of Terro ant killer, which
           contains an arsenic base; the charred remains of a burnt
           fumigant stick called "Smoke 'Ems," a mole killer that
           contains sulfuric dioxide; household deodorizer; syringes; and
           hypodermic needles.

           In trying to determine the cause of William's death, medical
           examiners for the county found the following poisons in
           William's system: amitriptyline; its metabolite, nortriptyline;
           strychnine; arsenic; and sulfate.

           [T]he chief toxicologist for the county coroner's office found
           pieces of cracked corn, peanuts, seeds, and dye in William's
No. 12AP-1034                                                                                               4


                   body that were identical to that found in the Ro-Dex rodent
                   bait and the poison peanuts located in [appellant]'s garbage.
                   * * * In William's blood he found 16 times the amount of
                   sulphate that would normally be present; he said the amount
                   was consistent with an individual breathing in the fumes from
                   a sulfur candle. After considering all of this evidence, the
                   examiners opined that William died from acute amitriptyline
                   and nortriptyline poisoning that was administered
                   intramuscularly and rectally.
(Footnotes omitted.)

           {¶ 4} On November 30, 1988, the Licking County Grand Jury indicted appellant
on one count of aggravated murder in connection with the death of her husband.
Following a bench trial, appellant was convicted of aggravated murder and sentenced to
life in prison. The court of appeals affirmed the conviction in State v. LeFever, 5th Dist.
No. CA-3535 (Nov. 18, 1991).
           {¶ 5} In 2010, after appellant had served 22 years of a life sentence, the
sentencing court granted appellant's motion for a new trial due to the fact that the State's
toxicologist had lied about his qualifications.1               The Licking County Prosecutor, Ken
Oswalt, subsequently dismissed the indictment "without prejudice."
           {¶ 6} Thereafter, appellant filed a complaint against the State seeking a
declaration that she was a wrongfully imprisoned individual pursuant to R.C. 2743.48. In
her complaint, appellant alleges that she did not kill her husband, and that a crime "was
not committed by any person because it was, in fact, a suicide, and not a murder."
(Complaint, ¶ 8.)
           {¶ 7}   On November 22, 2012, the trial court concluded that appellant failed to
produce evidence that no criminal proceeding can or will be brought against her for any
act associated with her conviction, and granted summary judgment in favor of the State.
           {¶ 8} Appellant timely appealed to this court from the judgment of the Franklin
County Court of Common Pleas and assigns the following assignments of error:
                   1. The trial court erred when it granted summary judgment
                   in favor of the State of Ohio and found there was no genuine
                   issue of material fact as to whether a criminal proceeding "can
                   be brought or will be brought" against Virginia LeFever.

1   State v. LeFever, Licking C.P. No. 1988-CR-17117 (Nov. 22, 2010) (Judgment entry granting new trial).
No. 12AP-1034                                                                               5


              2. The trial court abused its discretion when it impliedly
              denied Ms. LeFever's motion for leave to file a motion for
              partial summary judgment by terminating the case without
              ruling on the motion for leave.

II. STANDARD OF REVIEW
       {¶ 9} Appellate review of a summary judgment motion is de novo. Helton v.
Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a
trial court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).         We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to support
it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101
Ohio App.3d 38, 41-42 (9th Dist.1995).
       {¶ 10} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 11} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the nonmoving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.
Id. If the moving party meets this initial burden, then the nonmoving party has a
reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a
No. 12AP-1034                                                                             6


genuine issue for trial and, if the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Id.
III. LEGAL ANALYSIS
       A. Trial Court Ruling
       {¶ 12} In order to be declared a wrongfully imprisoned individual, a claimant must
satisfy, by a preponderance of the evidence, all five criteria set forth in R.C. 2743.48(A).
Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163; Gover v. State, 67 Ohio St.3d 93,
95 (1993).
       {¶ 13} R.C. 2743.48(A) provides, in relevant part, as follows:
              As used in this section and section 2743.49 of the Revised
              Code, a "wrongfully imprisoned individual" means an
              individual who satisfies each of the following:


              ****

              (4) The individual's conviction was vacated, dismissed, or
              reversed on appeal, the prosecuting attorney in the case
              cannot or will not seek any further appeal of right or upon
              leave of court, and no criminal proceeding is pending, can be
              brought, or will be brought by any prosecuting attorney, city
              director of law, village solicitor, or other chief legal officer of
              a municipal corporation against the individual for any act
              associated with that conviction.

              (5) Subsequent to sentencing and during or subsequent to
              imprisonment, an error in procedure resulted in the
              individual's release, or it was determined by the court of
              common pleas in the county where the underlying criminal
              action was initiated that the charged offense, including all
              lesser-included offenses, either was not committed by the
              individual or was not committed by any person.

(Emphasis added.)
       {¶ 14} The trial court granted summary judgment for the State because appellant
did not present any evidence in satisfaction of R.C. 2743.48(A)(4). More particularly,
the trial court determined that appellant "has not presented any evidence showing that
she could not be retried." (Trial Court Decision, 10.)
No. 12AP-1034                                                                                7


       {¶ 15} The trial court explained that "[t]he evidence presented shows criminal
proceedings against Ms. LeFever may be brought by the prosecuting authority for an act
associated with her earlier murder conviction. Plaintiff has not offered evidence to the
contrary on that issue i.e., the statute has run, it is barred by res judicata, etc." (Emphasis
sic.) (Trial Court Decision, 11.) In other words, the trial court placed the burden on
appellant to produce evidence that subsequent criminal proceedings were either not
possible upon the evidence or that such proceedings were legally barred.
       B. State's Evidence in Support of Summary Judgment
       {¶ 16} The State presented evidence establishing that the prosecutor had not
abandoned his effort to prosecute appellant for the death of her husband and that such a
prosecution was both factually sustainable and legally permissible following reversal. The
State argues that the evidence conclusively establishes that further criminal proceedings
can or will be brought against appellant for her husband's death. We agree.
       {¶ 17} In a press release dated April 21, 2011, Licking County Prosecutor, Ken
Oswalt, made the following comments about the case against appellant:
              After an exhaustive analysis of that evidence – including
              exploring the limitations on conducting new scientific testing
              today on what few biological samples remain after over 20
              years – I have come to the professional judgment that, as it
              currently stands, I am not in a position to successfully retry
              Mrs. LeFever on the charge of Aggravated Murder with any
              likely prospect of meeting the State's burden of proving her
              guilt beyond a reasonable doubt.

              ***

              Although the granting of the motion to dismiss terminates the
              current proceedings, it also does one other significant thing.
              Because the dismissal was done "without prejudice" it allows
              for the re-filing of charges in the future in the event that new
              admissible evidence were to be discovered; and/or in the
              event that scientific advancements in the future were to allow
              for the testing of currently available biological samples by a
              new qualified toxicologist, that would also include reliable
              opinions not only as to the presence and quantity of any
              poisons in Mr. LeFever's body at the time of his death; but
              also reliable expert opinions regarding the timing, mode
              and/or manner of administration of those poisons. As
              reported to me, these things cannot be done with the current
No. 12AP-1034                                                                               8


               state of today's scientific know-how. As that may change in
               the coming years, the possibility does exist that re-filing
               charges in this matter could legally occur at some point in the
               future.
(Press Release, 1-2.)

       {¶ 18} In his deposition testimony in this matter, Oswalt explained that he still
believed that he had at least "a fair chance of getting [appellant] convicted of at least
aggravated attempted murder." (Tr. 27.) With regard to the statute of limitations, Oswalt
testified as follows:
               Q. [W]hat is, then, the statute of limitations on an attempted
               aggravated murder charge?

               A. It is generally six years. However, statute of limitations are
               tolled during any period of time an indictment is pending,
               prosecution is pending. So that six-year statute of limitations
               was tolled when she was indicted in November of 2008 - -
               excuse me, 1988 and it was tolled up until the date I dismissed
               that indictment.

(Tr. 47.)
       {¶ 19} Oswalt related that there is no statute of limitations for aggravated murder.
(Tr. 50.) However, he acknowledged that if the science of toxicology does not advance far
enough in the next few years to permit a prosecution for aggravated murder, he will have
to make a decision whether to proceed with a charge of attempted aggravated murder.
(Tr. 47-50.) He conceded that res judicata would bar him from subsequently prosecuting
appellant for aggravated murder if he first went forward with a charge of attempted
aggravated murder. (Tr. 48-49.)
       {¶ 20} According to Oswalt, both Corey and Sarah LeFever have expressed to him
that they are willing to give testimony which would implicate appellant in an attempt to
poison her husband with a fumigant known as "Smoke 'Ems." Oswalt related that one
other witness has come forward since the reversal of appellant's conviction to offer
testimony which corroborates the facts set forth by Corey and Sarah.               He refused,
however, to disclose details regarding the new evidence against appellant due to the
No. 12AP-1034                                                                                       9


existence of a privilege.2 According to Oswalt, his assessment of the chances of a
conviction for attempted aggravated murder are based upon the evidence he has received
since appellant's release, the testimonial evidence presented in the first trial, and the
remaining physical evidence uncovered in the search of appellant's home.
       C. Meaning of R.C. 2743.48(A)(4)
       {¶ 21} In her first assignment of error, appellant argues that that trial court’s
interpretation of R.C. 2743.48(A)(4) is contrary to the intent of the General Assembly in
enacting the wrongful imprisonment statute. We disagree.
       {¶ 22} Appellant's first contention is that the trial court misinterpreted the phrase
"no criminal proceeding * * * can be brought, or will be brought." R.C. 2743.48(A)(4).
Appellant notes that the statute is remedial in nature and that the General Assembly did
not intend to deny recovery to the claimant simply because of the mere possibility of
future criminal proceedings. Rather, she believes that the General Assembly intended the
language as a bar to recovery only where further criminal proceedings will, more likely
than not, result in a conviction.
       {¶ 23} " ' "[W]here the language of a statute is clear and unambiguous, it is the
duty of the court to enforce the statute as written, making neither additions to the statute
nor subtractions therefrom." ' " Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364,
¶ 25, quoting Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52,
2006-Ohio-6498, ¶ 14, quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d
451, 2002-Ohio-6718, ¶ 14. In Dunbar, the disputed issue was whether a claimant
satisfied R.C. 2743.48(A)(2), which requires claimant to prove that he has not pleaded
guilty to the offense for which he was convicted. The court of appeals had reversed
Dunbar's first conviction because the trial court failed to advise him of his rights and did
not give him the opportunity to withdraw his guilty plea. Id. at ¶ 3. Dunbar's second
conviction was overturned due to insufficient evidence. Id. at ¶ 4. Dunbar subsequently
filed a complaint seeking a declaration that he was a wrongfully imprisoned individual.
Id. at ¶ 4. The trial court granted summary judgment for Dunbar reasoning that his prior

2 Attorney "opinion work-product" involves the attorney's mental impressions, conclusions, opinions or

legal theories, and such work product can be discovered in a civil action only in very rare and
extraordinary circumstances. Stanton v. Univ. Hosps. Health Sys., Inc., 166 Ohio App.3d 758, 2006-
Ohio-2297 (8th Dist.).
No. 12AP-1034                                                                              10


guilty plea was a nullity and, therefore, R.C. 2743.48(A)(2) did not bar recovery. Id. at
¶ 6. The court of appeals affirmed.
       {¶ 24} On appeal to the Supreme Court of Ohio, the State argued that the plain
language of subsection (A)(2) mandates that the claimant "did not plead guilty," and that
Dunbar was seeking "a judicially crafted exception" for claimant's whose guilty pleas have
been vacated. Id. at 12. The State insisted that "[s]uch an exception would swallow the
rule." Id. Dunbar countered that R.C. 2743.48 is a remedial statute which must be
liberally construed, and that the State's interpretation was "contrary to the clear intent" of
the General Assembly. Id. Dunbar also argued that R.C. 2743.48(A)(2) was "ambiguous
because it does not address the effect of a void or vacated guilty plea." Id. at ¶ 13.
       {¶ 25} The Supreme Court of Ohio reversed the judgment of the court of appeals
stating:
               The General Assembly created the claim for wrongful
               imprisonment and placed limitations upon the categories of
               persons who are eligible for compensation. One limitation is
               that the claimant cannot have pled guilty to the offense.

Id. at ¶ 20.

               [W]e must apply the statute as it is written. Here, the statute
               expressly provides that to demonstrate that he is a
               "wrongfully imprisoned individual" pursuant to R.C. 2743.48,
               the claimant must satisfy each of the provisions of R.C.
               2743.48(A)(1) through (5). Gover v. State, 67 Ohio St.3d 93,
               95, 616 N.E.2d 207 (1993). This includes the express
               requirement that the claimant did not plead guilty to the
               particular offense.

(Emphasis sic.) Id. at ¶ 17.
       {¶ 26} We must also apply R.C. 2743.48(A)(4) as it is written.              The statute
expressly requires the claimant to prove that no criminal proceedings can or will be
brought against her for any act associated with her prior conviction. The use of the phrase
"no criminal proceedings * * * can * * * or will be brought" was clearly intended by the
General Assembly to bar recovery to a claimant against whom criminal proceedings are
still factually supportable and legally permissible following reversal. The plain language
of the statute contains no qualifications and permits no exceptions.
No. 12AP-1034                                                                              11


       {¶ 27} In this case, reversal of appellant's conviction forecloses the State from
using the testimony of the same toxicologist in any future criminal proceedings. However,
the physical evidence upon which the State relied in obtaining a conviction is still
available for use by the State in any future criminal proceedings. While Oswalt admitted
that the few remaining biological samples are not of sufficient quality to permit scientific
analysis at this point in time, he is preserving the evidence in the event of a relevant
advancement in the science of toxicology in the near future. Moreover, Oswalt has stated
that the statute of limitations has not yet run on the charge of attempted aggravated
murder and that the existing evidence supports such a charge. Thus, in the context of this
case, the State has conclusively demonstrated that appellant cannot prove a critical
element of her claim.
       {¶ 28} Appellant next contends that the trial court's interpretation of the phrase
"no criminal proceedings * * * can * * * be brought" renders meaningless the proceeding
language "or will be brought." R.C. 2743.48(A)(4). We disagree.
       {¶ 29} In determining the meaning of a statute, a court may not take out, strike or
read anything out of a statute, or delete, subtract or omit anything therefrom. Id. at ¶ 18.
"To the contrary, it is a cardinal rule of statutory construction that significance and effect
should if possible be accorded every word, phrase, sentence and part of an act." Id. We
read the phrase "no criminal proceedings * * * will be brought" as an alternative means for
the claimant to satisfy R.C. 2743.48(A)(4) in cases where future criminal proceedings are
both factually supportable and legally permissible, but the prosecutor has elected not to
proceed. Indeed, "[t]he decision whether to prosecute a criminal offense is generally
within the prosecutor's discretion." Cleveland v. Thorne, 8th Dist. No. 98365, 2013-Ohio-
1029, ¶ 26, citing United States v. Armstrong, 517 U.S. 456, 464 (1996). And, "[t]here is
* * * a 'strong presumption of regularity' in prosecutorial discretion." Id., quoting State v.
Norris, 147 Ohio App.3d 224, 229 (8th Dist.2002). When the language of the statute is
viewed in the proper light, it is evident that the trial court's interpretation gives meaning
to every word, phrase and part of subsection (A)(4).
       {¶ 30} In a related argument, appellant contends that the trial court erred when it
ignored evidence of her innocence in its subsection (A)(4) analysis. In opposition to the
State's motion for summary judgment, appellant submitted her own affidavit wherein she
No. 12AP-1034                                                                            12


avers that her husband's death was a suicide. According to appellant, if the trial court
accepts her proof of innocence, then, ipso facto, there is an issue of fact whether criminal
proceedings can be brought against her for her husband's death.
       {¶ 31} Appellant's argument puts the cart before the horse. In our view, an
important reason the General Assembly enacted subsection (A)(4) as an element of a
wrongful imprisonment claim is to assure that all criminal proceedings that can or will be
filed against the claimant are finally determined before a wrongful imprisonment action is
commenced.     If we were to adopt appellant's position, subsection (A)(4) would be
swallowed up by the actual innocence standard in subsection (A)(5). This is the type of
argument the Supreme Court rejected in Dunbar.
       {¶ 32} Finally, to the extent that appellant claims that the trial court's
interpretation of subsection (A)(4) distorts the burden of proof in a wrongful
imprisonment case, we note that the trial court specifically stated that appellant had the
burden of proving each of the elements of her wrongful imprisonment claim, by a
preponderance of the evidence. (Trial Court Decision, 7.) Moreover, as noted above, the
evidence appellant presented in support of her claim of innocence is not legally sufficient
to withstand the State's properly supported motion for summary judgment as to
subsection (A)(4).
       {¶ 33} In short, appellant was unable to present evidence to support an inference
that, more likely than not, no criminal proceeding can or will be brought against her for
an act associated with her conviction. We acknowledge that our opinion in Hill v. State,
10th Dist. No. 12AP-635, 2013-Ohio-1968, contains dicta suggesting that it is unfair to
require a wrongful imprisonment claimant to prove that a prosecutor will never initiate
future criminal proceedings. However, the Hill case is distinguishable inasmuch as the
reviewing court excluded material physical evidence in reversing Hill's conviction, and the
prosecutor subsequently acknowledged that no further proceedings would be brought
against claimant. Id. at ¶ 3. Moreover, the more recent opinion of the Supreme Court in
Dunbar has cautioned us that creating an exception to the requirements of R.C.
2743.48(A) is "within the purview of the General Assembly." Id. at ¶ 19.
       {¶ 34} Accordingly, appellant's first assignment of error is overruled.
No. 12AP-1034                                                                                            13


D. Motion for Leave
           {¶ 35} In her second assignment of error, appellant argues that the trial court
abused its discretion when it impliedly denied her motion for leave to file a motion for
partial summary judgment. According to appellant, the motion for leave was based upon
the recent authority in Johnston v. State, Franklin C.P. No. 11CVH-12-15900 (Oct. 31,
2012).3 In that case, the trial court determined that the reversal of a criminal conviction
due to a Brady violation4 constitutes an "error in procedure" as the term is used under
amended R.C. 2743.48(A)(5).5
           {¶ 36} A trial court's decision to grant or deny leave to file a motion for summary
judgment is reviewed under the abuse of discretion standard. Gilchrist v. Gonsor, 8th
Dist. No. 88609, 2007-Ohio-3903, ¶ 30; Cooper v. Valvoline Instant Oil Change, 10th
Dist. No. 07AP-392, 2007-Ohio-5930, ¶ 8. "The term 'abuse of discretion' connotes more
than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983),
quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).
           {¶ 37} Appellant’s complaint alleges only that she is wrongfully imprisoned under
the actual innocence standard. Rather than moving the trial court to amend her pleading,
she sought leave from the trial court to file a motion for summary judgment based upon
the "error in procedure" standard. While the trial court did not expressly rule upon the
motion for leave, the court did state that appellant's "later arguments regarding
subsection (A)(5) are moot." (Nov. 12. 2012 Trial Court Decision, 11.)
           {¶ 38} Appellant acknowledges that she failed to timely file her motion for
summary judgment. Moreover, to survive the State's motion for summary judgment,
appellant was required to produce evidence as to each of the elements of her statutory
claim, including R.C. 2743.48(A)(4). Having determined that that the trial court did not
err when it granted summary judgment on the basis that appellant failed to present

3   The case is currently before this court on appeal. See Johnston v. State, 10th Dist. No. 12AP-1022
4   Brady v. Maryland, 373 U.S. 83 (1963).
5 In December 2002, the General Assembly enacted Sub.S.B. No. 149. As a result of the statutory
amendment, a claimant may satisfy R.C. 2743.48(A)(5) by proving that "an error in procedure resulted in
the individual's release."
No. 12AP-1034                                                                           14


evidence in satisfaction of subsection (A)(4), her "error in procedure" claim is moot.
Accordingly, the trial court did not abuse its discretion in denying appellant's motion for
leave. Appellant's second assignment of error is overruled.
IV. DISPOSITION
       {¶ 39} Having overruled each of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                           BROWN and SADLER , JJ., concur.
                                ____________
