[Cite as Newton Falls Safety Forces, Inc. v. Kuivila, 2013-Ohio-4757.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


NEWTON FALLS                                             :           OPINION
SAFETY FORCES, INC.,
                                                         :
                 Plaintiff-Appellant/
                 Cross-Appellee,                         :
                                                                     CASE NO. 2013-T-0003
        - vs -                                           :

JOHN M. KUIVILA,                                         :
CHIEF OF POLICE,
                                                         :
                 Defendant-Appellee/
                 Cross-Appellant.                        :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2009 CV
01877.

Judgment: Affirmed.


Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Plaintiff-Appellant/Cross-Appellee).

John D. Travis, Holly Olarczuk-Smith, and Steven D. Strang, Gallagher Sharp, Sixth
Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, OH 44115 (For Defendant-
Appellee/Cross-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This case involves an appeal and cross-appeal from a summary judgment

decision of the Trumbull County Court of Common Pleas. The substance of the court’s

ruling concerns the ownership of various equipment which appellant, the Newton Falls

Safety Forces, Inc., has used or maintained in performing certain services for the City of
Newton Falls, Ohio. In its appeal, appellant primarily contests the court’s determination

that it is not legally entitled to keep a three-phase power generator. In the cross-appeal,

appellee, Newton Falls Chief of Police John M. Kuivila, challenges the court’s ruling as

to the ownership of 2 two-way radios.

       {¶2}   Appellant is an Ohio non-profit corporation which has been in existence for

over 40 years. Essentially, appellant is a voluntary association of private citizens who,

through the years, have performed specific types of jobs or duties for the Newton Falls

Police Department. At one point in time, appellant’s members were viewed as auxiliary

officers for the department, and were required to take an oath. Furthermore, there were

some years in which the members received nominal salaries so that they could receive

workers’ compensation if they were injured while working.

       {¶3}   In performing their duties, appellant’s members were generally subject to

the control of the city’s chief of police. However, appellant also has a “captain” who acts

as the figurehead or quasi-president of the organization. In the years immediately prior

to 2009, Lawrence Sembach was the “captain” over the other volunteer members.

       {¶4}   Appellant received funding for its operation from two basic sources. First,

the city would regularly appropriate funds for the purchase of equipment to be used by

the volunteers. In most instances, the city or the police department itself would make

the purchase on behalf of appellant. For example, the 1989 annual budget report for

the police department stated that the city bought rain pants and two portable radios to

be utilized by the volunteers. In 1990, the annual report indicated that two new portable

radios and two “light bars” were purchased for the auxiliary group.

       {¶5}   In other instances, the city would appropriate funds directly to appellant,

and then permit the volunteers to decide what equipment to purchase. To facilitate this


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type of purchase, appellant maintained its own checking account.

       {¶6}   Appellant’s second general source of funding was through donations from

other private citizens groups in the area. The separate groups included the local VFW,

Amvets, and a “Fourth of July” committee. In some instances, the donation was made

to the city itself, which would then make a purchase for the volunteers or appropriate the

funds directly to appellant. There were other instances in which the donation would go

directly to the volunteers. For example, the department’s 1991 annual budget contained

this statement: “With the donation of $1000 from the Newton Falls American Legion

Post and $2359 from the City, [appellant] was able to purchase seven new portable

radios, along with one speaker mike.”

       {¶7}   Through the years, appellant was able to accumulate a substantial amount

of police equipment, including 11 two-way radios, at least 12 traffic cones, and 4

magnetic signs which could be attached to the side of a vehicle and read “Newton Falls

Police Department.” The majority of the equipment was stored inside a barn on Captain

Sembach’s private residential property.

       {¶8}   In addition to its “purchased” equipment, appellant also had possession of

a three-phase power generator and other emergency provisions, such as cots. These

latter items were originally placed in Trumbull County by a federal agency in the 1950’s,

and were used by the City of Newton Falls during an emergency caused by blizzard in

1978. Following that emergency, the city police department retained possession of the

power generator and other provisions. A few years later, appellant took custody of the

various items and assumed responsibility for their maintenance, even though some of

the items were still stored on municipal property.

       {¶9}   Appellee was appointed the Newton Falls Chief of Police in October 2008.


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Early the next year, he informed Captain Sembach that there would be changes in the

nature of the relationship between the department and appellant’s volunteers. When a

disagreement ensued and Sembach sought to address City Council about the matter,

appellee demanded that Sembach provide an inventory of all equipment in appellant’s

possession. In turn, when Sembach did not produce an inventory, appellee took steps

to stop the volunteers from having access to certain equipment on municipal property.

      {¶10} In July 2009, appellant initiated the underlying civil case against appellee.

Under the first claim of its complaint, appellant sought a declaratory judgment regarding

the ownership of the disputed equipment. Although the complaint also stated a Section

1983 claim under which appellant alleged that appellee unlawfully seized its equipment

without due process of law, appellant voluntarily dismissed this second claim during the

course of the action.

      {¶11} After the parties unsuccessfully attempted to mediate their dispute for over

two years, the case was referred to a court magistrate for resolution. Starting in March

2012, the parties engaged in discovery, which essentially consisted of the taking of the

depositions of appellee, Captain Sembach, and Robert Carlson, who was the city’s chief

of police for approximately 20 years before appellee replaced him. Transcripts of all

three depositions were submitted by appellee in conjunction with its summary judgment

motion.

      {¶12} Once discovery had ended, the parties filed competing Civ.R. 56 motions

for summary judgment on the sole declaratory judgment claim. In its motion, appellant

generally argued that the funds and equipment it received from the city over the years

had been intended as a gift. In relation to the power generator, appellant asserted that

the federal government abandoned the machine in 1982, thereby permitting appellant to


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take ownership of the item. In support of its “abandonment” theory, appellant attached

to its motion the affidavit of Retired Chief Carlson.

       {¶13} In his motion, appellee maintained that the mere appropriation of funds or

equipment to appellant did not constitute a gift by the city, and that City Council never

passed any specific legislation whereby ownership of the disputed equipment was given

to appellant. As to the power generator, appellee argued that the Carlson affidavit was

deficient because Carlson did not state the basis for his alleged personal knowledge of

the actions of the federal government. He further argued that, even though appellant

was given the responsibility of maintaining the generator, actual custody of the machine

had always remained with the city.

       {¶14} After each side filed a response to the opposition’s motion, the magistrate

issued a written decision on the matter, recommending that each party was entitled to

summary judgment in part. Specifically, the magistrate concluded that the evidentiary

materials established that appellant owned 2 of the 11 two-way radios and between 14-

20 traffic cones, while the city owned the remaining 9 two-way radios, the magnetic

“police department” signs, and the power generator. Regarding the portable radios, the

magistrate held that appellant could only retain the two radios that were purchased with

the $1,000 donation from the Newton Falls American Legion Post. As to the generator,

the magistrate rejected the Carlson affidavit for lack of personal knowledge; therefore,

appellant failed to present any evidence that the federal government had intended for it

to take ownership.

       {¶15} Both parties submitted written objections to the magistrate’s decision. In a

separate entry issued in December 2012, the trial court overruled each side’s objections

and adopted the magistrate’s findings of fact and conclusions of law. Hence, the court


                                              5
entered final judgment on appellant’s sole remaining claim and ordered the distribution

of the disputed equipment in accordance with the magistrate’s recommendation.

       {¶16} In bringing the initial appeal of the foregoing judgment, appellant asserts a

single assignment of error for review:

       {¶17} “The trial court erred in overruling appellant’s objections to the

magistrate’s decision; adopting that decision, its findings and conclusions; and in

entering judgment thereon.”

       {¶18} Under this sole assignment, appellant focuses primarily upon the analysis

of the court magistrate concerning the ownership of the power generator. As previously

noted, appellant contended in its summary judgment motion that it was entitled to retain

the generator because the machine was in its possession when it was abandoned by

the federal government. In rejecting appellant’s contention, the magistrate determined

that appellant’s evidentiary material was not sufficient to create a factual dispute on the

“abandonment” issue because Robert Carlson’s affidavit was not based upon his own

personal knowledge. Appellant now argues that the magistrate’s analysis regarding the

affidavit was flawed because Carlson expressly averred he had personal knowledge of

all facts set forth in the affidavit.

       {¶19} Robert Carlson was the Newton Falls Chief of Police from February 1987

until November 2008; thus, he had substantial contact with appellant and its members

throughout the years. Besides generally stating in the first paragraph of his affidavit that

his averments were predicated upon his own personal knowledge, Carlson asserted in

the second paragraph that he was “familiar with the ownership of the ‘generator’ * * *.”

Carlson further averred that, although the disputed machine was originally owned by the

“United States” government, it had been entrusted to appellant’s custody prior to 1982.


                                             6
The affidavit then concluded:

       {¶20} “In circa 1982, through its Federal Emergency Management Agency,

together with state and local government, the US abandoned that ownership, instructing

its stated custodian that it was free to destroy or discard the generator and other

emergency supplies and equipment.”

       {¶21} To be deemed a proper evidentiary item for summary judgment purposes,

an affidavit must be based upon the affiant’s personal knowledge, must delineate facts

that are admissible into evidence, and must show that the affiant would be competent to

testify to the stated facts at trial. Civ.R, 56(E); Discover Bank v. Damico, 11th Dist.

Lake No. 2011-L-108, 2012-Ohio-3022, ¶14.         “‘Personal knowledge’ is ‘knowledge

gained through firsthand observation or experience, as distinguished from a belief

based on what someone else has said.’” Bonacorsi v. Wheeling & Lake Erie Railway

Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶26, quoting Black’s Law Dictionary (7th

Ed.Rev.1999) 875.     An unsubstantiated assertion of personal knowledge can be

sufficient to satisfy Civ.R. 56(E) only when “the nature of the facts in the affidavit

combined with the identity of the affiant creates a reasonable inference that the affiant

has personal knowledge of the facts in the affidavit.” The Home Savings and Loan Co.

of Youngstown, Ohio, v. Eichenberger, 10th Dist. Franklin No. 12AP-1, 2012-Ohio-5662,

¶18.

       {¶22} In the Carlson affidavit, the former police chief was essentially attempting

to state that, in 1982, employees of the federal government formed an intent to abandon

the power generator and allow appellant to keep it. However, in making this averment,

Carlson never indicated how he, as a lieutenant with the city police department at that

time, would be privy to such information. In other words, given that Carlson was not an


                                           7
employee of the federal government, his mere assertion of personal knowledge was not

sufficient, in the absence of further explanation, to demonstrate that he was qualified to

testify on the “abandonment” issue. To this extent, the affidavit was deficient for Civ.R.

56(E) purposes.

       {¶23} Even though a complete explanation of the basis of Carlson’s knowledge

was not provided in his affidavit, a review of the other evidentiary materials shows that

such an explanation was given as part of his deposition. In testifying in relation to the

ownership of all emergency supplies/equipment from the federal government, Carlson

stated that his knowledge was based upon a letter he had been allowed to read at some

point in the early 1980’s. According to Carlson, the letter was sent by Trumbull County

Emergency Management to Clayton Reaks, a former member of appellant. Therefore,

in making the averments in his affidavit, Carlson was restating the alleged contents of

the letter to Reaks.

       {¶24} “‘Proving the contents of a writing presents problems with hearsay,

authentication, and the best evidence rule.’” SFJV 2005, L.L.C. v. Ream, 187 Ohio

App.3d 715, 2010-Ohio-1615, ¶46 (2nd Dist.), quoting State v. Carter, 4th Dist. Ross

No. 99 CA 2479, 2000 Ohio App. LEXIS 4558 (Sept. 26, 2000). As to the best evidence

rule, Evid.R. 1004 provides that other evidence of the contents of a writing is admissible

only when: (1) the original is lost or destroyed; (2) the original is not obtainable; or (3)

the original is in the possession of a party-opponent.

       {¶25} In this case, appellant never presented any evidentiary materials tending

to establish that any of the three prongs under Evid.R. 1004 would to applicable to the

Reaks letter; i.e., there was no evidence showing that the letter was lost, unobtainable,

or in appellee’s present possession. Thus, even if appellant could show that Carlson’s


                                             8
assertions regarding the letter’s contents were covered under a hearsay exception, the

assertions would still not be admissible into evidence under the best evidence rule. For

this reason, even if the Carlson affidavit had provided a full explanation as to the basis

of his personal knowledge on the “abandonment” issue, it still could not be considered

as a proper evidentiary item under Civ.R. 56(E).

      {¶26} Pursuant to the foregoing, the magistrate correctly held that appellant did

not present any evidentiary materials sufficient to create a factual dispute as to whether

it obtained ownership of the power generator due to of the government’s abandonment

of the item. Accordingly, since appellee did present some evidence indicating that the

generator and the other emergency provisions were left in the custody of the city police

department in the late 1970’s, the magistrate and trial court could justifiably conclude

that appellee was entitled to have custody of the generator over appellant. Summary

judgment in favor of appellee was appropriate on this basis.

      {¶27} As a separate argument under its assignment, appellant maintains that its

evidentiary materials were sufficient to demonstrate its ownership of the four magnetic

“police” signs that can be attached to a car door. In support, appellant emphasizes that,

during his deposition, Captain Sembach produced a cancelled check showing that the

signs were paid with funds from appellant’s separate bank account. Appellant claims

that, in rejecting Sembach’s testimony and exhibits, the magistrate engaged in a

“weighing” exercise which is not appropriate in ruling upon a summary judgment motion.

      {¶28} Appellant has mischaracterized the magistrate’s legal analysis. In denying

appellant’s summary judgment motion as to the signs, the magistrate did not conclude

that Sembach’s deposition testimony lacked credibility; instead, the magistrate held that

the evidence was legally insufficient to show that appellant had used its own funds to


                                            9
purchase the signs. Specifically, the magistrate held that, even though the funds for the

signs were taken from appellant’s account, this was not sufficient to prove that the funds

“belonged” to appellant. According to the magistrate, appellant had not eliminated the

possibility that the funds in question had been appropriated by the city, and that the city

would therefore own any item bought with those funds.

       {¶29} While appellant did present some evidence indicating that it did receive

some funding through donation from private entities, there was also no dispute that the

city would often appropriate funds directly to appellant, instead of buying the necessary

equipment itself. Given these facts, in order for appellant to prove that the four disputed

signs were its property, appellant had to trace those specific funds to a donation from a

private entity. This was never done. Furthermore, appellant has not attempted to argue

before this court that an appropriation from the city constituted a gift.

       {¶30} “‘Summary judgment is appropriate when the moving party establishes the

following: (1) there is no genuine issue as to any material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can come but to one

conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made, that party being entitled to have the evidence construed

most strongly in his favor.’ Lawrence v. Jiffy Print, Inc., 11th Dist. No. 2004-T-0065,

2005 Ohio 4043, ¶6.

       {¶31} “‘If the moving party meets its initial burden under Civ.R. 56(C), then the

nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise

provided in the rule, in an effort to demonstrate that there is a genuine issue of fact

suitable for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662

N.E.2d 264 (* * *). If the nonmoving party fails to do so, the trial court may enter


                                             10
summary judgment against that party.’ Id. at ¶7.” Pringle v. Forum Health, 11th Dist.

Trumbull No. 2008-T-0131, 2013-Ohio-537, ¶11-12.

       {¶32} In this case, in responding to appellee’s summary judgment motion,

appellant failed to carry its burden of submitting sufficient evidentiary materials to create

a factual dispute concerning its ownership of the power generator and the magnetic

signs. In light of this, summary judgment in appellee’s favor on those two items was

proper. Appellant’s sole assignment of error lacks merit.

       {¶33} In maintaining a cross-appeal from the summary judgment ruling, appellee

also raises one assignment of error for review:

       {¶34} “The trial court committed reversible error in adopting the magistrate’s

recommendation that [appellant] owned the 2 two-way radios.”

       {¶35} In contending that appellant was not entitled to retain any of the two-way

radios, appellee maintains that the magistrate and trial court failed to fully consider the

statements he made in his deposition and affidavit regarding the actual effect of making

a donation to appellant. As previously discussed, the magistrate recommended that two

of the disputes radios be awarded to appellant because they were bought with the 1991

$1,000 donation from the American Legion Post. Appellee submits that, regardless of

the source of the funds, the two radios still belonged to the city because his evidentiary

materials established that a donation from a private entity was treated in the same way

as an appropriation from the city.

       {¶36} Specifically, appellee notes that, as part of his deposition, he testified that

any donation made to appellant would not be given directly to volunteers, but instead

would be submitted to the city’s finance department. He further testified that such funds

would then be subject to the control of City Council, which would decide how the money


                                             11
would be distributed and what equipment would be purchased. According to appellee,

since funds from donations were distributed in the same manner as any appropriation,

the city could justifiably claim title to the phones.

       {¶37} The 1991 annual budget report for the city’s police department stated that

appellant was given a total of $3,359 for the purchase of seven portable radios during

that fiscal year. The report further stated that, of the total sum, $2,359 was from the city

and $1,000 was a donation from the American Legion Post. Given the specific wording

of the report, there is no dispute that the $1,000 donation was intended as a gift solely

for appellant.

       {¶38} Under Ohio law, “‘[a] completed gift is created where the evidence in a

particular case shows delivery of property by the donor to a third person for the benefit

of the donee, under circumstances manifesting an intention to vest immediate title in the

donee and relinquishment of all dominion and control over the property; and the third

person is thereby constituted a trustee for the donee.’” (Emphasis added.) Moser v.

Moser, 11th Dist. Portage No. 2006-P-0047, 2007-Ohio-4109, ¶32, quoting Streeper v.

Myers, 132 Ohio St. 322, paragraph three of the syllabus (1937). Under the facts of this

action, even if $1,000 donation was originally received by the city, this would not alter

the effect of the American Legion Post’s intention to give the funds to appellant. The

city acted solely as a trustee of the funds until they were used for the benefit of

appellant. Hence, any equipment purchased with the donation would belong solely to

appellant.

       {¶39} Appellee further argues that appellant should not be allowed to retain the

two radios because they are meant solely for police use. However, in raising this point,

appellee has not cited any legal authority for the proposition that it is illegal for a private


                                               12
citizen to own such a radio. Moreover, there is no allegation that appellant’s members

have misused the radios or otherwise interfered with police business. In this respect,

appellee has failed to demonstrate any justifiable reason for depriving appellant’s of its

lawful property.

       {¶40} Given that there was no dispute that the $1,000 donation was intended as

a gift for appellant, it was entitled to retain the 2 two-way radios as a matter of law. As a

result, the granting of summary judgment in favor of appellant as to those two items was

legally correct. Appellee’s sole assignment in his cross-appeal is without merit.

       {¶41} Pursuant to the foregoing, the respective assignments under appellant’s

direct appeal and appellee’s cross-appeal are both without merit. Therefore, it is the

judgment and order of this court that the judgment of the Trumbull County Court of

Common Pleas is affirmed in all respects.




DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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