[Cite as Trumbull Twp. Bd. of Trustees v. Rickard, 2017-Ohio-8143.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


BOARD OF TRUMBULL TOWNSHIP                              :             OPINION
TRUSTEES, et al.,
                                                        :
                 Plaintiff-Appellant,                                 CASE NOS. 2016-A-0044
                                                        :                       2016-A-0045
        - vs -
                                                        :
LAWRENCE RICKARD, et al.,
                                                        :
                 Defendants/Cross-Claim
                 Defendants-Appellees,
                                                        :
STATE OF OHIO ex rel.
ATTORNEY GENERAL MIKE DeWINE,                           :

                 Defendant/Cross-Claim                  :
                 Plaintiff-Appellant.


Civil Appeals from the Ashtabula County Court of Common Pleas.
Case No. 2008 CV 0925.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Catherine R. Colgan, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellant).

Grant J. Keating and Erik L. Walter, Dworken & Bernstein Co., L.P.A., 60 South Park
Place, Painesville, OH 44077 (For Defendants/Cross-Claim Defendants-Appellees).

Mike DeWine, Ohio Attorney General; C. Patrick Denier and Lauren D. Emery,
Assistant Attorneys General, 150 East Gay Street, 23rd Floor, Columbus, OH 43215
(For Defendant/Cross-Claim Plaintiff-Appellant).
TIMOTHY P. CANNON, J.

       {¶1}    Appellants, Board of Trumbull Township Trustees (“the Board”) and State

of Ohio ex rel. Attorney General Mike DeWine (“the Attorney General”), appeal from a

judgment entered on July 11, 2016, by the Ashtabula County Court of Common Pleas,

following a damages hearing, against appellees, Lawrence Rickard and Phoenix

Productions LLC (“Defendants”). For the reasons that follow, the trial court’s judgment

is affirmed.

Procedural History

       {¶2}    This case originated on July 3, 2008, when the Board filed a complaint

against Appellee Lawrence Rickard, various John Does, and ABC companies. The

Board named, as involuntary plaintiffs, Trumbull Township Volunteer Fire Department,

Inc. (“the Fire Department”) and Trumbull Township Fire and Rescue Auxiliary, Inc. (“the

Auxiliary”). The complaint states that the Fire Department is a nonprofit corporation and

charitable trust, recognized under R.C. 109.23 and R.C. 1716.01 et seq., inuring to the

exclusive benefit of Trumbull Township as stipulated in a settlement agreement that

resolved disputes between the Board and the Fire Department. As a result of this

settlement agreement, the Board became the successor in interest to any claims the

Fire Department may have, known or unknown, against third parties. The Auxiliary is

also a nonprofit corporation and a charitable trust inuring to the exclusive benefit of

Trumbull Township.

       {¶3}    The Board’s complaint alleged claims related to charitable trust assets

and, therefore, named the Attorney General as a necessary and indispensable party-

defendant, pursuant to R.C. 109.25. The Attorney General filed an answer and a cross-




                                           2
claim against Defendants on behalf of various charitable trusts, pursuant to R.C.

109.24.

       {¶4}   The Board and the Attorney General were subsequently granted leave to

amend their pleadings to substitute Phoenix Productions, LLC as a party defendant for

the previously unnamed ABC, LLC. They allege Phoenix Productions was formed in

2002 at the direction of Rickard, who then transferred a legal or equitable interest in

certain of his assets into the limited liability company.

       {¶5}   Defendants operate and have an interest in the Great Lakes Medieval

Faire (“the Faire”) located in Rock Creek, Ohio, which is open on certain weekends

each summer. Defendants allowed for the sale of beer at the Faire, utilizing temporary

Class F permits obtained from the state of Ohio. See R.C. 4303.20 and R.C. 4303.202.

From 1994 through 2002, the Fire Department operated the beer concession. In 2003,

the Montville Volunteer Fire Department (“Montville Fire”) operated the beer concession.

The concession was operated by Defendants from 2004 through 2008 for the benefit of

the various charitable trusts named in the Attorney General’s cross-claim. After this

lawsuit was instituted, the trial court appointed a receiver to manage the beer

concession during the summer of 2009. No beer has been sold at the Faire since 2009.

       {¶6}   The Board’s second amended complaint alleged that Rickard entered into

a contract with the Fire Department, sometime between 1994 and 1997, for the

operation and management of beer concessions at the Faire. Pursuant to this alleged

contract, the Fire Department was granted the exclusive right to procure permits,

dispense beer, and receive the net proceeds from the beer concession. On December

16, 1997, Defendants obtained a conditional use zoning permit from the Trumbull




                                              3
Township Board of Zoning Appeals (“BZA”) to operate the Faire. In issuing this zoning

permit, the BZA found the Faire would benefit Trumbull Township in part because of the

contract with the Fire Department. The Board, therefore, alleged that the contract with

the Fire Department was to last as long as the zoning permit was in effect. The Board

alleged that Defendants demanded payment of unreasonable expenses and other

unlawful payments from the Fire Department to be deducted from the proceeds of the

beer concession and that, on or before July 4, 2003, Defendants improperly and

unilaterally refused to allow the Fire Department to operate the beer concession.

       {¶7}   The Board asserted claims for an Accounting and Breach of Contract,

alleging they have a right to (1) any unlawful payments and expenses deducted from

the proceeds during the time the Fire Department operated the concession and (2) any

past and future net proceeds the Defendants obtained or will obtain from beer

concessions following its breach of the contract. The Board also asserted a claim for

Promissory Estoppel, alleging the Fire Department sustained substantial financial

losses by making costly improvements to its property and Defendants’ property in

reliance on the contract.

       {¶8}   The Board requested the trial court enter a Declaratory Judgment that the

contract is enforceable and that Defendants are required to pay 50% of the net

proceeds from the Faire’s beer concession to the Board and 50% to the Fire

Department, to be donated to the Auxiliary (less any net proceeds previously received

by the Fire Department, plus any unlawful amounts previously paid to Defendants).

They also requested a declaration that Defendants are required to allow the Auxiliary to




                                           4
operate and manage the beer concession as long as there is a beer concession at the

Faire.

         {¶9}   Finally, the Board asserted a claim for Unjust Enrichment.       It alleged

Defendants were unjustly enriched in the amount of $35,000.00, which represents

$25,000.00 in funds expended and $10,000.00 in labor provided by the Fire Department

to build permanent structures and otherwise improve the real property at the Faire,

owned by Rickard. The Board further requested an award of attorney fees.

         {¶10} The Attorney General’s second amended cross-claim stated it is charged

with the enforcement of charitable trusts in Ohio, in order that the interests of charitable

beneficiaries may be protected and preserved. See R.C. 1716.16 and R.C. 109.24.

The Attorney General brought the cross-claim on behalf of the following charitable

trusts, which had been contacted by Rickard to receive 100% of the profits from the

beer concession: the Fire Department, Montville Fire, Cork Little League, Ashtabula

County Humane Society, Mesopotamia Fire Association, The Conneaut Fish and Game

Club, Peaceful Pastures Horse Rescue, Hartsgrove Volunteer Firefighters Association,

and Camp Camo, Inc. The Attorney General asserted eight counts against Defendants:

Breach of Fiduciary Duties, Unjust Enrichment, Conversion, Nuisance, “F Permits,”

Attachment, Reformation of Charitable Trust, and Fraudulent Concealment.

         {¶11} Pursuant to O.A.C. 4301:1-1-35(B), a holder of a Class F temporary

permit “shall direct the payment of the proceeds from the function to the * * * charitable *

* * purpose, provided that the proceeds will not be directed for the profit or gain of any

person.” The Attorney General alleged that Rickard violated this code provision and

also violated common law fiduciary duties to the charitable trusts by willfully, wantonly,




                                             5
and wrongfully failing to direct the payment of the beer concession proceeds to the

charities and, instead, illegally collecting, controlling, retaining, profiting, or distributing

those proceeds.     The Attorney General further alleged that Defendants fraudulently

concealed from the charities the true expenses and amount of profits they were entitled

to receive and wrongfully converted those profits. It also alleged Defendants created a

nuisance, under R.C. 1716.14, by misleading the public that the proceeds would benefit

the charities.

       {¶12} The Attorney General requested the trial court to impose and enforce a

constructive trust over all proceeds wrongfully collected, controlled, or retained by

Defendants for the purpose of redistributing the funds to the appropriate charitable

beneficiaries. It also requested an order of attachment on Rickard’s assets as a result

of his fraudulent and criminal behavior, a declaratory judgment reforming the terms of

the charitable trust, and an order permanently enjoining Defendants from participating in

further charitable solicitation. The Attorney General requested monetary relief in the

form of restitution, civil penalties in the amount of $10,000.00 per day of violation (see

R.C. 1716.16), punitive damages, attorney fees, and expenses.

       {¶13} Defendants filed answers and affirmative defenses to both parties’ claims.

Rickard also asserted a counter-claim for declaratory relief against the Board with

regard to the aforementioned contract.

       {¶14} Defendants subsequently filed a motion for summary judgment against the

Board, and the Board filed a response.             The Attorney General filed a motion for

summary judgment against Defendants. Defendants failed to respond to the Attorney

General’s motion and failed to reply to the Board’s response, despite obtaining several




                                               6
extensions of time from the trial court. The trial court never ruled on these summary

judgment motions.

      {¶15} Frequent disputes arose between the parties during the discovery process

concerning Defendants’ responses to formal discovery and requests for production of

documents,    the   veracity of   Rickard’s deposition    testimony and answers        to

interrogatories, Defendants’ failure to timely identify material witnesses, and Rickard’s

alleged interference with the inspection of his real property. These disputes culminated

in a joint motion for sanctions, filed by the Board and the Attorney General, in which

they alleged Defendants had engaged “in a systemic pattern of discovery abuses, other

contumacious conduct, and fraud on the court” that resulted in substantial delays and

otherwise prejudiced them.

      {¶16} On April 29, 2014, the trial court granted the joint motion for sanctions.

The court made the following findings: (1) Rickard made false and misleading

statements to the court and other parties that nonexistent tax return documents had

been prepared and produced; (2) Rickard acted egregiously by failing to produce

discoverable insurance documents after representing that he would produce them, in an

attempt to persuade the court to avoid issuing an order requiring their production; (3)

Rickard failed to comply with Civ.R. 26(B) and Civ.R. 34 by failing to produce requested

electronic data and documents and by falsely representing that no such electronic data

existed; (4) Rickard failed to timely identify his accountant during a period they

maintained an ongoing business relationship, which resulted in spoliation of evidence;

(5) Rickard failed to produce vendor contracts, which prevented the parties from

discovering evidence regarding Faire revenues and the allocation of Faire expenses to




                                           7
all vendors; (6) on multiple occasions, Rickard delayed retaining new counsel until the

eve of continued hearings in order to obtain further continuances; (7) Rickard filed a

fraudulent bankruptcy petition in order to delay these proceedings, and the financial

information listed on his 2005–2010 tax returns is not credible.

      {¶17} As a result, the trial court struck Defendants’ answers and affirmative

defenses to the Board’s second amended complaint and to the Attorney General’s

second amended cross-claim. Defendants’ counterclaim was also stricken. The trial

court entered default judgment against Defendants, jointly and severally, in favor of the

Board and the Attorney General, reserving the issue of damages for a later date. The

court stated this was “the only effective remedy to adequately cure the prejudice to the

parties and the interference with the efficient administration of justice caused by

Rickard’s violation of the Civil Rules through repeated instances of discovery

misconduct, his contumacious conduct, and his commission of fraud upon the Court.”

The court further found that awarding a monetary sanction, as an alternative, was not

an option because Rickard was not able to pay.

      {¶18} A hearing on damages was scheduled for October 6, 2014. The parties

instead spent the day in settlement negotiations. An agreement was reached and put

on the record. The settlement failed, however, as the agreement was never ratified by

the Board at a public meeting.

      {¶19} A hearing on damages was rescheduled the following year on November

6, 2015. The trial court issued an entry instructing the parties as to the particulars of

that hearing, which stated, in part, that “the Court expects the parties to summarize and

list ALL the available evidence on the issue of damages so that the Court does not




                                            8
overlook any evidence that may have been submitted during the past seven years.”

(Emphasis sic.)

       {¶20} Prior to the hearing, Defendants filed an exhibit and witness list. The

Board filed a motion in limine to exclude any evidence Defendants intended to use that

would dispute facts already admitted as true pursuant to the entry of default judgment.

Defendants responded in opposition and filed their own motion in limine to exclude or

limit the Board’s introduction of irrelevant evidence, including evidence related to the

value of Defendants’ assets and other evidence unrelated to the charitable beer

concession. The Board responded in opposition. Neither motion was ruled on prior to

the hearing.

       {¶21} The parties renewed their motions in limine at the start of the damages

hearing on November 6, 2015. The trial court held the Board’s motion in abeyance.

The Board attempted to introduce a binder of exhibits at the hearing, a copy of which

had not been given to Defendants until immediately prior to the hearing. Defendants

moved to exclude the entire binder on that basis, which the trial court denied.

Defendants moved to exclude those portions of the binder relating to appraisals of

Defendants’ real estate, on the basis Defendants had agreed to the appraisals only for

the purpose of settlement negotiations. The trial court granted this motion “in principle.”

Essentially, the trial court instructed the parties it would only hear evidence related to

damages, but the parties would have to object during the hearing in order to obtain a

specific ruling.

       {¶22} The Attorney General made, what it called, a “presentation” to the court. It

presented no witness testimony, but presented the affidavit and expert report of Mark




                                            9
Graves, the Chief Accountant for the Attorney General’s Office, which had previously

been submitted to the trial court. Mr. Graves’ report contained the analysis he used to

determine the amount of charitable funds received by Rickard from the Fire Department

and the other charitable trusts.   He reviewed cancelled checks written by the Fire

Department to Phoenix Productions; financial documents and an expense summary

provided by the Board; a 2003 contract between Rickard and Montville Fire; vendor

invoices; expense statements for the summer of 2005 submitted by Defendants to the

Ohio Division of Liquor Control; and contracts between Rickard and various charities.

Mr. Graves estimated that Defendants received illegal payments in the amount of

$100,023.11 between 1994 and 2002, when the Fire Department was operating the

beer concession, and $13,700.00 in 2003 when Montville Fire was operating it. Mr.

Graves also estimated Defendants wrongfully withheld $322,878.00 from the various

charities between 2004 and 2008. The Attorney General therefore requested damages

in the amount of $436,601.11, plus interest at the statutory rate. The Attorney General

also calculated the statutory civil penalties the trial court could impose—at $10,000.00

per day of violation multiplied by 12 days each year—was close to $2,000,000.00. It

further requested punitive damages and imposition of a constructive trust.

      {¶23} The Board called Ron Tamburrino, a current Trumbull Township Trustee

elected in 2005, who testified regarding the Board’s decision to pursue its case against

Defendants for breach of contract with the Fire Department. Mr. Tamburrino testified

that the Board had reviewed the following: a transcript of a 1997 BZA meeting, at which

Rickard spoke of conversations he had with Stanley D. Ruck (“Mr. Ruck”), a firefighter

at the time the Fire Department began operating the beer concession; the Fire




                                           10
Department’s lease purchase agreement for a fire truck in 1997, signed by Stanley J.

Ruck (“Chief Ruck”), Mr. Ruck’s father and the fire chief at the time, which listed the

beer concession proceeds as a source of funds; a 1998 newsletter issued by the Fire

Department, stating its main fundraiser was the beer concession at the Faire; minutes

from a 1993 meeting of the Fire Department reflecting a vote to operate the beer

concession; and the absence of meeting minutes from 2002 to terminate any agreement

with Defendants. The trial court ruled that Mr. Tamburrino was not permitted to offer his

opinion as to the terms of the alleged contract, because his opinion was based on

inferences he drew from these documents, not his personal knowledge, and the

documents did not include anything about actual terms.

       {¶24} Mr. Tamburrino testified regarding the conclusions reached in Mr. Graves’

expert report. He also testified about the expert report of Bernard Agin, an economic

analyst, which had been submitted to the trial court at the sanctions hearing. Neither

expert testified at the damages hearing. Mr. Agin’s report calculated past and future

loss to the charitable beneficiaries; the fair market value of the Faire; and Rickard’s life

expectancy. The report indicates Mr. Agin was “provided with information regarding

past expenses associated with [the Faire]” and Mr. Graves’ expert report.

       {¶25} Defendants called Mr. Ruck, a member of the Fire Department and son of

the former chief of the Fire Department, who testified that no written contract to operate

the beer concession ever existed; rather, Defendants and the Fire Department had an

oral, year-to-year agreement.     Mr. Ruck further testified that the Fire Department

obtained the necessary permits and operated the beer concession from 1994 to 2002,

at which time the members lost interest and abandoned the concession. He testified




                                            11
that during the years the Fire Department operated the concession, it handled the sales

revenue and retained all beer sales proceeds, less agreed expenses (referred to as

“keg charges”) it paid to Defendants.

       {¶26} Defendants also called Gary E. Jones, Chief of Investigations and

Compliance at the Ohio Division of Liquor Control (“ODLC”), who testified the ODLC

sent letters in 2005 requesting information to verify that the beer concessions were

operating in compliance with the statutes governing the temporary permits. Defendants

presented copies of unsigned responses received and stamped by the ODLC, which

identified categories and amounts of expenses associated with the beer concession.

Mr. Jones could not authenticate the responses, but it was determined at the hearing

that they were the same responses Mr. Graves utilized to calculate his expert opinion

on lost profits and submitted into evidence by the Board and the Attorney General. Mr.

Jones also could not testify that the expenses included in those reports were legitimate,

as no investigation was undertaken upon receipt of the responses. Mr. Jones did testify

that upon receipt of each response, the ODLC issued another letter indicating no further

action was necessary at that time. He stated, however, that this letter was not reflective

of the Faire’s compliance with the temporary permits; it was simply an acknowledgment

that the responses had been received.

       {¶27} At the end of the hearing that day, the parties still disputed the

admissibility of certain evidence, and additional argument was necessary. The trial

court issued a docket entry continuing the hearing until December 22, 2015. The entry

also stated the following with respect to the various motions in limine:

              IT IS ORDERED that the Plaintiffs’ Motion in Limine to Exclude
              Evidence Not Relating to Damages is GRANTED.



                                            12
              IT IS ORDERED that the Defendants’ Motion in Limine to Prevent
              the Plaintiffs From Using a 70-Exhibit Binder presented to defense
              counsel on today’s date [November 6, 2015] is DENIED.

              IT IS FURTHER ORDERED that Defendants’ Motion in Limine to
              Limit Real Estate Appraisals which were performed in conjunction
              with settlement negotiations be GRANTED IN PRINCIPLE. The
              parties are reminded that they must raise the objections again at
              the time during the hearing that the issues are raised.

       {¶28} On December 22, 2015, the trial court made final evidentiary rulings and

heard closing arguments.       The Board again attempted to introduce the real estate

appraisals, to which Defendants objected. The trial court held the appraisals were

inadmissible and the Board was only permitted to rely on public records relating to the

value of Defendants’ real estate.         Based on Mr. Agin’s expert report, the Board

requested contractual damages in the amount of $1,330,627.00. This figure represents

$735,964.00 in past beer proceeds for 2003 through 2015, and $594,663.00 in future

beer proceeds for 2016 through 2032. The Board requested the trial court impose a

constructive trust, in the alternative, for the future loss.

       {¶29} The parties subsequently submitted posthearing briefs.           On March 29,

2016, the Board and the Attorney General filed a joint motion to strike improper and

inadmissible evidence referenced by Defendants in their posthearing brief. The trial

court later denied this motion, in its entirety, one day after issuing its final order in this

matter.

Trial Court’s Final Order

       {¶30} The trial court issued its final order on July 11, 2016. At the outset, it

stated: “Although Defendants have failed to cooperate and have attempted to sabotage

this litigation, the Court must still strive to accomplish a just result. Personal animosity



                                               13
will not be engaged in by the Court.” The following is a summary of the trial court’s

findings with respect to the Board’s and the Attorney General’s claims for relief.

   A. The Board’s Damages

       {¶31} The trial court first addressed the Board’s claim that all the averments in

its second amended complaint are admitted, pursuant to Civ.R. 8(D), because the court

struck Defendants’ answer as a sanction and granted default judgment. The court held

that Civ.R. 8(D) has an inequitable result in this case because the Board avers a

perpetual contract “which flies in the face of the Statute of Frauds since it could not be

completed in one year.” Relying on Civ.R. 55(A), the trial court found “that in order to

prove contractual damages, the contract must be proven.              What damages are

recoverable can only be determined by the terms of the contract.”

       {¶32} The trial court found that any alleged contracts between Defendants and

the Fire Department to operate the beer concession were entered into orally and year-

to-year. No written contract was ever produced, and the evidence provided that no

written contract ever existed. The trial court stated the Board failed to prove what

damages may have been recoverable because the terms of the alleged written contract

are not known; “for it to infer a valid written agreement existed merely because it was

alleged in the pleadings would constitute a failure of justice.” Although the Board was

the assigned beneficiary of the Fire Department, it was not a party to the oral

agreements and therefore had no greater rights than those held by the Fire Department.

       {¶33} The trial court awarded no damages to the Board because it failed to

establish it was entitled to recover any damages. The trial court also declined to award

attorney fees to the Board.




                                            14
   B. The Attorney General’s Damages

       {¶34} The Attorney General claimed Defendants misappropriated hundreds of

thousands of dollars.    The trial court found Defendants failed to keep appropriate

records, tax returns, or make an accurate accounting of revenues and expenses. Thus,

the Attorney General relied on estimates, projections, and approximations to determine

sales, expenses, and profits of the beer concession. The only actual records available

for the trial court to consider were the 2009 sales and expense report of the court-

appointed receiver.     The receiver’s report showed total receipts of $82,463.00;

expenses of $50,283.00; and profits of $32,180.00.

       {¶35} Four responses to requests from the ODLC in 2005 were found in the

records of the ODLC, although those responses were not verified by Mr. Jones, and it is

unknown who prepared them. The responses covered four of the six weekends the

Faire operated in 2005, and the trial court found the numbers were “strikingly similar” to

the 2009 receiver’s report.     Total sales for those four weekends in 2005 were

$52,496.00, for an average of $13,124.00 per weekend; multiplied by six weekends

indicated total beer sales would have been approximately $78,764.00 for 2005. The

trial court found this amount “compares favorably” to the 2009 total sales of $82,463.00.

       {¶36} The trial court found that certain categories of expenses listed in the 2005

responses to the ODLC were inappropriate to beer sales and constituted individual

profit, to wit: “entertainment,” “costuming,” and “privileged rent.” When those line items

are subtracted, total expenses for 2005 are $53,322.00.        The trial court found this

number also “compares favorably” to the 2009 expenses of $50,283.00 as reported by

the receiver.




                                           15
       {¶37} Thus, with respect to the years 2004 through 2008, the trial court found

the 2009 receiver’s report to be the most reliable source of verification of total sales and

expenses. The trial court inferred and accepted as reasonably accurate that the profit

of $32,180.00 as reported by the receiver was also the net profit per year for the years

2004 through 2008.

       {¶38} The trial court found that no damages were established for the year 2003.

Montville Fire operated the beer concession that year, and it is unknown what amount it

received in total sales or net profit.   Therefore, the trial court could not determine

whether any loss was incurred.

       {¶39} The trial court concluded that the charities represented by the Attorney

General should have received $32,180.00 per year, from 2004 through 2008, for a total

of $160,900.00. During that period, Defendants paid $22,500.00 to the charities, for a

total net loss of $138,400.00.

       {¶40} The Attorney General also sought statutory civil fines and punitive

damages as punishment for Defendants’ alleged breach of fiduciary duties to the

charitable beneficiaries.

       {¶41} The Fire Department was the charitable beneficiary for the years 1994

through 2002. It paid a negotiated “keg charge” to Defendants each year, estimated as

$11,000.00 per year, or less than $2,000.00 per weekend. Mr. Rusk testified that the

Fire Department accepted this as a reasonable amount to cover Defendants’ expenses

associated with the beer concession. The trial court stated this was far less than the

receiver’s reported expenses of $50,283.00 in 2009. The court further stated this oral

agreement could not be second-guessed by the Board or by the Attorney General. The




                                            16
trial court found Defendants were not malicious in negotiating the “keg charge” and that

the amount was reasonable.

      {¶42} Montville Fire was the charitable beneficiary for the year 2003. The trial

court found there is no evidence of who provided labor, what the sales revenue was, or

how much the charity received.

      {¶43} Defendants played a direct role in conducting the beer concession from

2004 through 2008 for the benefit of various charities. The sales revenue, expenses,

and net profits were inferred by the trial court, as outlined above, based on the 2009

receiver’s report. The trial court found Defendants received little guidance from the

state of Ohio regarding appropriate expenses and regulations: the only regulations

defining approved expenses indicate they are not to be expended for individual profit.

See R.C. 4303.20 and R.C. 4303.202. The trial court analogized this to the regulations

for charitable gambling operations, which are very inclusive and permit a wide range of

expenses. See R.C. Chapter 2915. The trial court also found Defendants had reason

to believe they were in compliance with state laws and regulations: the ODLC accepted

the information submitted in response to its requests regarding expenses and charitable

proceeds, and it indicated no further action on the part of Defendants was necessary.

The trial court further found no evidence of malicious conduct or intentional violation of

any fiduciary duties and no evidence of improper fund tracing from beer-sales profits to

the purchase of specific assets.

      {¶44} The trial court held the imposition of civil fines and punitive damages was

inappropriate in this factual situation.   The trial court also declined to impose a




                                           17
constructive trust because it was not established that Defendants committed some

wrong or fraud that required confiscation of their property.

   C. Conclusion

       {¶45} The Board was awarded no damages for the years 1994 through 2002.

The trial court found no damage to anyone for the year 2003 due to lack of evidence.

The charities represented by the Attorney General incurred a loss of $138,400.00 for

the years 2004 through 2008. The clerk of courts was ordered to release $19,500.00 it

was holding to the Attorney General; the remaining $118,900.00 was awarded to the

Attorney General against Defendants, jointly and severally, plus interest at the statutory

rate. The trial court declined to award attorney fees or to impose a constructive trust.

Court costs were assessed against Defendants. Defendants were also enjoined from

operating charitable beer sales in the future.

       {¶46} Finally, the trial court stated, “[t]o the extent that any previous orders of the

Court conflict with this one, such orders are hereby vacated.”

Assignments of Error

       {¶47} The Board and the Attorney General filed separate appeals from this final

entry, including assignments of error relating to the trial court’s denial of their joint

motion to strike improper and inadmissible evidence.

   A. The Board’s Assignments of Error

              [1.] The court erred and abused its discretion in failing to apply
              Civ.R. 8(D) at the damages hearing after previously striking the
              defendants’ answer and affirmative defenses and dismissing
              Defendant Rickard’s counterclaim.

              [2.] As a matter of law, the court committed prejudicial error and
              violated the parties’ right to due process in converting a hearing on
              damages held pursuant to a default judgment entered as a sanction



                                             18
         to a bench trial on the merits without providing advance notice to
         the parties and after it had granted a motion in limine to exclude
         evidence that contradicted allegations already deemed admitted.

         [3.] The court erred and abused its discretion in denying Plaintiff
         Board of Trumbull Township Trustees’ and Defendant-Cross
         Claimant Ohio Attorney General’s joint motion to strike improper
         and inadmissible evidence that caused severe prejudice to the
         parties.

         [4.] The court erred in construing R.C. 4303.20 as governed by
         Ohio’s gambling statute R.C. 2915 and in finding the
         misappropriation of funds by Lawrence Rickard was lawful under
         the statute.

         [5.] The court erred and abused its discretion in failing to provide
         Plaintiff Board of Trumbull Township Trustees a remedy on its claim
         for an accounting.

         [6.] The court erred and abused its discretion in failing to find the
         existence of a constructive trust where defendants were unjustly
         enriched and funds illegally misappropriated were traceable to
         defendants’ purchase of the properties in question.

         [7.] The court erred and abused its discretion in denying Plaintiff
         Board of Trumbull Township Trustees attorney fees and expenses
         when it found that defendants engaged in severe discovery
         misconduct.

B. The Attorney General’s Assignments of Error

         [1.] The trial court abused its discretion in failing to impose a
         constructive trust where Defendants were unjustly enriched and the
         proceeds were traceable to Mr. Rickard’s purchase of real property.

         [2.] The trial court erred in finding that Civ.R. 8(D) did not preclude
         introduction of evidence regarding the contract between TTVFD
         and Mr. Rickard after it had stricken Defendants’ answer,
         affirmative defenses, and counterclaim.

         [3.] The trial court erred and violated the parties’ right to due
         process by converting the damages hearing to a trial on the merits
         without providing sufficient notice and after granting the Board’s
         motion in limine to exclude evidence unrelated to damages.




                                       19
              [4.] The trial court erred and abused its discretion in denying the
              parties’ motion to strike improper and inadmissible evidence.

              [5.] The trial court erred in using R.C. 2915 to construe what types
              of expenses are permissible under R.C. 4303.20.

              [6.] The trial court erred by relying on information submitted to the
              Ohio Division of Liquor Control (‘ODLC’) when determining the
              revenue, expenses, and charitable proceeds from the sale of
              alcohol at the GLMF.

Application of Civil Rules 8, 37, and 55

       {¶48} As a result of discovery misconduct, the trial court imposed sanctions

against Defendants by striking their answers, affirmative defenses, and counterclaim

and by entering a default judgment in favor of the Board and the Attorney General. At

the time the sanction was entered in 2014, Civ.R. 37(B)(2) read, in relevant part:

              If any party * * * fails to obey an order to provide or permit
              discovery, * * * the court in which the action is pending may make
              such orders in regard to the failure as are just, and among others
              the following: * * * (c) An order striking out pleadings or parts
              thereof, or staying further proceedings until the order is obeyed, or
              dismissing the action or proceeding or any part thereof, or
              rendering a judgment by default against the disobedient party[.]

       {¶49} Civ.R. 8(D) provides that “[a]verments in a pleading to which a responsive

pleading is required, other than those as to the amount of damage, are admitted when

not denied in the responsive pleading.” In its entry imposing sanctions, the trial court

did not state all the averments were admitted as a result of the answers and affirmative

defenses being stricken, but it did state that the issue of damages shall be taken up at a

later date.

       {¶50} In its final order following the damages hearing, the trial court found that

Civ.R. 8(D) would have an inequitable result when applied to the terms of the contract

between Rickard and the Fire Department.          It found the amount of recoverable


                                           20
damages under the contract could only be determined by ascertaining the terms of that

contract.   The trial court therefore relied on Civ.R. 55(A), which applies to default

judgments entered against a defendant who has failed to plead or otherwise defend:

              If, in order to enable the court to enter judgment or to carry it into
              effect, it is necessary to take an account or to determine the
              amount of damages or to establish the truth of any averment by
              evidence or to make an investigation of any other matter, the court
              may conduct such hearings or order such references as it deems
              necessary and proper and shall when applicable accord a right of
              trial by jury to the parties.

       {¶51} The Board, in its first assignment of error, and the Attorney General, in its

second assignment of error, state this was reversible error. They argue it was an abuse

of discretion for the trial court to consider any evidence relating to the contract because

its existence and its terms were admitted when Defendants’ answers were stricken.

They further assert that Civ.R. 55(A) does not apply, as a matter of law, to default

judgments entered as a Civ.R. 37 sanction for discovery misconduct.

       {¶52} Appellants’ argument that Civ.R. 55(A) does not apply to default

judgments entered as a Civ.R. 37 sanction is untenable. The plain language of Civ.R.

55 and Civ.R. 37 do not provide for such a result. The Attorney General invokes Reese

v. Proppe for the proposition that a judgment entered against a party by operation of

Civ.R. 37(B) is not a true default judgment to which Civ.R. 55(A) applies. In Reese, the

trial court entered a default judgment against a defendant who had filed an answer but

failed to appear at a hearing. 3 Ohio App.3d 103, 104 (8th Dist.1981). The Reese

Court held this was error because a default judgment is only appropriate “when the

defendant has failed to contest the allegations raised in the complaint[.]” Id. at 105. A




                                            21
default judgment entered pursuant to Civ.R 37 was not an issue before the Reese

Court, and the case is inapposite to the facts at hand.

       {¶53} The Tenth District Court of Appeals has applied the provision in Civ.R.

55(A) that accords a right of trial by jury to a defaulting party, even when the default

judgment was entered by way of a discovery sanction under Civ.R. 37(B). “‘[W]e find

the only result consistent with both Civ.R. 38(D) and Civ.R. 55(A) is to require a trial by

jury upon the issue of damages, when necessary, if it has been previously demanded

by any party, even though default judgment be entered as a sanction for failure to

comply with discovery requests pursuant to Civ.R. 37(B)(2)(c)[.]’” Malaco Constr., Inc.

v. Jones, 10th Dist. Franklin No. 94APE10-1466, 1995 WL 506026, *8 (Aug. 24, 1995),

quoting Harris v. Interstate Check Sys., Inc., 10th Dist. Franklin No. 77AP-275, 1977 WL

200414, *2 (Sept. 20, 1977), and citing DMAC Co. v. Bochner, 1st Dist. Hamilton Nos.

C-840686 & C-840687, 1985 WL 8953, *3-4 (July 31, 1985).

       {¶54} The Ohio Supreme Court has similarly held that “the notice requirement of

Civ.R. 41(B)(1) applies to all dismissals with prejudice, including those entered pursuant

to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders. A dismissal on the

merits is a harsh remedy that calls for the due process guarantee of prior notice.

Accordingly, the two rules should be read in pari materia with regard to dismissals with

prejudice.” Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986) (emphasis sic).

“This holding stems from and reflects ‘a basic tenet of Ohio jurisprudence that cases

should be decided on their merits.’” Id., quoting Perotti v. Ferguson, 7 Ohio St.3d 1, 3

(1983); see also Baker v. Edmonds, 2d Dist. Clark No. 2002-CA-17, 2003-Ohio-1030,

¶24 (“the preference for adjudicating disputes on their merits, rather than on the basis of




                                            22
procedural defaults, alluded to in [Mindala], militates in favor of the cautious exercise of

the ultimate sanction of default judgment”).

       {¶55} Further, “[a] trial court has considerable latitude in imposing sanctions for

discovery violations and a trial court’s decision on a discovery violation will not be

reversed absent a showing of an abuse of discretion.” Johnson Controls, Inc. v. Cadle

Co., 11th Dist. Trumbull No. 2006-T-0030, 2007-Ohio-3382, ¶15, citing Nakoff v.

Fairview Gen. Hosp., 75 Ohio St.3d 254, 256 (1996). An abuse of discretion is the trial

court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.

Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law

Dictionary 11 (8th Ed.2004). When fashioning an appropriate sanction for discovery

violations, a trial court is not limited to the orders outlined in Civ.R. 37, such as default

judgment, dismissal, or striking a pleading; it is permitted to “make such orders in regard

to the failure as are just.” Former Civ.R. 37(B)(2).

       {¶56} Here, the trial court determined it would be unjust to accept, as admitted,

the Board’s averment that a perpetual contract existed, when the Board’s evidence

showed that a written contract to that effect could not be located and no one had

personal knowledge of any written contract. In light of the harsh discovery sanction that

had been imposed against Defendants, the trial court determined it was necessary to

establish the terms of the contract in order to reach an equitable result regarding

damages.     The trial court’s refusal to accept appellants’ position that Civ.R. 8(D)

required a finding of truth as to all averments was well within the discretion of the trial

court, as it was the trial court’s sanction that created the issue. As noted above, the law

in Ohio is clear that the scope of the sanctions imposed is left to the sound discretion of




                                               23
the trial court. Notably, the trial court did not state that a contract did not exist nor did it

state that Defendants were not liable on the contract. Rather, it found a year-to-year,

oral agreement did exist and then determined—based on evidence put forth by both the

Board and Defendants—that both the Fire Department and Defendants complied with

that agreement on a yearly basis and that no amount of contractual damages was

proven for any other period of time.

       {¶57} We cannot say the trial court abused its discretion in refusing to accept all

averments in the complaint and cross-claim as true. Nor can we say the trial court

abused its discretion in requiring the Board to prove, as it related to damages and as

specifically permitted by Civ.R. 55(A), the terms of an alleged written contract it could

not locate, which the Board alleged was to last in perpetuity until the death of Rickard,

and for which it was attempting to collect over one million dollars. It is apparent the

Board was committed to receiving a windfall based on its interpretation of the trial

court’s sanction, while the trial court was committed to reaching a just decision based

on what the parties had actually agreed upon.

       {¶58} The Board’s first assignment of error and the Attorney General’s second

assignment of error are without merit.

Due Process

       {¶59} The Board, in its second assignment of error, and the Attorney General, in

its third assignment of error, assert the trial court violated their right to due process by

converting the damages hearing to a trial on the merits without sufficient notice and

after granting the Board’s motion in limine to exclude evidence unrelated to damages.




                                              24
       {¶60} The Fourteenth Amendment to the United States Constitution and Section

16, Article I of the Ohio Constitution guarantee due process of law. “Due process of law

involves only the essential rights of notice, hearing or opportunity to be heard before a

competent tribunal.” State v. Edwards, 157 Ohio St. 175 (1952), paragraph one of the

syllabus. “[A]t a minimum, due process of law requires that when a court conducts a

hearing, it give the parties a reasonable opportunity to be heard.” City of Painesville

Bldg. Dept. v. Petro, 11th Dist. Lake Nos. 99-L-181 & 99-L-182, 2001 WL 589410, *2

(June 2, 2001), citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976). We review due

process challenges de novo. JPMorgan Chase Bank, Natl. Assoc. v. Muzina, 11th Dist.

Lake No. 2015-L-028, 2015-Ohio-4432, ¶27 (citation omitted).

       {¶61} Prior to the damages hearing, the trial court issued an entry instructing the

parties as to the particulars of the evidence to present. That entry stated, in part:

              The parties have made further inquiries as to what type of evidence
              the Court wants at the damage hearing. The Court has advised the
              parties that they must either identify in the record, evidence that
              may have been offered in motion hearings or by deposition, and the
              Court will permit additional testimony and evidence to be submitted
              by the parties. In sum, the Court expects the parties to summarize
              and list ALL the available evidence on the issue of damages so
              that the Court does not overlook any evidence that may have been
              submitted during the past seven years. [Emphasis sic.] These
              hearings in this case have been lengthy, the files are numerous and
              voluminous, and the Court wants to be assured that it has all the
              evidence before it on the issue of damages. Judgment has
              previously been rendered against Defendant Rickard, et al., on the
              issue of liability.

Thus, the parties had notice of the damages hearing and were given a meaningful

opportunity to be heard.

       {¶62} Contrary to the characterization of events asserted by appellants, the trial

court did not convert the damages hearing to a trial on the merits. The trial court



                                             25
allowed evidence as to the damages that could be recovered under the terms of the

contract. In doing so, the trial court determined that no damages were established

under the alleged written contract because the Board’s own evidence was that a written

contract could not be located and its only witness, Mr. Tamburrino, had no personal

knowledge of the existence or terms of any written contract.

       {¶63} Appellants cannot say they did not have notice that the trial court was

considering this issue in its attempt to elicit recoverable damages. At the hearing, the

trial court repeatedly indicated it had yet to hear any evidence about the terms of the

contract because it appeared no one before the court had ever seen a written contract

or had personal knowledge of terms of a written contract. Additionally, the damages

hearing took place over two days, with approximately six weeks in between each day.

The Board did not offer any additional evidence as to the terms of the contract on the

second day of hearings nor has it asserted on appeal that it had additional evidence to

present at that time. It was very clear, however, that the parties had agreed that the

primary obligation of the Fire Department was to provide labor for the beer concession.

It is also undisputed that the Fire Department did not provide any labor after 2002. To

claim damages “in perpetuity” and for periods during which other charitable

organizations provided that labor is nonsensical.

       {¶64} Finally, appellants cannot rely on the trial court’s ruling on the Board’s

motion in limine in support of the argument that their due process rights were violated.

A ruling on a motion in limine is interlocutory and does not determine the admissibility of

evidence. State v. Leslie, 14 Ohio App.3d 343, 344 (2d Dist.1984). In its ruling granting

the Board’s motion in limine, the trial court reminded the parties “that they must raise




                                            26
the objections again at the time during the hearing that the issues are raised.” Thus,

they were on notice that their evidentiary arguments would be further addressed at the

damages hearing.

       {¶65} Appellants were not denied due process of law, as they were granted both

notice and a reasonable opportunity to be heard on the issues relevant to the trial

court’s determination of damages.

       {¶66} The Board’s second assignment of error and the Attorney General’s third

assignment of error are without merit.

Evidentiary Rulings

       {¶67} The Board, in its third assignment of error, and the Attorney General, in its

fourth assignment of error, assert the trial court erred in denying their joint motion to

strike improper and inadmissible evidence.

       {¶68} A trial court’s decision to grant or deny a motion to strike is reviewed

under the abuse of discretion standard. Johnsonite, Inc. v. Welch, 11th Dist. Geauga

No. 2011-G-3012, 2011-Ohio-6858, ¶21, citing State ex rel. Mora v. Wilkinson, 105

Ohio St.3d 272, 2005-Ohio-1509, ¶10.

       {¶69} In their posthearing brief, Defendants referenced Mr. Ruck’s testimony at

the damages hearing and the affidavits of Rickard and Chief Ruck, which had previously

been submitted to the trial court. Appellants filed a joint motion to strike the sections of

the posthearing brief that reference these items, as they were improper and

inadmissible for the purposes of the damages hearing. They stated: “Mr. Rickard’s

affidavit is inadmissible hearsay. The Rucks’ testimony goes to facts already deemed

admitted and is therefore irrelevant to a determination as to the amount of damages




                                             27
and/or the appropriate remedy to address the parties’ claims. [Chief] Ruck’s affidavit in

particular is invalid because it is unsworn.” The trial court overruled this motion in its

entirety.

       {¶70} The relevancy of Mr. Rusk’s testimony was a determination to be made

within the trial court’s discretion, and that decision will not be disturbed on appeal

absent a clear showing of an abuse of that discretion. See Renfro v. Black, 52 Ohio

St.3d 27, 32 (1990) (citation omitted). In a default judgment proceeding, the trial court is

permitted “to take an account or to determine the amount of damages or to establish the

truth of any averment by evidence or to make an investigation of any other matter[.]”

Civ.R. 55(A). In doing so, damages must be proven the same as in a case assigned for

regular trial. Mid-America Acceptance Co. v. Reedy, 11th Dist. Lake No. 89-L-14-072,

1990 WL 94816, *3 (June 29, 1990). “‘The court must also take into consideration

elements, facts, and circumstances which tend to mitigate, reduce or correctly reflect

the damages sustained.’” Id., quoting Blank v. Snyder, 33 Ohio Misc. 67, 69 (1972).

       {¶71} Mr. Rusk’s testimony was relevant to the determination of damages, as he

was the only witness who had personal knowledge of the business relationship between

the Fire Department and Rickard. The trial court also made it clear, on more than one

occasion, that it intended to hear testimony about the terms of the alleged contract in

order to assess damages. As discussed above, the repeated assertion that the trial

court was required to accept all the averments in the complaint as “admitted” is simply

without merit.

       {¶72} The trial court did not abuse its discretion in considering Mr. Rusk’s

testimony.




                                            28
       {¶73} Additionally, the trial court did not abuse its discretion in failing to strike the

affidavits of Chief Ruck and Rickard.         First, the trial court made no reference to

Rickard’s affidavit.   Second, the only reference to Chief Ruck’s affidavit in the trial

court’s final entry was with regard to the Board’s request for attorney fees. The trial

court indicated Chief Rusk’s affidavit should have put the Board on notice to contact the

Fire Department, before pursuing its claim, regarding the Board’s assumption that a

written contract existed:

              [T]he affidavit of Chief Stanley J. Ruck contained in the Defendants’
              motion for summary judgment put the Board on notice that there
              was no contract and the [Fire Department] abandoned the
              concession. Despite this notice, the Board did not contact the [Fire
              Department] regarding the contract, choosing instead to pursue a
              meritless claim. Therefore, no attorney’s fees will be awarded.

       {¶74} Thus, the trial court did not rely on either of these affidavits for the truth of

the matter asserted therein as it pertained to damages. The trial court did not err in

denying the joint motion to strike improper and inadmissible evidence.

       {¶75} The Board’s third assignment of error and the Attorney General’s fourth

assignment of error are without merit.

       {¶76} The Attorney General asserts, under its sixth assignment of error, that the

trial court erred by placing undue weight on the responses submitted to the ODLC in

2005 when determining the revenue, expenses, and charitable proceeds from the beer

concession.

       {¶77} “[I]t is the trial court which decides whom to believe and how much weight

should be given to any piece of evidence.” Beatty v. Wilson, 4th Dist. Ross No. 1808,

1992 WL 226342, *1 (Sept. 9, 1992); see also Domo v. Stouffer, 64 Ohio App.3d 43, 51

(6th Dist.1989), citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984) (“It



                                              29
was the function of the trial judge, as the finder of fact, to observe the demeanor of the

witnesses, examine the evidence and weigh the credibility of the testimony and

evidence presented.”). We cannot substitute our judgment for that of the trial court in

this regard; our review is limited to whether the trial court’s judgment was against the

manifest weight of the evidence, i.e., the greater amount of credible evidence, keeping

in mind the presumption in favor of the trier of fact. Id. (citations omitted); Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶19 & ¶21.

      {¶78} Mr. Jones, chief investigator of the ODLC, testified with regard to the

letters sent to the Faire in 2005 to verify the beer concessions were operating in

compliance with Ohio’s liquor laws. During Mr. Jones’ testimony, Defendants presented

copies of the unsigned responses received by the ODLC; Mr. Graves had utilized these

same responses to calculate his expert opinion on lost profits. Mr. Jones stated the file

stamp on the documents appeared to be that used by the ODLC when it receives

documents, but he could not authenticate the responses because he did not personally

receive them and they were not signed. Mr. Jones also could not testify as to the

accuracy of the reported categories and amounts of expenses related to the beer

concession, total sales, and charitable proceeds or whether the Faire was operating in

compliance, because no further investigation was taken by the ODLC.

      {¶79} The Board and the Attorney General objected throughout Mr. Jones’

testimony. The trial court stated, “Well, he might be able to testify that this is part of

their records, but he sure can’t testify that these expenses are legitimate.        * * *

[C]ertainly, the Court is not going to be obligated to say that all these expenses were

legitimate since there’s nobody here to tell us what they even consisted of.” At the




                                           30
conclusion of that day’s hearing, in deciding an argument regarding admissibility, the

trial court stated: “I’ll admit them, but they are going to get no weight. They’re valueless.

* * * I’ll admit them into evidence, Exhibits A through J, and the issues of credibility are

for me to decide[.]”

       {¶80} In its final entry, the trial court stated: “To verify the receiver’s amount, the

Court has reviewed the 2005 receipt and expense reports sent to the [ODLC] in 2005.

Although these reports are not verified and it is unknown who prepared them, they are

strikingly similar to the 2009 receiver reports.” The trial court further found that certain

expenses listed on the 2005 responses were inappropriate to beer sales; when those

items were subtracted, the amount compared favorably to the amount of expenses

reported by the receiver in 2009. The trial court found the receiver’s report was the

most reliable source of verification for beer sales in 2004 through 2008, which was

further verified by similar figures reported to the ODLC in 2005.

       {¶81} We do not find merit with the Attorney General’s argument that the trial

court gave undue weight to the 2005 responses. They were certainly relevant to the

determination of damages, and they were merely used to bolster the 2009 receiver’s

report, the credibility of which has not been attacked. The trial court’s judgment is not

against the manifest weight of the evidence.

       {¶82} The Attorney General next argues the trial court erred by implying the

Attorney General was estopped from contesting the figures contained in the 2005

responses. It bases this argument on the following quote from the trial court’s final

entry: “Records from the [ODLC] indicated the Defendants responded and provided the

requested information.    Although the information submitted was neither verified nor




                                             31
signed by an individual, the State accepted the information submitted to it by the

Defendants.”

       {¶83} This finding related to the trial court’s decision not to award punitive

damages to the Attorney General; it in no way implied the Attorney General was

estopped from contesting the specific figures in the 2005 responses. Regardless of the

figures, the trial court found the fact that the state had accepted the responses without

further investigation gave Defendants reason to believe they were in compliance with

state laws and regulations.

       {¶84} The Attorney General’s sixth assignment of error is without merit.

Constructive Trust

       {¶85} On the issue of a constructive trust remedy, the trial court found the Board

and the Attorney General “failed to establish that the Defendants have committed some

wrong or fraud which requires a confiscation of his property.”

       {¶86} The Board asserts, in its fourth assignment of error, that the trial court

erred in determining Defendants had committed no wrong and, in its sixth assignment of

error, that the trial court erred in failing to impose a constructive trust.

       {¶87} The Board’s arguments are premised on its allegation that Defendants

misappropriated $100,023.11 in charitable trust assets from the Fire Department. This

figure represents the negotiated “keg charge” the Fire Department paid to Defendants

each year it operated the beer concession, from 1994 through 2002—approximately

$11,000.00 per year, or less than $2,000.00 per weekend. In fact, the testimony in this

regard was that the Fire Department, who had entered into the contract with Rickard,

annually agreed to the charges. It is only the Board, who later acquired the rights under




                                               32
the contract, that objects to them. The trial court found Defendants were not malicious

in negotiating this “keg charge” and that the amount was reasonable. The trial court did

not find Defendants were unjustly enriched by this “keg charge”; thus, the Board was

not entitled to any remedy, let alone imposition of a constructive trust.

       {¶88} The Board’s fourth and sixth assignments of error are without merit.

       {¶89} In its fifth assignment of error, the Attorney General asserts the trial court

erred in determining Defendants had committed no wrong by using R.C. Chapter 2915,

relating to Ohio’s charitable gambling laws, to construe what types of expenses are

permissible under a Class F temporary permit for alcohol sales issued pursuant to R.C.

4303.20.

       {¶90} This argument is raised in response to the following statement in the trial

court’s final entry regarding the issue of whether Defendants engaged in malicious

conduct or intentionally violated any fiduciary duties:

              During the latter years [2004-2008], the Defendants received little
              guidance from the State of Ohio. The only regulations defining
              approved expenses provide that the expenses are not to be
              expended for the profit of any individual. The State regulations
              defining the charitable gambling operations are very inclusive and
              permit a wide range of expenses to be charged before charitable
              gambling profits are calculated.

       {¶91} This assignment of error is based on a false premise. The trial court did

not use R.C. 2915 to determine which expenses were permissible under R.C. 4303.20.

The trial court referenced the guidelines contained in R.C. 2915 to underscore its finding

that Defendants had reason to believe they were not violating Ohio’s liquor laws. The

state had provided very little guidance to licensees in that regard, as compared to the

guidelines provided by the state for those engaged in charitable gambling operations.




                                             33
       {¶92} The Attorney General’s fifth assignment of error is without merit.

       {¶93} The Attorney General, in its first assignment of error, asserts the trial court

erred in failing to impose a constructive trust where Defendants were unjustly enriched

by misappropriated funds and the beer concession proceeds were traceable to

Rickard’s purchase of real property.

       {¶94} The trial court determined the charities represented by the Attorney

General were charged excessive expenses for a total net loss of $138,400.00. The

Attorney General asserts the appropriate remedy was imposition of a constructive trust

over Rickard’s property because Defendants were unjustly enriched.

       {¶95} A constructive trust is an equitable remedy that may be invoked when

property has been acquired by fraud or “where it is against the principles of equity that

the property be retained by a certain person even though the property was acquired

without fraud.”   Ferguson v. Owens, 9 Ohio St.3d 223, 226 (1984), citing 53 Ohio

Jurisprudence, Trusts, Section 88, at 578-579 (2d Ed.1962); see also Cosby v. Cosby,

96 Ohio St.3d 228, 2002-Ohio-4170, ¶17.

       {¶96} The party seeking judicial recognition of a constructive trust bears the

burden of producing clear and convincing evidence justifying it.            Univ. Hosps. of

Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, paragraph three of the

syllabus. The ultimate decision to impose a constructive trust, however, lies within the

sound discretion of the trial court. See Willson v. Bd. of Trustees of The Ohio State

Univ., 10th Dist. Franklin No. 91AP-144, 1991 WL 274862, *18 (Dec. 24, 1991), citing

Hecht Co. v. Bowles, 321 U.S. 321 (1944) (whether to “award or withhold equitable

relief turns on the facts of the case and is within the sound discretion of the trial court”).




                                             34
“[T]he trial judge has first-hand exposure to the litigants and the evidence and, thus, is

in a considerably better position to bring the scales into balance than this court would

be.” Id. (citations omitted). Therefore, we review the relief awarded only for an abuse

of discretion. Id.

       {¶97} Here, the trial court found no evidence of malicious conduct or any type of

wrong or fraud that would justify a constructive trust remedy. That holding is not against

the manifest weight of the evidence, as has been outlined throughout our opinion. We

will not substitute our judgment for that of the trial court on the issue of fashioning an

appropriate remedy. We do not find the trial court abused its discretion in failing to

impose a constructive trust on Defendants’ assets in favor of the Attorney General.

       {¶98} The Attorney General’s first assignment of error is without merit.

Accounting

       {¶99} The Board asserts, under its fifth assignment of error, that the trial court

erred in failing to provide the Board a remedy on its claim for an accounting.

       {¶100} In its second amended complaint, the Board requested the trial court order

Defendants to provide an accounting for January 1, 1994, to the present representing

the exact amount of the following: the gross proceeds derived from the operation and

management of the beer concession; related reasonable expenses; the amount of

expenses charged by Defendants to any such person or entity; amounts of all other

payments made to Defendants by the Fire Department and any other person or entity

directly or indirectly related to such beer concession.

       {¶101} The Board’s request was for an accounting of proceeds as a remedy for

the alleged breach of contract. The trial court found the Board was not entitled to any




                                            35
damages for breach of contract. Now, on appeal, the Board claims it was entitled to an

accounting of proceeds as the beneficiary of one of the charitable trusts, i.e., the Fire

Department.    The Attorney General brought suit on behalf of the charitable trusts,

including the Fire Department, to recover misappropriated funds. Although both parties

are seeking recoupment of the beer proceeds for 2004 through 2008, the Board denied

before the trial court that it was bringing a claim that in any way overlapped that of the

Attorney General. The Board stated it was suing for contractual damages, while the

Attorney General was suing for breach of fiduciary duties. The Board, as opposed to

the Attorney General, has not provided any authority to establish it has standing to raise

this argument as a beneficiary of the charitable trust. This is particularly true due to the

undisputed fact that the Fire Department provided no labor to support the beer

concession after 2002. The Attorney General, who does have standing, did not make a

claim for an accounting before the trial court and does not raise any similar argument on

appeal.

       {¶102} The Board’s fifth assignment of error is without merit.

Attorney Fees

       {¶103} Under its seventh assignment of error, the Board asserts the trial court

erred in failing to award the Board attorney fees and expenses when it found that

Defendants engaged in severe discovery misconduct.

       {¶104} Again, “[a] trial court has considerable latitude in imposing sanctions for

discovery violations and a trial court’s decision on a discovery violation will not be

reversed absent a showing of an abuse of discretion.” Johnson Controls, supra, at ¶15,




                                            36
citing Nakoff, supra, at 256. “Specifically, in deciding a sanction, the trial court should

observe several factors:

              ‘the history of the case; all the facts and circumstances surrounding
              the noncompliance, including the number of opportunities and the
              length of time within which the faulting party had to comply with the
              discovery or the order to comply; what efforts, if any, were made to
              comply; the ability or inability of the faulting party to comply; and
              such other factors as may be appropriate.’

Maggard v. Zervos, 11th Dist. Lake No. 2001-L-072, 2003-Ohio-6688, ¶16, quoting

Billman v. Hirth, 115 Ohio App.3d 615, 619 (10th Dist.1996), quoting Russo v.

Goodyear Tire & Rubber Co., 36 Ohio App.3d 175, 178 (9th Dist.1987).

       {¶105} In its joint motion for sanctions, appellants requested the trial court to

grant relief, inter alia, in the form of attorney fees and expenses due to Defendants’

discovery abuses that caused substantial delays and prejudice to appellants. The trial

court granted the motion for sanctions, and indeed imposed a very significant sanction

by striking Defendants’ answer and counterclaim. It did not include as one of those

sanctions an award of attorney fees and expenses.           The trial court found the only

effective sanction was to strike Defendants’ pleadings and enter default judgment,

stating:

              [A]ny lesser sanction would be futile because equity would require
              that Rickard pay as a condition of the sanctions, in advance of
              continued proceedings, substantial attorney’s fees and expenses
              incurred by the Board and Attorney General in bringing the joint
              motion for sanctions, and Rickard contends he is financially
              destitute and unable to meet his monthly financial obligations. The
              Court finds he could not pay a monetary sanction that would allow
              the case to proceed.

       {¶106} In its final order, after hearing the testimony that offered no support for the

Board’s position about a “perpetual” written contract, the trial court further stated it




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chose not to award attorney fees because it found the Board chose “to pursue a

meritless claim.”

       {¶107} We find no abuse of discretion and will not substitute our judgment for that

of the trial court on this issue.

       {¶108} The Board’s seventh assignment of error is without merit.

Conclusion

       {¶109} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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