[Cite as Townsend v. Ohio Dept. of Transp., 2014-Ohio-318.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Michael Townsend, Guardian, etc.,                   :

                Plaintiff-Appellant,                :

v.                                                  :                 No. 13AP-578
                                                                 (Ct. of Cl. No. 2008-11044)
Ohio Department of Transportation,                  :
                                                                (REGULAR CALENDAR)
                Defendant-Appellee.                 :


                                           D E C I S I O N

                                   Rendered on January 30, 2014


                Robert E. Epstein, for appellant.

                Michael DeWine, Attorney General, William C. Becker and
                Christopher P. Conomy, for appellee.


                             APPEAL from the Court of Claims of Ohio
TYACK, J.
        {¶ 1} Michael Townsend ("appellant"), as guardian for Violet Townsend, is
appealing from a post-judgment ruling of the Court of Claims of Ohio in favor of the Ohio
Department of Transportation ("ODOT").                   Appellant assigns three errors for our
consideration:
                ASSIGNMENT OF ERROR I

                The trial court abused its discretion in denying the Appellants'
                Motion requesting an oral hearing on their Motion For Leave
                To File Instanter: Appellants' Motion For The Discovery
                Sanctions Of Default Judgment On Liability, Attorney Fees
                and Litigation Expenses Based Upon ODOT'S Willful
                Destruction Of Electronic Evidence And Discovery Abuse.
No. 13AP-578                                                                             2

              ASSIGNMENT OF ERROR II

              The trial court's finding that the parties have completed
              forensic analysis of ODOT's computer hard drives and that the
              document in question no longer exists is against the manifest
              weight of the evidence.

              ASSIGNMENT OF ERROR III

              The trial court abused its discretion in not finding that the
              Appellee wrongfully failed to disclose that it had destroyed all
              potential sources for finding the relevant emails, and not
              granting Appellants their attorney fees and associated costs in
              attempting to locate the relevant emails.

       {¶ 2} One of the key witnesses at the trial of this case was James Marszal.
Marszal's testimony is summarized in a post-trial brief filed by appellant's attorney:
              The evidence demonstrated that Defendant's employee James
              Marszal worked at ODOT's District 12 office for the past 25
              years. (Marszal Tr.pp. 5) Mr. Marszal was hired by the
              Defendant in 1985. From 1985 until 1992 he was an Assistant
              Maintenance Engineer in District 12's maintenance office. He
              was the District Maintenance Engineer from 1992 to 1995.
              From 1995 to 2004 he was working in roadway services as a
              pavement and maintenance engineer and from 2004 until the
              time of Violet's crash he was a geotechnical engineer in the
              production department. (Marszal Tr.pp. 5, 6) In his current
              position as a pavement engineer, his duties also include
              providing technical support to the maintenance department.
              (Marszal Tr.pp. 4, 5)

              The evidence established that Mr. Marszal was a valued and
              highly respected engineer who had influence with the
              maintenance department that he had been intimately involved
              with for 19 years. He had an established working relationship
              with maintenance and was comfortable telling them the he
              needed work to be done on the highway. Mr. Holloway
              testified that on Marszal's travels into work he might see a
              pothole somewhere, call him and say "Hey George, there is a
              pothole here," and Mr. Holloway testified that he would take
              care of it.

              The evidence clearly established that in the course of his
              driving the mainline ramp where Violet was injured, Mr.
              Marszal noticed that during heavy rains there would be more
              water on the highway than he would have expected. In fact,
No. 13AP-578                                                                   3

           upon a couple of occasions, Mr. Marszal said he encountered a
           significant amount of water in the left lane of that particular
           ramp. (Marszal Tr.pp. 14, 35)

           Mr. Marszal testified that he would encounter water in that
           left lane upon multiple occasions while driving in his own
           vehicle. (Marszal Tr.pp. 23, 35) He stated that it wasn't a
           matter of you necessarily seeing the water in advance. You felt
           it when you encountered it. It wasn't something you saw as
           you approached the area. (Marszal Tr.pp. 16) His testimony
           demonstrated that this recurring accumulation of water was
           not open and obvious to the approaching driver. It was clearly
           a hazard to unsuspecting motorists, as they would not be able
           to realize the danger until it was too late. In fact, Mr. Marszal
           testified that there were times when he drove through the
           water when he believed there was a potential to hydroplane.
           (Marszal Tr.pp. 29, 34)

           In the course of driving this mainline ramp, Mr. Marszal
           testified that he noticed that the same guardrail that Violet
           would later strike was being hit a little more often than he
           would have expected. (Marszal Tr.pp. 23, 30) Mr. Marszal
           also testified that his observations of water on the roadway
           occurred when the guardrail was being damaged. (Marszal
           Tr.pp. 35)

           Sometime after observing the recurring accumulation of water
           and the repeated guardrail being hit and damaged multiple
           times, Mr. Marszal testified that he noticed that there were
           two storm water catch basins just north of the guardrail that
           were not completely opened, and he saw that there was debris
           in the storm water catch basins. (Marszal Tr.pp. 21)

           Mr. Marszal testified that when he observed the blocked
           storm water catch basins, he made the Independence Yard
           maintenance employees aware of it by sending an e-mail to
           Mr. Holloway, (Marszal Tr.pp. 27) and probably copied
           possibly one or two other people as well (Marszal TR.pp. 27)
           and probably copied possibly one or two other people as well
           (Marszal TR.pp. 67) He testified that he asked them to check
           out the catch basins and clean them if necessary. (Marszal
           Tr.pp. 21)

           Mr. Marszal said he received a response to his e-mail telling
           him that they could not find the two storm water catch basins
           that he was referring to. (Marszal Tr.pp. 32) Thereafter, Mr.
           Marszal testified that he called Mr. Holloway to describe to
No. 13AP-578                                                                          4

             him in a little more detail where the two blocked storm water
             catch basins were located. (Marszal Tr.pp. 32, 33) This was
             surprising and disconcerting since Brian Jung testified that
             his duties included cleaning catch basins in that area.
             Contrary to Mr. Marszal's testimony, Mr. Jung testified that
             he had not problem locating the two storm water catch basins.

             ***

             Mr. Marszal testified that he noticed the two blocked storm
             water catch basins around the general time frame of the
             accident, but didn't remember if it was before or after the
             accident. However, Mr. Marszal testified that he noticed the
             recurring accumulation of water and recurring guardrail hits
             prior to his sending the e-mail pertaining to the blocked storm
             water catch basins. Mr. Marszal testified that he first started
             noticing the recurring standing water and recurring guardrail
             hits in 2003 or 2004, three or four years before his deposition
             which was taken on July 19, 2007. (Marszal Tr.pp. 24, 25, 26)
             Mrs. Townsend's accident occurred on April 23, 2005.

             Although the Plaintiffs made repeated requests to the
             Defendants for any and all e-mails among Marszal, Holloway,
             Jung and Mihelich regarding Marszal's observation of the
             blocked storm water catch basin, the Defendant has been
             unable to produce any such e-mails.

             Additionally, Plaintiffs made repeated requests to the
             Defendant for any and all work orders Mr. Jung or Mr.
             Holloway prepared as a result of the information the
             Independence Yard received from Mr. Marszal. Again, the
             defendant has been unable to produce any such work orders.

      {¶ 3} Stated briefly, the testimony at trial clearly demonstrated that emails from
Marszal existed which dealt with the drainage problem. Marszal testified about the
content of the emails and the potential recipients of the emails. The information about
the emails was before the trier of fact. Counsel for appellant acknowledged that ODOT
had been unable to produce the actual emails.
      {¶ 4} The problem apparently derives from ODOT's deletion of emails after 28
days. The wreck of Violet Townsend's vehicle occurred in April 2005. A lawsuit was filed
in March 2006.
No. 13AP-578                                                                                5

       {¶ 5} Marszal was deposed in July 2007. In December 2007, the first lawsuit
against ODOT was dismissed. A second lawsuit was initiated in November 2008. Access
to ODOT's email system was not sought until November 2009 over four and one-half
years after the emails allegedly would have been sent and over two years after Marszal
testified about their existence in his deposition.
       {¶ 6} Counsel for appellant as guardian was correct to assert ODOT was unable to
produce the emails. The emails had been deleted from ODOT's IT system years before
they were seriously sought.
       {¶ 7} The trial court judge who heard that post-verdict motion about the emails
had the information available. The emails had long since been deleted. No one had
willfully destroyed them. They had been deleted as a result of established practices at
ODOT. No oral hearing was necessary.
       {¶ 8} The first assignment of error is overruled.
       {¶ 9} The parties completed what forensic analysis was possible. The ODOT IT
systems had deleted the emails completely. There was nothing left to analyze. The trial
court's choice of wording could have been better, but the trial court's bottom line was
correct. Forensic analysis of the non-existent is not possible.
       {¶ 10} The second assignment of error is overruled.
       {¶ 11} We cannot find that the trial court abused its discretion in failing to penalize
ODOT under the circumstances. The emails were not sought in earnest for years—to be
precise, for over four and one-half years. The trial court did not abuse its discretion,
especially since counsel for appellant as guardian acknowledged the emails were unable to
be found.
       {¶ 12} The third assignment of error is overruled.
       {¶ 13} All three assignments of error having been overruled, the judgment of the
Court of Claims of Ohio is affirmed.
                                                                        Judgment affirmed.

                              BROWN and KLATT, JJ., concur.
