[Cite as State ex rel. Booth v. Indus. Comm., 2013-Ohio-5392.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Joshua C. Booth,
                                                       :
                 Relator,
                                                       :                  No. 13AP-204
v.
                                                       :             (REGULAR CALENDAR)
Industrial Commission
of Ohio and Digital Dish, Inc.,                        :

                 Respondents.                          :


                                            D E C I S I O N

                                   Rendered on December 10, 2013


                 Jon Goodman Law, LLC, and Jon H. Goodman, for relator.

                 Michael DeWine, Attorney General, and LaTawnda N.
                 Moore, for respondent Industrial Commission of Ohio.

                 William W. Johnston, for respondent Digital Dish, Inc.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶1}     Relator, Joshua C. Booth, has filed this action in mandamus, seeking a writ
to compel the Industrial Commission of Ohio ("commission") to grant him temporary
total disability ("TTD") payments.
        {¶2}     In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.               The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 13AP-204                                                                               2

law. The magistrate's decision includes a recommendation that we deny the request for a
writ of mandamus.
          {¶3}   Counsel for Booth has filed objections to the magistrate's decision. Counsel
for the commission has filed a memorandum in response. Counsel for Digital Dish, Inc.,
Booth's former employer, has also filed a memorandum in response to the objection. The
case is now before the court for a full, independent review.
          {¶4}   Booth was working as a technician for Digital Dish, Inc. when he was hurt.
His allowed conditions are lumbosacral sprain and substantial aggravation of preexisting
degenerative disk disease at L5-S1. Booth could no longer do the work of a technician, but
Digital Dish, Inc. accommodated his restrictions by finding him a job in its warehouse.
          {¶5}   Approximately six months after Booth was injured, he was fired. Booth
then applied for TTD compensation.
          {¶6}   Digital Dish, Inc. alleged that Booth had violated a written work rule which
barred outside employment and solicitations. Specifically, Booth had sent text messages
in which Booth was apparently offering to sell cable to a former Digital Dish, Inc.
employee. Whether the cable was Digital Dish, Inc. cable or cable from another source,
was not clear from the texts. At worst, Booth was offering to steal cable from the
warehouse and sell it. At best, Booth was competing with his employer by selling a
product Digital Dish, Inc. sold.
          {¶7}   A district hearing officer refused Booth's application for TTD compensation,
finding that Booth had voluntarily abandoned his employment. A staff hearing officer
agreed.
          {¶8}   Booth had argued that the text offering to sell cable was not serious, but a
joke. The hearing officers did not buy the argument. A further appeal did change the
result.
          {¶9}   The essence of voluntary abandonment of employment is that an employee
does something which the employee knows or should know would cause the employee to
be fired. Booth knew or should have known his attempt to sell company cable or a
product like company cable in competition with Digital Dish, Inc. would get him fired.
His conduct fits squarely within the legitimate scope of the doctrine of voluntary
abandonment of employment.
No. 13AP-204                                                                              3

       {¶10} The specific objections filed by Booth's counsel are:
                 Objection 1

                 The Magistrate erred by finding that Mr. Booth has "backed
                 away" from his argument that he did not violate the rule in
                 question.

                 Objection 2

                 The Magistrate erred by affirming a finding of voluntary
                 abandonment when the work rule that was violated was not
                 identified by the employer as a dischargeable offense.

       {¶11} As to the first objection, it does not matter whether or not Booth backed
away from arguing the work rule applicable. The work rule clearly applied and was
considered at all levels.
       {¶12} The first objection is overruled.
       {¶13} The second objection tries to assert that Booth was not on notice that his
trying to sell company property or trying to compete with his employer in selling cable
would get him fired. Booth clearly should have known that he would be fired if his texts
came to light.
       {¶14} The second objection is overruled.
       {¶15} Both objections having been overruled, the findings of fact and conclusions
of law in the magistrate's decision are adopted. As a result, we deny the request for a writ
of mandamus.
                                           Objections overruled; writ of mandamus denied.

                            DORRIAN and McCORMAC, JJ., concur.

                 McCORMAC, J., retired, formerly of the Tenth Appellate
                 District, assigned to active duty under the authority of Ohio
                 Constitution, Article IV, Section 6(C).
No. 13AP-204                                                                            4

                                  A P P E N D I X

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                          :
Joshua C. Booth,
                                               :
              Relator,
                                               :                   No. 13AP-204
v.
                                               :                (REGULAR CALENDAR)
Industrial Commission
of Ohio and Digital Dish, Inc.,                :

              Respondents.                     :




                          MAGISTRATE'S DECISION

                                  Rendered on August 20, 2013


              Jon Goodman Law, LLC, and Jon H. Goodman, for relator.

              Michael DeWine, Attorney General, and LaTawnda N.
              Moore, for respondent Industrial Commission of Ohio.

              William W. Johnston, for respondent Digital Dish, Inc.


                                       IN MANDAMUS

       {¶16} Relator, Joshua C. Booth, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied relator's motion for temporary total
disability ("TTD") compensation and ordering the commission to find that relator is
entitled to that compensation.
No. 13AP-204                                                                             5

Findings of Fact:
       {¶17} Relator was working as a technician for Digital Dish, Inc. ("Digital Dish") on
December 27, 2011 when he sustained a work-related injury.              Relator's workers'
compensation claim has been allowed for the following conditions:
       {¶18} Lumbosacral sprain; substantial aggravation of pre-existing degenerative
disc disease at L5-S1.
       {¶19} Relator began treating with Carl Otten, M.D., who opined that, although
relator could not return to his former position of employment, he could return to work
with certain restrictions.
       {¶20} Digital Dish was able to accommodate those restrictions by providing
relator a job in the warehouse.
       {¶21} Relator was still working under restrictions in May 2012 when Digital Dish
terminated him for allegedly violating its work rule prohibiting outside employment and
solicitation.
       {¶22} Following his termination, relator sought TTD compensation because
medically he was unable to return to his former position of employment.
       {¶23} Digital Dish did not dispute the fact that medically relator was unable to
return to his former position of employment. However, Digital Dish argued that relator
was not entitled to the award of TTD compensation because he had voluntarily
abandoned the workplace. Digital Dish presented the following evidence in support of its
argument.
       {¶24} Portions of Digital Dish's policy manual which provide as follows:
                At-Will Employment
                I further understand that my employment is at will, and
                neither I nor Digital Dish, Inc. has entered into a contract
                regarding the duration of my employment. I am free to
                terminate my employment with Digital Dish, Inc. at any
                time, with or without reason. Likewise, Digital Dish, Inc. has
                the right to terminate my employment, or otherwise
                discipline, transfer, or demote me at any time, with or
                without reason, for any lawful reason at the discretion of
                Digital Dish, Inc. No employee of Digital Dish, Inc. can enter
                into an employment contract for a specified period of time,
                or make any agreement contrary to this policy without the
                written approval from the owner.
No. 13AP-204                                                                           6


             ***
             Outside Employment
             Employees may not take an outside job, either for pay or as a
             donation of her/his personal time, with a customer or
             competitor of Digital Dish, Inc.; nor may they do work on
             their own if it competes in any way with the products or
             services we provide our customers. If your financial situation
             requires you to hold a second job, part-time or full-time, or if
             you intend to engage in a business enterprise of your own,
             Digital Dish, Inc. would like to know about it. Before
             accepting any outside employment you are required to
             discuss the matter with your supervisor.

             cc. Soliciting during working hours and/or in working areas;
             selling merchandise or collecting funds of any kind for
             charities or others without authorization during business
             hours, or at a time or place that interferes with the work of
             another employee on company premises.

(b) Copies of text messages sent from relator to Garth Bertschi, II, a former employee of
Digital Dish who had been terminated and was currently working for DirectTv which
text messages were sent on May 19, 2012 beginning at 12:35 and ending at 1:32:
             Booth: U buy your own cable?

             Bertschi: Yeah[.]

             Booth: How much?

             Bertschi: 50-60 a box[.]

             Booth: How bout u buy off me for 20. Hell [I']ll give u deal
             on everything lol[.]

             Bertschi: Nah I'm all good dd [Digital Dish] already
             threatened to sue me once that was enough[.]

             Booth: O[h] I see don't trust me[.]

             Booth: No risk to u make order threw [sic] me ill bring it to
             your house;) save u money I make money lol[.]

             Booth: …

             Bertschi: Sorry was working[.]
No. 13AP-204                                                                         7


(c) A copy of a light-duty time card representing the hours relator worked the week of
May 15, 2012 indicating that, on May 19, 2012, relator worked the following hours:
             Saturday      In     4:30
             Date          Out    12:00
             5/19/12       In     12:30
                           Out    1:00

(d) That time sheet had been completed by Christal McCarley, the warehouse manager,
who explained the reasons why she completed relator's timesheet:
             On, Tuesday, May 22, 2012, I, Christal McCarley, received a
             phone call from Laura Rabatsky, our Human Resource
             Manager, requesting that Joshua Booth's light duty time card
             be submitted to her. When I retrieved the time card I had
             noticed that the date and times were not complete or fill[ed]
             out. I then processed [sic] to contact Josh Booth by phone
             because he was not working on the 22nd and he gave me the
             times he worked. I wrote them in signed the bottom of the
             time card and submitted it to Laura Rabatsky. I did not alter
             any information that was given to me over the phone by Josh
             Booth.

      {¶25} Relator argued that the text messages between him and Bertschi were
personal messages, sent on his private time, and were clearly a joke. Relator supported
his position with the following evidence:
(a) The June 4, 2012 letter from his counsel indicating:
             Mr. Booth informs me that he was terminated on May 24,
             2012. I have reviewed the reason that you gave for
             terminating his employment which is that Mr. Booth
             allegedly was "soliciting to sell products which compete with
             digital dish products we provide to our customers or
             employees during work hours." First, the text message that
             Mr. Booth sent was clearly a personal message to a friend.
             Second, the evidence is clear that this text message was sent
             on his private time-we have his time cards for the period in
             question and it is clear that he was off work at the time that
             the relevant text messages were sent. I find it interesting that
             the employer forged a time card in an attempt to support its
             position on this matter. In addition, it is clear from the
             content of the text message that Mr. Booth was not
             attempting to sell any other product. Rather, he was clearly
             joking with a friend about Digital Dish products and not
             about any competitor or competitor services.
No. 13AP-204                                                                          8


(b) A copy of relator's time card for the week of May 16, 2012, which relator completed,
and provides that he worked the following hours on May 19:
              Saturday     In     4:30
              Date         Out    [crossed out] 12:25
              5-19         In     12:55
                           Out    1:00 pm

(c) A statement from Todd Taborn indicating that he had lunch with relator on May 19
indicating:
              On Sat. 5-19 Joshua Booth went to lunch 12:25 to 12:55. No
              supervisors were present in the warehouse at the time and he
              went alone.

      {¶26} Relator's motion was heard before a district hearing officer ("DHO") on
August 8, 2012, at which time the motion for TTD compensation was denied. The DHO
found that relator voluntarily abandoned his employment stating:
              The District Hearing Officer further finds that the Injured
              Worker      is requesting      temporary total       disability
              compensation begin on 05/25/2012. The District Hearing
              Officer finds that the Injured Worker was terminated from
              his employment on 05/24/2012 where he was working with
              restrictions. Per documentation from the Employer, the
              Injured Worker was terminated as he was soliciting to sell
              products which compete with the Employer's products
              during working hours. The District Hearing Officer finds that
              the Injured Worker did receive a copy of the workplace
              policy which he signed on 09/06/2011 stating that he could
              be terminated at any time with or without reason for any
              lawful reason at the discretion of the Employer. The specific
              policy in question prohibits "soliciting during working hours
              and/or in working hours, selling merchandise or collecting
              funds of any kinds for charities or others without
              authorization during business hours or at a time or a place
              that interferes with the work of another employee on
              company premises." The second policy indicated is for
              outside employment which states "employees may not take
              an outside job, either for pay or as a donation for his/her
              personal time, with a customer or competitor of Digital Dish
              Inc; nor may they do work on their own if it competes in any
              way with the products or services we provide our customers."
No. 13AP-204                                                                        9

              The District Hearing Officer finds that the Injured Worker
              had sent text messages on 05/19/2012 to a former Digital
              Dish employee stating he would sell him cables. While the
              Injured Worker stated that the text messages were just a joke
              the Hearing Officer does not find that testimony persuasive.
              In addition, two timesheets were submitted, one prior to his
              termination which showed that during the time period in
              which the text messages were sent, the Injured Worker was
              in fact working. Injured Worker submitted a second
              timesheet after he was terminated which changed the times
              for the date of 05/19 to show that he was off when test [sic]
              messages were sent. The District Hearing Officer finds the
              first timesheet persuasive as it was turned in prior to Injured
              Worker's termination. The District Hearing Officer finds that
              pursuant [to] Louisiana-Pacific, the Injured Worker's
              discharge constituted a voluntary abandonment of
              employment.

              It is therefore the order of the District Hearing Officer that
              the request for temporary total disability compensation from
              05/25/2012 to 08/08/2012 is denied.

              This order is based on the report of Dr. Fisher dated
              06/15/2012, the Employee Handbook submitted by the
              Employer, the timesheet submitted by the Employer and the
              termination paperwork submitted.

       {¶27} Relator appealed and, as additional evidence, submitted an affidavit from
Garth Bertschi II, wherein he specifically attested:
              [Two] I worked for Digital Dish in the past and worked with
              Joshua Booth at the company for approximately one (1) year.

              [Three] During the period of time that I worked with Joshua
              Booth, he was good and honest employee, to the best of my
              knowledge.

              [Four] On Saturday, May 19, 2012, I traded text messages
              with Joshua Booth at approximately 12:40 p.m.

              [Five] Joshua Booth informed me that he was on his lunch
              break at the time we traded text messages.

              [Six] As part of our conversation, Joshua Booth stated that
              we [sic] could sell me cable and get me a good deal. I knew
              that this was a joke because his text messages ended with
              "lol".
No. 13AP-204                                                                        10


              [Seven] At no time has Joshua Booth tried to sell me
              products from Digital Dish or offered any products or
              services that would compete with the products or services
              offered by Digital Dish. Further, I am not personally a
              customer or competitor of Digital Dish.

              [Eight] I have known Joshua Booth for years and outside of
              his former employment with Digital Dish, I am not
              personally aware of him possessing or having access to
              equipment or products that he could sell or provide that
              would compete with Digital Dish in any way.

        {¶28} A hearing was held before a staff hearing officer ("SHO") on December 20,
2012.    Following the hearing, the SHO affirmed the prior DHO order and denied
relator's request for TTD compensation, stating:
              Temporary total disability compensation remains denied for
              the period 05/25/2012 through 08/08/2012, on a finding
              that the Injured Worker is ineligible for payment of
              temporary total disability compensation for the reason that
              he voluntarily abandoned his former position of employment
              under the rule of State ex rel. Louisiana-Pacific v. Industrial
              Commission. The Injured Worker was discharged from his
              employment on 05/24/2012. The Employer provided
              documentation of a policy, known to the Injured Worker,
              which specifically prohibits outside employment, with a
              customer or competitor of the Employer. This policy does
              specifically indicate that violation of the policy can result in
              discharge. The Employer documented text messages sent by
              the Injured Worker to a personal friend and former co-
              employee of the Employer, a Mr. Garth Bertschi. These text
              messages offered to sell him cables at a greatly reduced price.
              As these cables are used commonly in the installation of
              cable television systems, this is plainly an act in competition
              with the Employer. The Injured Worker maintains three
              counter arguments. First, they maintain that this was not
              identified as an offense which could result in discharge. In
              fact, it was. Second, they maintain that the text messages
              were merely a joke. The Staff Hearing Officer does not find
              this to be credible. Notwithstanding the lol entry (commonly
              known to mean laugh out loud), there is no reason to believe
              that the specifics do not involve a specific offer. Finally, the
              Injured Worker argues that these text messages were sent
              over his lunch hour. There are competing time cards, one of
              which would indicate that the Injured Worker sent this over
No. 13AP-204                                                                           11

              his lunch hour and the other would indicate that he did not.
              After review of the evidence and testimony, the weight of the
              evidence supports the conclusion that the time card which
              accurately reflects the period when the period [sic] was at
              lunch would show that the text messages were sent during a
              time when he was on the clock.

              The Employer's employment policies are very brief, and do
              not provide specific language for discharge for a great many,
              or even typical circumstances, however, their non-
              competition policy plainly does and that is why this is the
              matter which has been raised with respect to the Louisiana-
              Pacific defense. The weight of the evidence doe support the
              conclusion that the Injured Worker violated this specific
              employment policy, and that was a factor in his discharge. In
              light of this, the previous finding that the Injured Worker is
              ineligible for temporary total disability compensation under
              the Louisiana-Pacific rule is affirmed.

       {¶29} Relator appealed, arguing that Digital Dish's work rule does not state that
this was a dischargeable offense and that there can be no voluntary abandonment if the
work rule is not identified as a dischargeable offense.
       {¶30} In an order mailed February 26, 2013, relator's appeal was refused.
       {¶31} Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶32} In this mandamus action, relator contends that the commission abused its
discretion by finding that he had voluntarily abandoned his employment when Digital
Dish discharged him on grounds that the specific work rule that he allegedly violated is
not identified as a dischargeable offense. Relator contends that Digital Dish's handbook
acknowledgment that employment is at will is insufficient under State ex rel. Louisiana-
Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), despite the fact that both
outside employment and solicitation are listed in the handbook as prohibitions.
       {¶33} For the reasons that follow, it is this magistrate's decision that the
commission did not abuse its discretion by finding that Digital Dish sustained its burden
of proving that relator violated a written work rule when he discussed selling cable
boxes to a former employee of Digital Dish while he was working in Digital Dish's
warehouse on company time and that Digital Dish's policy was clear enough.
No. 13AP-204                                                                                12

       {¶34} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶35} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached maximum medical improvement ("MMI"). See R.C. 4123.56(A); State ex rel.
Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
       {¶36} It is undisputed that voluntary abandonment of the former position of
employment can preclude payment of TTD compensation. State ex rel. Rockwell
Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988). In State ex rel. Watts v.
Schottenstein Stores Corp., 68 Ohio St.3d 118, 121 (1993), the court stated as follows:
              [F]iring can constitute a voluntary abandonment of the
              former position of employment. Although not generally
              consented to, discharge, like incarceration, is often a
              consequence of behavior that the claimant willingly
              undertook, and may thus take on a voluntary character.

       {¶37} In Louisiana-Pacific, the court characterized a firing as "voluntary" when
that firing is generated by the employee's violation of a written work rule or policy that: (1)
clearly defined the prohibited conduct; (2) had been previously identified by the employer
as a dischargeable offense; and (3) was known or should have been known to the
employee.    Further, it is undisputed that a claimant can voluntarily abandon their
employment under Louisiana-Pacific even if they cannot return to their former position
of employment, but are working at a modified-duty job. State ex rel. Adkins v. Indus.
Comm., 10th Dist. No. 07AP-975, 2008-Ohio-4260, and State ex rel. Ohio State Univ.
Cancer Research Hosp. v. Indus. Comm., 10th Dist. No. 09AP-1027, 2010-Ohio-3839.
No. 13AP-204                                                                             13

       {¶38} Originally, relator argued that the text messages were a joke and that the
messages were not sent during work time, but while he was on break. Inasmuch as the
commission determined that the text messages were not a joke and that they were sent
while relator was on the clock, relator has backed away from those arguments. The
record contains conflicting evidence on the nature of the messages and whether or not
relator was on the clock. However, questions of credibility and the weight to be given
evidence are clearly within the discretion of the commission as fact finder. State ex rel.
Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). Further, it is immaterial whether
other evidence, even if greater in quality and/or quantity, supports a decision contrary
to the commission's. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373
(1996). As such, there is some evidence in the record to support these two factual
findings.
       {¶39} The issue which remains is whether or not Digital Dish's written work rule
satisfied the requirements of Louisiana-Pacific, requiring that the written work rule or
policy must (1) clearly define the prohibited conduct, (2) been previously identified as a
dischargeable offense, which (3) was known or should have been known by relator.
       {¶40} Relator argues that Digital Dish's sole reference to discharge contained in
the "At-Will Employment" section of the handbook is insufficient to satisfy the
requirements of Louisiana-Pacific. Relator asserts that Digital Dish's handbook fails to
identify any dischargeable offenses.
       {¶41} In response, both the commission and Digital Dish argue that the
handbook specifically prohibits certain actions including relator's offer to sell cable to a
competitor. Both argue that the SHO correctly found that the non-competition policy
was plainly identified as a dischargeable offense.
       {¶42} The commission first found that the prohibited conduct was clearly
defined. The commission found that Digital Dish's non-competition policy was specific
and clear. Specifically, the policy provides that "employees may not take an outside job
* * * with a customer or competitor of Digital Dish * * * nor may they do work on their
own if it competes in any way with the products or services [Digital Dish provides its]
customers."
No. 13AP-204                                                                           14

       {¶43} There is some evidence in the record that Bertschi was working for a
competitor of Digital Dish, a competitor which also uses cables. Further, there is some
evidence in the record that relator offered to sell Bertschi cables at a reduced cost. As
such, the magistrate finds that it was not an abuse of discretion for the commission to
find that relator violated the work rule at issue.
       {¶44} Relator disagrees with the commission's finding that this was identified as
a dischargeable offense. The commission essentially found that Digital Dish informed
its employees that employment was at will—terminable at the will of either party—and
then specifically set forth certain actions which were expressly prohibited, including
selling inventory to a competitor. In essence, the commission asserts that it was clear
that one could be fired if they engaged in any expressly prohibited conduct.
       {¶45} The magistrate finds that this is a reasonable finding under the
circumstances. There is more than a general statement that employment is at-will. The
handbook specifically prohibited certain actions.
       {¶46} Further, there is nothing in this record which would indicate that Digital
Dish's motives for terminating relator were an attempt to avoid the payment of
compensation.     To the contrary, Digital Dish had provided relator with light-duty
employment since the date of his injury and, although there had been some
disagreement as to what additional conditions should actually be allowed in relator's
claim, there is no evidence of and there is no argument that Digital Dish had ulterior
motives. This is important when considering that the Supreme Court of Ohio has
emphasized the great potential for abuse in allowing simple allegations of misconduct to
preclude the payment of TTD compensation. State ex rel. Smith v. Superior's Brand
Meats, Inc., 76 Ohio St.3d 408 (1996).
       {¶47} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it found that relator had
voluntarily abandoned his employment with Digital Dish when he violated the written
work rule, and this court should deny relator's request for a writ of mandamus.


                                           /S/ MAGISTRATE
                                           STEPHANIE BISCA BROOKS
No. 13AP-204                                                                15


                         NOTICE TO THE PARTIES


          Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
          as error on appeal the court's adoption of any factual finding
          or legal conclusion, whether or not specifically designated as
          a finding of fact or conclusion of law under Civ.R.
          53(D)(3)(a)(ii), unless the party timely and specifically
          objects to that factual finding or legal conclusion as required
          by Civ.R. 53(D)(3)(b).
