[Cite as Treasurer of Lucas Cty. v. Sheehan, 2020-Ohio-3493.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Treasurer of Lucas County, Ohio                            Court of Appeals No. L-18-1176

        Appellee                                           Trial Court No. TF0201701519

v.

Thomas K. Sheehan, et al.                                  DECISION AND JUDGMENT

        Appellant                                          Decided: June 26, 2020

                                                 *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        John A. Borell, Assistant Prosecuting Attorney, for appellee.

        Thomas K. Sheehan, pro se.

                                                 *****

        MAYLE, J.

                                              Introduction

        {¶ 1} In this tax foreclosure case, the defendant-appellant, Thomas K. Sheehan,

appeals a judgment by the Lucas County Court of Common Pleas granting summary

judgment to the plaintiff-appellee, Treasurer of Lucas County, Ohio. The trial court
determined that there was no genuine issue of material fact that Sheehan was delinquent

in his payment of unpaid taxes, special assessments, penalties and interest in the total

amount of $8,862.90 and that appellee was entitled to judgment as a matter of law. It

ordered that the property be sold and Sheehan’s interest foreclosed, unless he paid the

total outstanding sum to the treasurer within the timeline set forth in the order. On

appeal, Sheehan argues that the trial court erred in granting judgment for appellee. For

the following reasons, we affirm the trial court’s judgment.

                                        Background

       {¶ 2} Sheehan and his wife, Kelly A. Sheehan (collectively referred to as “the

Sheehans”), are the owners of real property located at 8315 Hidden Forest Drive,

Holland, Ohio 43528. On August 12, 2015, the Sheehans and appellee entered into a

“written delinquent tax contract” pursuant to R.C. 323.31(A)(1). Generally, the statute

provides residential property owners a one-time-right to enter into an agreement with the

county treasurer “to pay any delinquent or unpaid current taxes.” A taxpayer’s failure to

make “an installment” under the contract renders the contract “void.” R.C. 323.31(A)(6).

In this case, the contract between the parties required the Sheehans to make 24 monthly

payments in the amount of $808.04. According to the record, the Sheehans made 17 of

the 24 payments and then stopped paying based upon Sheehan’s belief that the debt had

been “paid in full.”

       {¶ 3} As a result of their failure to pay their property taxes and related charges,

appellee, acting through the Lucas County Prosecutor’s Office, instituted this tax




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foreclosure proceeding against the Sheehans on July 25, 2017. In its complaint, appellee

asserted that taxes, assessments, penalties, interest, and charges upon the property had not

been paid for more than one year after the property was duly certified as delinquent.

Appellee further asserted that the Lucas County Auditor had filed with the Lucas County

Prosecutor a “master list” of real property parcels located in Lucas County which were

delinquent in the payment of real estate taxes and assessments. Appellee attached to the

complaint the relevant portion of the master list regarding the Sheehans’ real estate

delinquency, identified as “Preliminary Judicial Report, SCHEDULE B.” It indicates

that, at the time the complaint was filed, the Sheehans owed the sum of $4,881.09 in

delinquent taxes, assessments, penalties, and interest. Appellee claimed a valid first lien

against the property and demanded that its lien be foreclosed and the property sold to

satisfy the lien.

       {¶ 4} Sheehan filed an answer, pro se, on behalf of himself only. On December 1,

2017, appellee filed a motion for default judgment against Kelly Sheehan and a motion

for summary judgment as to Thomas Sheehan. In support of its motion for summary

judgment, appellee argued that, pursuant to R.C. 5721.18(A), the Lucas County Auditor’s

master list of tax delinquencies was prima facie evidence of the amount and validity of

taxes, assessments, penalties and interest due and unpaid in a foreclosure action.

Attached to the motion for summary judgment was a certified copy of the master list and

the affidavit of Ruth A. Seth, a deputy treasurer in the office of the Treasurer of Lucas




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County, Ohio who attested that the total outstanding amount was, as of the date of the

motion, $8,289.03.

       {¶ 5} The Sheehans retained counsel and opposed the summary judgment motion.

While they admitted that the property taxes were delinquent and did not dispute the

amount owed, they argued that appellee’s statutory right to foreclose should be denied on

equitable grounds. Specifically, the Sheehans argued that appellee had been “derelict” in

failing to respond to their repeated requests for an accounting, and based upon appellee’s

silence, they were justified in discontinuing making payments on the delinquent tax

contract. The Sheehans argued that appellee should not be rewarded for its “bad faith

conduct.”

       {¶ 6} On July 20, 2018, the trial court granted appellee’s motion for summary

judgment and entered a decree of foreclosure. The court determined that there was due

and owing as of that date, the total sum of $8,862.90 for delinquent taxes, special

assessments, penalties and interest. It held that unless Sheehan paid the amount due

within the timelines set forth therein, appellee was entitled to have the delinquent taxes,

special assessments, penalties and interest foreclosed and to have the real estate sold at a

sheriff’s sale. As to Kelly Sheehan, the court found her in default of an answer and

barred her from asserting any interest in and to the real estate described in the complaint.

       {¶ 7} Thomas Sheehan appealed, pro se, and raises six assignments of error for

our review:




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            (1) Court erred when it did not rule on a Motion to deny withdraw of

     Appellant legal counsel days before ruling on Appellee’s Motion for

     Summary Judgment leaving Appellant and his wife without legal

     representation and the ability to file counterclaims as outlined in the

     original answer to the complaint filed by Appellant (Defendant’s Answers,

     Affirmative Defenses and Counterclaims filed 10-25-17, Motion to Deny

     Withdrawal of Legal Counsel filed 7-12-18).

            (2) Court erred when it did not rule on the Motion for Continuance

     which again included the lack of competent legal representation for

     Appellant and his wife (Motion for Continuance filed 7-13-18).

            (3) Court erred when it ruled in favor of Appellee in spite of

     receiving overwhelming evidence the Appellee breached its fiduciary

     responsibilities and engaged in inequitable conduct by not responding to

     Appellant’s numerous requests for payment assistance and waivers of

     penalty and interest as outlined in the Ohio Revised Code and addressed on

     the Appellee’s website (Judgment Entry of Foreclosure with Order to

     Sheriff file 7-13-18).

            (4) Court erred when it ruled in favor of Appellee after learning that

     the Payment Agreement that the Appellee used as the basis for its

     foreclosure action through payment default was signed under duress with

     an absolute threat by the Appellee to withdraw the offer of payment if not




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     signed immediately denying Appellant the ability for legal representation

     nor providing the basis for the dollar amounts contained in the Agreement

     and advising Appellant that, without a signature, the property would be lost

     by Appellant and his wife. (Judgment Entry of Foreclosure with Order to

     Sheriff filed 7-13-18).

            (5) Court erred when it ruled in favor of Appellee after learning that

     Appellee breached its contractual obligation that, in exchange for a

     signature on the Payment Agreement to avoid loss of property, would

     provide a timely total accounting of the disputed balance and would

     consider waiver of penalty and interest. Appellee failed to do either.

     (Judgment Entry of Foreclosure with Order to Sheriff filed 7-13-18).

            (6) Court erred when it ruled in favor of Appellee after being

     presented with correspondences from Appellant the [sic] genuinely

     disputed the tax balance noting the resulting passage of time used by

     Appellee to default the disputed Payment Agreement and while still in

     negotiations and discussions between the parties, Appellant was deceived

     by Appellee as it planned to file the foreclosure action all along. (Judgment

     Entry of Foreclosure with Order to Sheriff filed 7-13-18).




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                                           Analysis

     I. The trial court did not err when it allowed appellant’s counsel to withdraw.

        {¶ 8} In his first assignment of error, Sheehan argues that the trial court “did not

rule on a Motion to deny withdraw (sic) of Appellant legal counsel days before ruling on

Appellee’s Motion for Summary Judgment.”

        {¶ 9} Sheehan’s “motion to deny withdrawal of legal counsel,” however, was not a

“motion,” but rather an objection to his trial counsel’s “motion to withdraw as legal

counsel for defendants Thomas K. Sheehan and Kelly A. Sheehan.” Counsel filed and

served the motion on June 26, 2018, and asserted that the Sheehans would not be

adversely affected by his withdrawal inasmuch as counsel had prepared and filed an

objection to appellee’s motion for summary judgment. Counsel also asserted that the

Sheehans did not give their consent to the withdrawal motion. By local rule, an objection

to the motion was due “within 14 days after service,” i.e., by July 10, 2018. (Lucas

County Common Pleas Gen. R. 5.04(D)). The trial court granted the motion to withdraw

on July 11, 2018, after it was decisional. Sheehan filed an objection on July 12, 2018.

Without providing any detail, Sheehan argued that trial counsel’s withdrawal “would not

be appropriate at this time.”

        {¶ 10} The decision whether to grant a motion to withdraw by counsel rests within

the sound discretion of the trial court. Kott Enterprises, Inc. v. Brady, 6th Dist. Lucas

No. L-03-1342, 2004-Ohio-7160, ¶ 28. A trial court will not be found to have abused its




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discretion unless its decision was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 11} On appeal, Sheehan argues that the trial court denied “his right to legal

counsel.” However, “[t]here is no generalized right to counsel in civil litigation.” Kott at

¶ 29, citing State ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110, 515 N.E.2d 928 (1987).

Moreover, Sheehan has no cause to complain that the court granted trial counsel’s

motion, given the absence of a timely objection. Finally, we note that counsel did not

withdraw from the case until after he had filed a memorandum opposing summary

judgment that was fully supported with affidavit testimony and a dozen exhibits. For

these reasons, we find that the trial court did not abuse its discretion in granting counsel’s

motion to withdraw. Sheehan’s first assignment of error is not well-taken.

     II. The trial court did not err by denying Sheehan’s motion for continuance.

       {¶ 12} In his second assignment of error, Sheehan argues that the trial court erred

in failing to rule on his motion for a continuance. When a trial court fails to rule on a

motion, the motion is considered denied. CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d

40, 2011-Ohio-3839, 962 N.E.2d 327, ¶ 7 (8th Dist.). The standard of review for the

denial of a motion for a continuance is whether the trial court abused its discretion. In re

M.M., 6th Dist. Wood No. WD0-09-014, 2009-Ohio-3400, ¶ 24.

       {¶ 13} Here, Sheehan filed a motion on July 13, 2018, to continue the July 17,

2018 trial date. Sheehan complained that his former counsel had abruptly withdrawn and

had “refused” to pursue certain (unidentified) counterclaims. Sheehan argued that




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additional time was needed to secure alternative counsel and to “mount a vigorous

defense.”

       {¶ 14} Although the record does not reflect that the trial court ruled on the motion,

the trial did not go forward as scheduled. Further, on July 20, 2018, the trial court

granted appellee’s motion for summary judgment, which obviated the need for a trial.

We see no evidence of an abuse of discretion by the trial court, and we find Sheehan’s

second assignment of error not well-taken.

     III. The trial court did not err in granting summary judgment to appellee.

       {¶ 15} In assignments of error Nos. 3 through 6, Sheehan argues that the trial court

erred in granting appellee’s motion for summary judgment because appellee engaged in

multiple acts of malfeasance. In order, Sheehan accuses appellee of breaching its

fiduciary duty to Sheehan, of coercing Sheehan into accepting the terms of the delinquent

tax contract, of breaching the terms of that contract, and of deceiving Sheehan into

believing that a settlement could be reached while simultaneously preparing to file suit.

Nowhere, however, does Sheehan address the merits of appellee’s motion for summary

judgment, and we begin there.

       {¶ 16} We review a trial court’s entry of summary judgment de novo, using the

same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Summary judgment may only be granted when the following is

established: “(1) there is no genuine issue as to any material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) that reasonable minds can come




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to but one conclusion, and the conclusion is adverse to the party against whom the motion

for summary judgment is made, who is entitled to have the evidence construed most

strongly in its favor.” Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978); Civ.R. 56(E).

       {¶ 17} Summary judgment consists of a burden-shifting framework. The movant

bears the initial burden of demonstrating the absence of genuine issues of material fact

concerning the essential elements of the non-moving party’s case. Dresher v. Burt, 75

Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Specifically, the moving party must

support the motion by pointing to some evidence in the record of the type listed in Civ.R.

56(C). Id. at 292. Once the moving party satisfies this burden, the non-moving party has

a reciprocal burden to “set forth specific facts showing that there is a genuine issue for

trial.” Id. at 293; Civ.R. 56(E). The non-moving party may not rest upon the mere

allegations or denials in his pleadings, but instead must submit evidence as outlined in

Civ.R. 56(C). Id.

       {¶ 18} The procedure to be followed with regard to foreclosure of delinquent land

is found in R.C. 5721.13 and 5721.18. R.C. 5721.13 provides, in pertinent part that:

              One year after certification of a delinquent land list, the county

       auditor shall make in duplicate a certificate, to be known as a delinquent

       land tax certificate, of each delinquent tract of land, * * * upon which the

       taxes, assessments, charges, interest, and penalties have not been paid,

       describing each tract of land or city or town lot in the same manner as it is




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       described on the delinquent tax list and the amount of the taxes,

       assessments, charges, interest, and penalties due and unpaid, and stating that

       the amount has been certified to the county prosecuting attorney as

       delinquent. The certificate shall be signed by the auditor or his deputy, and

       the original certificate shall be filed with the prosecuting attorney.

R.C. 5721.13(A). Then, pursuant to R.C. 5721.18:

              The county prosecuting attorney, upon the delivery * * * by the

       county auditor of a delinquent land or delinquent vacant land tax certificate,

       or of a master list of delinquent land or delinquent vacant tracts, shall

       institute a foreclosure proceeding under this section in the name of the

       county treasurer to foreclose the lien of the state, in any court with

       jurisdiction * * *, unless the taxes, assessments, charges, penalties, and

       interest are paid prior to the time a complaint is filed, or unless a

       foreclosure or foreclosure and forfeiture action has been or will be

       instituted under section 323.25, sections 323.65 to 323.79, or section

       5721.14 of the Revised Code.

       {¶ 19} Furthermore, “[t]he certificate or master list filed by the auditor with the

prosecuting attorney is prima-facie evidence at the trial of the foreclosure action of the

amount and validity of the taxes, assessments, charges, penalties, and interest appearing

due and unpaid and of their nonpayment.” R.C. 5721.18(A) (emphasis added).




11.
       {¶ 20} Here, the record discloses that the Lucas County Prosecutor filed suit more

than one year after Sheehan’s property was certified delinquent (and after the delinquent

tax contract between the parties was voided, due to the Sheehan’s non-payment).

Attached to the complaint was a “preliminary judicial report” that revealed Sheehan’s

land was listed on the “delinquent land list” for 2016. This report constitutes prima-facie

evidence that there were delinquent taxes, assessments, charges, penalties, and interest

associated with the Sheehan’s property and that such delinquencies created a valid lien on

the property. Alt v. Pazmino-Stanfield, 3d Dist. Seneca No. 13-17-34, 2018-Ohio-2346,

¶ 19 (Finding that the county treasurer established a prima facie case with the filing of a

“preliminary judicial report”). Moreover, appellee updated the outstanding amount of

charges owed with the filing of an affidavit of a deputy treasurer who attached a master

list establishing that, as of November 30, 2017, the total amount due and owing on

Sheehan’s parcel was $8,289.03.

       {¶ 21} Sheehan did not counter this evidence with any evidence under Civ.R.

56(E) to dispute that his taxes and related charges were delinquent or the stated amount.

In fact, Sheehan “confirmed that the delinquency calculated by the County was, in fact,

correct.” (Memo in Opp. To Summary Judgment at 6). Instead, Sheehan raises a number

of alternative arguments in support of his appeal, each of which we address below.

       {¶ 22} In his third assignment of error, Sheehan argues that appellee breached its

“fiduciary responsibilities” to him by failing to respond to his “requests for payment

assistance and waivers of penalty and interest.”




12.
       {¶ 23} Appellee counters that it complied with its statutory obligation under R.C.

323.31(A) to “permit [Sheehan] to once enter a delinquent tax payment contract.”

Appellee presented the contract to Sheehan on August 12, 2015, after he became

“delinquent,” as that term is defined under R.C. 323.01(E). Sheehan offers no evidence

that he was entitled to a repayment contract prior to that date, much less that appellee had

the authority to waive penalties or interest. Indeed, as noted by appellee, it is the duty of

the auditor, not the treasurer, to assess the value of each parcel and to determine the

amount due. See, generally, R.C. Chapters 5705 and 5713. Appellee has a

corresponding duty to send out property tax bills and to collect the taxes. See generally

R.C. Chapters 323 and 5721.

       {¶ 24} In any event, with respect to his claim that appellee breached a fiduciary

duty, Sheehan failed to raise that argument in the trial court, and he may not do so now.

State ex rel. Afjeh v. Ottawa Hills, 6th Dist. Lucas No. L-03-1159, 2004-Ohio-1968, ¶ 23.

Moreover, even if he could, Sheehan failed to establish that appellee owed him a

fiduciary duty. A “fiduciary duty” is “[a] duty to act for someone else’s benefit, while

subordinating one’s personal interests to that of the other person.” Black’s Law

Dictionary 625 (6th Ed.1990); see, e.g., Strock v. Pressnell, 38 Ohio St.3d 207, 216, 527

N.E.2d 1235 (1988). A claim of a breach of a fiduciary duty is basically a claim of

negligence with a higher standard of care. In any claim for negligence, the claimant must

show the existence of a duty. Id. In the absence of any evidence that appellee owed

Sheehan a fiduciary duty, his claim fails as a matter of law. Waffen v. Summers, 6th Dist.




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Ottawa No. OT-08-034, 2009-Ohio-2940, ¶ 41 (“A claim for breach of fiduciary duty

necessarily fails when no fiduciary duty exists.”). For all of these reasons, Sheehan’s

third assignment of error is not well-taken.

       {¶ 25} In his fourth assignment of error, Sheehan complains that it was

“unconscionable” of appellee to present the “Delinquent Payment Plan contract on one

side of the desk and the foreclosure papers on the other side.” Sheehan claims that he

signed the repayment plan under “duress” to “avoid [the] loss of his homestead.”

       {¶ 26} A claim of “economic duress” requires a showing by the victim that he was

subjected to “a wrongful or unlawful act or threat and that it deprived the victim of his

unfettered will.” (Internal quotations omitted). Blodgett v. Blodgett, 49 Ohio St. 3d 243,

245-246, 551 N.E.2d 1249 (1990), citing 13 Williston on Contracts (3 Ed.1970) 704,

Section 1617. Further, “[m]erely taking advantage of another’s financial difficulty is not

duress. Rather, the person alleging financial difficulty must allege that it was contributed

to or caused by the one accused of coercion.” Id.

       {¶ 27} In this case, Sheehan has argued consistently that his financial difficulties

were caused by the economic downturn that began in 2008, not by any “wrongful or

unlawful acts” by appellee. Moreover, while Sheehan may have felt “threatened” that

foreclosure proceedings would be instituted if he did not accept the terms of the

repayment contract, we point out that the tax foreclosure process is controlled by statute.

Thus, it is the county prosecutor who, upon receiving the master list from the county

auditor, “shall institute a foreclosure proceeding * * * in the name of the county




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treasurer.” R.C. 5721.18. In other words, the delinquent tax contract offered Sheehan an

opportunity to prevent, or at least to forestall, the initiation of foreclosure proceedings

that were otherwise statutorily required. For these reasons, we reject Sheehan’s duress

claim, and we find his fourth assignment of error not well-taken.

       {¶ 28} In his fifth assignment of error, Sheehan alleges that, at the time the parties

executed the delinquent tax contract, appellee breached its promises to “consider”

waiving Sheehan’s obligation to pay penalties and interest and to provide a “timely

accounting of the disputed balance.”

       {¶ 29} The parol evidence rule bars evidence suggesting that there existed any

implied contract altering the provisions of the delinquent tax contract. Any conversation

that occurred before the parties entered into a written contract on August 12, 2015 is

subject to the parol evidence rule. The rule provides that, “‘absent fraud, mistake, or

other invalidating cause, the parties’ final written integration of their agreement may not

be varied, contradicted or supplemented by evidence of prior or contemporaneous oral

agreements, or prior written agreements.’” Galmish v. Cicchini, 90 Ohio St.3d 22, 26,

734 N.E.2d 782 (2000), quoting 11 Williston on Contracts, (4 Ed.1999) 569-570, Section

33:4. Accordingly, extrinsic evidence cannot contradict the unambiguous terms of a

final, written agreement. Id.

       {¶ 30} By operation of the parol evidence rule, Sheehan’s claim—that appellee

made additional promises not set forth in the delinquent tax contract—fails as a matter of

law. Therefore, we find Sheehan’s fifth assignment of error not well-taken.




15.
       {¶ 31} Finally, Sheehan claims that he never agreed to the calculations set forth in

the 2015 delinquent tax contract. Therefore, in January of 2017, after making 17 of the

24 payments, Sheehan stopped paying. According to Sheehan, in April and again in early

July of 2017, he demanded an explanation from appellee as to “what was owed and how

the balance [was] calculated.” In his sixth assignment of error, appellee alleges that

while in “discussions” with appellee, appellee “deceived” Sheehan into believing that it

would renegotiate the terms of the contract, while “all along” appellee was “plann[ing] to

file the foreclosure action.”

       {¶ 32} Pursuant to R.C. 323.31(A)(6) and (7), once a delinquent tax contract is

voided due to non-payment, the prosecuting attorney “shall institute a proceeding to

foreclose the lien of the state in accordance with * * * R.C. 5721.18,” which is exactly

what happened in this case. Sheehan’s decision to discontinue paying on the contract

resulted in the prosecutor, not appellee, instituting this statutorily-mandated action.

Sheehan’s sixth assignment of error is not well-taken.

                                        Conclusion

       {¶ 33} In response to appellee’s properly supported motion for summary

judgment, Sheehan produced no evidentiary materials controverting any of that evidence.

The arguments made by Sheehan in his appellate brief do not present a basis to reverse

the trial court’s summary judgment.

       {¶ 34} We find that there was sufficient evidence in the record to allow the trial

court to enter a judgment of foreclosure and to order a sheriff’s sale of the property under




16.
R.C. 5721.18 and 5721.19. Therefore, we find that the trial court did not err in granting

summary judgment in favor of appellee, and we further find that Sheehan’s assignments

of error are not well-taken. The July 20, 2018 judgment of the Lucas County Court of

Common Pleas is affirmed. Sheehan is ordered to pay the costs of this appeal pursuant to

App.R. 24.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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