DocketNumber: No. 08AP-120.
Citation Numbers: 2008 Ohio 6816
Judges: BROWN, J.
Filed Date: 12/23/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On November 24, 2004, agents from the Ohio Department of Public Safety Investigative Unit issued a violation notice to appellant-appellee, SGN International Oil Co. ("SGN"), alleging that SGN had permitted an electronic gambling device, identified as *Page 2
"Gone Fishin II," on its permit premises in violation of Ohio Adm. Code 301:1-1-53. Castle King is the manufacturer of the Gone Fishin II machine. On February 15, 2005, the commission conducted a hearing regarding the alleged violation. On May 3, 2005, the commission issued an order finding SGN in violation of Ohio Adm. Code
{¶ 3} On May 20, 2005, SGN filed an appeal with the trial court from the order of the commission. The parties submitted briefs before the court, and by decision and entry filed January 23, 2007, the trial court reversed the commission's order, finding it was not supported by reliable, probative or substantial evidence. On February 16, 2007, the commission filed a notice of appeal from the trial court's January 23, 2007 entry.
{¶ 4} On May 22, 2007, the parties filed with the trial court a settlement agreement and consent order ("consent order"). The signatories to the consent order were Castle King, SGN, the commission, and the Ohio Attorney General ("attorney general"). The consent order stated in part that Castle King "has presented to the Attorney General an updated version of the Chess Challenge II/Gone Fishin II game of skill, known as Match Um Up Fruit/Gems * * * for an evaluation and examination by the Attorney General and his expert" for purposes of determining whether the game is a skill-based amusement machine as defined under R.C.
{¶ 5} As a result of entering into the consent order, the parties filed with this court an agreed motion to dismiss the commission's appeal. By journal entry filed May 25, 2007, this court dismissed the appeal.
{¶ 6} On August 29, 2007, Castle King filed a motion to enforce the consent order entered on May 22, 2007. On September 17, 2007, the commission filed a memorandum in opposition, and a motion to vacate or stay enforcement of the consent order. Castle King filed a reply memorandum on September 19, 2007. On October 4, 2007, the trial court filed a decision and entry ordering enforcement of the consent order and outlining a certification process for Castle King's Match Um Up machines.
{¶ 7} On October 23, 2007, the Ohio General Assembly passed Am. Sub. H.B. No. 177, which amended R.C.
{¶ 8} On February 6, 2008, the trial court filed a "final entry," finding that the commission had failed to provide any evidence that "Match Um Up, Version 1.0 does not meet the requirements of Section
{¶ 9} On appeal, the commission sets forth the following three assignments of error for this court's review:
FIRST ASSIGNMENT OF ERROR
The Lower Court Lacked Jurisdiction To Reopen An Administrative Appeal, Closed Since May, 2007 Pursuant To The Settlement Agreement And Consent Order, To Decide An Issue Neither Pleaded Nor Argued In The Administrative Appeal, And Beyond The Scope Of The Underlying Administrative Proceeding.
SECOND ASSIGNMENT OF ERROR
Assuming Arguendo That The Lower Court Could Conduct New Proceedings On Issues Beyond The Scope Of The Administrative Appeal, It Misinterpreted And Misapplied H.B. 177.
THIRD ASSIGNMENT OF ERROR
Assuming Arguendo That The Lower Court Did Have Jurisdiction To Determine Issues Not Properly Before It, It Abused Its Discretion In Modifying The Consent Order To Find That Match Um Up Satisfies The Legal Requirements Of H.B. 177.
{¶ 10} We will first address the commission's third assignment of error. Under this assignment of error, the commission asserts that the trial court erred in granting Castle *Page 5
King's motion to modify the consent order. More specifically, the commission argues that the change in law brought about by the amendment of R.C.
{¶ 11} Generally, in reviewing an appeal from an administrative agency under R.C.
{¶ 12} We note at the outset that appellees Castle King and SGN (collectively "appellees") have raised a jurisdictional issue, arguing that the consent order does not provide for a right to appeal by the commission and, therefore, that this matter is not properly before this court. We disagree.
{¶ 13} In support of their argument, appellees rely upon this court's decision in "The Washington D" v. Ohio Dept. of Human Servs. (June 14, 2001), Franklin App. No. 00AP-939, in which we affirmed the trial court's dismissal of an appeal by the appellant nursing home, which had entered into a settlement agreement with an administrative agency. In that case, however, the parties signed a settlement waiver form under which the "appellant waived the `right to appeal the settlement under Chapter
{¶ 14} In contrast, in the present case the consent order contains no language regarding a waiver of appeal rights by the parties. Paragraph 20 of the consent order provides in part: "The signatories agree to the continuing jurisdiction of Franklin County *Page 6 Common Pleas Judge * * * and his successor in office with regard to questions of compliance with the terms of this Agreement and Consent Order."
{¶ 15} Further, the commission has appealed from the trial court's decision and entry granting Castle King's motion to modify a consent order based upon Castle King's contention that a change of circumstances, i.e., an amendment to R.C.
{¶ 16} In its motion to modify, Castle King requested that the trial court modify the consent order "to be consistent with the new law," i.e., the Ohio General Assembly's passage of Am. Sub. H.B. No. 177 on October 23, 2007. The legislature's passage of Am. Sub. H.B. No. 177 made changes to R.C.
{¶ 17} The version of R.C.
{¶ 18} The amended version of R.C.
{¶ 19} The trial court, in granting Castle King's motion to modify the consent order, found that the commission "has not provided evidence to the Court that Match Um Up is no longer a skill-based amusement machine as a result of the amendment to R.C. § 2[9]15.01(AAA)." The court further found that, "[although the law has changed, there has been no evidence presented that Match Um Up fails to comply with the amended law, except for the provisions regarding cash payouts and the payout of prizes or vouchers."1
{¶ 20} Courts have observed that "[a] consent order is a contract and is based on the agreement of the parties." State v. Mann, Trumbull App. No. 2007-T-0067,
{¶ 21} In Rufo v. Inmates of Suffolk Cty. Jail (1992),
{¶ 22} The commission's primary contention is that the trial court's decision granting Castle King's motion to modify the consent order is in direct contravention of the express language of the consent order. Specifically, paragraph 19 of the consent order states: "In the event the Ohio General Assembly enacts legislation that regulates games of skill, the signatories agree that this Agreement and Consent Order will terminate upon a final Order from Judge * * * or an Ohio court of competent jurisdiction." *Page 10
{¶ 23} The commission raised this argument before the trial court in its motion to terminate the consent order. The trial court, while acknowledging the language of the consent order, held: "[T]his Court does not find it equitable to terminate the Agreement and Consent Order when one small modification can accomplish the task at hand." Upon review, we disagree with the trial court's determination.
{¶ 24} In seeking modification of the consent order, Castle King relied upon an event actually anticipated by the parties as reflected in paragraph 19 of the decree, i.e., "in the event" the legislature enacts legislation regulating games of skill. Further, Castle King agreed, under the terms of the consent order, that upon such an event the consent order "will terminate" upon a final order by the court. Because the issue of future legislative action regulating games of skill was not an unforeseen event but, instead, such possibility was specifically addressed under the consent order, appellees did not demonstrate a changed circumstance sufficient to justify the trial court's modification of the consent decree on equitable grounds. Rohm Haas, supra ("[i]f the complained-of-change was actually anticipated at the time the party seeking modification entered into the decree, then the motion should be denied"). See, also, NLRB v. Harris TeeterSupermarkets (C.A.D.C. 2000), 215 F.3d 32, 36 ("[s]elf-imposed hurdles and hurdles inherent in a consent decree's entry" do not warrant modification of consent decree). Rather, "[i]n light of the consent decree's own terms, the most equitable result is to hold the parties to their bargain." Henderson v. Morrone (C.A.3, 2007), 214 Fed.Appx. 209, 214-215. Accordingly, we find that the trial court erred in granting appellees' motion to modify the consent order, and in failing to grant the commission's motion to terminate. Thus, the commission's third assignment of error is sustained. *Page 11
{¶ 25} Under the first and second assignments of error, the commission argues that the trial court erred by reopening an administrative appeal, and by going outside the record to purportedly determine that Castle King's Match Um Up game constitutes a skill-based amusement machine under amended R.C.
{¶ 26} Based upon the foregoing, the commission's third assignment of error is sustained, the commission's first and second assignments of error are rendered moot, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
McGRATH, P.J., and FRENCH, J., concur.
Building and Construction Trades Council of Philadelphia ... , 64 F.3d 880 ( 1995 )
National Labor Relations Board v. Harris Teeter Supermarkets , 215 F.3d 32 ( 2000 )
State v. Mann, 2007-T-0067 (12-21-2007) , 2007 Ohio 6937 ( 2007 )
Save the Lake v. Hillsboro , 158 Ohio App. 3d 318 ( 2004 )
Rufo v. Inmates of Suffolk County Jail , 112 S. Ct. 748 ( 1992 )