O'Brien v. Phillips

[Cite as O'Brien v. Phillips, 2015-Ohio-3901.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ron O'Brien, Prosecuting Attorney, :
Plaintiff-Appellee, :
No. 14AP-1026
v. : (C.P.C. No. 13CV-10431)
Timothy P. Phillips, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 24, 2015
Ron O'Brien, Prosecuting Attorney, and Jesse W. Armstrong,
for appellee.
Christopher J. Minnillo, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Timothy P. Phillips, appeals a judgment of the
Franklin County Court of Common Pleas that granted plaintiff-appellee, Ron O'Brien, the
Franklin County prosecuting attorney, a permanent injunction requiring Phillips to vacate
his residence. For the following reasons, we affirm that judgment.
{¶ 2} On November 13, 2012, Phillips pleaded guilty to attempted unlawful sexual
conduct with a minor, a violation of R.C. 2923.02 as it relates to R.C. 2907.04. A month
later, the trial court convicted and sentenced Phillips. Upon conviction, Phillips became a
sexual offender subject to statutory registration and verification requirements, as well as
residency restrictions.
{¶ 3} Phillips resides at 198 South Westmoor Avenue in Columbus, Ohio. Phillips
purchased that property in May 2000, and he has lived there ever since. Phillips'
No. 14AP-1026 2
residence is located near Westgate Alternative Elementary School ("Westgate
Alternative"), a Columbus public school.
{¶ 4} On September 18, 2013, the prosecuting attorney filed an action seeking a
permanent injunction ordering Phillips to vacate his residence. The prosecuting attorney
sued Phillips pursuant to R.C. 2950.034(B), which permits the prosecuting attorney to
seek injunctive relief against any person who: (1) has been convicted of or pleaded guilty
to a sexually oriented offense and (2) has established a residence or is occupying
residential premises that is located within Franklin County and within 1,000 feet of the
premises of a school, preschool, or daycare facility.
{¶ 5} Both the prosecuting attorney and Phillips moved for summary judgment.
In an entry dated March 25, 2014, the trial court denied both motions, but specified the
material facts not in controversy pursuant to Civ.R. 56(D). The trial court then held a trial
on the sole remaining material fact, i.e., whether Phillips' residence was located within
1,000 feet of Westgate Alternative.
{¶ 6} During trial, the prosecuting attorney presented the testimony of Kevin
Schultz, the interim director of the GIS-IT unit of the Franklin County Auditor's office.
"GIS" stands for "geographic information system." Using the GIS tax map database,
Schultz measured the distance between the boundary line of Phillips' property and the
boundary line of Westgate Alternative's property. That distance is 735 feet, with a two-
and-one-half-foot margin of error.
{¶ 7} On November 19, 2014, the trial court issued a judgment that granted a
permanent injunction requiring Phillips to vacate his South Westmoor residence. The
trial court also issued a decision, including findings of fact and conclusions of law,
supporting its judgment. Phillips now appeals the November 19, 2014 judgment, and he
assigns the following errors:
[1.] It was error for the lower court to retroactively apply R.C.
2950.034 to the Appellant who had established his residence
prior to the enactment date of the original section.
[2.] The lower court's finding of fact number 20, that the
parcel of real estate located at 3080 Wicklow Road, was a
"school" as used in R.C. 2950.034 was clearly erroneous and
contrary to the evidence. The state did not establish either by
clear and convincing evidence or a preponderance of the
evidence that the premises in question was a school operated
by a board of education on the date of the trial.
No. 14AP-1026 3
[3.] It was error and abuse of discretion by the trial court to
interrupt Mr. Phillips' direct examination with an unrelated
question concerning the activities conducted at 3080 Wicklow
Road.
[4.] The lower court erred in applying R.C. 2950.034
retroactively to the Appellant and thereby violated the Ex Post
Facto Clause of the Federal Constitution which forbids the
congress and the states to from [sic] enacting any law which
imposes a punishment for an act which was not punishable at
the time it was committed, or imposes additional punishment
for an earlier act, in this case the Appellant's ability to occupy
his home.
[5.] The trial court correctly found that clear and convincing
evidence is required under R.C. 2950.034 to grant injunctive
relief, and that a prerequisite to injunctive relief is a balancing
of the equities involved, including the benefit of injunctive
relief, the harm to the Appellant that would result from the
requested injunctive relief and the harm to society. The trial
court erred in finding that a balancing of equities was not
required because of Appellant's willful conduct, which finding
was against the manifest weight of the evidence. A proper
balancing of the equities would not have resulted in the
imposition of the injunction granted by the lower court.
{¶ 8} By Phillips' first assignment of error, he argues that the trial court erred in
retroactively applying R.C. 2950.034 to him. Phillips contends that R.C. 2950.034
operates retroactively as to him because he purchased his residence in May 2000, which
was prior to the enactment of residency restrictions on sexual offenders.
{¶ 9} R.C. 2950.034 traces its lineage to former R.C. 2950.031, which the General
Assembly enacted as part of its 2003 amendments to R.C. Chapter 2950 (known as
"Megan's Law"). Former R.C. 2950.031 imposed a residency restriction on certain
sexually oriented offenders, prohibiting them from "establish[ing] a residence or
occupy[ing] residential premises within one thousand feet of any school premises."
Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558, 6657. In 2007, the General Assembly
enacted Am.Sub.S.B. No. 10 ("S.B. 10"), Ohio's version of the federal Adam Walsh Child
Protection and Safety Act. S.B. 10 amended former R.C. 2950.031 and recodified it as
R.C. 2950.034. The amended statute, still effective today, reads in relevant part:
No person who has been convicted of, is convicted of, has
pleaded guilty to, or pleads guilty to a sexually oriented
No. 14AP-1026 4
offense or a child-victim oriented offense shall establish a
residence or occupy residential premises within one thousand
feet of any school premises or preschool or child day-care
center premises.
R.C. 2950.034(A). Although S.B. 10 expanded the residency restriction to include
preschools and daycare centers, it did not otherwise significantly alter the substance of
former R.C. 2950.031. Franklin Cty. Pros. Atty. v. Smith, 10th Dist. No. 10AP-52, 2010-
Ohio-3748, ¶ 11.
{¶ 10} The Supreme Court of Ohio considered whether former R.C. 2950.031
applied retroactively in Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542. In that case,
the defendant was convicted of a sexually oriented offense in 1995 and, again, in 1999.
Following the enactment of former R.C. 2950.031, the chief legal officer of the township in
which Porter lived sought to enjoin Porter from continuing to occupy his residence, which
was within 1,000 feet of a school. Porter argued that, as applied to him, former R.C.
2950.031 was unconstitutionally retroactive because he committed his offenses and
purchased his home prior to the effective date of the statute.
{¶ 11} The Supreme Court began its analysis by reviewing the text of former R.C.
2950.031 to determine whether the statute clearly declared that it was to apply
retroactively. The court found that the language of former R.C. 2950.031 was "ambiguous
regarding its prospective or retroactive application," which was "not sufficient to
overcome the presumption of prospective application." Hyle at ¶ 13. Thus, the court held
that, "[b]ecause [former] R.C. 2950.031 was not expressly made retrospective, it [did] not
apply to an offender who bought his home and committed his offense before the effective
date of the statute." Hyle at syllabus. In other words, because former R.C. 2950.031 only
operated prospectively, it did not apply to a person "who, by virtue of past crime and
residence, [was] violating the terms of the statute on the day it became effective." Hope
Academy v. Ohio Dept. of Edn., 10th Dist. No. 07AP-758, 2008-Ohio-4694, ¶ 20.
{¶ 12} Approximately three years after Hyle, the Supreme Court of Ohio
determined that the entirety of S.B. 10, "as applied to defendants who committed sex
offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution,
which prohibits the General Assembly from passing retroactive laws." State v. Williams,
No. 14AP-1026 5
129 Ohio St.3d 344, 2011-Ohio-3374, syllabus.1 As we explained above, R.C. 2950.034
was enacted as part of S.B. 10. Consequently, Hyle and Williams, together, stand for the
proposition that the residency restrictions on sexual offenders only operate prospectively.
{¶ 13} In cases following Hyle, the question arose: under what circumstances is
application of the residency restrictions retroactive and under what circumstances is it
prospective? Hyle only addressed one scenario: the offender purchased his home and
committed a sexually oriented offense prior to the effective date of the applicable
residency restriction. Consequently, since the announcement of the Hyle decision, the
courts of appeal have had to decide what other situations also entail a retroactive
application of the residency restrictions.
{¶ 14} As a general matter, a statute operates retroactively when it "attaches new
legal consequences to events completed before its enactment." Landgraf v. USI Film
Prods., 511 U.S. 244, 270 (1994); accord State v. Williams, 103 Ohio St.3d 112, 2004-
Ohio-4747, ¶ 7 ("A statute is retroactive if it penalizes conduct that occurred before its
enactment."). A statute operates prospectively when it applies to and regulates conduct
that occurs after its effective date. Dukes v. Dir., Ohio Dept. of Job & Family Servs., 10th
Dist. No. 09AP-515, 2009-Ohio-6781, ¶ 14; accord Hope Academy at ¶ 20 ("Prospective
application [means the statute does] not apply to things that occurred prior to the
statute's effective date, as that would be a retroactive application.").
{¶ 15} Applying the foregoing, the residency restrictions operate retroactively as to
a person who commits and is convicted of a sexually oriented offense before the effective
date of the applicable residency restriction, but establishes a residence or occupies
residential premises within the prohibited distance after the effective date. State v.
Benedetta, 7th Dist. No. 12 BE 20, 2013-Ohio-4364, ¶ 18-22 (collecting cases).2 In that
1 Courts do not address the question of constitutional retroactivity unless they first determine that the
General Assembly expressly made the statute at issue retroactive. Id. at ¶ 8. In Hyle, the court did not
reach the constitutionality question because it concluded that the General Assembly did not expressly
make former R.C. 2930.031 retroactive. In Williams, to pass beyond the first step of the retroactively test,
the court examined another statute, R.C. 2950.03 (also part of S.B. 10), and determined that it expressly
applied retroactively. Williams at ¶ 8. Thus, although Williams ultimately held that R.C. 2950.034 (as
part of S.B. 10) was unconstitutional when applied retroactively, this holding does not diminish the
analysis conducted or conclusions reached in Hyle.
2 To further complicate matters, when a sex offender is living within a 1,000 feet of school premises, a
court gauges retroactivity using the effective date of former R.C. 2950.031, which is July 31, 2003. Smith,
10th Dist. No. 10AP-52, 2010-Ohio-3748. If the case involves a preschool or daycare facility, the
applicable date is July 1, 2007, the effective date of R.C. 2950.034, which added the preschool and
daycare restrictions.
No. 14AP-1026 6
situation, a new legal consequence, i.e., forced relocation, attaches to prior events
(commission and conviction of a sexually oriented offense), so the residency restrictions
apply retroactively. On the other hand, residency restrictions operate prospectively as to a
person who (1) commits and is convicted of a sexually oriented offense and (2) establishes
a residence or occupies residential premises after the effective date of the applicable
residency restriction. In that situation, R.C. 2950.034 operates prospectively because it
regulates all post-enactment conduct.
{¶ 16} In the case at bar, Phillips established his residence prior to the applicable
effective date (July 31, 2003). But all the other conduct implicated here—the commission
of the offense, guilty plea, and occupation of residential premises within 1,000 feet of a
school—occurred after July 31, 2003. Thus, the issue this case presents is whether R.C.
2950.034 operates retroactively when the sole pre-enactment event is the defendant's
establishment of a residence.
{¶ 17} We have previously determined that residency restrictions do not apply
retroactively to a defendant just because that defendant owned the home in which he
resided prior to the applicable effective date. In O'Brien v. Hill, 197 Ohio App.3d 14,
2012-Ohio-774, ¶ 20-21 (10th Dist.), we stated:
The scenario that this case presents is one that has arisen
subsequent to the enactment of the residency restrictions that
are sought to be applied to appellee. While appellee may have
purchased his home in 1991, the prohibited act, i.e., being a
sexual offender and residing within 1,000 feet of a school, did
not arise until the latter half of 2006. The prohibited act is
not simply establishing a residence or occupying residential
premises, but doing so as a sexual offender and within 1,000
feet of a school. This circumstance arose in 2006, which is
subsequent to the time the residency restrictions went into
effect on July 31, 2003. Thus, we cannot conclude that the
residency restrictions of R.C. 2950.034 are being applied
retrospectively or, put another way, to facts that arose prior to
their existence.
Furthermore, while it is the conviction of a sexually oriented
offense that triggers the application of the residency
restrictions, they could not exist without the underlying
offense. The residency restrictions are not punishing past
conduct if the offense occurred after the residency restrictions'
enactment. Application of R.C. 2950.034 to a person who
commits a sexually oriented offense after the residency
restrictions' effective date, while taking away one's choice of
No. 14AP-1026 7
where to live, is doing so prospectively, much like a person's
liberty may be taken away for a statutorily proscribed period
of time after one is convicted of an offense.
(Emphasis sic.)
{¶ 18} Merely establishing a residence within 1,000 feet of a school does not
violate R.C. 2950.034(A) and result in forced relocation pursuant to R.C. 2950.034(B).
Only further, additional events can trigger R.C. 2950.034. In the instant case, those
triggering events were Phillips' commission of a sexually oriented offense, which occurred
in 2011 through 2012; Phillips' guilty plea to a sexually oriented offense, which occurred in
2012; and Phillips' occupation of his residence, which occurs currently. Because those
events all occurred after July 31, 2003, R.C. 2950.034 operates prospectively as to
Phillips.
{¶ 19} This conclusion does not end our analysis. Although Phillips' first
assignment of error challenges the alleged retroactive application of R.C. 2950.034, his
argument largely concentrates, instead, on contesting the meaning of R.C. 2950.034.
Phillips argues that the phrase "occupy residential premises," as used in R.C. 2950.034,
means to commence occupation of residential premises after the effective date of the
applicable residency restriction. Phillips purchased his home and commenced living in it
in May 2000—well before the July 31, 2003 effective date of former R.C. 2950.031.
Phillips argues that the residency restrictions do not apply to him because he continued—
and did not commence—occupation of his home after the effective date. Phillips directs
us to Hyle for support for his interpretation of R.C. 2950.034.3
{¶ 20} In Hyle, the Attorney General of Ohio, an amicus curiae, asserted that the
verb "occupy" had to mean "continue to occupy," or the phrases "shall establish a
residence" and "occupy residential premises" were redundant.4 Based upon this reading
of the statute, the attorney general argued that the residency restriction applied to
offenders who purchased their homes prior to the effective date of the statute and
3 At various points in his brief, Phillips argues that R.C. 2950.034 does not apply to a defendant who
commences occupation of residential premises before a conviction or guilty plea to a sexually oriented
offense. Retroactivity, the concept Phillips relies upon for his argument, is concerned with the application
of statutes to events that occurred before the statutes became law. As focusing on the date of conviction
or plea divorces Phillips' argument from all legal support, we will presume that Phillips meant, instead, to
focus on the effective date of the residency restrictions.
4 As Phillips points out, a person cannot establish a residence without occupying that residence.
Presumably, the attorney general based his redundancy argument on that fact.
No. 14AP-1026 8
continued to occupy them after, as well as offenders who purchased and began living in
their homes (i.e., established a residence) after the effective date. Hyle, 117 Ohio St.3d
165, 2008-Ohio-542, at ¶ 12. Since the statute would apply to both type of offenders, the
argument posited, the statute was meant to apply retroactively.
{¶ 21} The Supreme Court rejected this argument, finding no clear indication in
the statutory language that the residency restriction was to have retroactive application.
The Supreme Court stated:
[T]he two verbs in the description of prohibited acts could
reasonably denote two distinct, present-tense meanings. For
example, "establish a residence" could mean "purchase and
occupy a permanent home," and "occupy a residence" could
mean "live in a temporary residence or occupy another's
home." The language cited is therefore not a clear declaration
of retroactivity.
Id. at ¶ 22.
{¶ 22} Notably, the Supreme Court only examined the phrase "occupy residential
premises" in order to determine whether it clearly indicated the General Assembly's intent
to apply the residency restriction retroactively. The Supreme Court did not opine on the
definitive meaning of the phrase "occupy," so it did not endorse or reject "commence to
occupy" or "continue to occupy" as the definition of "occupy."
{¶ 23} Putting Hyle aside, the argument that Phillips presents devolves to a
question of normal statutory interpretation, which is separate from a retroactivity
analysis. When construing a statute, courts first examine the plain language of the statute
and apply it as written when the meaning is clear and unambiguous. MedCorp, Inc. v.
Ohio Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-2058, ¶ 9. Courts
afford the words used in the statute their usual, normal, and/or customary meanings. Id.{¶ 24} To "occupy" means "to reside in as an owner or tenant" or "to hold
possession of." Webster's Third New Internatl. Dictionary (1986) 1561. Of course, for
purposes of maintaining prospective application, a sex offender must "reside in" or "hold
possession of" the residential premises at some point after the effective date of the
applicable residency restriction. However, determination of whether a sex offender
resides in or holds possession of residential premises does not require ascertainment of
the date on which an offender began to "reside in" or "hold possession of" the residential
premises. Whether occupancy commences or continues after the effective date of the
No. 14AP-1026 9
applicable residency requirement, it remains occupancy, and occupancy is all that the
statute requires. Thus, neither "commence" nor "continue" modifies the phrase "occupy
residential premises."
{¶ 25} We are not persuaded by Phillips' argument that "occupy" must mean
"commence to occupy" or the phrase "establish a residence" becomes redundant. As the
Supreme Court pointed out, "establish a residence" could mean "purchase and occupy a
permanent home," and "occupy residential premises" could mean "live in a temporary
residence or occupy another's home." Hyle at ¶ 22. We are also unconvinced that the
heading of R.C. 2950.034, "Prohibiting offender from establishing residence near school,"
has any bearing on the meaning of the phrase "occupy residential premises." Cosgrove v.
Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281, 284 (1994) (holding headings
"are irrelevant to the substance of a code provision").
{¶ 26} Here, Phillips currently resides in and holds possession of the South
Westmoor house, so he "occup[ies] residential premises" as required by R.C. 2950.034.
Because Phillips committed and pleaded guilty to a sexually oriented offense and occupied
residential premises within 1,000 feet of school after the effective date of the applicable
residency restriction, the operation of the residency restriction as to him is prospective.
We thus reject all the arguments Phillips asserts under his first assignment of error, and
we overrule that assignment of error.
{¶ 27} We will next address Phillips' third assignment of error, by which he argues
that the trial court erred in asking him, during trial, whether Westgate Alternative was an
active school. We disagree.
{¶ 28} During a pause in Phillips' attorney's direct examination of Phillips, the trial
judge asked him, "Do you know, Mr. Phillips, is Westgate Alternative currently used as an
active school with kids coming in day in and day out?" (Tr. 65.) Phillips answered, "Yes,
it is." (Tr. 65.) Phillips' attorney objected to the court's question.
{¶ 29} A trial court "may interrogate witnesses, in an impartial manner, whether
called by itself or by a party." Evid.R. 614(B). " 'In the absence any showing of bias,
prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that
the trial court acted with impartiality [in propounding to the witness questions from the
bench] in attempting to ascertain a material fact or to develop the truth.' " State v.
Baston, 85 Ohio St.3d 418, 426 (1999), quoting Jenkins v. Clark, 7 Ohio App.3d 93, 98
No. 14AP-1026 10
(2d Dist.1982). A trial court's questioning of a witness is not partial merely because it
elicits testimony that is damaging to one of the parties. Brothers v. Morrone-O'Keefe
Dev. Co., LLC, 10th Dist. No. 05AP-161, 2006-Ohio-1160, ¶ 12. Moreover, questions
posed for the purpose of clarifying material facts do not qualify as improper examination.
State v. King, 2d Dist. No. 24141, 2011-Ohio-3417, ¶ 13. Because a trial court has the
discretion to question witnesses, appellate courts review the court's questioning under the
abuse of discretion standard. Brothers at ¶ 10.
{¶ 30} Here, Phillips only challenges the trial court's question because it
established a fact favorable to the prosecuting attorney. That is not a basis on which to
find partiality. Accordingly, we overrule Phillips' third assignment of error.
{¶ 31} We now return to Phillips' second assignment of error, by which he argues
that the trial court erred in finding that Westgate Alternative satisfies the statutory
definition of "school." We disagree.
{¶ 32} R.C. 2950.034(A) prohibits sex offenders from establishing a residence or
occupying residential premises within 1,000 feet of "any school premises." As used in
R.C. 2950.034, "school" and "school premises" have the same meanings as in R.C.
2925.01. R.C. 2950.01(S). Pursuant to R.C. 2925.01(Q), the definition of "school"
includes "any school operated by a board of education." "School premises" is defined to
include "[t]he parcel of real property on which any school is situated." R.C. 2925.01(R)(1).
{¶ 33} Here, Phillips complains that the prosecuting attorney did not present
evidence regarding whether Westgate Alternative qualified as a "school" under R.C.
2925.01(Q). However, the prosecuting attorney did not have to present such evidence;
Westgate Alternative's status as a school was established on summary judgment.
{¶ 34} Civ.R. 56(D) states:
If on motion under this rule summary judgment is not
rendered upon the whole case or for all the relief asked and a
trial is necessary, the court in deciding the motion, shall
examine the evidence or stipulation properly before it, and
shall if practicable, ascertain what material facts exist without
controversy and what material facts are actually and in good
faith controverted. The court shall thereupon make an order
on its journal specifying the facts that are without controversy
* * * and directing such further proceedings in the action as
are just. Upon the trial of the action the facts so specified
shall be deemed established, and the trial shall be conducted
accordingly.
No. 14AP-1026 11
Under this provision, a trial court may issue a summary judgment decision that sets forth
the uncontroverted material facts, thus narrowing the factual issues to be decided at trial.
Thornton v. Premium Glass Co., 5th Dist. No. 09-CA-52, 2010-Ohio-1796, ¶ 19; Thrash v.
Motorists Mut. Ins. Co., 2d Dist. No. 19504, 2003-Ohio-1765, ¶ 24. If a trial court
designates a material fact as uncontroverted, that fact is deemed established and may not
be contested at trial. Zink v. Harrison, 2d Dist. No. 12201 (July 16, 1992); accord Kent v.
Columbus, 10th Dist. No. 96AP-1771 (Aug. 12, 1997) (holding that the appellant was
precluded from admitting evidence at trial to controvert the factual issues determined
under Civ.R. 56(D)).
{¶ 35} Here, the prosecuting attorney appended to his summary judgment motion
the affidavit of Anne Dorrian-Lenzotti, the director of real estate and shared facilities for
the Columbus City Schools. Dorrian-Lenzotti stated in her affidavit that Westgate
Alternative is a Columbus public school. Phillips did not dispute Dorrian-Lenzotti's
testimony. Rather, he conceded in his memorandum contra that "Westgate Alternative
Elementary School is a school operated by the Board of Education – Columbus City
Schools." (R. 15, at 2.)
{¶ 36} The trial court denied both parties' motions for summary judgment, but it
recognized that the parties agreed on many material facts. Consequently, in its summary
judgment ruling, the trial court invoked Civ.R. 56(D) and set forth the undisputed
material facts. One of the facts was that "Westgate Alternative is currently an operating
public school being used by Columbus students." (R. 24, at 2.) Because that material fact
was established in the summary judgment decision, the prosecuting attorney did not need
to present evidence to prove it at trial.
{¶ 37} In his appellate reply brief, Phillips argues that the finding that Westgate
Alternative constituted a school was stale by trial. According to Phillips, Dorrian-
Lenzotti's affidavit testimony only established that Westgate Alternative operated as a
Columbus public school during the 2013-2014 school year. Phillips maintains that the
prosecuting attorney had to prove at trial that Westgate Alternative remained a school for
the 2014-2015 school year.
{¶ 38} We find that, to properly raise this argument, Phillips had to assert it before
trial to give the prosecuting attorney notice that he was challenging an established fact. If
Phillips had raised the argument prior to trial and the trial court had ruled in his favor,
No. 14AP-1026 12
then the prosecuting attorney would have had the opportunity to adduce evidence at trial
to prove that Westgate Alternative was still a school. Because Phillips did not assert the
argument prior to trial, the prosecuting attorney could rely on established fact and refrain
from adducing that evidence. See Alberty-Velez v. Corporacion de Puerto Rico Para la
Difusion Publica, 242 F.3d 418, 424-25 (1st Cir.2001) (once the trial court establishes
uncontroverted facts on summary judgment, the parties have a right to rely on that ruling
by forbearing from introducing any evidence or cross-examining witnesses in regard to
those facts); accord Singh v. George Washington School of Med. & Health, 508 F.3d
1097, 1106 (D.C.Cir.2007) ("[The appellant] neither moved in the district court to vacate
the partial summary judgment, * * * nor otherwise gave effective notice that it sought to
disestablish the prior finding. A trial court's reopening of such an issue without notice to
the parties is error, and reversible error if it causes substantial prejudice.").5
{¶ 39} Additionally, Phillips' argument fails because the trial record contains
evidence that Westgate Alternative remained a school through the 2014-2015 school year.
As we stated above, Phillips answered affirmatively when the trial judge asked him if
Westgate Alternative was an active school.
{¶ 40} Based on the trial court's specification of facts pursuant to Civ.R. 56(D) and
Phillips' testimony, we conclude that the record establishes that Westgate Alternative fits
within the R.C. 2925.01(Q) definition of "school." Accordingly, we overrule Phillips'
second assignment of error.
{¶ 41} By his fourth assignment of error, Phillips argues that application of R.C.
2950.034 to him violates the Ex Post Facto Clause of the United States Constitution. We
disagree.
{¶ 42} Phillips did not assert this argument in the trial court. Instead, Phillips
contended below that application of R.C. 2950.034 to him was retroactive in violation of
Ohio Constitution, Article II, Section 28, and amounted to an unconstitutional taking of
his property. Neither of these arguments implicates the Ex Post Facto Clause.
5 Both of the cited cases applied Fed.R.Civ.P. 56(d)(1) as it existed prior to the 2009 amendments to
Fed.R.Civ.P. 56. There are substantial similarities between former Fed.R.Civ.P. 56(d)(1) and Civ.R. 56(D).
We cite to the federal case law interpreting former Fed.R.Civ.P. 56(d)(1) because we find it instructive in
interpreting Civ.R. 56(D). See Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 18 (when the
language of a federal rule of civil procedure tracks the language of an Ohio rule of civil procedure, case law
interpreting the federal rule is persuasive authority).
No. 14AP-1026 13
{¶ 43} Failure to raise in the trial court the issue of the constitutionality of a statute
or its application, when the issue was apparent at the time of trial, constitutes a waiver of
the issue. State v. Awan, 22 Ohio St.3d 120 (1986), syllabus; accord State v. Pigot, 10th
Dist. No. 06AP-343, 2007-Ohio-141, ¶ 6 (holding that the appellant waived the argument
that the trial court subjected him to an ex post facto law when he did not raise that
argument before the trial court). Such waived issues need not be heard for the first time
on appeal. Awan at syllabus. Since Phillips did not raise his ex post facto argument in the
trial court, he waived it, and we need not address it.
{¶ 44} Notwithstanding Phillips' waiver, we find the ex post facto argument
unpersuasive. "The ex post facto prohibition forbids the Congress and the States to enact
any law 'which imposes a punishment for an act which was not punishable at the time it
was committed; or imposes additional punishment to that then prescribed.' " Weaver v.
Graham, 450 U.S. 24, 28 (1981), quoting Cummings v. Missouri, 71 U.S. 277, 325-26
(1866). In order for a statute to violate the Ex Post Facto Clause, "it must be retrospective,
that is, it must apply to events occurring before its enactment." Weaver at 29. As we
concluded above, R.C. 2950.034 does not apply retrospectively to Phillips. Consequently,
no violation of the Ex Post Facto Clause has occurred. We thus overrule Phillips' fourth
assignment of error.
{¶ 45} By Phillips' fifth assignment of error, he argues that the trial court erred in
finding that his willful violation of the residency restrictions relieved the court of the
obligation to balance the equities involved before granting an injunction. We conclude
that this argument is not a sufficient basis on which to reverse the trial court's judgment.
{¶ 46} Traditionally, a permanent injunction provides equitable relief upon a
showing of immediate and irreparable injury to the complaining party and the lack of an
adequate remedy at law. Franklin Cty. Dist. Bd. of Health v. Paxson, 152 Ohio App.3d
193, 2003-Ohio-1331, ¶ 25 (10th Dist.). In determining whether to grant such an
injunction, a court must engage in "a balancing process designed to weigh the equities
between the parties." Id.{¶ 47} Here, the trial court concluded that it did not have to weigh the equities
involved for two reasons: (1) Phillips' violation of the residency restrictions was willful
and (2) the prosecuting attorney sought an injunction as a statutory—not equitable—
remedy, and no balancing of equities is necessary before the grant of a statutory
No. 14AP-1026 14
injunction; such injunctions issue upon a showing of the statutory requirements. To
secure a reversal on the basis that the court erred in deciding that it did not have to weigh
the equities, Phillips has to negate both reasons underlying that decision. However, in his
assignment of error, Phillips does not contest the second reason the trial court offered for
refusing to weigh the equities. Consequently, even if the first reason constitutes error, the
trial court's decision remains supported by the second reason. Because the second reason
stands unchallenged, we cannot find error in the trial court's decision to not weigh the
equities. Accordingly, we overrule Phillips' fifth assignment of error.
{¶ 48} For the foregoing reasons, we overrule each of Phillips' five assignments of
error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and HORTON, J., concur.