State ex rel. McCarley v. Dept. of Rehab. & Corr.

[Cite as State ex rel. McCarley v. Dept. of Rehab. & Corr., 2022-Ohio-3397.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Willard McCarley, :
Relator, :
No. 20AP-337
v. :
(REGULAR CALENDAR)
Department of Rehabilitation and :
Correction,
:
Respondent.
:
D E C I S I O N
Rendered on September 27, 2022
Willard McCarley, pro se.
Dave Yost, Attorney General, and John H. Bates.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Willard McCarley, requests this court issue a writ of mandamus
ordering respondent, Ohio Department of Rehabilitation and Correction ("ODRC"), to
respond to relator's public records request.
{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53(D) and Loc.R.
13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision,
including findings of fact and conclusions of law, recommending this court issue a writ of
mandamus ordering ODRC to furnish unredacted copies of the documents requested by
relator that previously had been redacted or withheld based on R.C. 5120.21(F) as records
of inmates concerning relator. The magistrate further recommended this court deny
No. 20AP-337 2
relator's request for statutory damages because his public records request was transmitted
by ordinary mail, rather than one of the methods specified in R.C. 149.43(C)(2).
{¶ 3} ODRC has filed an objection to the magistrate's decision. Therefore, we must
independently review the decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). We
"may adopt or reject a magistrate's decision in whole or in part, with or without
modification." Civ.R. 53(D)(4)(b).
{¶ 4} In its objection, ODRC asserts the magistrate erred by applying this court's
decision in State ex rel. Hill v. Campbell, 10th Dist. No. 20AP-510, 2022-Ohio-354, to
conclude that the records relator sought were not exempted from disclosure under the
Public Records Act pursuant to R.C. 149.43(A)(1)(v) and 5120.21(F). ODRC argues the
Supreme Court of Ohio adopted a broad interpretation of R.C. 5120.21(F) in State ex rel.
Hogan Lovells U.S., L.L.P v. Ohio Dept. of Rehab. & Corr., 165 Ohio St.3d 368, 2021-Ohio-
1762, that would exempt the records relator seeks from disclosure under the Public Records
Act. ODRC asserts Hill is limited to the particular facts of that case and should not have
been applied to relator's request for a writ of mandamus.
{¶ 5} Ohio's Public Records Act, R.C. 149.43, "mandates access to public records
upon request unless the requested records are specifically excepted from disclosure." State
ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d
166, 170 (2000). Public records are defined as "records kept by any public office."
R.C. 149.43(A)(1). The Public Records Act provides an extensive list of exclusions defining
records that are not "public records," including "[r]ecords the release of which is prohibited
by state or federal law." R.C. 149.43(A)(1)(v). "Exceptions to disclosure under the Public
Records Act are strictly construed against the public-records custodian, and the custodian
has the burden to establish the applicability of an exception." State ex rel. Miller v. Ohio
State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 23.
{¶ 6} In this case, relator sought emails from specified individuals concerning
relator during specified timeframes. ODRC asserts the emails relator sought were excluded
from the definition of public records under R.C. 5120.21(F), which provides that "[e]xcept
as otherwise provided in [R.C. 5120.21(C)], records of inmates committed to the
No. 20AP-337 3
department of rehabilitation and correction * * * shall not be considered public records as
defined in [R.C. 149.43]."
{¶ 7} R.C. 5120.21 generally relates to records that must be maintained by ODRC.
Under R.C. 5120.21(A), ODRC must keep "a record showing the name, residence, sex, age,
nativity, occupation, condition, and date of entrance or commitment of every inmate in the
several institutions governed by it." R.C. 5120.21(B) provides that the managing officer of
an institution must make a special report to ODRC within 24 hours of "an accident or injury
or peculiar death of an inmate." R.C. 5120.21(C) relates to inmate medical records.
R.C. 5120.21(D) specifies certain records that ODRC must keep confidential.
R.C. 5120.21(E) provides that ODRC may release inmate records to the Ohio Department
of Youth Services or a court of record and that such records shall not be considered public
records under R.C. 149.43. R.C. 5120.21(F) provides that "records of inmates" are not
considered public records.
{¶ 8} In Hogan Lovells, a law firm requested public records relating to ODRC's
plans for carrying out executions by lethal injection. Hogan Lovells at ¶ 5. ODRC provided
records in response to the request but withheld certain documents that related to activities
conducted at a time when ODRC was preparing for the anticipated execution of a particular
individual. Id. at ¶ 32. ODRC asserted those documents were exempt from the Public
Records Act as "records of inmates" under R.C. 5120.21(F). Id. at ¶ 35. Analyzing the term
"records of inmates," the lead opinion in Hogan Lovells concluded that R.C. 5120.21(F)
"broadly exempted records that relate or refer to inmates."1 Id. at ¶ 36. The court denied a
writ of mandamus, concluding the withheld records were records that related or referred
to an inmate "because they provide specific information about [the inmate], document the
activities that [O]DRC undertook in preparing to execute him, and refer to facts,
circumstances, or activities specifically related to [the inmate]." Id. at ¶ 41.
{¶ 9} Less than a year after Hogan Lovells, this court decided Hill, in which an
inmate requested copies of electronic communications he sent to a parole officer and the
1 As the Supreme Court later noted, the per curiam lead opinion in Hogan Lovells was a plurality opinion
joined by three justices. State ex rel. Mobley v. Ohio Dept. of Rehab. & Corr., __Ohio St.3d__, 2022-Ohio-
1765, ¶ 14. One justice concurred in judgment only in Hogan Lovells and three other justices concurred in
part and dissented in part, dissenting from the lead opinion's broad interpretation of R.C. 5120.21(F). Hogan
Lovells at ¶ 52-82 (Kennedy, J., dissenting.).
No. 20AP-337 4
disposition of those communications, and copies of any judgment entries, sentencing
entries, or documents regarding sex offenses of which he had been convicted. Hill at ¶ 5.
We concluded the case was distinguishable from Hogan Lovells because the inmate sought
records related to himself that formed the basis for denial of his eligibility for transitional
control. Id. at ¶ 9. We granted a writ of mandamus remanding the matter to ODRC to
research the "resource material" upon which the inmate was deemed ineligible for
transitional control and noted that if such resource material existed, the inmate had a clear
legal right to it. Id. at ¶ 17.
{¶ 10} In the present case, following an in camera review of the withheld records,
the magistrate concluded that pursuant to Hill it was inappropriate to redact or withhold
records relating solely to relator on the basis that they were records of inmates under
R.C. 5120.21(F).
{¶ 11} After the magistrate's decision in this case, the Supreme Court decided State
ex rel. Mobley v. Ohio Dept. of Rehab. & Corr., __Ohio St.3d__, 2022-Ohio-1765. In
Mobley, an inmate submitted public records requests for a copy of his "inmate master file"
and "copies of 'all kites, informal complaints, grievances, and appeals' filed by him through
the institution's electronic-kite system." Id. at ¶ 2, 3. ODRC asserted the records he sought
were exempt from disclosure because they were records of inmates under R.C. 5120.21(F).
Id. at ¶ 5. ODRC argued the inmate master file contained highly sensitive records and that
even though the inmate sought records that only related to himself, they were not public
records pursuant to R.C. 5120.21(F). Id. at ¶ 15. Although the Supreme Court did not
expressly overrule Hogan Lovells, it noted that case was "not binding precedent" because
only three members of the court joined the lead opinion. Id. at ¶ 16. The court effectively
rejected the broad holding in Hogan Lovells and "decline[d] to adopt a categorical rule that
all records that somehow relate to an inmate are exempt from public-records disclosure
under R.C. 5120.21(F)." Id. The court reasoned that, reading R.C. 5120.21(F) in the context
of the entire statute, "the term 'records of inmates' in R.C. 5120.21(F) logically refers to the
records mentioned elsewhere in R.C. 5120.21, clarifying that such records are not public
records." Id. at ¶ 22. Based on this reading of the statute, the court concluded the records
sought in Mobley did not fall under any of the categories of "records of inmates" identified
in R.C. 5120.21 and were subject to disclosure as public records. Id. at ¶ 23-26. See also
No. 20AP-337 5
State ex rel. Suggs v. McConahay, __Ohio St.3d__, 2022-Ohio-2147, ¶ 10-11 (following
Mobley); State ex rel. Reese v. Ohio Dept. of Rehab. & Corr. Legal Dept., __Ohio St.3d__,
2022-Ohio-2105, ¶ 22-23 (following Mobley).
{¶ 12} Consistent with our decision in Hill and the subsequent Supreme Court
decision in Mobley, in this case the magistrate correctly concluded that the documents
relator sought were not exempt from the Public Records Act solely on the basis that they
were records of inmates under R.C. 5120.21(F) pertaining to relator. ODRC argues the
majority of the records sought by relator are exempt from disclosure under other provisions
of R.C. 5120.21 or 149.43.2 Our conclusion that relator is entitled to the records he seeks is
limited to records that were redacted or withheld on grounds that they were "records of
inmates" under R.C. 5120.21(F) concerning relator. To the extent the documents requested
by relator contain information that is exempt from disclosure on other grounds, ODRC may
continue to redact or withhold the exempt documents or portions of documents. See
Mobley at ¶ 26 ("[T]o the extent that a kite might contain information that is exempt from
disclosure, those portions can be redacted."). Accordingly, we overrule ODRC's objection.
{¶ 13} Following an independent review of the magistrate's decision and the
objection filed by ODRC, we overrule ODRC's objection. We adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained therein.
For the reasons set forth herein, we issue a writ of mandamus ordering ODRC to produce
unredacted copies of institutional records, emails, communications, and other documents
as defined in relator's public records request where the redactions or retentions were based
on R.C. 5120.21(F) as "records of inmates" related to relator. As explained in the
magistrate's decision, adopted by this court, ODRC may continue to withhold or redact
records that are not public records under other exceptions to the Public Records Act or
constitute "records of inmates" under R.C. 5120.21(F) related to individuals other than
2In support of its objection, ODRC argues for the first time that the records relator sought could be withheld
under Ohio Adm.Code 5120-9-49(F), which provides in relevant part that "[i]n addition to denials justified by
exceptions to the Public Records Act, the department may deny a request in the extreme circumstance where
compliance would unreasonably interfere with the discharge of the department's duties." This argument is
waived because ODRC failed to assert it before the magistrate and raises it for the first time in support of its
objection to the magistrate's decision. See State ex rel. McNew v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 20AP-404, 2022-Ohio-1859, ¶ 7 ("This court has held that an argument is waived when it is not asserted
before a magistrate and is raised for the first time in objections to the magistrate's decision.").
No. 20AP-337 6
relator. Although we grant the writ of mandamus, for the reasons set forth in the
magistrate's decision, we deny relator's request for statutory damages.
Objection overruled;
writ of mandamus granted;
statutory damages denied.
LUPER SCHUSTER, and MENTEL, JJ., concur.
_____________
No. 20AP-337 7
A P P E N D I X
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Willard McCarley, :
Relator, :
v. : No. 20AP-337
Department of Rehabilitation : (REGULAR CALENDAR)
and Correction,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on April 21, 2022
Willard McCarley, pro se.
Dave Yost, Attorney General, Mark W. Altier, for respondent.
IN MANDAMUS
{¶ 14} Relator, Willard McCarley, filed this original action requesting a writ of
mandamus from this court ordering respondent, Ohio Department of Rehabilitation and
Correction ("ODRC"), to comply with his public records request made under R.C. 149.43.
Relator also seeks statutory damages based on respondent's delay in complying with the
public records request.
No. 20AP-337 8
Findings of Fact:
{¶ 15} 1. Relator filed his complaint for writ of mandamus on June 30, 2020. At the
time of filing, relator was an inmate in the custody of respondent at Marion Correctional
Institution ("MCI").
{¶ 16} 2. The complaint alleges that on or about December 31, 2019 relator mailed
a public records request by ordinary U.S. Mail addressed to ODRC's administrative offices
in Columbus, Ohio. A copy of the request attached to relator's complaint demonstrates that
relator requested the following records:
Re: Public Records Request
Dear Legal Department
Please provide me the following public records:
August of 2015 through September of 2015
The following E-Mails involving this inmate at GCI
[One] Inspector Ms. Grundzian
[Two] Investigator Ms. Wieshire
[Three] PREA Representative Ms. Gardenshire
[Four] C/O Morgan
[Five] OHP Officer Daily
April of 2018 through June of 2019
[One] Investigator Mr. Wieshire
[Two] PREA Representative Ms. Fitzgerald
[Three] Inspector Ms. Grudzian
[Four] Deputy Warden Galice
[Five] Case Manager Mr. Adams
[Six] HCA Nurse Hannah
{¶ 17} 3. Relator received a letter dated January 27, 2020 from Sarah E. Pierce,
Staff Counsel for ODRC, confirming receipt of the public records request and promising a
response within a reasonable amount of time.
{¶ 18} 4. Relator having received no further response to his public records request,
he commenced this original action in mandamus. ODRC then moved to dismiss the
No. 20AP-337 9
complaint asserting that the action was moot because ODRC, after commencement of the
mandamus action, had supplied relator with the requested public records. The magistrate
converted the motion to dismiss to a motion for summary judgment because the motion to
dismiss relied on evidence outside the complaint.
{¶ 19} 5. In support of summary judgment, ODRC relied on two affidavits sworn by
Sarah Pierce. The first affidavit, dated August 5, 2020, attested that Pierce is responsible
for overseeing public record requests for ODRC, that she was familiar with relator's public
records request, and that "as of August 5, 2020, ODRC has provided Relator with the
requested records, totaling approximately 300 pages, at no cost." Pierce's second affidavit
dated August 27, 2020, specified that the August 5, 2020 response to relator's request was
furnished via U.S. Mail. The affidavit then attested that, in response to relator's assertion
of non-receipt, Pierce provided relator with the following information:
[Five] As of August 5, 2020, ODRC mailed the requested
records via the United States Postal Service, totaling
approximately 300 pages, at no cost. I do not have personal
knowledge about whether Relator has received the records by
mail or not.
[Six] In response to Relator's claim, however, ODRC has
ensured that Relator received the records. I directed staff at
the Marion Correctional Institution (MCI) to hand-deliver the
records I describe in paragraph 5 to Relator, along with the
enclosure letter I mailed with those records. On august 26,
2020, I received confirmation from MCI staff that the records
and letter had been hand-delivered to Relator.
{¶ 20} 6. Relator opposed summary judgment with an affidavit and copies of
several e-mails furnished by ODRC in response to the public records request and containing
extensive redactions.
{¶ 21} 7. By order dated October 16, 2020, the magistrate denied ODRC's motion
for summary judgment and granted relator's request that the magistrate examine
No. 20AP-337 10
unredacted copies of the e-mails in question to determine whether ODRC had correctly
relied upon various statutory exceptions to the Public Records Act.
{¶ 22} 8. ODRC has supplied for in camera review by the magistrate 210 pages of
responsive documents concerning relator's inmate grievances and other conditions of
incarceration, with redactions appropriately marked to reflect material omitted from copies
given to relator.
{¶ 23} 9. Relator submitted his certified evidence consisting of ODRC's response to
admissions pursuant to Civ.R. 36 admitting the accuracy of the institutional legal mail log
reflecting relator's mailing of a public records request. Relator also presents the affidavit
of a fellow inmate, Steven A. Bozsik, attesting that Bozsik had made a comparable public
records request with ODRC and received unredacted copies of e-mails and records similar
to those requested by relator.
Discussion and Conclusions of Law:
{¶ 24} The Supreme Court of Ohio has set forth three requirements to be met to
establish a right to a writ of mandamus: (1) the relator must establish a clear legal right to
the relief prayed for; (2) the respondent must have a clear legal duty to perform the act
requested; and (3) the relator must lack a plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 25} This court has jurisdiction and is a suitable venue for an original action in
mandamus pursuant to the Ohio Constitution, Article 4, Section 3(B)(1)(b), R.C. 2731.02
and 149.43(C)(1)(b). The latter section establishes that the appropriate remedy to compel
compliance with Ohio's Public Records Act is mandamus. State ex rel. Physicians Commt.
for Responsible Medicine v. Bd. of Trustees of Ohio State Univ., 108 Ohio St.3d 288,
2006-Ohio-903.
No. 20AP-337 11
{¶ 26} The purpose of the Ohio Public Records Act "is to expose government activity
to public scrutiny, which is absolutely essential to the proper working of a democracy."
State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 264 (1997).
Scrutiny of public records allows citizens of the state to evaluate the rationale behind
government decisions and hold government officials accountable. White v. Clinton Cty.
Bd. of Commrs., 76 Ohio St.3d 416 (1996). R.C. 149.43 must be construed liberally in favor
of broad access, and any doubt must be resolved in favor of disclosure of public records.
State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374 (1996).
{¶ 27} Provision of the requested records to a relator in a public records mandamus
case renders most aspects of the mandamus complaint moot. State ex rel. Cranford v.
Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, ¶ 23. However, because R.C. 149.43(C)(1)
provides for an award of statutory damages for undue delay even if the records are
eventually provided, this aspect of a mandamus action may not be rendered moot simply
because the respondent has provided the relator with the requested materials. State ex rel.
McCray v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 10th Dist. No. 11AP-1055,
2012-Ohio-2997.
{¶ 28} The present case presents three issues for sequential determination: (1) Has
ODRC provided a complete response to relator's public records request, (2) was that
response timely, and if not, (3) is relator entitled to statutory damages?
{¶ 29} The first question requires review of the redacted materials to determine
whether ODRC has correctly invoked exceptions and exemptions found in the Public
Records Act to redact materials in the response. The burden of establishing the
applicability of an exception to the Public Records Act resides with the public office
No. 20AP-337 12
asserting it. State ex rel. Rogers v. Ohio Dept. of Rehab. and Corr., 155 Ohio St.3d 545,
2018-Ohio-5111.
{¶ 30} The exception claimed by ODRC does not expressly lie within the extensive
list of exemptions, exceptions, and definitions of non-public records found in the Public
Records Act itself. Rather, the Act contains a catch-all provision exempting records "the
release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). ODRC relies
on this section, coupled with R.C. 5120.21(F), which provides that "[e]xcept as otherwise
provided in division (C) of this section, records of inmates committed to the department of
rehabilitation and correction as well as records of persons under the supervision of the
adult parole authority shall not be considered public records as defined in section 149.43 of
the Revised Code." ODRC asserts that this applies not only to relator's obtention of records
of other inmates, but relator's access to his own records and communications between
prison officials addressing relator and his conditions of incarceration. ODRC relies on a
decision of the Ohio Court of Claims, Bello v. Ohio Dept. of Rehab. and Corr., Ct. of Cl. No.
2020-00129PQ, 2020-Ohio-4559, which adopted a broad interpretation of R.C. 5120.21(F)
to exclude the requestor's access to audio tapes of hearings of institutional misconduct
panels.
{¶ 31} This court, however, in State ex rel. Hill v. Campbell, 10th Dist. No. 20AP-
510, 2022-Ohio-354, held that R.C. 5120.21(F) would not apply to situations in which the
requestor was an inmate and the records sought related to the requestor himself. The
discussion in Hill begins with an acknowledgment that the Supreme Court of Ohio, in State
ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. and Corr., 165 Ohio St.3d 368,
2021-Ohio-1762, recognized the broad exception found in R.C. 5120.21(F):
No. 20AP-337 13
In Hogan Lovells, the Supreme Court of Ohio held that
"[b]ecause the definitions of 'records' and 'inmates' are not in
question, the meaning of 'records of inmates' turns on 'of,' a
word of many uses. * * * Here, 'of' simply means 'relating to,'
'with reference to,' or 'about.' * * * So in looking at
R.C. 5120.21(F) alone, it is evident that the General Assembly
broadly exempted records that relate or refer to inmates." Id.
at ¶ 36, quoting Webster's Third New International
Dictionary 1565 (1993). The court went on to state
specifically, however, that "[t]he question before this court is
whether the records [O]DRC withheld in response to request
No. 16 are records that relate or refer to an inmate. We hold
that the withheld records fit within that definition because
they provide specific information about [inmate] Henness,
document the activities that [O]DRC undertook in preparing
to execute him, and refer to facts, circumstances, or activities
specifically related to [inmate] Henness." Id. at ¶ 41.
Hill at ¶ 8.
{¶ 32} This court's decision in Hill, however, found an important distinction when
the inmate is requesting his own records:
We distinguish the facts in Hogan Lovells from the facts in
this case. In Hogan Lovells, Hogan Lovells, a law firm, sought
records of the lethal injection of a particular inmate. Here, the
records which Hill seeks: (1) relate to himself, and (2) are the
basis of the Ohio Adult Parole Authority's ("OAPA") denial of
his eligibility for Transitional Control. Specifically, Hill seeks
"judgment entries, sentencing entries, and/or documents"
regarding any sex or arson offenses of which Hill has been
convicted as either a juvenile or an adult. (Compl. at ¶ 20.) Hill
denies that he has ever been convicted of a sex or arson
offense. To apply the holding in Hogan Lovells regarding the
definition of records of inmates to this case prevents Hill from
researching, verifying, and objecting to the OAPA's denial of
his eligibility on these grounds.
Id. at ¶ 9.
{¶ 33} It is apparent that the vast majority of the redactions made in response to
relator's public records request rely on R.C. 5120.21(F) to define inmate records as not
available through a public records request. In fact, ODRC advances no other argument for
No. 20AP-337 14
exempting documents or redacting portions of documents. Pursuant to Hill, redaction or
retention of records pertaining solely to relator on this basis is not appropriate.
{¶ 34} The magistrate therefore concludes that a writ must issue pursuant to which
ODRC will furnish to relator unredacted copies of institutional records, e-mails,
communications, and other documents as defined in relator's public records request, where
redactions and retentions were based upon R.C. 5120.21(F) as applied to inmate records
concerning relator. ODRC may continue to withhold or redact records that are either (1)
not public pursuant to other exceptions found in Ohio's Public Records Act or (2) disclose
inmate information about inmates other than relator pursuant to R.C. 5120.21(F).
{¶ 35} Relator also seeks statutory damages in this matter pursuant to
R.C. 149.43(C). That section provides that, if the court determines the public office
responsible for the requested records has failed to comply with an obligation of the Public
Records Act, the requestor may recover statutory damages. The section further provides
however, that damages are awardable only "[i]f a requester transmits a written request by
hand delivery, electronic submission, or certified mail." R.C. 149.43(C)(2)3. Relator's
complaint and affidavit make clear that his request was transmitted by United States
Ordinary Mail. Relator has also attached to his pleading a photocopy of an envelope
indicating that this was the means of delivery of his public records request. Statutory
damages therefore are not awardable. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394,
2019-Ohio-1216.
{¶ 36} It is therefore the decision and recommendation of the magistrate that a writ
issue ordering production of the documents in response to relator's public records request
3 Non-substantive amendments to this section will take effect April 29, 2022, enacted by 2022 HB 93.
No. 20AP-337 15
as described above, but that no statutory damages may be awarded in this matter despite
ODRC's failure to fully and promptly comply with its statutory obligation under the Public
Records Act.
/S/ MAGISTRATE
MARTIN L. DAVIS
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).