End the Noise Inc. v. Kirtland Country Club Co.

[Cite as End the Noise Inc. v. Kirtland Country Club Co., 2021-Ohio-3474.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
END THE NOISE INC., CASE NO. 2020-L-107
Plaintiff-Appellant/
Cross-Appellee, Civil Appeal from the
Court of Common Pleas
-v-
KIRTLAND COUNTRY CLUB Trial Court No. 2019 CV 000504
COMPANY, et al.,
Defendants-Appellees/
Cross-Appellants,
CITY OF WILLOUGHBY, et al.,
Defendants-Appellees.
OPINION
Decided: September 30, 2021
Judgment: Affirmed
David L. Harvey, III, and Matthew B. Abens, Harvey + Abens Co., LPA, 19250 Bagley
Road, Suite 102, Middleburg Heights, OH 44130 (For Plaintiff-Appellant/Cross-
Appellee).
Karen Soehnlen McQueen, John P. O’Neil, and James M. Williams, Krugliak, Wilkins,
Griffiths & Dougherty Co., LPA, 4775 Munson Street, N.W., Canton, OH 44718 (For
Defendants-Appellees/Cross-Appellants).
Michael C. Lucas, City of Willoughby Law Director, One Public Square, Willoughby, OH
44094 (For Defendants-Appellees).
MATT LYNCH, J.
{¶1} Plaintiff-appellant/cross-appellee, End the Noise Inc., appeals from the
decision of the Lake County Court of Common Pleas, granting summary judgment in favor
of defendants-appellees/cross-appellants, Kirtland Country Club and Kirtland Country
Club Company, and defendants-appellees, the City of Willoughby and Chief Building
Inspector Darryl Keller. For the following reasons, we affirm the decision of the lower
court.
{¶2} On March 25, 2019, ETN filed a Complaint against KCC, KCCC,
Willoughby, and Keller. The Complaint alleged that skeet shooting operations being
conducted at the Kirtland Country Club were not in compliance with the terms of a 2015
Conditional Use Permit. The Complaint requested a declaratory judgment and
preliminary and permanent injunctive relief and sought, inter alia, that the court declare
KCC and KCCC had violated the Conditional Use Permit and award injunctive relief
requiring Willoughby to enforce the terms of the CUP and the city’s zoning laws.
{¶3} KCC and KCCC filed a Motion to Dismiss on April 26, 2019. Therein, they
sought dismissal on the grounds that ETN lacked standing as it failed to plead facts
showing a particularized injury or that the club caused injuries. It further alleged that ETN
failed to state a claim upon which relief may be granted pursuant to Civ.R. 12(B)(6). ETN
filed a brief in opposition on May 13, 2019.
{¶4} Willoughby and Keller filed an Answer on April 30, 2019.
{¶5} The trial court issued an Opinion and Judgment Entry on July 15, 2019,
denying the Motion to Dismiss. KCC and KCCC subsequently filed their answer.
2
Case No. 2020-L-107
{¶6} On November 15, 2019, ETN filed a Motion for Preliminary and Permanent
Mandatory Injunction.
{¶7} KCC and KCCC filed a Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, on March 6, 2020. As grounds to dismiss, they cited a section of
the Ohio Revised Code that had gone into effect two months prior, R.C. 9.68, for the
proposition that it preempted any local firearm regulations. As to summary judgment,
they argued that they complied with all of the conditions of the CUP.
{¶8} ETN filed a Motion for Summary Judgment on March 31, 2020, arguing that
KCC was not the proper CUP holder and the club did not comply with the terms of the
CUP by allowing trapshooting and because the skeet range is not properly oriented.
{¶9} Willoughby and Keller filed a Motion for Summary Judgment on April 1,
2020, arguing that the terms of the CUP were not being violated.
{¶10} The following evidence was presented through the summary judgment
motions:
{¶11} Mark Petzing, the general manager and Chief Operating Officer for the
Kirtland Country Club, described that KCCC owns the property where the club is located
and is a registered corporation but the letterhead, checks, and some permits are in the
name of “Kirtland Country Club.” KCC is not registered as a dba, doing business on
behalf of KCCC, and does not file separate tax returns or have a separate board of
directors.
{¶12} Petzing testified that in 2014, there were discussions within the club to offer
skeet shooting as an activity to members. Arthur Baldwin, a past club president,
3
Case No. 2020-L-107
discussed this matter with the mayor of Willoughby. Trial shoots were conducted in early
2015 with city officials present. One such shoot took place in the area where the range
is currently located. An email from mayor David Anderson, who was present during the
second shoot, stated that the site “by the tennis courts shooting towards Kirtland” was
“the only site that I could support.”
{¶13} Baldwin submitted an application for a Conditional Use Permit dated June
19, 2015, which stated the request was made on behalf of “Kirtland Country Club,” also
noted to be the property owner. The application proposed use of the property for the
“operation of a seasonal skeet range.” Included were a photo showing the proposed area
for the skeet range with the location of the test shootings and “anticipated extent of the
shot patterns” and photos showing the distance of the range to nearby residential
developments. It also included an illustration of the skeet range with shooter stations and
the general location of a high and low house, buildings used to launch clay pigeons or
targets for shooting, and a “skeet field definitive drawing” which showed the size and
general orientation of the skeet field placed over an image of the area where it would be
located. Also included were notes on a shooting sound test conducted by HzW
Environmental Consultants, stating the sound level at various locations.
{¶14} Pursuant to the meeting minutes of the Willoughby Planning Commission’s
July 9, 2015 hearing, Baldwin represented that there would be a high and a low “tower”
and eight stations for shooting. Commission members questioned him about noise
abatement and inquired about plans of the specific range location. Meeting minutes from
July 23, 2015, stated that a representative from HzW appeared and discussed a sound
4
Case No. 2020-L-107
study conducted at three locations. The meeting minutes listed “conditions agreed on,”
which are substantially similar to those contained in the approved CUP.
{¶15} On October 26, 2015, a letter was sent to Baldwin and KCC approving the
request for the CUP. The CUP was granted to “Kirtland Country Club,” listed the address,
and stated that the permit “is to be used for: SEASONAL SKEET RANGE” subject to the
following conditions:
1. Hours of operation:
10:00 a.m. until 4:00 p.m. – Saturdays.
12:00 noon until 4:00 p.m. – Sundays.
2. The skeet shooting season shall be November 1 through March 31.
3. The shotgun sizes permitted are: 12-gauge, 20-gauge, 28-guage and
possibly others. Nothing is permitted higher than 12-gauge.
4. Skeet shells shall be used.
5. The skeet range location is where the star is located on the Google aerial
printout that is part of the HZW Environmental report of the findings of the
sound level meter testing depicting the Kirtland Country Club’s skeet
shooting range.
6. The skeet shooting shall be reviewed after the end of the first season.
7. A berm will be installed around the rear perimeter on the north side that
will direct noise south toward Kirtland and away from Tudors Estate.
It provided that violation of these conditions shall be grounds for revocation or suspension
of the permit.
{¶16} Petzing testified that after the issuance of the CUP, club members were
able to conduct skeet shooting subject to member rules and were permitted to purchase
or bring their own ammunition and rent firearms. In response to an inquiry as to whether
trap or skeet shooting was being conducted, Petzing testified that he believed skeet and
trapshooting are “kind of one in the same, really. I think skeet is defined as trapshooting
in which birds are * * * thrown to mimic birds of flight.” He continued: “We don’t – I mean,
5
Case No. 2020-L-107
I guess it’s kind of like different, you know, everything we kind of considered as skeet”
and stated they do not have a “formalized trap field.” He noted that they have “trap
houses” on the skeet field and explained his belief that it is industry standard for clays to
be thrown from trap houses for skeet shooting. Various documents were presented which
showed the club made references to “trap” or “trap events”, including: August 19, 2015
meeting minutes of the Board of Directors, wherein the president discussed that the “goal
is to begin to shoot this fall beginning with trap”; a November 2015 job description for the
Kirtland range manager, whose duties included overseeing a “trap range/skeet field and
a 5 stand course”; Trap and Skeet Committee Meeting Minutes with a 2018/2019
schedule including a February 23 “Trap 50” event; a December 11, 2018 email
referencing an “Annie Oakley Tournament – Wobble Trap Targets – 1st time EVER!,” and
a February 27, 2019 email to club members discussing a “fun shoot” with “one round of
skeet and one round of trap.” Petzing testified that these events were a different version
of shooting skeet, described one as a “modified trap event,” and explained that they use
“trap as different vernacular because you’re still shooting in multiple different directions,
but we don’t have an actual trap field.”
{¶17} The affidavit and expert report of Paul Taylor were provided regarding the
type of shooting being conducted at the club. Taylor cited as his expertise, inter alia, his
39-year history as a skeet shooter and positions as president of skeet ranges. He
described that the “word ‘skeet’ is used widely as a generic term to describe/represent
the shooting of moving clay targets.” He cited to the Merriam-Webster dictionary defining
6
Case No. 2020-L-107
skeet as “trapshooting in which clay pigeons are thrown.”1 He concluded that: “Per the
Kirtland Country Club Conditional Use Permit, they have unequivocally constructed a
‘textbook’ skeet range.” He explained that: “In accordance with the basic fundamentals
of skeet, the clay targets are thrown from a number of different configurations from the
range.” Taylor concluded the following: “My inspection of the range and review of the
above materials, along with my background, training and experience, clearly establish in
my opinion that the Kirtland Country Club fully complied with the terms of the Conditional
Use Permit. The organization and management of the Kirtland Country Club’s skeet
range, as well as the high degree of oversight by seasoned range officers, are exemplary.”
{¶18} Regarding the skeet shooting field or range, Petzing testified that the club
had cleared the area of trees to allow for shooting, built a shooting deck, and installed a
berm/mound that was 6 to 8 feet high and has been made larger over time. When
shooting began in 2015, the club had multiple mobile “throwers” in place to throw the clay
pigeons from various locations and shooters would fire in “different ways” depending upon
the direction of the clay pigeons.
{¶19} Around the fall of 2016, Petzing became aware of complaints from residents
in the area regarding the noise, contacted professionals about how to mitigate sound, and
the club lowered the range by digging to help with mitigation. Following a “work session”
1. Although ETN asserts that the CUP was violated due to the club conducting trapshooting in addition to
skeet shooting, there is little in the record to demonstrate a definition of trapshooting as opposed to skeet
shooting. As an exhibit to its reply in defense of its motion for preliminary injunction, ETN attached an
article from NRA Shooting Sports USA which describes skeet as a shooting sport in which two target
throwing houses throw clay targets meeting at a midpoint between the houses and trapshooting as a sport
where a single throwing machine shoots clay targets at a variety of angles on either side of a line between
the center of the trap and the center shooting station.
7
Case No. 2020-L-107
with the city, the club submitted an amended CUP, which included additional conditions
that the “skeet shooting platform will be pointed in an easterly direction” and to add a
shooting pavilion with mounding and recess. On October 20, 2016, the Planning
Commission of the City of Willoughby held a meeting to consider the amended CUP,
denied a motion to accept the amended CUP, and revoked the existing CUP. The club
filed an appeal with the Lake County Court of Common Pleas. In a March 2017 Judgment
Entry, the court held that the decision to revoke the CUP was not supported by the
preponderance of substantial, reliable and probative evidence and vacated the permit
revocation.
{¶20} Pursuant to April 2017 club meeting minutes, the club discussed making
improvements to the skeet shooting range. In September 2017, a proposal for a change
in the range was discussed, which would result in a 90-degree rotation in shooting
direction to the east. Petzing testified that this was not implemented, and stated that the
range faces southeast and has always faced in that direction. Petzing testified that the
club did not believe the CUP required orientation of the range in a specific direction. Gary
Sopnicar, a range safety officer at the Kirtland Country Club, stated in his affidavit that
the range was located where the star is on the Google printout which was part of a HzW
environmental report. He stated that a berm had been installed near the perimeter on the
north side to direct noise south away from the Tudors Estates and that the club has at all
times complied with the terms of the CUP. Taylor also confirmed the same location of
the range and the installation of the berm.
{¶21} Darryl Keller, the Chief Building and Zoning Inspector for the City of
8
Case No. 2020-L-107
Willoughby, stated in his affidavit that he was not aware of any violations of the CUP. He
had not seen any evidence of the assertion that trap rather than skeet shooting is done
at the club. As to construction of buildings on the skeet shooting site, he stated that a
permit would not be required to construct such buildings under the building code. He also
stated that “[t]he CUP does not require a particular orientation of the skeet range, only
that the skeet range location is where the star is located on the Google aerial printout.”
{¶22} On October 9, 2020, the court issued an Opinion and Judgment Entry. The
court found the motion to dismiss was untimely since it was filed seven months after
KCC’s answer but found the arguments contained therein would be addressed along with
its other summary judgment arguments. It denied ETN’s motion to strike the affidavit and
report of Taylor. It found that Taylor had specialized knowledge and experience in the
area of construction of a skeet shooting range, his affidavit did not contain impermissible
legal conclusions, and made conclusions useful in helping the fact-finder determine the
issues. Evid.R. 702.
{¶23} As to the application of R.C. 9.68, the court found KCC’s interpretation was
overbroad, noting that it did not render all regulation of firearms inapplicable. The court
found the CUP applicable to KCC, noting the evidence showed KCC and KCCC operated
as essentially the same entity. The court found that there was no evidence to
demonstrate any conditions of the CUP were violated and rejected the arguments that
the skeet range was not properly oriented and that trapshooting was impermissible,
finding no CUP provisions stating such requirements.
{¶24} We will first address ETN’s assignments of error:
9
Case No. 2020-L-107
{¶25} “[1.] The trial court erred in ruling that KCC is a valid holder of the CUP as
a matter of law.
{¶26} “[2.] The trial court erred in granting the Club’s [motion for] summary
judgment.
{¶27} “[3.] The trial court erred in denying Appellant’s motion to strike the Club’s
expert affidavit and report.
{¶28} “[4.] The trial court erred in granting the City and Keller summary judgment.”
{¶29} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated, (2)
“the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the
evidence * * * that reasonable minds can come to but one conclusion and that conclusion
is adverse to the party against whom the motion for summary judgment is made, that
party being entitled to have the evidence * * * construed most strongly in the party’s favor.”
{¶30} A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate court
to conduct an independent review of the evidence before the trial court without deference
to the trial court’s decision.” Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-
Ohio-5439, ¶ 27.
{¶31} In its first assignment of error, ETN argues that the court erred in rejecting
its contention that the CUP could not be held by KCC under Willoughby Codified
Ordinance 1109.05, and thus should be invalidated, because it is an unregistered
10
Case No. 2020-L-107
business entity.
{¶32} Pursuant to W.C.O. 1109.05(b): “The owner, or agent thereof, of property
for which such conditional use is proposed shall file with the Building and Zoning Inspector
an application for a conditional use permit accompanied by payment of the required fee
established by Council.” W.C.O. 1109.05(i) sets forth that the conditional use permit is
nonassignable, the “breach of any condition, safeguard or requirement shall automatically
invalidate the conditional use permit granted, and shall constitute a violation of the
Planning and Zoning Code” and such permit “shall be valid only to the applicant to whom
the permit is issued, unless a transfer of such permit has been approved by the Building
and Zoning Inspector.”
{¶33} As a preliminary matter, appellees argue that, regardless of the merits of
this claim, it is barred by the law of the case doctrine because, in a prior lawsuit and
administrative appeal before the Lake County Court of Common Pleas, “the trial court did
not rule Kirtland Country Club to be incapable of holding the CUP, or incapable of initiating
an action.”
{¶34} The law of the case doctrine provides that “the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio
St.3d 1, 3, 462 N.E.2d 410 (1984). This doctrine “is applicable only to proceedings in the
same case and does not limit the actions of a court in another case, even if that case has
a party in common with the other case.” Reid v. Cleveland Police Dept., 151 Ohio St.3d
243, 2017-Ohio-7527, 87 N.E.3d 1231, ¶ 9. In the present matter, the proceedings which
11
Case No. 2020-L-107
appellees argue are the law of the case took place in a separate matter in 2017 between
KCC and the Planning Commission and did not involve ETN. ETN was unable to argue
this point given it was not a party and appellees provide no support for the proposition
that the court’s judgment in the separate case is fairly applicable under these
circumstances. Further, a review of the court’s 2017 judgment shows that the issue of
the proper holder of the CUP was not raised and thus, even if the rule of the case doctrine
were applicable, this specific issue was not resolved.
{¶35} In the present matter, the application for the CUP was made by Baldwin on
behalf of “Kirtland Country Club.” The permit was issued to “Kirtland Country Club.” The
property upon which the club is located is owned by “Kirtland Country Club Company.”
While recognizing that this is a summary judgment proceeding, there does not appear to
be a particular dispute about the facts but, rather, a legal question about whether a permit
issued in the name of Kirtland Country Club is valid under the ordinance since, pursuant
to ETN’s argument, the owner of the property must be the holder of the permit. We agree
with the lower court’s finding that the CUP is valid as issued.
{¶36} Here, the permit is properly held by KCCC. The CUP and its terms were
specific to the property location owned by KCCC and significant review of the property
and the range location were conducted when issuing the permit. It is evident that all
parties referred to the entire entity as “Kirtland Country Club,” which includes the Kirtland
Country Club Company. The CUP application, subsequent meeting minutes, and the
letter accompanying the permit demonstrate that the name “Kirtland Country Club” was
used throughout the application process, although the permit was sought for use of the
12
Case No. 2020-L-107
property owned by KCCC. As was testified to by Petzing, without any contrary evidence
presented, the business essentially operated as though KCCC and KCC were considered
one and the same, with the KCC name being utilized in day-to-day business operations
such as writing checks and included on the letterhead. The permit application
proceedings were consistent with how the business operated. There is nothing to
evidence that the city intended to grant the permit to an entity other than the property
owner.
{¶37} There is no dispute that KCCC regularly does business under the name of
KCC. Its conduct constitutes operating under a “fictitious name,” i.e., “a name used in
business or trade that is fictitious and that the user has not registered or is not entitled to
register as a trade name.” R.C. 1329.01. “A corporation may use a name other than its
corporate name in the conduct of its business” and may conduct business under a
fictitious name. (Citation omitted.) Plain Dealer Publishing Co. v. Worrell, 178 Ohio
App.3d 1009, 2008-Ohio-4846, 898 N.E.2d 1009, ¶ 16 (9th Dist.); see LaMusga v. Summit
Square Rehab, LLC, 2017-Ohio-6907, 94 N.E.3d 1137, ¶ 27-28 (2d Dist.). The use of a
fictitious name in doing business has been found permissible to conduct various business
activities including executing contracts with parties, taking title to a property, and making
and receiving payments from entities such as clients and employees. Plain Dealer at ¶
13-17; Woods v. Marcano, 2018-Ohio-4324, 122 N.E.3d 633 (8th Dist.) (“a deed to a
fictitious name is really a deed to the person operating under the fictitious name”); see
LaMusga at ¶ 27-28. ETN fails to present any convincing argument as to how receiving
a permit in a fictitious name varies from those circumstances listed above, in particular,
13
Case No. 2020-L-107
from a contract. In both situations, the company or business using the fictitious name
agrees to comply with certain obligations to receive a benefit.
{¶38} While ETN takes exception in particular with the fact that KCC is not
registered with the Secretary of State as a fictitious entity doing business on behalf of
KCCC and asserts that it is a nonexistent separate entity that cannot hold a permit, we
do not find the lack of registration to be a bar to receiving a permit. It has been held that,
both in the context of fictitious and trade names, failure to register has the consequence
of preventing a person from commencing or maintaining an action under the fictitious or
trade name until it is registered, but does not prevent a business from conducting general
operations in the fictitious name. LaMusga at ¶ 27; Koudela v. Johnson & Johnson
Custom Builders, LLC, 11th Dist. Lake No. 2017-L-024, 2017-Ohio-9331, ¶ 14 (failure to
register a trade name related to maintaining an action in court and thus, the fact that the
trade name was not registered as “doing business as” did not prevent it from being used
to enter into a contract). Woods, supra, cited by ETN in favor of the foregoing argument,
held that the plaintiff had the right to operate under a fictitious name, take title to property,
and sue to enforce contracts entered in that name where the plaintiff had reported the
fictitious name to the Secretary of State. However, Woods is distinguishable on this
ground since it did not specifically address the outcome in a matter where the party had
not registered a fictitious name given that registration was not at issue. Further, to the
extent ETN cites Woods and Thomas v. Columbus, 39 Ohio App.3d 53, 528 N.E.2d 1274(10th Dist.1987), for the proposition that a conveyance requires a fictitious name to be
registered, a conveyance of property is distinguishable from a permit which allows parties
14
Case No. 2020-L-107
to use land for a particular purpose upon certain conditions, with similarities to entering a
contract as described above. Having to comply with certain terms to use a property in a
specific manner is not the same as entering into an agreement to sell real estate and is
subject to a process and laws that differ from executing a real estate transaction. Finally,
we emphasize that, as noted above, it is clear there was no confusion among the city as
to what entity the permit was being issued to and who would be operating the skeet
shooting range as KCC and KCCC essentially functioned as one entity. Since KCC is not
a separate entity, a permit in its name would still be applicable to KCCC.
{¶39} Further, consistent with the foregoing and even presuming the above
fictitious name analysis was not applicable, the failure to include the full name of a
business entity has not been found to invalidate legal obligations incurred by a business.
The fact that the application for the permit and the permit issued do not include the word
“company” does not prevent a determination that the permit applies to the property owned
by KCCC. As was held in Perk v. Tomorrows Home Solutions, L.L.C., 8th Dist. Cuyahoga
No. 104270, 2016-Ohio-7784, it is not required that a company like an LLC always use
this designation when entering into an agreement such as a contract, particularly where
the parties entering the agreement are evident. Id. at ¶ 10 (“the fact that THS did not use
the L.L.C. designation on its contract with Perk is not dispositive of the validity of the
contract between him and THS”). See also The Promotion Co., Inc./Special Events Div.
v. Sweeney, 150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117, ¶ 25 (7th Dist.).
While we recognize in this instance the parties did not enter into a contract but a permit
was granted, we find it is still instructive in that the failure to include “company” should not
15
Case No. 2020-L-107
be fatal under circumstances where it is clear what entity was being referenced.
{¶40} ETN’s first assignment of error is without merit.
{¶41} In the second assignment of error, ETN argues that the trial court erred in
concluding the club did not violate the CUP for several reasons.
{¶42} First, ETN contends that while the authorized conditional use under the
CUP was “skeet shooting,” the club conducted trapshooting which fell outside of that use,
violating the requirement in W.C.O. 1109.05(i) that a conditional use permit “shall be
deemed to authorize a particular conditional use on a specific parcel for which it was
approved.”
{¶43} We do not find that there was a genuine issue of fact created by ETN as to
its argument that “trap” shooting was not permissible under the permit. ETN did not
present evidence demonstrating the meaning of the term skeet shooting as included in
the permit or refute with evidence the defendants’ argument that it included trapshooting
activities. Taylor, an expert in the field, stated that the “word ‘skeet’ is used widely as a
generic term to describe/represent the shooting of moving clay targets.” There is no
question that trapshooting involves the shooting of moving clay targets, which, under
Taylor’s description, would fall under the permit’s allowance of skeet shooting. Keller, the
city inspector, also emphasized the definition of skeet as including clay targets thrown
from traps. Petzing testified as to the club’s belief that trap and skeet shooting included
the same activity of shooting clay pigeons. Further, the dictionary definition of skeet
shooting is “the sport of shooting at targets (called clay pigeons) that are thrown in the
air” which is the conduct taking place at the club. See Merriam-Webster Online,
16
Case No. 2020-L-107
https://www.merriam-webster.com/dictionary/skeet%20shooting (accessed September
22, 2021).
{¶44} Further, there is a lack of evidence in the record to show a specific
instance where an event was conducted that fell outside of the term “skeet shooting.”
While ETN cites to various evidence that the events have been referred to as “trap
shooting,” this does not actually demonstrate whether events were conducted in a manner
that differs from the general definition of skeet shooting as outlined above. The club did
admit that on one occasion a “modified trap event occurred” but, again, ETN did not prove
what this modified event consisted of to demonstrate it included activity outside of that
permitted by the permit.
{¶45} Next, ETN argues that the court erred in finding the CUP did not require a
specific orientation of the range and that the range had retained the same general
direction from the start, contending that there is at least a genuine issue of material fact
as to these issues. ETN contends that the range was required to be oriented south.
{¶46} A reading of the plain language of the terms of the CUP does not address
the orientation of the range except to state that the skeet range must be placed “where
the star is located on the Google aerial printout that is part of the HZW Environmental
report of the findings of the sound level meter testing depicting the Kirtland Country Club’s
skeet shooting range.” Both Taylor and Sopnicar attested that the range was placed in
this location. ETN does not demonstrate there is an issue of fact as to whether this
condition was met.
{¶47} ETN contends that since the CUP required the berm to be placed on the
17
Case No. 2020-L-107
rear perimeter on the north side, this requires the range to face south. However, the
permit does not state such a restriction. While ETN cites factors for construing the
language of the permit in the event that it is ambiguous, we do not find its terms to be
ambiguous as they are plainly stated. It is unnecessary to consider factors to resolve this
issue when there is no ambiguity. ETN requests that a term be read into the CUP that
simply is not there; we cannot find additional requirements by inferring that they may be
a logical extension of those actually contained in the CUP. Had the parties intended for
there to be additional conditions on the use of the land for skeet shooting, they should
have been included in the permit. To the extent that ETN highlights various pieces of
information presented to the planning board during the permit process, including sound
tests and drawings of the range, showing that the range would best be oriented south,
the same analysis applies. Discussions had prior to the issuance of the permit do not
dictate what conditions must be followed in using the permit, the permit itself does.
{¶48} In relation to the berm, both Taylor and Sopnicar confirmed that it was
installed in the location on the north side. Even considering the argument that the berm
condition meant the range needed to be constructed facing south for the berm to be
effective, Petzing testified that it had always faced in a southeast direction which would
presumably make the berm useful in deflecting noise.
{¶49} Finally, ETN argues that the court erred in determining that the range had
faced in the same general direction since installed. For the reasons discussed above,
resolution of this fact is unnecessary to determine whether a violation of the CUP
occurred. Nonetheless, we note that, although ETN points to evidence showing the club
18
Case No. 2020-L-107
discussed moving the range, evidence of potential changes considered by the club in the
years after the issuance of the CUP does not demonstrate they actually made such
changes. Petzing testified that although such changes were considered, the range has
continually faced in a southeast direction; ETN presents no evidence to show this is not
the case.
{¶50} ETN’s second assignment of error is without merit.
{¶51} In its third assignment of error, ETN argues that the lower court improperly
allowed Taylor to offer expert testimony since he failed to establish his credentials, opined
on the law, and certain documents were not attached to the expert report.
{¶52} Generally, “[t]rial courts have broad discretion in determining the
admissibility of expert testimony, subject to review for an abuse of discretion.” Terry v.
Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 16. “[A]n abuse of
discretion is the trial court’s ‘failure to exercise sound, reasonable, and legal decision-
making.’” Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th Dist.), citing
State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s
Law Dictionary (8 Ed.Rev.2004) 11. “[W]here the issue on review has been confined to
the discretion of the trial court, the mere fact that the reviewing court would have reached
a different result is not enough, without more, to find error.” (Citation omitted.) Ivancic at
¶ 70.
{¶53} Evid.R. 702 provides that a witness may testify as an expert if all of the
following apply: “(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception common
19
Case No. 2020-L-107
among lay persons; (B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony; (C)
The witness’ testimony is based on reliable scientific, technical, or other specialized
information.”
{¶54} ETN takes issue with the proof of Taylor’s qualifications under Evid.R.
702(B), arguing that “courts have required more than just a brief example of the proposed
expert’s qualifications, requiring instead the expert to attach at least a curriculum vitae to
his report.” In support of this proposition, it cites Douglass v. Salem Community Hosp.,
153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107 (7th Dist.), and Pieper v.
Williams, 6th Dist. Lucas No. L-05-1065, 2006-Ohio-1866.
{¶55} Neither Douglass nor Pieper support a holding that courts must require a
curriculum vitae to find a witness demonstrated their qualifications as an expert under
Evid.R. 702(B). In Douglass, the Seventh District held that the lower court properly
determined it could not rely on the curriculum vitae submitted to establish expert
qualifications because it was not properly submitted and further held that the deposition
testimony of the expert demonstrated he did not have expertise related to the issues
involved in the case. Id. at ¶ 22-38. In Pieper, the Sixth District held that the lower court
“was well within its discretion in refusing to permit [the witness] to offer expert opinion”
where he lacked “properly verified credentials” given that when he “wished to establish
his expertise as a security consultant, he relied upon his resume and curriculum vitae
which were initially not attached to his [affidavit].” Id. at ¶ 30. In both Douglass and
Pieper, the appellate courts did not hold that a curriculum vitae was required to prove
20
Case No. 2020-L-107
expert qualifications but, rather, upheld the lower court’s decision to exclude expert
testimony as not being an abuse of discretion. Finding a lack of an abuse of discretion
is not the same as an affirmative holding that a trial court was required to make the
determination that it did.
{¶56} We find no abuse of discretion in the lower court’s determination that Taylor
was qualified as an expert witness on the grounds of specialized knowledge, skills,
expertise and training. As to Evid.R. 702(B)’s requirement to demonstrate “specialized
knowledge, skill, experience, training, or education regarding the subject matter of the
testimony,” Taylor’s report, attached to his affidavit, provided that he had a 39-year history
as a skeet shooter, served as a skeet shooting referee, managed multiple skeet shooting
ranges, was a nationally-classified shooter, and had won a state championship title. We
find no error in determining these were acceptable qualifications to be an expert in skeet
shooting, nor do we find a basis supported in law to hold that such qualifications must be
set forth in a separate document called a curriculum vitae to be acceptable to demonstrate
his credentials. There was sufficient information about Taylor’s qualifications in his expert
report present to make a determination that he was an expert and placing this into a
separate document titled a resume or curriculum vitae does not “authenticate” the
information more than stating it directly in the expert report.
{¶57} ETN next argues that Taylor improperly offered his opinion as to whether
the terms of the CUP were met by the club, which is a legal issue and the ultimate issue
to be resolved by the court. See State v. Metter, 11th Dist. Lake No. 2012-L-029, 2013-
Ohio-2039, ¶ 77 (the ultimate issue was a factual question for the jury to resolve rather
21
Case No. 2020-L-107
than the expert); Lang v. Beachwood Pointe Care Ctr., 2017-Ohio-1550, 90 N.E.3d 102,
¶ 42 (8th Dist.) (prohibiting “an expert’s interpretation of the law” as testimony).
{¶58} Taylor, as an expert, offered his opinion on whether the activity conducted
by the club was consistent with what was permissible under the CUP, basing this opinion
on what constituted skeet shooting, how the skeet field was oriented, and other pertinent
information. He was not opining on an interpretation of the law, as was the case in Lang.
Nonetheless, even if it were found that Taylor improperly made a statement regarding the
application of the law, there is nothing in the record to show that it influenced the court’s
ruling on summary judgment or that the court failed to determine the issues based on its
own consideration and interpretation of the law. While an opinion as to whether the CUP
was violated relates to the ultimate issue in this case, an expert can provide an opinion
as to an ultimate issue of fact if it requires application of expert knowledge. State Auto
Mut. Ins. Co. v. Chrysler Corp., 36 Ohio St.2d 151, 162, 304 N.E.2d 891 (1973); Parmertor
v. Chardon Local Schools, 2019-Ohio-328, 119 N.E.3d 436, ¶ 31 (11th Dist.). As noted
above, Taylor’s conclusion relating to whether the CUP was violated arose from his
knowledge of various issues relating to skeet shooting and skeet ranges. We find no
error in the court allowing his testimony and utilizing it to the extent necessary to reach
its determination on summary judgment.
{¶59} ETN also contends that the expert report should have been stricken
because it did not have attached to it all of the papers referred to in the report, citing
Civ.R. 56(E), which requires that “[s]worn or certified copies of all papers or parts of
papers referred to in an affidavit shall be attached to or served with the affidavit.”
22
Case No. 2020-L-107
{¶60} The expert report, attached to Taylor’s affidavit, stated that he had reviewed
various materials in issuing the report, including the complaint, answer, permit, discovery
responses, a visit to and inspection of the range, and affidavits from safety range officers.
Under ETN’s argument, Taylor would be required to attach all of these materials to his
affidavit, although most of the materials were already placed in the record at least one if
not multiple times. We do not find that Civ.R. 56(E) requires an expert to attach everything
provided in discovery, the complaint, the answer, and other related materials to the expert
report. His reference to consideration of materials already in the record gives notice of
what materials were reviewed. See Pennsylvania Lumbermens Ins. Corp. v. Landmark
Elec., Inc., 110 Ohio App.3d 732, 739, 675 N.E.2d 65 (2d Dist.1996) (“a party may attach
affidavits setting out experts’ opinions as long as the predicate facts on which the opinions
are based have been separately attested to or authenticated and are also attached to the
motion for or memorandum in opposition to summary judgment”). While it is accurate
that the report references the review of “affidavits” of safety range officers and there is
only one affidavit from a worker at the club range, we do not find that the failure to attach
this document, if one exists, means that the lower court’s decision to admit the expert
report was an abuse of discretion. The conclusions considered in granting summary
judgment are unrelated to range safety and testimony of “safety range officers” is not
specifically referenced as a basis for any pertinent conclusions reached in the report.
{¶61} Finally, ETN contends that Taylor did not offer testimony opining on matters
beyond that which a lay person could have given and, thus, his testimony was not expert
testimony, emphasizing his reference to a dictionary to define skeet and his lack of
23
Case No. 2020-L-107
testimony as to technical matters. As stated in Evid.R. 702(A), one of the conditions for
a witness to testify as an expert is that his testimony “either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception common
among lay persons.” Issues such as what falls under the term “skeet,” whether the range
is consistent with a typical skeet range, and even whether the range is run properly, are
not those about which a lay person would have knowledge. A person experienced in the
field of sport shooting has knowledge that can aid in the understanding of these issues.
{¶62} ETN emphasizes Taylor’s reference to a dictionary definition as evidence
of the non-expert nature of his testimony. We do not find that a reference to a dictionary
definition renders his testimony that of a lay witness or invalidates it in any manner.
Regardless of whether he included a dictionary definition, he specifically opined that the
“word ‘skeet’ is used widely as a generic term to describe/represent the shooting of
moving clay targets” and that the range was “textbook skeet,” which was information
consistent with his experience in the field. While ETN argues that Taylor must be an
engineer to offer a statement regarding whether the skeet range was “textbook,” it is clear
from this opinion that he was explaining whether it was consistent with the type of range
utilized in the sport, not whether it was structurally sound or otherwise properly
constructed from an engineering point of view. It is evident that he is aware of the setup
of a skeet range and how it functions based on his experience; he was not testifying as
to specialized construction or engineering knowledge.
{¶63} ETN’s third assignment of error is without merit.
{¶64} In its fourth assignment of error, ETN argues that the foregoing assignments
24
Case No. 2020-L-107
apply equally to Willoughby and Keller and thus, reversal of summary judgment in favor
of KCCC and KCC requires reversal against them as well. For the reasons stated above,
we find no merit in the arguments raised by ETN and we apply the foregoing analysis
here as to Willoughby and Keller.
{¶65} ETN’s fourth assignment of error is without merit.
{¶66} In their cross-appeal, KCC and KCCC raise the following assignment of
error:
{¶67} “The trial court erred in failing to dismiss the case.”
{¶68} KCC and KCCC filed a motion to dismiss below, asserting that R.C. 9.68
invalidated any restrictions under the permit. The trial court found that this was not
properly raised in a motion to dismiss but rejected the merits of the argument in its
analysis on the motions for summary judgment. While this issue is raised on cross-appeal
as grounds to reverse and order the lower court to enter a judgment dismissing ETN’s
complaint, we find it unnecessary to consider the merits of this argument. For the reasons
outlined above, judgment was properly entered in favor of the defendants. We need not
consider whether dismissal was proper given that the outcome favored the defendants.
See Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist. Summit No.
26200, 2012-Ohio-5647, ¶ 24 (consideration of the argument regarding the court’s failure
to grant the defendant’s motion to dismiss was necessary “because [the] Court reverse[d]
summary judgment” granted in the defendant’s favor). It is unnecessary to consider
another justification for such an outcome in light of the foregoing.
{¶69} The cross assignment of error is without merit.
25
Case No. 2020-L-107
{¶70} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas, granting summary judgment in favor of the defendants, is affirmed.
Costs to be taxed against the parties equally.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.
26
Case No. 2020-L-107