[Cite as InvesTek Mgt. Servs., Inc. v. Tate, 2024-Ohio-5850.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
InvesTek Management Services, Inc. Court of Appeals No. WD-23-070
Appellee Trial Court No. 2023 CV 0444
v.
Kyle Tate DECISION AND JUDGMENT
Appellant Decided: December 13, 2024
*****
R. Kent Murphree, for appellee.
Kyle Tate, pro se.
***** MAYLE, J.
{¶ 1} Appellant, Kyle Tate, appeals the December 19, 2023 judgments of the
Wood County Court of Common Pleas granting the motions to dismiss and for summary
judgment filed by appellee, InvesTek Management Services, Inc. For the following
reasons, we affirm. I. Background and Facts
{¶ 2} This case originated as a forcible-entry-and-detainer action that InvesTek
filed against Tate in the Bowling Green Municipal Court. InvesTek manages the
apartment complex where Tate resided.
{¶ 3} In 2018, Tate and his now ex-wife signed a lease for an apartment in
Bowling Green. In 2021, they signed a lease renewal agreement that extended the term
of their lease through March 31, 2023.1
{¶ 4} Sometime before the lease expired in March 2023, InvesTek offered Tate
another lease renewal agreement that would have extended the term of his lease. The
renewal agreement also would have increased his rent by $75 a month. Tate refused to
sign the renewal agreement. He also refused to move out of the apartment.
{¶ 5} In late July 2023, InvesTek served Tate a three-day notice to leave the
premises. InvesTek then filed the forcible-entry-and-detainer action underlying this
appeal. In its complaint, InvesTek alleged that (1) it was the manager for the owner of
the apartment complex; (2) Tate signed a lease in 2018; (3) Tate signed a lease renewal
agreement in 2021 that extended the term of the lease to March 31, 2023; (4) Tate failed
to leave the apartment when the lease expired on March 31, 2023, and was an unlawful
holdover tenant; (5) Tate’s co-lessee, his ex-wife, had vacated the apartment; and (6)
1 Tate’s ex-wife is not a party to this appeal. She moved out of the apartment, and InvesTek did not name her as a defendant in the underlying forcible-entry-and-detainer complaint.
2. InvesTek gave Tate a three-day notice to leave the apartment on July 27, 2023, but he did
not leave.
{¶ 6} In response to InvesTek’s complaint, Tate filed a counterclaim exceeding the
municipal court’s jurisdiction, so the municipal court transferred the case to the trial
court. After the case was transferred, Tate filed a document titled “General Allegations”
that the trial court chose to treat as a counterclaim. Tate included a jury demand on his
general allegations and later paid a jury deposit.
{¶ 7} The factual allegations in Tate’s counterclaim are wide-ranging and
encompass alleged wrongdoing by people and entities who are not parties to this case. It
also includes over 200 pages of attachments that are, for the most part, unrelated to his
claims against InvesTek.
{¶ 8} Specific to InvesTek, Tate alleged, among other things, that (1) InvesTek
had increased his rent every year since he signed his original lease in 2017, usually by
$15 to $30 per month; (2) he refused to sign the lease renewal that InvesTek offered him
in November 2022 that included a $75 a month rent increase; (3) he tried to discuss the
rent increase with InvesTek, but someone in the office told him that InvesTek would
continue to raise his rent, “used the term inflation as a reason to raise [the] rent[,]” and
“mentioned fair market rent as a reason to raise the rent[;]” (4) prior rent increases were
related to improvements InvesTek made to the apartment, but it had not made any
improvements that justified a $75 dollar increase; (5) he twice tried to escrow his rent
3. with the municipal court because of the rent increase and was refused both times; (6) at
some earlier point in time, InvesTek refused to allow Tate to build a greenhouse on his
patio because the patio is considered “community space;” (7) Tate’s apartment has
always passed InvesTek’s twice-yearly inspections; (8) his lease says that he is not
responsible for paying the gas bill, but he has had to pay it for five years; (9) his lease
says that cable is not included with his rent, but InvesTek apparently provides cable and
internet services; (10) Tate pays for his own internet because of issues with the
apartment’s internet and he uses streaming services because InvesTek “decreased the
cable plan” after his second year as a tenant; (11) a sign on the side of the apartment
building says that cable is a free amenity and the building’s website says that cable and
internet are included with the apartments; (12) he told InvesTek about his “regular day
job employment issues, Coronavirus [sic] issues, and how he feels what they are doing is
unconscionable[;]” (13) on April 2, 2023, he lost power to part of the apartment that
seemingly was not controlled by any of the circuit breakers in the apartment; and (14)
InvesTek served him with an eviction notice on April 3, 2023, for “failing to sign a lease
renewal agreement[,]” despite him paying rent on time for five years and trying to escrow
his rent.2
2 InvesTek filed an eviction case after serving Tate with the April 2023 notice to leave, but the trial court dismissed it because the parties failed to comply with the court’s local rules.
4. {¶ 9} Regarding his claims against InvesTek, Tate alleged that InvesTek
“Intentionally misrepresented[,]” “committed fraud[,]” used false advertising and
committed deceptive trade practices in violation of R.C. Ch. 4165, committed
unconscionable acts in violation of UCC 2-302 and R.C. 1302.15 and 1345.03 by
increasing the rent and not allowing him to negotiate the adhesion contract, violated the
Valentine Act and the Ohio Consumer Sales Practices Act, violated “Fair Market Rent”
by charging more rent for his apartment in Bowling Green than it does for similar
apartments in other cities in northwest Ohio, unconscionably relied on inflation as a
reason for increasing his rent, acted unconscionably by denying his request to put a
greenhouse on his patio, and used a contract with “discrepancies [that] are
unconscionable.”
{¶ 10} After answering the counterclaim, InvesTek filed a motion for summary
judgment on its forcible-entry-and-detainer claim and a Civ.R. 12(B)(6) motion to
dismiss Tate’s counterclaim for failure to state a claim upon which relief can be granted.
In its motion for summary judgment, InvesTek argued that it was entitled to judgment
because, although Tate once had a lease for the apartment, he “objected to a renewal of
the lease because apparently he did not like the terms proposed by [InvesTek,]” so he was
“a tenant at sufferance and not entitled by law to detain the premises.” It included with
its motion the affidavit of its senior operations manager, who averred that Tate had
signed a lease and a lease renewal agreement; the term of his tenancy expired on March
5. 31, 2023; Tate did not leave the apartment on March 31, 2023; InvesTek served him with
a three-day notice to leave the premises on July 27, 2023; and Tate had unlawfully
possessed the apartment since March 31, 2023. It also included copies of Tate’s 2018
lease, 2021 lease renewal agreement, and the July 2023 notice to leave the premises.
Tate did not file a response to the summary judgment motion.
{¶ 11} In its motion to dismiss, InvesTek argued that each of the eight claims that
it identified in Tate’s counterclaim failed as a matter of law. First, his intentional
misrepresentation claim failed because Tate did not identify a material misrepresentation,
that the misrepresentation was knowingly false, that it was made with the intent to
mislead, or that he had justifiably relied on it. Second, Tate’s fraud claim failed because
he did not plead it with particularity, and “there is no indication anywhere in the
Counterclaim where [Tate] alleges any specific fact that has anything to do with him (or
his lease) which might even approach the vicinity of actionable fraud that he can pursue.”
Third, Tate’s deceptive trade practices claim failed because R.C. Ch. 4165 does not apply
to residential leases. Fourth, his UCC and R.C. Title 13 claims failed because the UCC
applies only to commercial transactions, not to transactions between landlords and
tenants. Fifth, Tate’s Valentine Act claim failed because the act is meant to prevent
monopolies and has nothing to do with landlord-tenant relationships. Sixth, his CSPA
claim failed because a lease of real property is not a “consumer transaction” and Tate’s
lease was not the “sale” of a “good” or “service” within the meaning of the CSPA.
6. Seventh, his fair market rent claim failed because it was not a claim cognizable under
Ohio law. Finally, Tate’s unconscionability claim failed because unconscionability can
be an affirmative defense to a contract action, but it is not a standalone claim for
damages.
{¶ 12} In his response, Tate argued that his lease did fall within the purview of the
CSPA and UCC. He also argued that the Valentine Act applied because InvesTek’s
unconscionable acts were restricting trade. Regarding his unconscionability claim, Tate
repeated some of the factual bases he alleged in his counterclaim (along with some new
ones), but did not cite to any Ohio law supporting his belief that unconscionability is a
standalone claim. Regarding his fraud claim, he argued that he submitted sufficient
documentation with his counterclaim to show that fraud occurred.
{¶ 13} The trial court issued separate judgment entries granting both of InvesTek’s
motions. In its entry granting InvesTek’s motion for summary judgment, the court found
that Tate remained in the apartment after his lease expired and had not provided any
“defense to justify his continued occupancy of the property[,]” so InvesTek was entitled
to summary judgment. The court also awarded InvesTek damages.
{¶ 14} In its entry granting InvesTek’s motion to dismiss, the court found that Tate
failed to state a claim upon which relief could be granted in each of the eight claims in his
counterclaim. First, Tate did not identify any false representation, allege any intent to
mislead, or point to any injury caused by his reliance. Second, Tate lacked standing to
7. raise the fraud claim because the only potential fraud he alleged was communicated to a
third party. Third, R.C. Ch. 4165 does not provide consumers with a cause of action,
and, even if it did, Tate did not “specify which part of R.C. § 4165.02(A) InvesTek has
violated.” Fourth, the UCC “applies to the sale of goods, not to the landlord-tenant
relationship.” Fifth, the Valentine Act is inapplicable to these facts because Tate did not
allege that InvesTek’s practice of including the price of cable and internet services in his
rent with other amenities caused “harm in the relevant market . . . .” Sixth, the CSPA
does not apply to residential leases. Seventh, Tate’s allegations about “Fair Market Rent”
did not state “the elements of an actual claim . . .” under Ohio law. Finally, despite
noting that “unconcionability [sic] is not really an independent cause of action[,]” the
court analyzed the counterclaim to determine if Tate had pleaded facts that would support
a finding that Tate’s lease was unconscionable. It found that Tate failed to show that the
lease was procedurally unconscionable, and it did not have “sufficient evidence to
determine substantive unconcionability [sic] at this time.”
{¶ 15} Tate now appeals, raising three assignments of error.
Assignment of Error I
Judge Kuhlman denied Mr. Tate’s legal right to trial. Mr. Tate paid a jury fee and was denied all legal rights.
Assignment of Error II
Mr. Tate had legal Holdover tenants’ rights. These rights were violated and was evicted.
8. Assignment of Error III
Mr. Tate provided to the court adequate information pertaining to his case. These hundreds of pages proved Mr. Tate’s case. The court disregarded this information. Mr. Tate believes the court is negligent in this matter[.]
II. Law and Analysis
A. Any appeal of the trial court’s summary judgment decision is moot.
{¶ 16} As a preliminary matter, we find that Tate’s appeal is moot to the extent
that he is appealing the trial court’s decision to grant summary judgment on InvesTek’s
forcible-entry-and-detainer complaint.
{¶ 17} Because “[a]n action in forcible entry and detainer ‘determines the right to
immediate possession of the property and nothing else[,]’” the appeal of an eviction is
moot when the landlord retakes possession of the property. Tiefenbacher v. Shorter,
2021-Ohio-2624, ¶ 20 (6th Dist.), quoting Seventh Urban, Inc. v. Univ. Circle Property
Dev., Inc., 67 Ohio St.2d 19, 25, fn. 11 (1981). This is because once a landlord retakes
the property, “‘there is no further relief that can be granted.’” Id., quoting Landings at
Beckett Ridge v. Holmes, 2020-Ohio-6900, ¶ 30 (12th Dist.); Showe Mgt. Corp. v.
Hazelbaker, 2006-Ohio-6356, ¶ 7 (12th Dist.). The sole method for the party appealing a
forcible-entry-and-detainer action to avoid mootness is by seeking and receiving a stay of
execution after filing the appeal and posting any required bond. R.C. 1923.14(A);
Tiefenbacher at ¶ 21.
9. {¶ 18} In his brief, Tate says that he no longer lives in the apartment, and nothing
in the record shows that he sought or obtained a stay of the trial court’s judgment either
in the trial court or this court. Because Tate is no longer in possession of the property,
any appeal of the forcible-entry-and-detainer action is moot. Therefore, our decision will
focus only on the trial court’s decision to dismiss Tate’s counterclaim.
B. The trial court did not violate Tate’s right to a jury trial.
{¶ 19} In his first assignment of error, Tate argues that the trial court denied his
“legal right to trial.” A party’s request for a jury trial does not preclude the trial court
from granting a Civ.R. 12(B)(6) motion. Brown v. Ohio Dept. of Rehab. & Corr., 2013-
Ohio-4012, ¶ 13 (10th Dist.). The trial court’s dismissal of all claims under Civ.R.
12(B)(6) moots the right to a jury trial in a civil case. Barstow v. Waller, 2004-Ohio-
5746, ¶ 6 (4th Dist.).
{¶ 20} Here, the trial court properly granted InvesTek’s motion to dismiss, which
mooted Tate’s jury demand. This did not violate Tate’s right to a jury trial. Tate’s first
assignment of error is not well-taken.
C. Tate waived his arguments about holdover rights.
{¶ 21} In his second assignment of error, Tate argues that he was a “legal holdover
tenant” because he eventually escrowed his rent and InvesTek accepted his rent
payments, but “[t]hese rights were violated and he was evicted.” However, as InvesTek
points out in its brief, Tate did not make any arguments related to holdover rights in the
10. trial court, and arguments a party raises for the first time on appeal are generally barred.
Angotti v. Jones, 2024-Ohio-3222, ¶ 16 (6th Dist.), citing Dana Ltd. v. TACS Automation,
LLC, 2021-Ohio-2555, ¶ 50 (6th Dist.); Independence v. Office of the Cuyahoga Cty.
Executive, 2014-Ohio-4650, ¶ 30 (“[A]n appellant generally may not raise an argument
on appeal that the appellant has not raised in the lower courts . . . .”). Because Tate did
not make these arguments in the trial court, he has waived them on appeal, and we will
not consider them. Angotti at ¶ 16. Therefore, Tate’s second assignment of error is not
well-taken.
D. The trial court properly granted InvesTek’s motion to dismiss.
{¶ 22} In his final assignment of error, Tate argues that he provided “adequate
information” to prove his case, but the trial court “negligent[ly]” disregarded the
information. In response, InvesTek generally restates the arguments it made in its motion
to dismiss.
{¶ 23} We review de novo a trial court’s decision granting a motion to dismiss
under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted.
Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5. In reviewing a Civ.R. 12(B)(6)
motion, we presume that the complaint’s factual allegations are true and make all
reasonable inferences in the nonmoving party’s favor. Mitchell v. Lawson Milk Co., 40
Ohio St.3d 190, 192 (1988). To dismiss a complaint under Civ.R. 12(B)(6), “it must
appear beyond doubt that the plaintiff can prove no set of facts in support of the claim
11. that would entitle the plaintiff to the relief sought.” Ohio Bur. of Workers’ Comp. v.
McKinley, 2011-Ohio-4432, ¶ 12, citing O’Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242, 245 (1975).
{¶ 24} After reviewing Tate’s counterclaim, we find that he has failed to allege
any claims upon which relief can be granted.
1. Intentional misrepresentation
{¶ 25} Tate first claims that InvesTek “intentionally misrepresented.” To plead a
claim for intentional misrepresentation, Tate was required to allege facts showing that (1)
InvesTek made a representation; (2) the representation was material to the underlying
transaction; (3) InvesTek knew that the representation was false, or made it with “such
utter disregard and recklessness as to whether it is true or false that knowledge may be
inferred;” (4) InvesTek intended to mislead Tate into relying on the misrepresentation;
(5) Tate justifiably relied on the misrepresentation; and (6) Tate was injured as a result.
Cuspide Props., Ltd. v. Earl Mechanical Servs., 2015-Ohio-5019, ¶ 54 (6th Dist.), citing
Burr v. Bd. of Cty. Commrs. of Stark Cty., 23 Ohio St.3d 69, 73 (1986).
{¶ 26} Here, it is unclear what Tate is relying on to support his intentional
misrepresentation claim. The primary statements that he both alleges are false and
directly attributes to InvesTek are statements about cable and internet being “free” at his
apartment complex. However, he does not claim that the free cable and internet were
material to him signing the leases, that InvesTek misled him into relying on the promise
12. of free cable and internet, or that he justifiably relied on that promise. If Tate is relying
on InvesTek’s statements about inflation, “fair market rent,” or the cost of repairs as
justifications for raising his rent over the years, the counterclaim does not allege that
InvesTek made these statements knowing that they were false or with such recklessness
and utter disregard for their truth that we can presume knowledge. Because Tate has
failed to plead each of the elements of intentional misrepresentation, we find that the trial
court properly granted InvesTek’s motion to dismiss this claim.
2. Fraud
{¶ 27} Tate’s fraud claim is based on his allegations that the owner of the
apartment building where he lived (that is not a party to this suit) fraudulently obtained a
loan from a bank (that is also not a party to this suit). He does not claim that any type of
fraud was perpetrated against him. In Ohio, a fraud claim cannot be based on statements
made to a third party. Gaffin v. Haslam, 2024-Ohio-2117, ¶ 23 (4th Dist.); Thomas v.
Delgado, 2022-Ohio-4235, ¶ 85 (3rd Dist.); McWreath v. Cortland Bank, 2012-Ohio-
3013, ¶ 63 (11th Dist.). In other words, a litigant cannot bring a fraud claim on someone
else’s behalf, which is exactly what Tate is trying to do here. Assuming, as we must, that
the allegations in the counterclaim are true, Tate has—at best—shown that the nonparty
bank was defrauded by the nonparty building owner. This is insufficient to show that
Tate, himself, has a fraud claim against InvesTek. The trial court properly granted
InvesTek’s motion to dismiss this claim.
13. 3. Deceptive trade practices
{¶ 28} Tate alleged that InvesTek committed deceptive trade practices by falsely
advertising that certain amenities at its apartments are “free” even though residents are
charged for them as part of their rent. The purpose of Ohio’s Deceptive Trade Practices
Act is “exclusively to protect the interests of a purely commercial class, rather than
individual consumers, against unscrupulous commercial conduct.” Goomai v. H&E Ent.,
LLC, 2023-Ohio-3901, ¶ 26 (1st Dist.), rev’d on other grounds, 2024-Ohio-5711, citing
Dawson v. Blockbuster, Inc., 2006-Ohio-1240, ¶ 24 (8th Dist.). As such, it does not
provide an individual consumer with a private right of action against a commercial entity.
Hamilton v. Ball, 2014-Ohio-1118, ¶ 33 (4th Dist.); Torrance v. Rom, 2020-Ohio-3971, ¶
50 (8th Dist.). Although Tate mentioned in his counterclaim that he operated an eBay
business out of the apartment,3 there is absolutely no indication in the counterclaim that
he was attempting to bring the deceptive-trade-practices claim as a business owner or that
InvesTek’s false advertising affected him in a commercial capacity. Because Tate could
not maintain this claim as a consumer, the trial court correctly dismissed it.
4. UCC and R.C. Title 13
{¶ 29} Tate alleged in his counterclaim that InvesTek violated several sections of
the UCC and R.C. Title 13 (which codifies Ohio’s version of the UCC). His arguments
3 Tate briefly mentioned that InvesTek “seem[ed] to have no problem with [him] running a small eBay business from the residence[,]” and referred to the eBay business as part of his request for lost income and in his concluding paragraph.
14. fail to recognize that those laws apply to contracts for goods, and a residential real estate
lease does not fall into that category. See, e.g., R.C. 1302.01(A)(11) (“‘Contract’ and
‘agreement’ are limited to those relating to the present or future sale of goods.”); R.C.
1302.01(A)(8) (“‘Goods’ means all things . . . which are movable at the time of
identification to the contract for sale . . . .”); R.C. 1302.02 (“[S]ections 1302.01 to
1302.98, inclusive, of the Revised Code, apply to transactions in goods . . . .”); R.C.
1310.01(A)(5), (8), (10) (when read together, define a “consumer lease” as a lease of
goods to an individual who takes the goods primarily for a personal, family, or household
purpose). Tate’s apartment lease is not covered by the plain language of these statutes, so
InvesTek’s actions relative to Tate’s apartment lease could not have violated the UCC or
R.C. Title 13. The trial court correctly dismissed this claim.
5. Valentine Act
{¶ 30} As it relates to InvesTek, Tate’s counterclaim alleges that tying cable and
internet to his rent as part of his lease violates the Valentine Act, Ohio’s version of the
federal Sherman Antitrust Act. The Valentine and Sherman Acts are intended to protect
competition and the market as a whole, not to protect any individual market competitor.
Island Express Boat Lines, Ltd. v. Put-In-Bay Boat Line Co., 2007-Ohio-1041, ¶ 84 (6th
Dist.), citing Care Heating & Cooling Inc. v. Am. Std., Inc., 427 F.3d 1008, 1014 (6th
Cir. 2005); and Natl. Hockey League Players’ Assn. v. Plymouth Whalers Hockey Club,
325 F.3d 712, 720 (6th Cir. 2003). Accordingly, unless an individual can show market-
15. wide injury along with their personal injury, the individual does not fall within the
protections of the Valentine Act. Id. In other words, an antitrust claim based only on
allegations of personal (i.e., not market-wide) injuries will not succeed as a matter of law.
Id., citing Baseball at Trotwood, LLC v. Dayton Prof. Baseball Club, LLC, 113
F.Supp.2d 1164, 1172 (S.D.Ohio 1999).
{¶ 31} Tate’s counterclaim does not allege that InvesTek is causing any market-
wide injury by tying cable and internet to his rent; he is only alleging that he,
individually, is being injured. Without some injury to the market in addition to his
individual injury, Tate cannot sustain a Valentine Act claim. Therefore, the trial court
properly dismissed this claim.
6. CSPA
{¶ 32} Tate makes several arguments related to the CSPA. However, the Ohio
Supreme Court could not have made it any clearer that “R.C. Chapter 1345 (Consumer
Sales Practices Act) does not apply to residential lease transactions.” Heritage Hills, Ltd.
v. Deacon, 49 Ohio St.3d 80 (1990), syllabus. Tate’s complaints relate to his residential
lease, so they are outside the scope of the CSPA. Accordingly, the trial court did not err
by dismissing Tate’s CSPA claim.
7. “Fair Market Rent”
{¶ 33} Although Tate alleged that InvesTek’s practice of charging more for
apartments in Bowling Green than it does for similar apartments in other cities in
16. northwest Ohio somehow violates the IRS’s definition of “fair market rent,” he did not
cite any Ohio or federal law showing that such a violation is an independent cause of
action. Neither InvesTek nor the trial court was able to find any substantive law that
supported such a claim. We could not either. Because Tate’s allegations about fair
market rent do not state a claim that is cognizable under Ohio or federal law, the trial
court properly dismissed this claim.
8. Unconscionability
{¶ 34} Finally, Tate raised the issue of his lease agreement being unconscionable
because it (1) included the costs of cable and internet; (2) said he was not responsible for
gas, despite him having to pay the gas bill; (3) included the costs of amenities that
InvesTek described as “free” in its advertisements; and (4) was an adhesion contract.
{¶ 35} Unconscionability of a contract is an affirmative defense. DeFoe v. Schoen
Builders, LLC, 2019-Ohio-2255, ¶ 40 (6th Dist.). It is not a standalone claim that needs
to be pleaded in a counterclaim. See Anderson v. Ballard, 2010-Ohio-3926, ¶ 36 (6th
Dist.). Because unconscionability is not its own claim, it can never “state a claim upon
which relief can be granted, . . .” and cannot survive a Civ.R. 12(B)(6) motion. The trial
{¶ 36} In sum, after reviewing Tate’s counterclaim, we find that each of his eight
claims fails to state a claim upon which relief can be granted, so InvesTek is entitled to
17. have his counterclaim dismissed. Therefore, we affirm the trial’s decision granting
InvesTek’s Civ.R. 12(B)(6) motion.
III. Conclusion
{¶ 37} For the foregoing reasons, the December 19, 2023 judgments of the Wood
County Court of Common Pleas are affirmed. Tate is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Chales E. Sulek, P. J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
18.