State ex rel. Attorney General v. Hamm
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Opinion
[Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-240137 GENERAL, TRIAL NO. A-1902927 : Plaintiff-Appellee, : vs. : JUDGMENT ENTRY LISA HAMM, et al., : Defendants, : and : STEPHANIE MILLARD, : Defendant-Appellant/Third-Party Plaintiff-Appellant, : vs. : CINCINNATI COLLEGE PREPARATORY ACADEMY, :
Third-Party Defendant-Appellee. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. OHIO FIRST DISTRICT COURT OF APPEALS
To the clerk: Enter upon the journal of the court on 6/18/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-240137 GENERAL, TRIAL NO. A-1902927 : Plaintiff-Appellee, : vs. : OPINION LISA HAMM, et al., : Defendants, : and : STEPHANIE MILLARD, : Defendant-Appellant/Third-Party Plaintiff-Appellant, : vs. : CINCINNATI COLLEGE PREPARATORY ACADEMY, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 18, 2026
Dave Yost, Attorney General of Ohio, and L. Martin Cordero and Christie Limbert, Assistant Attorneys General, for Plaintiff-Appellee,
Jeffrey A. Burd, for Defendant-Appellant/Third-Party Plaintiff-Appellant Stephanie Millard,
Dickinson Wright, PLLC, Jonathan R. Secrest and Chelsea L. Canaday, for Third- Party Defendant-Appellee Cincinnati College Preparatory Academy. [Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
BOCK, Judge.
{¶1} Once again, we are confronted with community-school administrators
who “squandered” public funds to enrich themselves at the expense of “the lives of
countless children, often from disadvantaged backgrounds.” See Sun Bldg. Ltd.
Partnership v. Value Learning & Teaching Academy, 2021-Ohio-2008, ¶ 1 (1st Dist.).
In this appeal, a jury agreed with the state auditor and plaintiff-appellee State of Ohio,
ex rel. Attorney General Dave Yost (“State”) and found defendant/third-party-
plaintiff-appellant Stephanie Millard jointly liable for $392,847 in public funds
misappropriated during Millard’s tenure as third-party-defendant-appellee
Cincinnati College Preparatory Academy’s (“CCPA”) fiscal officer.
{¶2} On appeal, Millard assigns six errors to the trial court’s decisions
involving immunity, statute of limitations, validity of the state auditor’s audit
procedures, admitting Millard’s expunged conviction as evidence at her trial, and her
proposed jury instructions. Unconvinced, we overrule her assignments of error.
{¶3} First, we hold that R.C. 3313.25(B), which shields from liability
treasurers of a school district board of education, does not apply to Millard’s tenure at
a community school. Second, we hold that R.C. 2305.07’s six-year statute of
limitations did not bar the State’s claims. Third, Millard opened the door to the
admission of otherwise inadmissible evidence of her expunged convictions when she
claimed, in her opening statement, that the prosecutor never pursued criminal charges
against her. Fourth, we hold that the trial court acted within its discretion by rejecting
Millard’s proposed jury instructions, which were not concise, clear, or complete.
{¶4} Finally, while the trial court erred by allowing an employee of the state
auditor’s office to give lay-witness testimony about community-school funding, the
error was harmless because other evidence in the record established the same facts. OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Therefore, we affirm the trial court’s judgment.
I. Factual and Procedural History
{¶6} CCPA opened its doors in 1999 as a private nonprofit corporation to
provide “top educational opportunities and assistance” to students in the community.
From 2005 to 2013, Millard served as the “designated fiscal officer” for CCPA, though
her contract identifies her as both the “treasurer” and a “consultant.” Millard’s tenure
coincided with the tail end of defendant Lisa Hamm’s time as CCPA’s superintendent.
A. State audits revealed abuse of public funds and private expenditures
1. The special audit
{¶7} In 2009, the state auditor received an anonymous tip of credit card
abuse by Hamm, which triggered a special audit of CCPA’s credit card transactions
between 2006 and 2010. When the state auditor uncovered a plethora of
“questionable” transactions, he expanded the scope of the investigation to nonpayroll
expenditures unrelated to CCPA’s operations and employee compensation.
{¶8} In 2013, the state auditor issued a special audit report that included
more than 29 findings for recovery totaling $517,424 in misappropriated public funds
from 2006 to 2010. The state auditor considered Hamm and Millard accountable as
CCPA’s “chief executive and chief financial officer responsible for ensuring
appropriate use of CCPA funds.”
{¶9} The state auditor found that some purchases amounted to an abuse of
public funds as defined by the Government Accountability Office’s 2007 Generally
Accepted Government Auditing Standards, § 4.12. Specifically, the state auditor found
that a prudent person would not consider it reasonable for CCPA to have spent more
than $60,000 in Christmas bonuses and gifts during the special audit period, which
were in addition to “staff tribute expenses” approved by the CCPA Board “in 2007,
5 OHIO FIRST DISTRICT COURT OF APPEALS
2009, and 2010 ranging from $35,000 to $50,000 [to purchase] i-pods, i-phones,
Digital cameras, jewelry, gift certificates, and other gifts.” And CCPA made similar
purchases in 2008 without CCPA Board approval. Other abuses of public funds
included $30,000 for a one-day administrative retreat and conference, more than
$14,000 for an unapproved three-week staff-development event that included
paintball and laser tag, travel expenses that were not approved by the CCPA Board,
and $1,150 in sports memorabilia purchased from a CCPA Board member.
{¶10} According to the state auditor, CCPA misappropriated those funds
because the expenses lacked a public purpose. The special audit explained that,
because CCPA’s Code of Regulations (“CCPA Code”) lacked a policy defining a proper
public purpose for expenditures, the state auditor considered whether CCPA spent
public funds in a manner that “promote[d] the goals or mission of CCPA or work to
achieve such goals.” For example, the auditor considered the following purchases as
untethered from the CCPA mission, goals, and work:
• Entertainment such as theatre shows, concerts, sporting event[s], cruises, and costs with such events. • Clothing. • Individual drinks and snacks not associated with a meal. • Magazines and personal hygiene items. • Gift shop items. • Laundry and dry cleaning. • Alcohol.
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[Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-240137 GENERAL, TRIAL NO. A-1902927 : Plaintiff-Appellee, : vs. : JUDGMENT ENTRY LISA HAMM, et al., : Defendants, : and : STEPHANIE MILLARD, : Defendant-Appellant/Third-Party Plaintiff-Appellant, : vs. : CINCINNATI COLLEGE PREPARATORY ACADEMY, :
Third-Party Defendant-Appellee. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. OHIO FIRST DISTRICT COURT OF APPEALS
To the clerk: Enter upon the journal of the court on 6/18/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, EX REL. ATTORNEY : APPEAL NO. C-240137 GENERAL, TRIAL NO. A-1902927 : Plaintiff-Appellee, : vs. : OPINION LISA HAMM, et al., : Defendants, : and : STEPHANIE MILLARD, : Defendant-Appellant/Third-Party Plaintiff-Appellant, : vs. : CINCINNATI COLLEGE PREPARATORY ACADEMY, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 18, 2026
Dave Yost, Attorney General of Ohio, and L. Martin Cordero and Christie Limbert, Assistant Attorneys General, for Plaintiff-Appellee,
Jeffrey A. Burd, for Defendant-Appellant/Third-Party Plaintiff-Appellant Stephanie Millard,
Dickinson Wright, PLLC, Jonathan R. Secrest and Chelsea L. Canaday, for Third- Party Defendant-Appellee Cincinnati College Preparatory Academy. [Cite as State ex rel. Attorney General v. Hamm, 2026-Ohio-2304.]
BOCK, Judge.
{¶1} Once again, we are confronted with community-school administrators
who “squandered” public funds to enrich themselves at the expense of “the lives of
countless children, often from disadvantaged backgrounds.” See Sun Bldg. Ltd.
Partnership v. Value Learning & Teaching Academy, 2021-Ohio-2008, ¶ 1 (1st Dist.).
In this appeal, a jury agreed with the state auditor and plaintiff-appellee State of Ohio,
ex rel. Attorney General Dave Yost (“State”) and found defendant/third-party-
plaintiff-appellant Stephanie Millard jointly liable for $392,847 in public funds
misappropriated during Millard’s tenure as third-party-defendant-appellee
Cincinnati College Preparatory Academy’s (“CCPA”) fiscal officer.
{¶2} On appeal, Millard assigns six errors to the trial court’s decisions
involving immunity, statute of limitations, validity of the state auditor’s audit
procedures, admitting Millard’s expunged conviction as evidence at her trial, and her
proposed jury instructions. Unconvinced, we overrule her assignments of error.
{¶3} First, we hold that R.C. 3313.25(B), which shields from liability
treasurers of a school district board of education, does not apply to Millard’s tenure at
a community school. Second, we hold that R.C. 2305.07’s six-year statute of
limitations did not bar the State’s claims. Third, Millard opened the door to the
admission of otherwise inadmissible evidence of her expunged convictions when she
claimed, in her opening statement, that the prosecutor never pursued criminal charges
against her. Fourth, we hold that the trial court acted within its discretion by rejecting
Millard’s proposed jury instructions, which were not concise, clear, or complete.
{¶4} Finally, while the trial court erred by allowing an employee of the state
auditor’s office to give lay-witness testimony about community-school funding, the
error was harmless because other evidence in the record established the same facts. OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Therefore, we affirm the trial court’s judgment.
I. Factual and Procedural History
{¶6} CCPA opened its doors in 1999 as a private nonprofit corporation to
provide “top educational opportunities and assistance” to students in the community.
From 2005 to 2013, Millard served as the “designated fiscal officer” for CCPA, though
her contract identifies her as both the “treasurer” and a “consultant.” Millard’s tenure
coincided with the tail end of defendant Lisa Hamm’s time as CCPA’s superintendent.
A. State audits revealed abuse of public funds and private expenditures
1. The special audit
{¶7} In 2009, the state auditor received an anonymous tip of credit card
abuse by Hamm, which triggered a special audit of CCPA’s credit card transactions
between 2006 and 2010. When the state auditor uncovered a plethora of
“questionable” transactions, he expanded the scope of the investigation to nonpayroll
expenditures unrelated to CCPA’s operations and employee compensation.
{¶8} In 2013, the state auditor issued a special audit report that included
more than 29 findings for recovery totaling $517,424 in misappropriated public funds
from 2006 to 2010. The state auditor considered Hamm and Millard accountable as
CCPA’s “chief executive and chief financial officer responsible for ensuring
appropriate use of CCPA funds.”
{¶9} The state auditor found that some purchases amounted to an abuse of
public funds as defined by the Government Accountability Office’s 2007 Generally
Accepted Government Auditing Standards, § 4.12. Specifically, the state auditor found
that a prudent person would not consider it reasonable for CCPA to have spent more
than $60,000 in Christmas bonuses and gifts during the special audit period, which
were in addition to “staff tribute expenses” approved by the CCPA Board “in 2007,
5 OHIO FIRST DISTRICT COURT OF APPEALS
2009, and 2010 ranging from $35,000 to $50,000 [to purchase] i-pods, i-phones,
Digital cameras, jewelry, gift certificates, and other gifts.” And CCPA made similar
purchases in 2008 without CCPA Board approval. Other abuses of public funds
included $30,000 for a one-day administrative retreat and conference, more than
$14,000 for an unapproved three-week staff-development event that included
paintball and laser tag, travel expenses that were not approved by the CCPA Board,
and $1,150 in sports memorabilia purchased from a CCPA Board member.
{¶10} According to the state auditor, CCPA misappropriated those funds
because the expenses lacked a public purpose. The special audit explained that,
because CCPA’s Code of Regulations (“CCPA Code”) lacked a policy defining a proper
public purpose for expenditures, the state auditor considered whether CCPA spent
public funds in a manner that “promote[d] the goals or mission of CCPA or work to
achieve such goals.” For example, the auditor considered the following purchases as
untethered from the CCPA mission, goals, and work:
• Entertainment such as theatre shows, concerts, sporting event[s], cruises, and costs with such events. • Clothing. • Individual drinks and snacks not associated with a meal. • Magazines and personal hygiene items. • Gift shop items. • Laundry and dry cleaning. • Alcohol.
{¶11} The state auditor tallied $340,000 of credit card charges that lacked a
public purpose. For the sake of brevity, we summarize those findings as follows:
TYPE AMOUNT FINDING Conference Trips $53,888 “[N]ot approved by the governing board or did not provide professional development for the employees’ position at CCPA, [] individuals not actually attending the conference, and [] expenses considered not a proper public purpose.”
6 OHIO FIRST DISTRICT COURT OF APPEALS
Best Practices $20,530 “[U]nauthorized ‘Best Practices’ trips, [] a non-CCPA Trips employee attending a trip, and [] expenses considered to not be a proper public purpose.” Residency Trips $30,966 Trips “were not approved by the governing board,” a “family member accompanying [the principal],” and “expenses considered to not be a proper public purpose.” Residency Trip to $9,714 Three CCPA employees attended without board Spain approval. Residency Trip to $922 “Millard charged expenses for food, entertainment, England lodging, and other miscellaneous items” without CCPA Board approval. New York City $11,741 Expenses not approved by CCPA Board, staff family Student Tour members attended, and cash withdrawals. Staff and Student $69,542 Not approved by CCPA Board, expenses were not Field Trips and associated with the outing, a limited number of staff Outings attended, or merchandise and souvenirs. Staff and Student $61,345 Incentives not approved or exceeded the approved Incentives amount. Meals $27,822 Meals purchased outside of school hours and events. Fuel for Hamm’s $399 Date and location of the purchases. Vehicle Medical Expenses $2,283 Services not covered by CCPA insurance policy, such as immunizations, dermatology, holistic wellness products and services, spa services, and prescription eyeglasses. Miscellaneous $47,813 Expenses not approved by CCPA Board or authorized Expenses under a CCPA policy for various items like weight-loss supplements, pet products, frozen meat delivered to Hamm’s residence, religious-themed materials and “a lifetime membership to a religious themed museum.” Doctoral Program $31,890 Exceeded tuition expenses approved by CCPA Board. Tuition Doctoral Program $6,177 Unapproved expenses for textbooks, editing service, Expenses and dissertation publishing for Hamm’s doctoral program. Lawncare and $1,642 Unrelated to CCPA operations. Periodicals for Hamm Payments of City $1,489 Equipment rental, food, telephone service, and banners Church’s purchased for “City Church International,” a religious Expenses nonprofit corporation associated with Hamm.
{¶12} The state auditor also found $164,247 in nonpayroll disbursements, by
check or electronic withdrawal, that lacked a public purpose:
7 OHIO FIRST DISTRICT COURT OF APPEALS
TYPE AMOUNT FINDING Insurance $35,108 Insurance benefits for independent contractors, Benefits including Millard, violating the CCPA Code. Legal Fees of $2,207 “CCPA paid legal fees totaling $2,207 for private Other Private legal entities associated with Lisa Hamm and Entities unrelated to CCPA operations.” Donations $3,000 Not approved by CCPA Board. Property Taxes $26,259 CCPA paid commercial property taxes for a “private legal entity unrelated to the operations of CCPA, of which Lisa Hamm is president.” ROAR $3,323 CCPA paid for the development and maintenance of Education the website for ROAR Education, “a corporation associated with Lisa Hamm operated for the purposes of providing instruction and training.” Food Services $8,500 Amount exceeded the contract executed by CCPA with the catering company. Memberships $19,285 YMCA and AAA memberships for non-leadership employees without CCPA Board approval and in violation of the CCPA Code. Season Tickets $19,182 Bengals, Broadway, concert, and other tickets that either were not approved by CCPA Board or approved as a staff incentive but used by “executive level administration and [] not CCPA teachers.” Hamm’s Father’s $632 Medical expenses were not approved by the CCPA Medical Board or CCPA Code. Expenses Cash $2,349 No documentation. Withdrawals Utility Payments $3,912 CCPA paid utilities for commercial tenants of for Tenants Hamm’s private not-for-profit corporation.
{¶13} Finally, $12,377 in payroll disbursements lacked a public purpose as
some employees were paid more than their contract allowed and Millard received
$400 in Christmas bonuses not authorized by her contract or the CCPA Board.
2. Yearly audits: 2010-2013
{¶14} In June and July 2013, the state auditor issued separate audit reports
for CCPA’s 2009-2010 and 2010-2011 school years. In the 2010 audit, the state auditor
made findings for recovery of $8,307 in overcompensation paid to Millard and $8,495
that Hamm spent on Cincinnati Bengals tickets, steakhouses, and other
“entertainment, recreation, and personal items” for CCPA staff. In the 2011 audit, the
8 OHIO FIRST DISTRICT COURT OF APPEALS
state auditor made findings for recovery of $5,275 in unapproved compensation paid
to the CCPA principal, $1,218 and $1,313 in overcompensation to two employees, and
$37,604 spent by Hamm on entertainment without CCPA Board approval.
{¶15} In February 2014, the state auditor issued an audit of CCPA’s 2011-2012
school year. The state auditor made findings for recovery of $32,518 that Hamm
improperly spent on recreation, entertainment, trips, and personal items for CCPA
staff; $40,517 in reimbursements paid to Hamm without CCPA Board approval;
$4,225 paid by checks signed by Millard to vendors that lacked documentation or
invoices; and for $7,078 in overcompensation paid to four staff members.
{¶16} Finally, in April 2015, the state auditor published its audit of CCPA’s
2012-2013 school year. Relevant here, the 2013 audit included findings for recovery of
$4,224 reimbursed to Hamm without CCPA Board approval, $10,616 paid into
Hamm’s state retirement account without CCPA Board approval, and $1,269 spent on
repairs to Hamm’s personal vehicle.
B. The State sued Hamm, Millard, and others to recover the funds
{¶17} In 2019, the State sued Millard, Hamm, and other CCPA employees to
recover the misappropriated funds from Millard, jointly and severally with Hamm and
other CCPA employees as codefendants. In an amended complaint, the State sought
to reduce the findings for recovery in the audits to a monetary judgment of more than
$550,000 against Millard under R.C. 117.28 and 117.30 in Count 1. In Count 2, the
State sought to recover that figure under a theory of strict liability for public funds
under R.C. 9.39. Millard answered and filed a third-party complaint against CCPA to
enforce the indemnification provisions in the CCPA Code.
9 OHIO FIRST DISTRICT COURT OF APPEALS
C. Pretrial motions
1. Motions for judgment on the pleadings and summary judgment
{¶18} In July 2021, the State moved for partial summary judgment against
Millard and her codefendants on its claims for recovery of the funds under R.C. 117.28.
In response, Millard moved for summary judgment and argued that the State’s claims,
based on the special audit report, were barred by the statute of limitations and that the
special audit was improperly conducted under R.C. 1711.11.
{¶19} The next month, Millard moved for a judgment on the pleadings,
claiming that R.C. 3313.25(B)(1) shielded her, as a treasurer, from liability.
{¶20} In a June 2023 order, the trial court denied the summary-judgment
motions and Millard’s motion for judgment on the pleadings. It found that R.C.
3313.25(B)(1) applied to Millard, but the State had the burden of proving that Millard’s
acts were negligent or wrongful. Millard moved for reconsideration of the trial court’s
denial of her motion for judgment on the pleadings. After the case was assigned to a
visiting judge, the trial court denied Millard’s motion for reconsideration because
“R.C. 3313.25(B)(1) does not apply to fiscal officers of community schools.”
2. Motions in limine
i. Millard’s expunged records
{¶21} In 2019, the State and Millard informed the trial court that Millard
planned to move to dismiss the complaint based on “materials that have been sealed
pursuant to R.C. 2953.32.” The trial court ordered that any filings and exhibits related
to the sealed materials be filed under seal and prohibited the parties from disclosing
“to any third party except upon Court Order permitting such disclosure.” Shortly
before trial, Millard moved “for an Order in limine preventing Plaintiff or CCPA from
introducing any evidence or testimony subject to the Confidentiality Order.”
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Meanwhile, CCPA filed a motion asking the trial court to take judicial
notice of this court’s “judicial findings” in Millard v. Accountancy Bd. of Ohio, 2017-
Ohio-7677 (1st Dist.). There, we affirmed the accountancy board’s disciplinary
decision and recounted that, after reaching a plea agreement with the State, Millard
had been convicted of misdemeanor offenses related to her tenure at CCPA. Id. at ¶ 21.
At a hearing, Millard explained that her convictions had been expunged.
{¶23} The trial court denied Millard’s motion in limine and ruled that
evidence of her convictions “might very well be admissible” regarding the
“indemnification issue” but inadmissible “for some other reason.” It granted CCPA’s
motion and took judicial notice of this court’s opinion in Millard.
ii. Expert testimony
{¶24} Millard, the State, and CCPA all filed motions in limine to prevent
certain expert testimony. Relevant here, Millard moved to prevent the State and CCPA
“from introducing any expert testimony during trial,” particularly Richard D.
Blakesley’s expert testimony, because both the State and CCPA had failed to comply
with the trial court’s discovery schedule. After a hearing on that motion, the trial court
granted the motion in limine, in part, and limited Blakesley’s testimony to “his
findings in the [Auditor’s report], and why he did A, B, and C, and why he concluded
that this was illegal.” But Blakesley could not testify about others’ actions.
D. Millard’s trial
1. Opening Statements
{¶25} In her opening statement, Millard asked the jury to view the case as the
State’s attempt to blame her for others’ misconduct and invited the jury to infer her
innocence from the State’s inaction:
11 OHIO FIRST DISTRICT COURT OF APPEALS
Here’s the laws of the State of Ohio. What law did they break? [The
State] can’t find any law that you broke. . . . [The State] can’t point to
any regulations or any laws that were broken. . . . No wonder the
prosecutor passed. . . . They are trying to hold her liable for checks her
boss wrote for things.
(Emphasis added.)
{¶26} In its opening statement, CCPA responded to Millard’s remarks:
CCPA: One thing I do want to correct, [in Millard’s] opening statement,
that [Millard’s counsel] said the Prosecutor passed.
MILLARD: Objection.
...
COURT: Overruled.
CCPA: You will hear evidence later on that that’s not the case at all.
2. The State’s case
{¶27} At Millard’s trial, the State relied on the results of the special and yearly
audits, the CCPA Code and staff handbook, financial records obtained during its audit
of CCPA, the state auditor’s investigatory work product, and testimony from Blakesley
and other state officials.
{¶28} Blakesley worked for the state auditor as a senior forensic audit
manager, was a certified fraud examiner, and was part of the team that conducted the
special audit. During the special audit process, Blakesley and other auditors compared
CCPA’s financial records with its governing policies to assess CCPA’s compliance with
Ohio law. As part of the special and yearly audits, the office created guidelines to
determine whether expenses were for a public purpose. The special and yearly audit
12 OHIO FIRST DISTRICT COURT OF APPEALS
reports state that the audits were “conducted in accordance with the Quality Standards
for Inspections established by the President’s Council on Integrity and Efficiency.”
{¶29} The audit team uncovered issues surrounding CCPA’s financial records
and school policies. For instance, staff handbooks found in Hamm’s and Millard’s
offices lacked the board-approved credit card and invoicing policies. Initially,
Blakesley could not say if the audit team relied on a draft of the CCPA Code. But later,
he clarified that the audit team relied on the staff handbook approved by the CCPA
Board in 2006 and CCPA’s 2007 contract with its sponsor.
{¶30} During its review of CCPA’s finances, the audit team noticed changes to
CCPA’s digital financial records. Over an objection, Blakesley reviewed a criminal
investigation summary authored by an investigator for the state auditor that described
2014 interviews with Hamm and Millard in which Blakesley participated. Millard told
interviewers that Hamm directed her and others to change class codes in CCPA’s
accounting software to reflect “certain revenues and expenditures” based on “the
criminal investigative summaries provided by the [auditor].”
{¶31} Blakesley also recounted the “noticeable discrepancies” in CCPA
receipts and other financial documents. Some receipts were missing altogether, while
other financial records consisted of “no-detail receipts” that prevented the audit team
from “determin[ing] what was actually being purchased.” For instance, Hamm,
Millard, and other staff members traveled to California. In her interview, Millard
recalled attending that trip as a “perk” of her position at CCPA, a trip that she believed
served no benefit to CCPA. Millard explained that Hamm used CCPA funds to buy
personal items like clothes for her nieces, and pressured Millard to turn a blind eye.
{¶32} Due to the volume of transactions, the audit team categorized each
expense and developed guidelines for determining whether expenses were made for a
13 OHIO FIRST DISTRICT COURT OF APPEALS
“public purpose” versus expenses that were made for a “non-public purpose.”
Blakesley discussed the findings for recovery in depth and agreed that some findings
for recovery were based on the absence of a policy in the CCPA Code or CCPA Board
approval, even though the guidelines stated that lack of CCPA Board approval did not,
on its own, justify a finding for recovery.
{¶33} For instance, CCPA paid for Hamm and other employees to take “best
practices” trips around the country to observe the operations of successful schools. On
a best-practices trip to Chicago, Hamm and others attended a Tina Turner concert
instead of visiting the school. Hamm and others also enjoyed multiple Broadway
shows during an unapproved best-practices trip to New York City.
{¶34} Hamm and Guyton Matthews, the CCPA principal, enrolled in a
doctorate program at Waldon University. The CCPA Board approved a fixed amount
of CCPA funds for tuition and travel expenses for “residency” trips for Hamm and
Matthews as part of that program. But without CCPA Board approval, public funds
were used for two additional staff members and Matthews’s son to travel to Spain with
Hamm and Matthews. And while the CCPA Board approved the residency trip to
Madrid, they took an unapproved detour to Barcelona that cost $9,714. During a
residency trip to Los Angeles, Hamm spent public funds on Los Angeles Lakers tickets.
{¶35} Turning to student and staff outings, the special audit revealed that
CCPA spent $69,542 on expenses during student and staff outings that lacked a public
purpose between 2007 and 2010. Some expenses were not approved by the CCPA
Board, others consisted of purchases of merchandise like compact discs and t-shirts
during those outings. Hamm and others frequented a steakhouse before “Broadway
Across America” shows from 2006 to 2009, often spending thousands of dollars on
food and drinks in a single night. The state auditor presented a photograph of Hamm
14 OHIO FIRST DISTRICT COURT OF APPEALS
and four other CCPA staff at a production of Legally Blonde without “any student or
juveniles observed in the seats purchased by CCPA.” Around that time, Hamm,
Millard, and another administrator used public funds on Carrie Underwood tickets.
{¶36} Other expenses that lacked a public purpose included gasoline,
insurance, and maintenance for Hamm’s personal vehicle. There was also $2,283
spent on immunizations, copays, dental services, spa services, and prescription glasses
for Hamm that were not covered by the CCPA insurance plan. Hamm used $1,642 of
school funds to pay for newspaper subscriptions and landscaping at her house.
Blakesley and his team also discovered $1,489 worth of purchases on behalf of “an
entity called City Church,” which is “affiliated with [] Hamm.”
{¶37} Shelly Goodrich, a senior assistant attorney general and CPA, testified
that her office had received payments to resolve some of the findings for recovery, so
her office reduced the findings for recovery in the complaint.
{¶38} At the close of the State’s case, Millard moved for a directed verdict. She
argued that she was immune as CCPA’s “treasurer” and there was no evidence of
negligence or wrongful acts on her part. And she claimed that the State did not produce
evidence that “any public funds [were] involved.” The trial court denied her motion.
3. Millard’s defense
i. Millard’s testimony
{¶39} Millard testified in her defense and support of her counterclaim that
Hamm recruited Millard to work at CCPA and she agreed in 2021 to “handle [CCPA’s]
financial reporting and tax returns” if someone else handled “payroll and accounts
payable.” At one point, Millard was working with “eight charter schools.” Millard’s
2004-2005 contract states that she worked 12 hours a week and under the direction
of Hamm. Millard was “touched” by CCPA’s work and agreed to take a pay cut in
15 OHIO FIRST DISTRICT COURT OF APPEALS
exchange for health benefits provided by contract. In December 2006, Millard was
appointed to the CCPA Board’s executive committee “to review the financial reports,
and the state of affairs, contracts, stipends, spend and other financial matters.”
{¶40} Millard posted a treasurer’s bond as required by statute. But according
to Millard, Hamm did not give Millard general supervisory authority over CCPA’s
finances. While Millard had access to and was a signatory on CCPA’s financial
accounts, she lacked decision-making authority over CCPA’s finances. Millard
disagreed that she was CCPA’s financial “gatekeeper.” Instead, she testified that
Hamm had final say over CCPA finances and would refuse to pay vendors “if [Hamm]
didn’t like something the school was being billed for.” Millard also denied handling
CCPA’s credit card accounts or payroll.
{¶41} Rather, Millard insisted that she was simply responsible for “financial
reporting” and fulfilling the CCPA Board’s and Hamm’s wishes. Specifically, she was
tasked with keeping a proper book of accounts, with keeping an accurate accounting
of CCPA’s finances, and with presenting financial statements to the CCPA Board.
Millard also prepared financial forecasts for the Ohio Department of Education
(“ODE”) and prepared CCPA’s taxes. Millard discussed how she had secured millions
of dollars in grant money for CCPA during her tenure at the school.
{¶42} Millard disputed the state auditor’s conclusion that some public funds
were spent without a public purpose. For instance, she testified that gifts were
purchased for staff members using money collected from the staff. And she explained
that the staff incentives were intentional and designed to address the high rate of staff
turnover at the school. She also testified that while findings for recovery were made
for merchandise purchased for Hamm’s relatives, Hamm collected money from her
relatives to reimburse the school.
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} CCPA ended Millard’s employment in 2013 before the state auditor had
released its special audit report. Millard testified that the CCPA Board fired her
because “it was looking like the State was going to allege some criminal charges.”
Millard also testified about her CPA license. When asked if the Ohio Accountancy
Board brought an action to revoke her CPA license based on her “dishonest and
fraudulent” conduct while employed by CCPA, she replied, “No.”
{¶44} CCPA impeached Millard with this court’s opinion in Millard, which
affirmed the Accountancy Board of Ohio’s revocation of her CPA certificate. Millard,
2017-Ohio-7677, at ¶ 1 (1st Dist.). In Millard, we held that “[e]vidence that Millard had
been convicted of two offenses of unauthorized use of property was sufficient to
support the accountancy board’s disciplinary action . . . because the offenses involved
elements of dishonesty or fraud.” Id.
{¶45} Millard agreed that our opinion in Millard accurately recounted how
she pleaded guilty to two counts of unauthorized use of property in exchange for the
State dismissing other charges. But Millard told the jury she was “shocked” that the
State charged her criminally because an investigator for the state auditor had told her
that she not a subject of the investigation and “they didn’t think I had done anything
wrong.” Later, she testified that her convictions were expunged and the Accountancy
Board reinstated her CPA license.
ii. Millard’s experts
{¶46} John Rothwell testified in Millard’s defense as an expert in charter
school operations. During Rothwell’s testimony, the State stipulated that, beginning
in 2005, CCPA student test scores outperformed the average test score for Ohio
community schools and the average test scores for all Ohio schools from 2006 to 2012.
17 OHIO FIRST DISTRICT COURT OF APPEALS
{¶47} The trial court deemed Jonathan Libbert, a retired CPA with experience
as an auditor, controller, forensic accountant, and fraud examiner as an expert in
forensic accounting and certified fraud examination. Libbert testified that the State’s
audit team “clearly made up some of the standards” for the audit “as they went along.”
Libbert denied the special audit’s findings for recovery involved public funds. In a
report, Lippert identified $307,000 in CCPA revenue from private sources from April
2006 to June 2009, which was more than double the special audit’s findings during
the same period.
4. CCPA disputed its duty to indemnify Millard
{¶48} At trial, Ronnie Gore, the CCPA Board chair, testified that Millard was
“in charge of taking care of all of our finances, writing checks, paying our bills.” Millard
was CCPA’s financial “gatekeeper” and was tasked with ensuring that CCPA
expenditures were approved for a proper public purpose within the relevant rules and
regulations. The CCPA Board relied on Millard “to report any misspending.” And the
CCPA Board “leaned and depended on [Millard as the] Treasurer to make sure that
she only paid the expenses that we approved.”
{¶49} Gore testified that Millard failed to perform her duties, citing her
approval of purchase orders “that w[ere] not approved by the board.” In his view, she
was not acting with “the [level] of responsibility [he expected] as a Treasurer.” Gore
discussed the discrepancies between the salaries approved by the CCPA Board for
Millard and Hamm and what they were actually paid. Millard and Hamm were
“overpaid by thousands of dollars.” When the CCPA Board approved funds for trips,
he expected CCPA staff to spend within that approved amount. But Millard never
informed the CCPA Board when trip expenses exceeded the approved budget. Gore
identified a litany of unapproved purchases and expenses listed in the audits.
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} According to Gore, Millard and Hamm grew “very close” and he believed
that their relationship was “why [Millard was] . . . approving these expenses when she
knew they were not an expense that the Board had [] approved.” He believed that
relationship explained why Millard never reported Hamm’s spending to the board.
{¶51} When the CCPA Board discovered the state of CCPA’s finances in
February 2013, it suspended Millard. During her suspension, the CCPA Board asked
Millard to assist it in accessing federal and state funding. Three days later, the CCPA
Board held an emergency meeting because funds had been transferred out of an
account and CCPA was going to “be short in running payroll.” Gore suspected that
Millard transferred those funds. CCPA fired Millard because of what the state auditor
uncovered, the indictments, and Millard’s guilty pleas. Gore testified that Millard did
not ask the CCPA Board to indemnify her. Yet, the CCPA Board independently “chose
not to indemnify [] Millard” because she “did not act in good faith or reasonable belief
as in the best interest of the school” and the CCPA Board “had reasonable cause to
believe her conduct was unlawful.” The CCPA Board reported Millard to the ODE.
{¶52} At one point, Gore found a copy of CCPA Board minutes that he believed
were “altered” and made to “look like [the CCPA board] had approved particular
expenses.” Gore shared those documents with the prosecutor’s office and the state
auditor’s office. Gore also “found a whole bunch of” doctored minutes and a three-year
employment contract for Hamm that signed by Millard, but not approved by the CCPA
Board, with a clause that Hamm could not “be fired.”
E. The jury found Millard liable
{¶53} The jury found Millard liable for a statutory finding for recovery and for
the unauthorized disbursement of $392,847 of public money. Further, the jury
determined that CCPA did not breach its contract when it did not indemnify Millard.
19 OHIO FIRST DISTRICT COURT OF APPEALS
The trial court entered judgment against Millard for $392,847 and granted CCPA’s
motion for a directed verdict against Millard on her promissory-estoppel claims.
II. Analysis
{¶54} In six assignments of error, Millard challenges several aspects of her
trial. First, she argues that the trial court should have granted her motion for judgment
on the pleadings on her immunity claim. Second, she maintains that the trial court
should have entered a directed verdict in her favor based on immunity and should have
allowed Millard to present an immunity defense. Third, she argues that the trial court
should have granted her motion for summary judgment because the statute of
limitation barred the State’s claims and because the underlying audit was invalid.
Fourth, she contends that the trial court erred when it took judicial notice of this
court’s opinion in Millard and admitted evidence related to Millard’s expunged
criminal record. Fifth, she claims that the trial court committed multiple errors when
it rejected her proposed jury instructions. And sixth, she argues that the trial court
improperly allowed Blakesley to testify as an expert.
A. Millard timely appealed all issues she raises in this appeal
{¶55} As a threshold matter, CCPA argues that Millard’s first assignment of
error—challenging the trial court’s denial of her motion for judgment on the
pleadings—amounts to an untimely appeal of that decision because it was a final,
appealable order. And because she failed to appeal that decision, CCPA argues that we
lack jurisdiction to consider her challenge.
{¶56} Our jurisdiction is limited to “appeals that are timely filed.” Keybank
Natl. Assn. v. Hogan Elec. Co. LLC, 2023-Ohio-935, ¶ 13 (8th Dist.). Within 30 days
of a trial court entering a final order, a party must file a notice of appeal of that order.
See App.R. 4(1)(a). A party who fails to file a timely notice of appeal of an order waives
20 OHIO FIRST DISTRICT COURT OF APPEALS
any assignment of error related to that order. See In re Harris, 2003-Ohio-672, ¶ 10
(1st Dist.), citing In re Tamara, 2002-Ohio-1270 (8th Dist.).
{¶57} Under R.C. 2744.02(C), a trial court order “den[ying] . . . an employee
of a political subdivision the benefit of an alleged immunity from liability as provided
in [R.C. Ch. 2744] or any other provision of law is a final order.” As used in R.C. Ch.
2744, the word “law” means “any provision of the constitution, statutes, or rules of the
United States or of this state.” R.C. 2744.01(D). So, “R.C. 2744.01(D) and 2744.02(C)
render the denial of immunity afforded under state or federal law a final, appealable
order.” Summerville v. City of Forest Park, 2010-Ohio-6280, ¶ 15. The parties do not
dispute that CCPA was a political subdivision under R.C. 2744.01(F) or that the trial
court denied Millard immunity when it rejected her claim under R.C. 3133.25(B)(1)
and denied her motion for judgment on the pleadings.
{¶58} The issue is, as Millard correctly points out, that orders denying
immunity to an employee of a political subdivision are final orders and immediately
appealable. R.C. 2744.02(C). Millard maintains that she could not appeal the trial
court’s rejection of her motion for judgment on the pleadings because she was not an
employee. An employee is “an officer . . . whether or not compensated or full-time or
part-time, who is authorized to act and is acting within the scope of the officer’s . . .
employment for a political subdivision.” R.C. 2744.01(B). But R.C. 2744.01(B) plainly
states that an “independent contractor” is not an “employee.”
{¶59} We agree with Millard that she could not appeal the trial court’s decision
under R.C. 2744.02(C). While the amended complaint alleged that “Millard was an
officer and/or authorized representative of CCPA between July 1, 2005 and March 18,
2013,” the special audit attached to the complaint unequivocally identified her as an
21 OHIO FIRST DISTRICT COURT OF APPEALS
independent contractor. Indeed, some findings for recovery were predicated on
Millard’s status as an independent contractor.
{¶60} Because the record established Millard as an independent contractor,
Millard could not immediately appeal the trial court’s decision denying her motion for
judgment on the pleadings and we have jurisdiction to consider Millard’s six
assignments of error.
B. The trial court correctly denied Millard’s motions for judgment on the pleadings and a directed verdict
{¶61} Millard’s first two assignments of error assert that the trial court
erroneously denied her motions for judgment on the pleadings and for a directed
verdict. In both assignments, she asserts that R.C. 3313.25 shielded her from liability.
1. Judgment on the pleadings and directed verdicts
{¶62} We review the trial court’s decisions to deny Millard’s motions for
judgment on the pleadings and a directed verdict de novo. See Morelia Group-De, LLC
v. Weidman, 2023-Ohio-386, ¶ 15 (1st Dist.); see also Bunta v. Superior VacuPress,
L.L.C., 2022-Ohio-4363, ¶ 19. A judgment on the pleadings is proper if, after
construing the allegations in the complaint as true, the trial court “‘finds, beyond
doubt, that the plaintiff can prove no set of facts that would entitle the plaintiff to
relief.’” Id., quoting Vandercar v. Port of Greater Cincinnati Dev. Auth., 2022-Ohio-
3148, ¶ 40 (1st Dist.). Similarly, a trial court may direct a verdict in one party’s favor
when, after construing the evidence presented at trial in favor of the nonmoving party,
it finds that on any “determinative issue reasonable minds could come to but one
conclusion . . . and that conclusion is adverse to” the nonmoving party. Civ.R. 50(A)(4).
22 OHIO FIRST DISTRICT COURT OF APPEALS
2. R.C. 3313.25(B)(1) does not shield Millard from liability
{¶63} Our analysis begins with the statutory text. R.C. 3313.25(B)(1) states
that “[a] treasurer shall not be held liable for a loss of public funds when the treasurer
has performed all official duties required of the treasurer with reasonable care, but
shall be liable only when a loss of public funds results from the treasurer’s negligence
or other wrongful act.” When reading a statute, our “primary concern is legislative
intent.” Cincinnati City School Dist. Bd. of Edn. v. State Bd. of Edn. of Ohio, 2008-
Ohio-1434, ¶ 14 (1st Dist.).
{¶64} Millard insists that R.C. 3313.25(B)(1)’s protections extend to her
because her contracts with CCPA, the audits, and the complaint all refer to her as
CCPA’s treasurer. The State contends that the statute, when read as a whole, shields
public school district treasurers from liability and does not apply to Millard.
{¶65} We agree with the State that R.C. 3313.25(B)(1) does not shield Millard
from liability despite references to her to as the CCPA treasurer, because “the label
‘treasurer’ is less important than the character of the position.” Cordray v. Internatl.
Preparatory School, 2010-Ohio-6136, ¶ 29. While Millard’s reading of the statute is
not inconsistent with a reading of the statutory text in isolation, “statutory language
cannot be construed in a vacuum.” Davis v. Michigan Dept. of the Treasury, 489 U.S.
803, 809 (1989); see Time Warner Cable v. City of Cincinnati, 2020-Ohio-4207, ¶ 11
(1st Dist.). Statutes must be read “in their context and with a view to their place in the
overall statutory scheme.” Davis at 809.
{¶66} Reading R.C. 3313.25 as a whole and in the context of R.C. Ch. 3313, the
word “treasurer” refers to a treasurer of a school district board of education. The word
“treasurer” in R.C. 3313.25(B)(1) follows the bonding requirement for “the treasurer
of each board of education.” R.C. 3313.25(A). That matters, because a “‘word is known
23 OHIO FIRST DISTRICT COURT OF APPEALS
by the company it keeps.’” Gutierrez v. Ada, 528 U.S. 250, 255 (2000), quoting
Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). And the rest of R.C. Ch. 3313 reveals
that “treasurer” is not as broad as Millard suggests. A “treasurer” is “the chief fiscal
officer of the school district.” (Emphasis added.) R.C. 3313.31(A). By contrast,
community schools are “independent of any school district.” R.C. 3314.01(B).
{¶67} Plus, the General Assembly shielded treasurers from liability in the
statutory section titled “Bond of treasurer of board” and the chapter governing “Boards
of Education.” See R.C. 3313.25; see also R.C. Ch. 3313; Cincinnati City School Dist.
Bd. of Edn. v. Conners, 2012-Ohio-2447, ¶ 8 (“The General Assembly has provided for
Ohio’s boards of education under R.C. Chapter 3313”). While not determinative,
“statutory titles and section headings ‘“are tools available for the resolution of a doubt
about the meaning of a statute.”’” Florida Dept. of Revenue v. Piccadilly Cafeterias,
Inc., 554 U.S. 33, 47 (2008), quoting Porter v. Nussle, 534 U.S. 516, 528 (2002),
quoting Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998).
{¶68} Unlike a school district governed by a board of education, community
schools must employ “a designated fiscal officer.” R.C. 3314.011(A). When the
legislature drafts a statute and employs words that have “acquired a particular
meaning,” we presume that the legislature was intentional with the statutory language.
See Vossman v. Airnet Sys., Inc., 2020-Ohio-872, ¶ 14. And significantly, “R.C.
3314.04 exempts community schools from the rules governing boards of education set
forth in R.C. Chapter 3313.” Hope Academy Broadway Campus v. White Hat Mgt.,
L.L.C., 2015-Ohio-3716, ¶ 18. While R.C. Ch. 3314.04 identifies several exceptions to
R.C. Ch. 3313’s exemption, the General Assembly did not include R.C. 3313.25 as one
of the statutes applicable to community schools.
24 OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} In sum, R.C. 3313.25(B)(1)’s protections do not apply to Millard and
others employed by a community school. The trial court appropriately denied Millard’s
motions for judgment on the pleadings and a directed verdict. We overrule Millard’s
first and second assignments of error.
C. The trial court properly denied Millard’s summary-judgment motion
{¶70} Millard argues in her third assignment of error that the trial court
erroneously denied her motion for summary judgment. She asserts (1) the State’s
claims were barred by the statute of limitations; and (2) the State’s audits were invalid.
{¶71} Under Civ.R. 56(C), summary judgment should be granted if “(1) ‘there
is no genuine issue as to any material fact,’ (2) ‘the moving party is entitled to
judgment as a matter of law,’ and (3) ‘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.’” State ex rel. Ohio AG v. Peterson, 2021-Ohio-4124, ¶ 16
(8th Dist.), quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978). We review a trial court’s summary-judgment decision de novo, which “requires
. . . an independent review of the evidence before the trial court without deference to
the trial court’s decision.” Dornette v. Green Bldg. Consulting LLC, 2025-Ohio-4944,
¶ 20 (1st Dist.).
1. The State is exempt from generally-worded limitations statutes
{¶72} The State sued Millard to recover public money. Count 1 claimed Millard
was liable under the State’s findings for recovery contained in the audits performed
under R.C. 117.28, 117.30, and 117.36. Count 2 asserted that Millard was strictly liable
under R.C. 9.39. Millard argues that the State’s claims were barred by R.C. 23095.07’s
six-year limitation period because the state auditor filed the special audit with ODE on
May 15, 2013, and the State did not file its complaint until June 14, 2019.
25 OHIO FIRST DISTRICT COURT OF APPEALS
{¶73} Once the state auditor completes and certifies an audit report, the state
auditor must provide a “certified copy” of the audit report to various stakeholders. A
certified copy must be filed with “the clerk of the legislative authority, clerk of the
governing body, executive officer of the governing body, and chief fiscal officer of the
audited public office.” R.C. 117.26. If the audit report includes findings for recovery,
the statutory scheme ensures that the attorney general receives a certified copy of the
audit report and notice of the actions that other offices take in response. First, a
certified copy must be filed “with the officer required . . . to act as legal counsel to the
officers of the public office . . . [or] the prosecuting attorney of the county within which
the fiscal office of the public office is located.” R.C. 117.28. If that office elects to sue to
recover misappropriated funds identified in the audit report, the attorney general may
“appear in any such action . . . in conjunction with or independent of the officer.” Id.
If the office does not sue, the officer must notify the attorney general within 120 days.
Id. But also, “a certified copy of the report shall be filed with the attorney general.”
R.C. 117.30. All of this is to say, “the General Assembly anticipated multiple methods
for the attorney general to sue regarding a wayward community school” and provided
“multiple arrows in [the state auditor’s] quiver” to recover misappropriated public
funds. Value Learning, 2021-Ohio-2008, at ¶ 30, 34 (1st Dist.).
{¶74} But these statutes “‘do[] not fix a time limitation within which suit must
be brought.’” State ex rel. Holcomb v. Walton, 66 Ohio App.3d 751, 756 (12th Dist.
1990), quoting Cleveland v. Legal News Publishing Co., 110 Ohio St. 360, 365-366
(1924) (construing R.C. 117.28’s statutory predecessor). Ohio courts have held that
“[t]he appropriate limitation period is the six years specified by R.C. 2305.07.” Id.; see
Peterson, 2021-Ohio-4124, at ¶ 34 (8th Dist.). That statute provides, in relevant part,
that “[a]n action upon liability created by statute other than a forfeiture or penalty
26 OHIO FIRST DISTRICT COURT OF APPEALS
statute shall be brought within six years after the cause of action accrued.” R.C.
2305.07(B).
{¶75} The trial court denied Millard’s summary-judgment motion because it
found that R.C. 2305.07’s six-year statute of limitations did not apply to the State. The
Supreme Court of Ohio “has on a number of occasions held that the state of Ohio is
not subject to the general requirements of statutes of limitations unless the statute in
question has specifically included the government by its terms.” State v. Sullivan, 38
Ohio St.3d 137, 139 (1988). The Sullivan Court held that “the state of Ohio, absent
express statutory provision to the contrary, is exempt from the operation of a generally
worded statute of limitations.” Id. at 140. The Sullivan Court agreed with the Supreme
Court of Pennsylvania, which held that “‘the great public policy of preserving public
rights, revenues and property from injury and loss’” justifies the exemption. Id. at 140,
quoting Commonwealth, Dept. of Transp. v. J. W. Bishop & Co., 497 Pa. 58, 64 (1981).
Relying on Sullivan, the Eighth District has held that R.C. 2305.07 is “generally
worded and, therefore, do[es] not apply to the state.” State ex rel. Petro v. Pure Tech
Sys., 2015-Ohio-1638, ¶ 33 (8th Dist.).
{¶76} Millard contends that Sullivan should not apply to the State’s complaint
in this case because “the doctrine is premised on the Old English ideal of royal
privileges,” citing State v. Karl R. Rohrer Assocs., 2018-Ohio-65 (5th Dist.). But
Rohrer addressed Ohio’s statute of repose, which is “is not a statute of limitations but
rather a declaration of when a cause of action no longer exists.” Id. at ¶ 35.
{¶77} Millard also argues that applying Sullivan to R.C. 2305.07(B) makes
R.C. 117.34 meaningless. R.C. 117.34 provides that a cause of action accrues when “the
report is filed with the officer or legal counsel whose duty it is to institute civil actions
for enforcement.” But Sullivan held that the exemption “does not extend to townships,
27 OHIO FIRST DISTRICT COURT OF APPEALS
counties, school districts or boards of education, and other subdivisions of the state,
nor, at least in some cases, to municipalities.” Sullivan at 139. And recall that R.C.
117.27 instructs the state auditor to file a certified copy of an audit report “with the
officer required by state law, municipal or county charter, or municipal ordinance to
act as legal counsel to the officers of the public office.” In turn, the officer receiving
that certified copy of the audit report has 120 days to file a “civil action in the proper
court in the name of the public office to which the public money is due.” R.C. 117.27.
The statutory scheme plainly contemplates local governments suing to recover
misappropriated public funds. See Vinton Cty. Agricultural Soc. v. McNally, Franklin
C.P. No. 12 CV 1398, 2012 Ohio Misc. LEXIS 6295, *1 (Oct. 26, 2012) (“Vinton County
Agricultural Society [] filed this action, pursuant to R.C. § 117, et seq . . . seeking the
recovery of $43,550.50.”). So, exempting the State from R.C. 2305.07(B) under
Sullivan does not render R.C. 117.34 inoperative.
{¶78} While Millard insists that Sullivan “should have no application in this
case,” Sullivan is binding precedent that requires Ohio courts to determine whether a
statute of limitations is plainly worded. If the answer is yes, the State is exempt.
Millard makes no argument that R.C. 2305.07(B) is not plainly worded. Millard has
not carried her burden of demonstrating no issue of material fact and that she is
entitled to judgment as a matter of law. See Reo v. Lindstedt, 2020-Ohio-6674, ¶ 80
(11th Dist.). We agree with the trial court and the Eighth District that R.C. 2305.07(B)
is a plainly-worded statute, and the State is exempt under Sullivan.
{¶79} Alternatively, the State argues that its complaint fell within R.C.
2305.07(B)’s six-year statute of limitations. But because we have already determined
that the State was not bound by R.C. 2305.07(B)’s limitation period, we decline to
address that argument.
28 OHIO FIRST DISTRICT COURT OF APPEALS
2. Arguments involving audit standards are moot or harmless
{¶80} Millard also contends that the trial court erroneously denied her motion
for summary judgment when it rejected her claim that the special audit’s findings for
recovery were invalid. She argues that the state auditor failed to conduct annual audits
of CCPA and “made up [its] own standards,” rendering those finding invalid.
{¶81} But her argument fails because “any error in the denial of a motion for
summary judgment will often be rendered moot or harmless when the trial
proceedings show that there were genuine issues of material fact supporting a
judgment in favor of the party against whom the motion for summary judgment was
made.” Bliss v. Manville, 2022-Ohio-4366, ¶ 14; see William Powell Co. v. OneBeacon
Ins. Co., 2020-Ohio-5325, ¶ 23 (1st Dist.). Bliss’s general rule, however, does not apply
if the court denied summary judgment based on “a pure question of law.” Id., citing
Continental Ins. Co. v. Whittington, 1994-Ohio-362, ¶ 23-24.
{¶82} The trial court denied Millard’s summary-judgment motion because
“there are genuine issues of material fact as to compliance with R.C. 117.11.” And the
evidence at trial showed that a genuine issue of material fact existed involving the
audits’ validity, making the validity of the audits in the trial court’s denial of summary
judgment moot or harmless. As a result, we overrule the third assignment of error.
D. Millard invited any error involving her expunged convictions
{¶83} In her fourth assignment of error, Millard argues that the trial court
erred when it took judicial notice of this court’s opinion in Millard and then admitted
evidence of Millard’s expunged criminal convictions.
{¶84} We review the trial court’s decision to admit evidence and take judicial
notice for an abuse of discretion. State ex rel. Harris v. Bruns, 2023-Ohio-2344, ¶ 21.
To prove that the trial court abused its discretion, Millard must show that its decisions
29 OHIO FIRST DISTRICT COURT OF APPEALS
“result[ed] from an attitude that is unreasonable, arbitrary, or unconscionable.” Id. Of
course, a trial court lacks discretion to make an error of law. Johnson v. Abdullah,
2021-Ohio-3304, ¶ 39. Moreover, we will not reverse the trial court’s decision to take
judicial notice or admit evidence unless Millard demonstrates that the trial court made
an error that affected a “substantial right.” Evid.R. 103(A); see Setters v. Durrani,
2020-Ohio-6859, ¶ 22 (1st Dist.).
{¶85} To defend against Millard’s claim that CCPA breached its contract by
refusing to indemnify her, CCPA asked the trial court to take judicial notice of this
court’s “judicial findings” in Millard and admit evidence of her convictions. Under
CCPA Code § 6, art. VI, CCPA was under no obligation to indemnify Millard if the
CCPA Board found that (1) her actions constituted “willful or wanton misconduct in
the performance of the duty,” (2) she did not “act[] in good faith in what [she]
reasonably believed to be the best interest” of the school, and (3) she “had []
reasonable cause to believe that [her] conduct was unlawful.”
{¶86} In Millard, Millard appealed the Ohio accountancy board’s unanimous
decision to revoke her CPA certificate. Millard, 2017-Ohio-7677, at ¶ 12 (1st Dist.).
There, we recounted how Millard was charged with felony offenses ranging from theft
in office, unauthorized use of property, and tampering with evidence. Id. at ¶ 2. She
later pleaded guilty to two counts of unauthorized use of property. Id. at 4. We affirmed
her license revocation because she was convicted for offenses that “involved elements
of dishonesty or fraud.” Id. at ¶ 21.
{¶87} The trial court granted CCPA’s requests and took judicial notice of
Millard. The trial court also mused that evidence of her convictions would be
admissible solely for the “indemnification” issue.
30 OHIO FIRST DISTRICT COURT OF APPEALS
{¶88} Millard argues that her convictions were expunged and therefore “never
happened.” She cites R.C. 2953.34(I), (K), and (L) for the proposition that disclosing
sealed or expunged records can rise to a misdemeanor criminal offense. And she points
out that “[w]hen a statutory provision imposing a mandatory obligation has
specifically enumerated exceptions, a court does not have discretion to create
additional exceptions.” State v. Vanzandt, 2015-Ohio-236, ¶ 15. Relying on that
principle, the Vanzandt Court held that, “because R.C. 2953.53(D) expressly prohibits
access to sealed records for purposes other than those specifically listed in the statute’s
enumerated exceptions, [] those exceptions should not have been expanded through
the exercise of judicial discretion in this case.” Id.
{¶89} We assume without deciding that the trial court erroneously took
judicial notice of Millard because Millard opened the door and waived any argument
involving the admissibility of her criminal records.
{¶90} True, expungement means “[t]o destroy, delete, and erase a record as
appropriate . . . so that the record is permanently irretrievable.” R.C. 2953.31(B)(2)(b).
But while R.C. 2953.34 requires deletion of “official records” of a conviction, the
phrase “official records” does not include “[r]ecords, reports, or audits maintained by
the auditor of state pursuant to Chapter 117 of the Revised Code.” R.C.
2953.34(A)(3)(c). And “[t]he auditor of the state may provide to or discuss with other
parties investigatory work product maintained under Chapter 117 of the Revised Code
by the auditor of the state.” R.C. 2953.34(K)(1)(d). Plus, if “the auditor of state or a
prosecutor maintains records, reports, or audits of an individual . . . convicted of an
offense based upon the records, reports, or audits of the auditor of state,” the state
auditor or prosecutor “shall not be compelled by court order to seal or expunge those
records.” R.C. 2953.43(E).
31 OHIO FIRST DISTRICT COURT OF APPEALS
{¶91} But more to the point, Millard opened the door to the admission of
otherwise inadmissible evidence. Millard claimed that CCPA breached its contract
when it did not indemnify her. And during her opening statement, Millard remarked
that the attorney general and “prosecutor passed” on criminally prosecuting Millard.
{¶92} In Ohio, “‘“‘[i]f one party offers evidence that is otherwise inadmissible
as being irrelevant under the rules of evidence, the courts will consider that a waiver
of the rules and in fairness allow the opposing party to present testimony or evidence
on the same point.”’”’ Poteet v. MacMillan, 2022-Ohio-876, ¶ 42 (12th Dist.), quoting
State v. A.W.M., 2020-Ohio-4707, ¶ 71-81 (10th Dist.), quoting State v. Dunbar,
2008-Ohio-2033, ¶ 31 (8th Dist.). A party may open the door to otherwise
inadmissible evidence in “voir dire or their opening statements, even though such
discussions and statements are not considered evidence.” Id. This includes
inadmissible evidence of a conviction. See State v. Hootman, 2019-Ohio-607, ¶ 53 (5th
Dist.) (prior conviction for domestic violence was admissible after defendant testified
about his criminal record, and “[a] court will not find error ‘when the defense opens
the door to otherwise inadmissible evidence.’”).
{¶93} When Millard told the jury that the prosecutor chose not to charge
Millard with criminal offenses for her conduct involving CCPA funds, Millard opened
the door and invited any error in the admission of her expunged convictions. So, even
if the trial court’s judicial notice of Millard was error, that error was harmless.
Therefore, we overrule Millard’s fourth assignment of error.
32 OHIO FIRST DISTRICT COURT OF APPEALS
E. The trial court properly rejected Millard’s proposed jury instructions
{¶94} Turning to her fifth assignment of error, Millard argues that the trial
court erred when it refused to give the jury her proposed instructions.1 First, she
argues that the trial court erred when it refused to give her instructions “of various
revised code sections dealing with how audits should be performed, and the role of the
sponsor.” Second, she argues that it should have instructed the jury that R.C. 3313.25
applied. Finally, she argues that the trial court erred when it failed to instruct the jury
that an auditor must defer to decisions of a school unless the decision was “palpably
and manifestly arbitrary and incorrect.”
1. Jury instructions in Ohio
{¶95} We “‘review a trial court’s decision granting or denying a proposed jury
instruction for an abuse of discretion.’” Jones v. Durrani, 2024-Ohio-1776, ¶ 29 (1st
Dist.), quoting Hounchell v. Durrani, 2023-Ohio-2501, ¶ 65 (1st Dist.). Yet, “‘whether
a jury instruction is legally correct and factually warranted is [a question of law]
subject to de novo review.’” Id., quoting Cromer v. Children’s Hosp. Med. Ctr. of
Akron, 2015-Ohio-229, ¶ 22.
{¶96} A trial court must provide a requested jury instruction in the form
proposed so long as the instruction “is linked to the parties to the action and which
correctly states the law applicable and pertinent to one or more of the issues of the
case and upon a subject which has not been covered by other special instructions
before argument.” Pickering v. Cirell, 163 Ohio St. 1, 3 (1955). A jury instruction
“should state clearly and concisely the issues of fact and the principles of law
1 Millard’s brief fails to lay out the law governing jury instructions. We take this opportunity to remind parties that the appellant “bears the burden of constructing the legal arguments necessary to support their assignments of error.” City of Shaker Hts. ex rel. Lake v. City of Shaker Hts., 2024- Ohio-3007, ¶ 25 (8th Dist.).
33 OHIO FIRST DISTRICT COURT OF APPEALS
necessary.” (Emphasis added.) Id. A jury instruction should be clear, correct, and
“‘complete in itself.’” Id., quoting Scott, Admr., v. Hy-Grade Food Prods. Corp., 131
Ohio St. 225 (1936), paragraph one of the syllabus. A trial court is under no mandatory
duty to give a requested instruction that is “‘indefinite, uncertain or ambiguous, or
otherwise misleading.’” Id., quoting Hy-Grade at paragraph one of the syllabus.
2. Millard’s proposed instructions
{¶97} Millard asked the trial court to read the following jury instructions:
R.C. 9.39 Liability for Public Money
All public officials are liable for all public money received or collected
by them or by their subordinates under color of office. All money
received or collected by a public official under color of office and not
otherwise paid out according to law shall be paid into the treasury of the
public office with which the public official is connected to the credit of a
trust fund and shall be retained there until claimed by its lawful owner.
R.C. 117.11 Annual, biennial, and early audits.
. . . [T]he auditor of state shall audit each public office at least once every
two fiscal years. The auditor of state shall audit a public office each fiscal
year if that public office is required to be audited on an annual basis
pursuant to “The Single Audit Act of 1984,” 98 Stat. 2327, 31 U.S.C.A.
7501 et seq., as amended. In the annual or biennial audit, inquiry shall
be made into the methods, accuracy, and legality of the accounts,
financial reports, records, files, and reports of the office, whether the
laws, rules, ordinances, and orders pertaining to the office have been
observed, and whether the requirements and rules of the auditor of state
have been complied with. Except as otherwise provided in this division
34 OHIO FIRST DISTRICT COURT OF APPEALS
or where auditing standards or procedures dictate otherwise, each audit
shall cover at least one fiscal year. If a public office is audited only once
every two fiscal years, the audit shall cover both fiscal years.
(B) In addition to the annual or biennial audit provided for in division
(A) of this section, the auditor of state may conduct an audit of a public
office at any time when so requested by the public office or upon the
auditor of state's own initiative if the auditor of state has reasonable
cause to believe that an additional audit is in the public interest.
(C)(1) The auditor of state shall identify any public office in which the
auditor of state will be unable to conduct an audit at least once every
two fiscal years as required by division (A) of this section and shall
provide immediate written notice to the clerk of the legislative authority
or governing board of the public office so identified. Within six months
of the receipt of such notice, the legislative authority or governing board
may engage an independent certified public accountant to conduct an
audit pursuant to section 117.12 of the Revised Code.
(2) When the chief fiscal officer of a public office notifies the auditor of
state that an audit is required at a time prior to the next regularly
scheduled audit by the auditor of state, the auditor of state shall either
cause an earlier audit to be made by the auditor of state or authorize the
legislative authority or governing board of the public office to engage an
independent certified public accountant to conduct the required audit.
The scope of the audit shall be as authorized by the auditor of state.
35 OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 117.19 Rules for generally accepted or governmental auditing standard
The auditor of state shall establish and define by rule generally accepted
or governmental auditing standards, including procedures for post-
audit conferences with officials of the public office audited.
R.C. 117.28 Action upon a certified audit
Where an audit report sets forth that any public money has been illegally
expended, or that any public money collected has not been accounted
for, or that any public money due has not been collected, or that any
public property has been converted or misappropriated, the officer
receiving the certified copy of the report pursuant to section 117.27 of
the Revised Code may, within one hundred twenty days after receiving
the report, institute civil action in the proper court in the name of the
public office to which the public money is due or the public property
belongs for the recovery of the money or property and prosecute the
action to final determination. The auditor of state shall notify the
attorney general in writing of every audit report which sets forth that
any public money has been illegally expended, or that any public money
collected has not been accounted for, or that any public money due has
not been collected, or that any public property has been converted or
misappropriated and of the date that the report was filed.
Within one hundred twenty days after receiving the certified
copy of the report, the officer receiving the report shall notify the
attorney general in writing of whether any legal action has been taken.
If no legal action has been taken, the officer shall, within the same
36 OHIO FIRST DISTRICT COURT OF APPEALS
period, notify the attorney general in writing of the reason why legal
action has not been taken. The attorney general or his assistant may
appear in any such action on behalf of the public office and may, either
in conjunction with or independent of the officer receiving the report,
prosecute an action to final determination. The attorney general may
bring the action in any case where the officer fails to do so within one
hundred twenty days after the audit report has been filed.
R.C. 3314.02
“Sponsor” means the board of education of a school district or the
governing board of an educational service center that agrees to the
conversion of all or part of a school or building under division (B) of this
section, or an entity listed in division (C)(1) of this section, which has
been approved by the department of education and workforce to
sponsor community schools or is exempted by section 3314.021 or
3314.027 of the Revised Code from obtaining approval, and with which
the governing authority of a community school enters into a contract
under section 3314.03 of the Revised Code.
R.C. 3314.019
A community school’s sponsor shall communicate with the auditor of
state regarding an audit of the school or the condition of financial and
enrollment records of the school, and shall maintain a presence at any
and all meetings with the auditor of state regardless of whether the
sponsor has entered into an agreement with another entity to perform
all or part of the sponsor’s oversight duties.
37 OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 3314.082
A community school shall be considered a school district and its
governing authority shall be considered a board of education for the
purpose of applying to any state or federal agency for grants that a
school district may receive under federal or state law or any
appropriations act of the general assembly. The governing authority of
a community school may apply to any private entity for additional
funds.
R.C. 3314.04
Except as otherwise specified in this chapter and in the contract
between a community school and a sponsor, such school is exempt from
all state laws and rules pertaining to schools, school districts, and
boards of education, except those laws and rules that grant certain
rights to parents.
R.C. 3301.074. Licenses for school district treasurers and business managers (prior to 2013)
(A) The state board of education shall, by rule adopted in accordance
with Chapter 119. of the Revised Code, establish standards for licensing
school district treasurers and business managers, for the renewal of
such licenses, and for the issuance of duplicate copies of licenses.
Licenses of the following types shall be issued or renewed by the board
to applicants who meet the standards for the license or the renewal of
the license for which application is made:
(1) Treasurer, valid for serving as treasurer of a school district in
accordance with section 3313.22 of the Revised Code;
38 OHIO FIRST DISTRICT COURT OF APPEALS
(2) Business manager, valid for serving as business manager of a school
district in accordance with section 3319.03 of the Revised Code.
(B) Each application for a license or renewal or duplicate copy of a
license shall be accompanied by the payment of a fee in the amount
established under division (A) of section 3319.51 of the Revised Code.
Any fees received under this section shall be paid into the state treasury
to the credit of the state board of education licensure fund established
under division (B) of section 3319.51 of the Revised Code.
(C) Any person employed under section 3313.22 of the Revised Code as
a treasurer on July 1, 1983, shall be considered to meet the standards
for licensure as a treasurer and for renewal of such license. Any person
employed under section 3319.03 of the Revised Code as a business
manager on July 1, 1983, shall be considered to meet the standards for
licensure as a business manager and for renewal of such license.
(D) Any person applying for or holding any license pursuant to this
section is subject to sections 3123.41 to 3123.50 of the Revised Code and
any applicable rules adopted under section 3123.63 of the Revised Code
and sections 3319.31 and 3319.311 of the Revised Code.
3. The trial court properly rejected Millard’s proposed instructions
{¶98} The trial court rejected Millard’s proposed instructions because her
instructions were “longer than they need to be.” It pointed out that the standard Ohio
Jury Instructions generally “take[] excerpts from such things and applies them directly
to the case” so that the instructions “would be much more focused for the benefit of
the Jury.” In contrast, Millard’s instructions were “too long and too unfocused for the
benefit of the Jury.” And it found that some of her instructions were “not relevant.”
39 OHIO FIRST DISTRICT COURT OF APPEALS
{¶99} We agree with the trial court. Millard’s proposed jury instructions were
neither clear nor concise. Afterall, statutory language is, at times, “inartful.” See
Hartley v. Berlin-Milan Local School Dist., 69 Ohio St.2d 415, 418 (1982) (Holmes,
J., concurring in judgment). And her proposed jury instructions were not complete.
Some of her statutory language referenced other statutory provisions that were not
included in her proposed jury instructions. Moreover, her proposed jury instructions
risked confusing the jury. Therefore, the trial court did not abuse its discretion when
it rejected Millard’s proposed jury instructions.
4. The trial court’s indemnification jury instruction
{¶100} Millard also challenges the trial court’s indemnification jury
instruction. Generally speaking, “[a] cause of action for breach of contract requires the
claimant to establish the existence of a contract, the failure without legal excuse of the
other party to perform when performance is due, and damages or loss resulting from
the breach.” Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41.
Indemnification is an issue grounded in contract “‘and is the right of a person, who
has been compelled to pay what another should have paid, to require complete
reimbursement.’” Ayers v. City of Cleveland, 2020-Ohio-1047, ¶ 22, quoting Worth v.
Aetna Cas. & Sur. Co., 32 Ohio St.3d 238, 240 (1987). Like a claim for breach of
contract, “‘[t]he burden is on the party seeking indemnity to prove that he or she is
entitled to it.’” MTGLQ Investors, L.P. v. City of Youngstown, 2006 U.S. Dist. LEXIS
11315, *11-12 (N.D. Ohio Mar. 17, 2006), quoting Heritage Mut. Ins. Co. v. Stevens, 92
Ohio Misc.2d 9 (C.P. 1996), citing Cameron Mut. Ins. Co. of Missouri v. Bouse, 635
S.W.2d 488 (Mo.App. 1982); see S. Shore Hellenic Church, Inc. v. Artech Church
Interiors, Inc., 183 F.Supp.3d 197, 228 (D.Mass. 2016) (collecting federal and state
40 OHIO FIRST DISTRICT COURT OF APPEALS
cases and explaining that the party “bringing the indemnity claim [] ha[s] the
underlying burden to establish the elements of the claim at trial.”).
{¶101} The trial court instructed the jury that:
Express indemnification is based on a written contract in which one
party, the indemnitor, promises to indemnify another party, the
indemnity [sic], or [sic] payments it makes under a set of circumstances
set forth in the contract. In order to find in favor of Stephanie Millard
in her claim for indemnification, you must find a contract existed in
which CCPA agreed to indemnify Stephanie Millard.
Before you can find for Stephanie Millard on her breach of
contract claim, you must find by the greater weight of the evidence that
Stephanie Millard and CCPA entered into an agreement[,] that CCPA
breached the agreement, and that Stephanie Millard substantially
performed her duties under the agreement at the time of the CCPA
breach.
In order to find in favor of Stephanie Millard, you must also find
that she established that, 1, she is not guilty of willful or wanton
misconduct in the performance of her duties to CCPA. And, 2, she acted
in good faith in what she reasonably believed to be the best interest of
CCPA.
If you find by the greater weight of the evidence that Stephanie
Millard proved her claim, then you must further decide whether CCPA
breached or caused her to suffer any damages.
41 OHIO FIRST DISTRICT COURT OF APPEALS
If you find by the greater weight of the evidence that Stephanie
Millard failed to prove any part of her claim, then you must find for
{¶102} We hold that the trial court’s jury instructions accurately reflect the
principle that the party claiming a breach of a contract’s indemnification provision has
the burden of proving that breach.
{¶103} Finding no error in the trial court’s jury instructions and rejection of
Millard’s proposed jury instructions, we overrule her fifth assignment of error.
F. Blakesley’s improper expert testimony was harmless
{¶104} Finally, Millard insists in her sixth assignment of error that the trial
court erred by allowing Blakesley to testify about the CCPA audits findings and why he
concluded that Millard’s actions were improper.
1. Expert and lay-witness testimony
{¶105} We will reverse the trial court’s decision to admit evidence if we find
“both an abuse of discretion and proof of material prejudice.” Garry v. Borger, 2023-
Ohio-905, ¶ 25 (1st Dist.), citing Ijakoli v. Alungbe, 2022-Ohio-2423, ¶ 26 (1st Dist.).
Material prejudice means that the decision affected a party’s substantial right. Id.,
citing Evid.R. 103(A). Specifically, the evidentiary decision “‘must have “affected the
final determination of the proceeding.”’” Id., quoting Ijakoli at ¶ 29, quoting
Buckmaster v. Buckmaster, 2014-Ohio-793, ¶ 23 (4th Dist.).
{¶106} An expert witness is a person “‘qualified by knowledge, skill, experience,
training, or education to provide a scientific, technical, or other specialized opinion
about the evidence or a fact issue.’” State v. Fread, 2013-Ohio-5206, ¶ 14 (12th Dist.),
quoting Black’s Law Dictionary (8th Ed. 2004).
42 OHIO FIRST DISTRICT COURT OF APPEALS
{¶107} In contrast, lay-witness testimony must be based on the witness’s
“personal knowledge of the matter.” Evid.R. 602. In Ohio, lay witnesses may “provide
opinion testimony in limited circumstances, based on personal observation and
perceptions, even if the witness could otherwise qualify as an expert.” State v. Greene,
2025-Ohio-1096, ¶ 55 (6th Dist.). Lay-witness testimony may “‘embrace[] the ultimate
issue to be decided by the trier of fact’” without violating the Rules of Evidence. State
v. Infante, 2020-Ohio-992, ¶ 42 (11th Dist.), quoting State v. Heilman, 2006-Ohio-
1680, ¶ 96 (11th Dist.), citing Evid.R. 704. At bottom, if “‘“testimony is based on recited
personal observations, a non-expert can express opinions about myriad topics.”’” State
v. Mathis, 2019-Ohio-3654, ¶ 58 (8th Dist.), quoting State v. Scheffield, 2017-Ohio-
2593, ¶ 66 (11th Dist.), quoting State v. Morris, 8 Ohio App.3d 12, 17 (8th Dist. 1982).
2. Any error in the admission of Blakesley’s testimony was harmess
{¶108} Millard points out that, while the trial court allowed Blakesley to testify
as a lay witness, his testimony veered into expert testimony. Specifically, she contends
that Blakesley provided expert testimony when he explained that community schools
are public offices, community schools receive funding that otherwise would have gone
to a traditional school district, the state auditor has the ability to audit community
schools, the audit’s objectives, what he meant by saying that the audit team “tested”
the objectives of the audit, the fieldwork that goes into an audit, an audit’s compilation
process, and the use of guidelines in the audit.
{¶109} The trial court allowed Blakesley to testify, as an employee of the
auditor’s office that conducted the audit, about “why and how they do the audit
without being an expert.”
{¶110} Blakesley’s testimony about his actions during the audit was based on
his firsthand knowledge and was admissible as lay-witness testimony. So, the trial
43 OHIO FIRST DISTRICT COURT OF APPEALS
court did not err when it allowed Blakesley to testify about developing the audit
guidelines and testing those guidelines by reviewing CCPA’s financial statements.
{¶111} But we agree with Millard that Blakesley’s discussion of the nature of
community schools and their funding sources went beyond lay testimony and
constituted expert testimony. But these facts were established in the special audit. “A
certified copy of any portion of the [auditor’s] report containing factual information is
prima-facie evidence in determining the truth of the allegations in the petition.” R.C.
117.36. Prima facie evidence is “evidence which will support, but not require, a verdict
in favor of the party offering the evidence.” Krischbaum v. Dillon, 58 Ohio St.3d 58,
64 (1991). So, the audit report was “‘sufficient to support but not compel a certain
conclusion.’” St. Francis Home v. Ohio Dept. of Job and Family Servs., 2006-Ohio-
6147, ¶ 30 (10th Dist.), quoting City of Cleveland v. Keah, 157 Ohio St. 331, 337 (1952).
{¶112} Because the audit report itself was admissible and established the
information to which Blakesley testified, any error in allowing Blakesley to testify
about community school funding was harmless. Therefore, we overrule Millard’s sixth
assignment of error.
III. Conclusion
{¶113} We overrule Millard’s six assignments of error and affirm the trial
court’s judgment.
Judgment affirmed. ZAYAS, P.J., and CROUSE, J., concur.
Cite This Page — Counsel Stack
State ex rel. Attorney General v. Hamm, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-attorney-general-v-hamm-ohioctapp-2026.