Smith v. Allstate Ins. Co.

[Cite as Smith v. Allstate Ins. Co., 2019-Ohio-4557.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

ANDRE SMITH C.A. No. 29339

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALLSTATE INSURANCE COMPANY, et COURT OF COMMON PLEAS
al. COUNTY OF SUMMIT, OHIO
CASE No. CV-2018-04-1531
Appellees

DECISION AND JOURNAL ENTRY

Dated: November 6, 2019

CALLAHAN, Judge.

{¶1} Appellant, Andre Smith, appeals from the judgment of the Summit County

Common Pleas Court granting summary judgment in favor of Appellees, Allstate Insurance

Company, Starr Robinson, Deconda Cleary, Cindy Henson, and Chris Durfee (collectively “the

Allstate parties”), as to his claim for retaliation. For the reasons set forth below, this Court

affirms.

I.

{¶2} Mr. Smith was hired by Allstate Insurance Company (“Allstate”) on October 6,

2014. Mr. Smith was a Coaching Partner, which required him to sit with new customer service

employees, listen to their calls, and provide coaching and feedback on how to handle calls.

{¶3} During the next two years, Mr. Smith, an African American male, applied for and

was denied six promotions. The promoted employees were Caucasian and/or female. On
 2

November 25, 2016, Mr. Smith voiced his concerns about racial and sexual discrimination to

Allstate’s management.

{¶4} On the same day that Mr. Smith lodged his discrimination complaint, Starr

Robinson, a Senior Manager at Allstate, learned that Mr. Smith made threatening comments to

another employee. Although Ms. Robinson was a Senior Manager, there is uncontested evidence

that she was not aware of Mr. Smith’s discrimination complaints.

{¶5} The allegation of Mr. Smith making threatening comments was referred to

Allstate’s Centralized Employee Relations Team (“CERT”)1 for an internal investigation. Mr.

Smith was instructed not to return to work on November 27, 2016 and was placed on paid leave

pending CERT’s investigation into the alleged threats. CERT began its investigation on

November 28, 2016, which lasted for two weeks. The CERT investigation validated that Mr.

Smith made threats in the workplace and recommended he be terminated. Mr. Smith was

terminated the following day, December 15, 2016. The complaint alleges Mr. Smith was

“effectively terminated” on November 27, 2016 and “officially terminated” on December 9,

2016.

{¶6} Mr. Smith filed a complaint alleging retaliation and wrongful termination,

discriminatory hiring practices, and multiple counts of racial and sexual discrimination. The

Allstate parties moved for partial summary judgment as to Mr. Smith’s retaliation and wrongful

termination claim (count 8). Mr. Smith filed a brief in opposition. The trial court granted

summary judgment in favor of the Allstate parties as to that claim only, but did not include the

Civ.R. 54(B) certification on the order.

1
CERT is an independent division at Allstate that conducts neutral internal investigations
regarding employment matters concerning performance, behavior, misconduct, and other related
personnel issues.
 3

{¶7} The Allstate parties then filed a supplemental motion for summary judgment as to

the discrimination claims in counts 1-7. Additionally, the Allstate parties filed a motion to

dismiss the action for failure to prosecute based upon Mr. Smith’s failure to respond to discovery

and comply with the trial court’s discovery orders. In lieu of responding to these motions, Mr.

Smith filed a Civ.R. 41(A)(1)(a) notice of voluntary dismissal without prejudice as to “all

unadjudicated claims (1 through 7)” against the Allstate parties. However, Mr. Smith’s

voluntary dismissal without prejudice of the remainder of his claims against the Allstate parties

pursuant to Civ.R. 41(A)(1)(a) was ineffective to create a final, appealable order. See Pattison v.

W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, ¶ 1.

{¶8} Following the filing of Mr. Smith’s notice of dismissal, the trial court entered an

order which incorporated its earlier disposition of count 8 and added the Civ.R. 54(B)

certification. This order converted the earlier summary judgment ruling on count 8 in favor of

the Allstate parties into a final, appealable order. See Ningard v. Shin Etsu Silicones, 9th Dist.

Summit No. 24524, 2009-Ohio-3171, ¶ 6, 9.

{¶9} Nine days later, Mr. Smith filed a motion for reconsideration relative to the partial

summary judgment against him and the Allstate parties filed a brief in opposition. The trial court

did not rule on the motion for reconsideration. Mr. Smith timely appealed the judgment entries

granting partial summary judgment, asserting one assignment of error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING PARTIAL SUMMARY
JUDGMENT WITHOUT CITING TO ANY EXHIBITS OR DOCUMENTS
CONTAINING FACTUAL ASSERTIONS.
 4

{¶10} Mr. Smith argues that the trial court erred in granting summary judgment as to

count 8 to the Allstate parties because there was no evidence in the record supporting the

decision and the trial court failed to cite the evidence it relied upon when rendering its decision.

Mr. Smith also argues summary judgment is improper because his trial counsel provided

ineffective representation relative to conducting discovery and responding to the summary

judgment motion. This Court disagrees with each of Mr. Smith’s arguments.

Summary Judgment Standard

{¶11} This Court reviews an order granting summary judgment de novo. See Bonacorsi

v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper under Civ.R. 56(C) when:

(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can only reach one conclusion, and that conclusion is

adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317,

327 (1977).

{¶12} Summary judgment consists of a burden-shifting framework. The movant bears

the initial burden of demonstrating the absence of genuine issues of material fact concerning the

essential elements of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292

(1996). Specifically, the moving party must support the motion by pointing to some evidence in

the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this

burden, the nonmoving party has a “reciprocal burden” to “‘set forth specific facts showing that

there is a genuine issue for trial.’” Id. at 293, quoting Civ.R. 56(E). The non-moving party may
 5

not rest upon the mere allegations or denials in the pleadings, but must point to or submit

evidence of the type specified in Civ.R. 56(C). Dresher at 293; Civ.R. 56(E).

The Evidence

{¶13} On appeal, Mr. Smith contends that the trial court erred in granting summary

judgment due to the complete absence of any evidence. Mr. Smith “suggests that neither the

exhibits attached to [the Allstate parties’] motion for partial summary judgment nor [the] exhibits

attached to [Mr. Smith’s trial] counsel’s ‘motion for reconsideration’ are properly before this

Court.” We disagree with Mr. Smith as it pertains to the Allstate parties’ exhibits, but agree with

respect to the exhibits attached to the motion for reconsideration.

{¶14} Mr. Smith acknowledges that there were affidavits and other documents attached

to the Allstate parties’ motion for summary judgment, but claims they are not “properly in the

record.” In his assignment of error, Mr. Smith fails to present any reason or legal authority as to

why the attachments to the summary judgment motion are not proper evidentiary materials under

Civ.R. 56(C) and (E) and it is not this Court’s duty to create an argument for him. See App.R.

16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,

1998) (“If an argument exists that can support this assignment of error, it is not this [C]ourt’s

duty to root it out.”).

{¶15} Moreover, Mr. Smith is precluded from challenging on appeal the moving parties’

summary judgment evidence as he failed to make an objection to the trial court regarding any

alleged nonconforming evidence. Wolford v. Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-

Ohio-6992, ¶ 21. As Mr. Smith did not object to the Allstate parties’ evidence in support of the

summary judgment motion and the trial court referenced the same in its order, we will consider
 6

those affidavits and documents in our de novo review. Id.; Brunke v. Ohio State Home Servs.,

Inc., 9th Dist. Lorain No. 13CA010500, 2015-Ohio-2087, ¶ 11, fn. 2.

{¶16} Next, Mr. Smith argues that the documents attached to his motion for

reconsideration are not proper summary judgment evidence. We agree. Motions for

reconsideration only allow relief from non-final orders. Flood Co. v. St. Paul Fire & Marine Ins.

Co., 9th Dist. Summit Nos. 21679, 21683, 2004-Ohio-1599, ¶ 8. As addressed above, the partial

summary judgment ruling is a final, appealable order; therefore, Mr. Smith’s motion for

reconsideration, including the attachments thereto, is a nullity. Pitts v. Ohio Dept. of Transp.,

67 Ohio St.2d 378, 379 (1981). See State v. Babb, 9th Dist. Summit No. 23631, 2007-Ohio-

5102, ¶ 5. See also State v. Helfrich, 3d Dist. Seneca Nos. 13-17-30, 13-17-31, 13-17-32, 2018-

Ohio-638, ¶ 27, fn. 7; Ayers v. Precision Environmental Co., 8th Dist. Cuyahoga No. 93559,

2010-Ohio-4479, ¶ 22-23. Accordingly, the exhibits attached to the motion for reconsideration

were not properly before the trial court, or this Court. See Babb at ¶ 5; Helfrich at ¶ 27, fn. 7;

Ayers at ¶ 23.

Factual Citations

{¶17} Mr. Smith also contends that the trial court’s order prohibits a meaningful review

by this Court because the trial court did not provide factual citations to any evidence in the

record that supports its decision to grant partial summary judgment. Mr. Smith’s reliance upon

Kokoski v. Kokoski, 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, for such a proposition

is misplaced. Kokoski involved a remand of a post-trial decision regarding the division of

property in a divorce action because the trial court’s order did not contain sufficient detail

explaining how certain debts were calculated in order for this Court to determine whether the
 7

trial court’s finding was supported by the record, and not because there were “no factual

citations” in a partial summary judgment order. Id. at ¶ 3, 11.

{¶18} Mr. Smith misconstrues the trial court’s duty in ruling on a summary judgment

motion. “Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly examine all

appropriate materials filed by the parties before ruling on a motion for summary judgment.”

Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992), syllabus. The trial court is presumed to

have met this duty when there is no record that affirmatively indicates otherwise. See McNeil v.

Case W. Res. Univ., 105 Ohio App.3d 588, 593 (8th Dist.1995).

{¶19} In this matter, the trial court’s order identified the evidence attached to the

Allstate parties’ motion, noted the failure of Mr. Smith to attach any evidence in his opposition

brief, and summarized the facts contained within the submitted evidence. While the trial court’s

order did not provide official “factual citations” to the evidence it used, the trial court’s

identification and discussion of the evidence adequately identified the sources of the facts upon

which it relied. Thus, the trial court’s order reflects that it complied with its mandatory duty

under Civ.R. 56(C) and we conclude that the order is sufficient for this Court to conduct a

meaningful de novo review.

Retaliation

{¶20} In count 8, Mr. Smith alleged that in response to his “voicing concerns to

management about [the] likelihood of racial and sexual discrimination,” Allstate retaliated

against him by telling him not to return to work and then officially terminating him. The Allstate

parties confined their summary judgment motion to the issue of the lack of causal connection

between the protected activity and the adverse employment action by asserting that “[Mr. Smith]
 8

simply cannot establish he would not have been terminated but for his alleged engagement in

protected activity.” (Emphasis deleted.) We will limit our review accordingly.

{¶21} R.C. 4112.02(I) is an antiretaliation provision. Greer-Burger v. Temesi, 116 Ohio

St.3d 324, 2007-Ohio-6442, ¶ 13. Under this provision, it is

an unlawful discriminatory practice * * * [f]or any person to discriminate in any
manner against any other person because that person has opposed any unlawful
discriminatory practice defined in this section or because that person has made a
charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

R.C. 4112.02(I). Federal case law regarding Title VII of the Civil Rights Act of 1964 generally

applies to R.C. Chapter 4112 violations, including retaliation claims. Varner v. The Goodyear

Tire and Rubber Co., 9th Dist. Summit No. 21901, 2004-Ohio-4946, ¶ 10, citing Plumbers &

Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196

(1981).

{¶22} An employee must prove the following elements to establish a prima facie case of

retaliation: “(1) [he] engaged in a protected activity, (2) the defending party was aware that the

claimant had engaged in that activity, (3) the defending party took an adverse employment action

against the employee, and (4) there is a causal connection between the protected activity and

adverse action.” Greer-Burger at ¶ 13, citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d

1064, 1066 (6th Cir.1990). Once the plaintiff demonstrates a prima facie case of retaliation, then

the burden shifts to the defendant to offer a “‘legitimate, nondiscriminatory reason’ for its

actions.” Greer-Burger at ¶ 14, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). After the defendant satisfies this burden, then the plaintiff must demonstrate that the

proffered reason for the adverse action was pretext. Greer-Burger at ¶ 14, quoting Texas Dept.

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
 9

{¶23} “Ultimately, [the plaintiff] will have ‘to establish that * * * [his] protected activity

was a but-for cause of the alleged adverse action by the employer.’” Montell v. Diversified

Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir.2014), quoting Univ. of Texas S.W. Med. Ctr. v.

Nassar, 570 U.S. 338, 362 (2013). See Smith v. Dept. of Pub. Safety, 10th Dist. Franklin No.

12AP-1073, 2013-Ohio-4210, ¶ 60 (The Plaintiff must “prove that retaliation is the but-for cause

of adverse employment action.”). This means that “the plaintiff must ultimately prove, by a

preponderance of the evidence, that the plaintiff’s protected activity was the determinative factor

in the employer’s adverse employment action.” Wholf v. Tremco, Inc., 8th Dist. Cuyahoga No.

100771, 2015-Ohio-171, ¶ 43. Thus, even if the plaintiff is able to establish a prima facie case of

retaliation, the plaintiff’s retaliation claim fails when “‘it appears from the evidence that the

employer would have made the same decision regardless of the plaintiff’s participation in the

protected activity.’” Goad v. Sterling Commerce, Inc., 10th Dist. Franklin No. 99AP-321, 2000

WL 756386, *10, quoting Neal v. Hamilton Cty., 87 Ohio App.3d 670, 678 (1st Dist.1993). See

Hall v. Banc One Mgmt. Corp., 10th Dist. Franklin No. 04AP-905, 2006-Ohio-913, ¶ 44-45, 52,

rev’d on other grounds by 114 Ohio St.3d 484; Boggs v. The Scotts Co., 10th Dist. Franklin No.

04AP-425, 2005-Ohio-1264, ¶ 23.

{¶24} In support of their motion for summary judgment, the Allstate parties submitted

the affidavit of Ms. Robinson, a Senior Manager at Allstate. On November 25, 2016, Ms.

Robinson learned of a complaint from a Customer Service Representative about a threatening

comment made by Mr. Smith. Ms. Robinson averred that Mr. Smith was placed on paid leave

pending an investigation of this complaint by CERT.

{¶25} The Allstate parties also presented the affidavit of T.J., who was the CERT Senior

Consultant assigned to investigate the report that Mr. Smith made a threatening comment to a
 10

Customer Service Representative. Attached to T.J.’s affidavit was the CERT Termination

Request, which consisted of a written report of her investigation and findings and CERT’s

recommendation. Additionally, T.J.’s affidavit attached Chapters 12 and 14 of Allstate’s Human

Resource Policy Guide.

{¶26} Allstate’s Human Resource Policy Guide, Chapter 12, titled Employee Relations,

contains a section governing “Employee Security and Workplace Violence.” This section

defines workplace violence as direct or implied threats and intentional acts or other conduct that

would arouse fear, hostility, intimidation, or apprehension of harm in another person. Covered

under the policy are threats and acts that cause fear in a person for his/her personal safety and the

safety of his/her family, friends, coworkers, clients, employer, and property. A violation of this

section will result in discipline, up to or including termination. Moreover, Chapter 14, which

governs the termination of employees, reiterates that “[t]hreats or acts of physical harm or

violence * * * to any person, regardless of whether he/she is employed by Allstate” could result

in the employee’s immediate termination.

{¶27} T.J.’s investigation consisted of interviewing three Customer Service

Representatives, a Team Lead, and Mr. Smith regarding the alleged threatening comments. In

his interview with T.J., Mr. Smith denied making some of the alleged statements, but admitted to

making other statements.

{¶28} Specifically, Mr. Smith admitted to T.J. that the week before Thanksgiving he

said “‘I kill you’”2 to two Customer Service Representatives that he coached, but claimed he was

2
We recognize that the trial court quoted Mr. Smith as saying “‘I’ll kill you[,]’” while the
Allstate parties quoted Mr. Smith as stating “‘I kill you’” and “‘I’ll kill you’” interchangeably in
their summary judgment motion and exhibits. Mr. Smith does not challenge the discrepancy in
the quoted language.
 11

“jokingly quoting a movie.” Mr. Smith conceded during the investigation that such a statement

“could be perceived as threat[en]ing,” but the individual to whom he was speaking knew it was a

joke. Also, Mr. Smith admitted that a Team Lead heard his comment and advised him “that he

can’t say that in the workplace.”

{¶29} T.J.’s CERT investigation confirmed that “[Mr.] Smith made verbal threats of

physical harm in the workplace” which was a violation of Allstate’s “Employee Security and

Workplace Violence” policy and recommended that he be terminated. On December 15, 2016,

Ms. Robinson reviewed and approved CERT’s Termination Request. Further, the evidence is

uncontested that Ms. Robinson was unaware of Mr. Smith’s earlier racial and sexual

discrimination complaints when she approved the request to terminate Mr. Smith.

{¶30} Based upon the evidence presented by the Allstate parties, they have pointed to

Mr. Smith’s paid leave and termination as being a direct result of his violation of Allstate’s

workplace violence policy. Thus, the Allstate parties have presented evidence that Mr. Smith

would have been placed on paid leave and his employment terminated regardless of whether he

had made complaints of racial and sexual discrimination. Accordingly, the Allstate parties met

their initial burden under Dresher and demonstrated that no genuine issue of material fact existed

regarding retaliation being the “but for” cause of Mr. Smith’s paid leave and termination.

{¶31} The burden then switched to Mr. Smith to point to or present evidence to show the

existence of a genuine issue for trial regarding retaliation being the “but for” cause of his paid

leave and termination. See Dresher, 75 Ohio St.3d at 293; Civ.R. 56(E). As the non-moving

party, Mr. Smith had “‘“a burden of rebuttal to supply evidentiary materials supporting his

position”’” when the Allstate parties produced evidentiary materials denying the retaliation

claim. See Kelvon Props., Ltd. v. Medina Automotive, LLC, 9th Dist. Medina No. 18CA0062-M,
 12

2019-Ohio-584, ¶ 6, quoting Firth v. Hazlett, 9th Dist. Summit No. 12972, 1987 WL 14039, *2

(July 8, 1987), quoting Whiteleather v. Yosowitz, 10 Ohio App.3d 272, 275 (8th Dist.1983). Mr.

Smith could not rely solely upon the allegations and denials in the pleadings to meet his burden,

and instead was required to also present evidentiary materials. See Kelvon Props., Ltd. at ¶ 8.

See also Smith v. Wayne Cty. Dept. of Human Servs., 9th Dist. Wayne No. 02CA0013, 2003-

Ohio-364, ¶ 20.

{¶32} In his brief in opposition to summary judgment, Mr. Smith did not deny that he

made the alleged threatening statements, nor did he dispute that Allstate has a workplace

violence policy and the terms of the policy. Instead, Mr. Smith disputed that his behavior or

activity was a violation of Allstate’s workplace violence policy. He challenged CERT’s finding

and conclusion by arguing that the coworkers to whom he made the alleged threatening

statements did not view or acknowledge the statements as constituting a threat. Mr. Smith also

argued that the alleged threats were made several weeks prior to his discrimination complaint

and termination. Lastly, Mr. Smith indicated that the Ohio Department of Job and Family

Services Office of Unemployment Compensation determined that he was discharged without just

cause.

{¶33} Mr. Smith’s brief neither presented nor pointed to any evidence in the record in

support of his arguments or as to any discriminatory intent by the Allstate parties. Instead, his

brief relied solely upon bald assertions and generalizations, conclusory statements, and his own

subjective belief, none of which were sufficient to show the existence of a genuine issue of

material fact that he would not have been placed on paid leave and terminated but for his alleged

engagement in protected activity. As Mr. Smith did not produce any evidentiary materials in

support of his position, he has failed in his reciprocal burden under Civ.R. 56(E) to show the
 13

existence of a genuine issue of material fact that retaliation was the “but for” cause of his paid

leave and termination. See Kelvon Props., Ltd. at ¶ 8.

{¶34} Upon careful review of the record as it existed at the time the trial court ruled on

the Allstate parties’ motion for summary judgment and viewing the evidence in the light most

favorable to Mr. Smith, we conclude that Mr. Smith failed to raise a genuine issue of material

fact as to his retaliation claim. Accordingly, the trial court did not err in granting the Allstate

parties’ motion for partial summary judgment as to count 8.

Ineffective Assistance of Counsel

{¶35} Lastly, Mr. Smith acknowledges that ineffective assistance of counsel in civil

cases has not been recognized by Ohio courts, but nonetheless suggests that this Court reverse

the trial court’s summary judgment decision on that basis. This Court and our sister courts have

universally held that “[a]n unsuccessful civil litigant, * * * may not obtain the reversal of a trial

court’s judgment based upon the fact that his attorney was ineffective[]” and instead “‘remedies

are available in a malpractice action.’” Dunn v. State Auto. Mut. Ins. Companies, 9th Dist.

Lorain No. 12CA010332, 2013-Ohio-4758, ¶ 10-11, quoting Goldfuss v. Davidson, 79 Ohio

St.3d 116, 122 (1997). See Lykes v. Akron Dept. of Public Serv., 9th Dist. Summit No. 26570,

2014-Ohio-578, ¶ 14; Smith v. Cindy Lucky 7’s LLC, 9th Dist. Summit No. 29065, 2019-Ohio-

1157, ¶ 7. See also D.O.I.T., LLC v. Bd. of Wright Dunbar Technology Academy, 2d Dist.

Montgomery No. 23250, 2011-Ohio-4538, ¶ 5; Guendelsberger v. Ng, 3d Dist. Hardin No. 6-93-

4, 1993 WL 542490, *1 (Dec. 30, 1993); Dantzig v. Biron, 4th Dist. Highland No. 07CA1, 2008-

Ohio-209, ¶ 9; Clark v. Boals, 5th Dist. Licking No. 06CA104, 2007-Ohio-2319, ¶ 68; Roth v.

Roth, 65 Ohio App.3d 768, 776 (6th Dist.1989); DeSarro v. Larkins, 7th Dist. Columbiana No.

15 CO 0021, 2017-Ohio-726, ¶ 24; Myers v. O’Rourke, 8th Dist. Cuyahoga No. 53576, 1988 WL
 14

37125, * 1 (Apr. 7, 1988); Bonn v. Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-Ohio-2313, ¶

17; Mayle v. Ravenna Aluminum, 11th Dist. Portage No. 98-P-0103, 1999 WL 1073805, *2

(Nov. 5, 1999); Garabedian v. Garabedian, 12th Dist. Butler No. CA90-02-037, 1990 WL

179592, *4 (Nov. 19, 1990). Mr. Smith has not provided a compelling argument or any legal

authority to persuade this Court to depart from this well-settled position. Accordingly, Mr.

Smith’s request for reversal of the partial summary judgment based upon his trial counsel’s

alleged ineffective assistance of counsel is not well-taken.

{¶36} Mr. Smith’s assignment of error is overruled.

III.

{¶37} Mr. Smith’s assignment of error is overruled. The judgment of the Summit

County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
 15

Costs taxed to Appellant.

LYNNE S. CALLAHAN
FOR THE COURT

TEODOSIO, P. J.
CARR, J.
CONCUR.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

EDWARD H. CHYUN and INNA SHELLEY, Attorneys at Law, for Appellee.