O'Brien v. Phillips

[Cite as O'Brien v. Phillips, 2015-Ohio-3901.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Ron O'Brien, Prosecuting Attorney, :

Plaintiff-Appellee, :

No. 14AP-1026

v. : (C.P.C. No. 13CV-10431)

Timothy P. Phillips, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 24, 2015

Ron O'Brien, Prosecuting Attorney, and Jesse W. Armstrong,

for appellee.

Christopher J. Minnillo, for appellant.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

{¶ 1} Defendant-appellant, Timothy P. Phillips, appeals a judgment of the

Franklin County Court of Common Pleas that granted plaintiff-appellee, Ron O'Brien, the

Franklin County prosecuting attorney, a permanent injunction requiring Phillips to vacate

his residence. For the following reasons, we affirm that judgment.

{¶ 2} On November 13, 2012, Phillips pleaded guilty to attempted unlawful sexual

conduct with a minor, a violation of R.C. 2923.02 as it relates to R.C. 2907.04. A month

later, the trial court convicted and sentenced Phillips. Upon conviction, Phillips became a

sexual offender subject to statutory registration and verification requirements, as well as

residency restrictions.

{¶ 3} Phillips resides at 198 South Westmoor Avenue in Columbus, Ohio. Phillips

purchased that property in May 2000, and he has lived there ever since. Phillips'

No. 14AP-1026 2

residence is located near Westgate Alternative Elementary School ("Westgate

Alternative"), a Columbus public school.

{¶ 4} On September 18, 2013, the prosecuting attorney filed an action seeking a

permanent injunction ordering Phillips to vacate his residence. The prosecuting attorney

sued Phillips pursuant to R.C. 2950.034(B), which permits the prosecuting attorney to

seek injunctive relief against any person who: (1) has been convicted of or pleaded guilty

to a sexually oriented offense and (2) has established a residence or is occupying

residential premises that is located within Franklin County and within 1,000 feet of the

premises of a school, preschool, or daycare facility.

{¶ 5} Both the prosecuting attorney and Phillips moved for summary judgment.

In an entry dated March 25, 2014, the trial court denied both motions, but specified the

material facts not in controversy pursuant to Civ.R. 56(D). The trial court then held a trial

on the sole remaining material fact, i.e., whether Phillips' residence was located within

1,000 feet of Westgate Alternative.

{¶ 6} During trial, the prosecuting attorney presented the testimony of Kevin

Schultz, the interim director of the GIS-IT unit of the Franklin County Auditor's office.

"GIS" stands for "geographic information system." Using the GIS tax map database,

Schultz measured the distance between the boundary line of Phillips' property and the

boundary line of Westgate Alternative's property. That distance is 735 feet, with a two-

and-one-half-foot margin of error.

{¶ 7} On November 19, 2014, the trial court issued a judgment that granted a

permanent injunction requiring Phillips to vacate his South Westmoor residence. The

trial court also issued a decision, including findings of fact and conclusions of law,

supporting its judgment. Phillips now appeals the November 19, 2014 judgment, and he

assigns the following errors:

[1.] It was error for the lower court to retroactively apply R.C.

2950.034 to the Appellant who had established his residence

prior to the enactment date of the original section.

[2.] The lower court's finding of fact number 20, that the

parcel of real estate located at 3080 Wicklow Road, was a

"school" as used in R.C. 2950.034 was clearly erroneous and

contrary to the evidence. The state did not establish either by

clear and convincing evidence or a preponderance of the

evidence that the premises in question was a school operated

by a board of education on the date of the trial.

No. 14AP-1026 3

[3.] It was error and abuse of discretion by the trial court to

interrupt Mr. Phillips' direct examination with an unrelated

question concerning the activities conducted at 3080 Wicklow

Road.

[4.] The lower court erred in applying R.C. 2950.034

retroactively to the Appellant and thereby violated the Ex Post

Facto Clause of the Federal Constitution which forbids the

congress and the states to from [sic] enacting any law which

imposes a punishment for an act which was not punishable at

the time it was committed, or imposes additional punishment

for an earlier act, in this case the Appellant's ability to occupy

his home.

[5.] The trial court correctly found that clear and convincing

evidence is required under R.C. 2950.034 to grant injunctive

relief, and that a prerequisite to injunctive relief is a balancing

of the equities involved, including the benefit of injunctive

relief, the harm to the Appellant that would result from the

requested injunctive relief and the harm to society. The trial

court erred in finding that a balancing of equities was not

required because of Appellant's willful conduct, which finding

was against the manifest weight of the evidence. A proper

balancing of the equities would not have resulted in the

imposition of the injunction granted by the lower court.

{¶ 8} By Phillips' first assignment of error, he argues that the trial court erred in

retroactively applying R.C. 2950.034 to him. Phillips contends that R.C. 2950.034

operates retroactively as to him because he purchased his residence in May 2000, which

was prior to the enactment of residency restrictions on sexual offenders.

{¶ 9} R.C. 2950.034 traces its lineage to former R.C. 2950.031, which the General

Assembly enacted as part of its 2003 amendments to R.C. Chapter 2950 (known as

"Megan's Law"). Former R.C. 2950.031 imposed a residency restriction on certain

sexually oriented offenders, prohibiting them from "establish[ing] a residence or

occupy[ing] residential premises within one thousand feet of any school premises."

Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558, 6657. In 2007, the General Assembly

enacted Am.Sub.S.B. No. 10 ("S.B. 10"), Ohio's version of the federal Adam Walsh Child

Protection and Safety Act. S.B. 10 amended former R.C. 2950.031 and recodified it as

R.C. 2950.034. The amended statute, still effective today, reads in relevant part:

No person who has been convicted of, is convicted of, has

pleaded guilty to, or pleads guilty to a sexually oriented

No. 14AP-1026 4

offense or a child-victim oriented offense shall establish a

residence or occupy residential premises within one thousand

feet of any school premises or preschool or child day-care

center premises.

R.C. 2950.034(A). Although S.B. 10 expanded the residency restriction to include

preschools and daycare centers, it did not otherwise significantly alter the substance of

former R.C. 2950.031. Franklin Cty. Pros. Atty. v. Smith, 10th Dist. No. 10AP-52, 2010-

Ohio-3748, ¶ 11.

{¶ 10} The Supreme Court of Ohio considered whether former R.C. 2950.031

applied retroactively in Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542. In that case,

the defendant was convicted of a sexually oriented offense in 1995 and, again, in 1999.

Following the enactment of former R.C. 2950.031, the chief legal officer of the township in

which Porter lived sought to enjoin Porter from continuing to occupy his residence, which

was within 1,000 feet of a school. Porter argued that, as applied to him, former R.C.

2950.031 was unconstitutionally retroactive because he committed his offenses and

purchased his home prior to the effective date of the statute.

{¶ 11} The Supreme Court began its analysis by reviewing the text of former R.C.

2950.031 to determine whether the statute clearly declared that it was to apply

retroactively. The court found that the language of former R.C. 2950.031 was "ambiguous

regarding its prospective or retroactive application," which was "not sufficient to

overcome the presumption of prospective application." Hyle at ¶ 13. Thus, the court held

that, "[b]ecause [former] R.C. 2950.031 was not expressly made retrospective, it [did] not

apply to an offender who bought his home and committed his offense before the effective

date of the statute." Hyle at syllabus. In other words, because former R.C. 2950.031 only

operated prospectively, it did not apply to a person "who, by virtue of past crime and

residence, [was] violating the terms of the statute on the day it became effective." Hope

Academy v. Ohio Dept. of Edn., 10th Dist. No. 07AP-758, 2008-Ohio-4694, ¶ 20.

{¶ 12} Approximately three years after Hyle, the Supreme Court of Ohio

determined that the entirety of S.B. 10, "as applied to defendants who committed sex

offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution,

which prohibits the General Assembly from passing retroactive laws." State v. Williams,

No. 14AP-1026 5

129 Ohio St.3d 344, 2011-Ohio-3374, syllabus.1 As we explained above, R.C. 2950.034

was enacted as part of S.B. 10. Consequently, Hyle and Williams, together, stand for the

proposition that the residency restrictions on sexual offenders only operate prospectively.

{¶ 13} In cases following Hyle, the question arose: under what circumstances is

application of the residency restrictions retroactive and under what circumstances is it

prospective? Hyle only addressed one scenario: the offender purchased his home and

committed a sexually oriented offense prior to the effective date of the applicable

residency restriction. Consequently, since the announcement of the Hyle decision, the

courts of appeal have had to decide what other situations also entail a retroactive

application of the residency restrictions.

{¶ 14} As a general matter, a statute operates retroactively when it "attaches new

legal consequences to events completed before its enactment." Landgraf v. USI Film

Prods., 511 U.S. 244, 270 (1994); accord State v. Williams, 103 Ohio St.3d 112, 2004-

Ohio-4747, ¶ 7 ("A statute is retroactive if it penalizes conduct that occurred before its

enactment."). A statute operates prospectively when it applies to and regulates conduct

that occurs after its effective date. Dukes v. Dir., Ohio Dept. of Job & Family Servs., 10th

Dist. No. 09AP-515, 2009-Ohio-6781, ¶ 14; accord Hope Academy at ¶ 20 ("Prospective

application [means the statute does] not apply to things that occurred prior to the

statute's effective date, as that would be a retroactive application.").

{¶ 15} Applying the foregoing, the residency restrictions operate retroactively as to

a person who commits and is convicted of a sexually oriented offense before the effective

date of the applicable residency restriction, but establishes a residence or occupies

residential premises within the prohibited distance after the effective date. State v.

Benedetta, 7th Dist. No. 12 BE 20, 2013-Ohio-4364, ¶ 18-22 (collecting cases).2 In that

1 Courts do not address the question of constitutional retroactivity unless they first determine that the

General Assembly expressly made the statute at issue retroactive. Id. at ¶ 8. In Hyle, the court did not

reach the constitutionality question because it concluded that the General Assembly did not expressly

make former R.C. 2930.031 retroactive. In Williams, to pass beyond the first step of the retroactively test,

the court examined another statute, R.C. 2950.03 (also part of S.B. 10), and determined that it expressly

applied retroactively. Williams at ¶ 8. Thus, although Williams ultimately held that R.C. 2950.034 (as

part of S.B. 10) was unconstitutional when applied retroactively, this holding does not diminish the

analysis conducted or conclusions reached in Hyle.

2 To further complicate matters, when a sex offender is living within a 1,000 feet of school premises, a

court gauges retroactivity using the effective date of former R.C. 2950.031, which is July 31, 2003. Smith,

10th Dist. No. 10AP-52, 2010-Ohio-3748. If the case involves a preschool or daycare facility, the

applicable date is July 1, 2007, the effective date of R.C. 2950.034, which added the preschool and

daycare restrictions.

No. 14AP-1026 6

situation, a new legal consequence, i.e., forced relocation, attaches to prior events

(commission and conviction of a sexually oriented offense), so the residency restrictions

apply retroactively. On the other hand, residency restrictions operate prospectively as to a

person who (1) commits and is convicted of a sexually oriented offense and (2) establishes

a residence or occupies residential premises after the effective date of the applicable

residency restriction. In that situation, R.C. 2950.034 operates prospectively because it

regulates all post-enactment conduct.

{¶ 16} In the case at bar, Phillips established his residence prior to the applicable

effective date (July 31, 2003). But all the other conduct implicated here—the commission

of the offense, guilty plea, and occupation of residential premises within 1,000 feet of a

school—occurred after July 31, 2003. Thus, the issue this case presents is whether R.C.

2950.034 operates retroactively when the sole pre-enactment event is the defendant's

establishment of a residence.

{¶ 17} We have previously determined that residency restrictions do not apply

retroactively to a defendant just because that defendant owned the home in which he

resided prior to the applicable effective date. In O'Brien v. Hill, 197 Ohio App.3d 14,

2012-Ohio-774, ¶ 20-21 (10th Dist.), we stated:

The scenario that this case presents is one that has arisen

subsequent to the enactment of the residency restrictions that

are sought to be applied to appellee. While appellee may have

purchased his home in 1991, the prohibited act, i.e., being a

sexual offender and residing within 1,000 feet of a school, did

not arise until the latter half of 2006. The prohibited act is

not simply establishing a residence or occupying residential

premises, but doing so as a sexual offender and within 1,000

feet of a school. This circumstance arose in 2006, which is

subsequent to the time the residency restrictions went into

effect on July 31, 2003. Thus, we cannot conclude that the

residency restrictions of R.C. 2950.034 are being applied

retrospectively or, put another way, to facts that arose prior to

their existence.

Furthermore, while it is the conviction of a sexually oriented

offense that triggers the application of the residency

restrictions, they could not exist without the underlying

offense. The residency restrictions are not punishing past

conduct if the offense occurred after the residency restrictions'

enactment. Application of R.C. 2950.034 to a person who

commits a sexually oriented offense after the residency

restrictions' effective date, while taking away one's choice of

No. 14AP-1026 7

where to live, is doing so prospectively, much like a person's

liberty may be taken away for a statutorily proscribed period

of time after one is convicted of an offense.

(Emphasis sic.)

{¶ 18} Merely establishing a residence within 1,000 feet of a school does not

violate R.C. 2950.034(A) and result in forced relocation pursuant to R.C. 2950.034(B).

Only further, additional events can trigger R.C. 2950.034. In the instant case, those

triggering events were Phillips' commission of a sexually oriented offense, which occurred

in 2011 through 2012; Phillips' guilty plea to a sexually oriented offense, which occurred in

2012; and Phillips' occupation of his residence, which occurs currently. Because those

events all occurred after July 31, 2003, R.C. 2950.034 operates prospectively as to

Phillips.

{¶ 19} This conclusion does not end our analysis. Although Phillips' first

assignment of error challenges the alleged retroactive application of R.C. 2950.034, his

argument largely concentrates, instead, on contesting the meaning of R.C. 2950.034.

Phillips argues that the phrase "occupy residential premises," as used in R.C. 2950.034,

means to commence occupation of residential premises after the effective date of the

applicable residency restriction. Phillips purchased his home and commenced living in it

in May 2000—well before the July 31, 2003 effective date of former R.C. 2950.031.

Phillips argues that the residency restrictions do not apply to him because he continued—

and did not commence—occupation of his home after the effective date. Phillips directs

us to Hyle for support for his interpretation of R.C. 2950.034.3

{¶ 20} In Hyle, the Attorney General of Ohio, an amicus curiae, asserted that the

verb "occupy" had to mean "continue to occupy," or the phrases "shall establish a

residence" and "occupy residential premises" were redundant.4 Based upon this reading

of the statute, the attorney general argued that the residency restriction applied to

offenders who purchased their homes prior to the effective date of the statute and

3 At various points in his brief, Phillips argues that R.C. 2950.034 does not apply to a defendant who

commences occupation of residential premises before a conviction or guilty plea to a sexually oriented

offense. Retroactivity, the concept Phillips relies upon for his argument, is concerned with the application

of statutes to events that occurred before the statutes became law. As focusing on the date of conviction

or plea divorces Phillips' argument from all legal support, we will presume that Phillips meant, instead, to

focus on the effective date of the residency restrictions.

4 As Phillips points out, a person cannot establish a residence without occupying that residence.

Presumably, the attorney general based his redundancy argument on that fact.

No. 14AP-1026 8

continued to occupy them after, as well as offenders who purchased and began living in

their homes (i.e., established a residence) after the effective date. Hyle, 117 Ohio St.3d

165, 2008-Ohio-542, at ¶ 12. Since the statute would apply to both type of offenders, the

argument posited, the statute was meant to apply retroactively.

{¶ 21} The Supreme Court rejected this argument, finding no clear indication in

the statutory language that the residency restriction was to have retroactive application.

The Supreme Court stated:

[T]he two verbs in the description of prohibited acts could

reasonably denote two distinct, present-tense meanings. For

example, "establish a residence" could mean "purchase and

occupy a permanent home," and "occupy a residence" could

mean "live in a temporary residence or occupy another's

home." The language cited is therefore not a clear declaration

of retroactivity.

Id. at ¶ 22.

{¶ 22} Notably, the Supreme Court only examined the phrase "occupy residential

premises" in order to determine whether it clearly indicated the General Assembly's intent

to apply the residency restriction retroactively. The Supreme Court did not opine on the

definitive meaning of the phrase "occupy," so it did not endorse or reject "commence to

occupy" or "continue to occupy" as the definition of "occupy."

{¶ 23} Putting Hyle aside, the argument that Phillips presents devolves to a

question of normal statutory interpretation, which is separate from a retroactivity

analysis. When construing a statute, courts first examine the plain language of the statute

and apply it as written when the meaning is clear and unambiguous. MedCorp, Inc. v.

Ohio Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-2058, ¶ 9. Courts

afford the words used in the statute their usual, normal, and/or customary meanings. Id.

{¶ 24} To "occupy" means "to reside in as an owner or tenant" or "to hold

possession of." Webster's Third New Internatl. Dictionary (1986) 1561. Of course, for

purposes of maintaining prospective application, a sex offender must "reside in" or "hold

possession of" the residential premises at some point after the effective date of the

applicable residency restriction. However, determination of whether a sex offender

resides in or holds possession of residential premises does not require ascertainment of

the date on which an offender began to "reside in" or "hold possession of" the residential

premises. Whether occupancy commences or continues after the effective date of the

No. 14AP-1026 9

applicable residency requirement, it remains occupancy, and occupancy is all that the

statute requires. Thus, neither "commence" nor "continue" modifies the phrase "occupy

residential premises."

{¶ 25} We are not persuaded by Phillips' argument that "occupy" must mean

"commence to occupy" or the phrase "establish a residence" becomes redundant. As the

Supreme Court pointed out, "establish a residence" could mean "purchase and occupy a

permanent home," and "occupy residential premises" could mean "live in a temporary

residence or occupy another's home." Hyle at ¶ 22. We are also unconvinced that the

heading of R.C. 2950.034, "Prohibiting offender from establishing residence near school,"

has any bearing on the meaning of the phrase "occupy residential premises." Cosgrove v.

Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281, 284 (1994) (holding headings

"are irrelevant to the substance of a code provision").

{¶ 26} Here, Phillips currently resides in and holds possession of the South

Westmoor house, so he "occup[ies] residential premises" as required by R.C. 2950.034.

Because Phillips committed and pleaded guilty to a sexually oriented offense and occupied

residential premises within 1,000 feet of school after the effective date of the applicable

residency restriction, the operation of the residency restriction as to him is prospective.

We thus reject all the arguments Phillips asserts under his first assignment of error, and

we overrule that assignment of error.

{¶ 27} We will next address Phillips' third assignment of error, by which he argues

that the trial court erred in asking him, during trial, whether Westgate Alternative was an

active school. We disagree.

{¶ 28} During a pause in Phillips' attorney's direct examination of Phillips, the trial

judge asked him, "Do you know, Mr. Phillips, is Westgate Alternative currently used as an

active school with kids coming in day in and day out?" (Tr. 65.) Phillips answered, "Yes,

it is." (Tr. 65.) Phillips' attorney objected to the court's question.

{¶ 29} A trial court "may interrogate witnesses, in an impartial manner, whether

called by itself or by a party." Evid.R. 614(B). " 'In the absence any showing of bias,

prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that

the trial court acted with impartiality [in propounding to the witness questions from the

bench] in attempting to ascertain a material fact or to develop the truth.' " State v.

Baston, 85 Ohio St.3d 418, 426 (1999), quoting Jenkins v. Clark, 7 Ohio App.3d 93, 98

No. 14AP-1026 10

(2d Dist.1982). A trial court's questioning of a witness is not partial merely because it

elicits testimony that is damaging to one of the parties. Brothers v. Morrone-O'Keefe

Dev. Co., LLC, 10th Dist. No. 05AP-161, 2006-Ohio-1160, ¶ 12. Moreover, questions

posed for the purpose of clarifying material facts do not qualify as improper examination.

State v. King, 2d Dist. No. 24141, 2011-Ohio-3417, ¶ 13. Because a trial court has the

discretion to question witnesses, appellate courts review the court's questioning under the

abuse of discretion standard. Brothers at ¶ 10.

{¶ 30} Here, Phillips only challenges the trial court's question because it

established a fact favorable to the prosecuting attorney. That is not a basis on which to

find partiality. Accordingly, we overrule Phillips' third assignment of error.

{¶ 31} We now return to Phillips' second assignment of error, by which he argues

that the trial court erred in finding that Westgate Alternative satisfies the statutory

definition of "school." We disagree.

{¶ 32} R.C. 2950.034(A) prohibits sex offenders from establishing a residence or

occupying residential premises within 1,000 feet of "any school premises." As used in

R.C. 2950.034, "school" and "school premises" have the same meanings as in R.C.

2925.01. R.C. 2950.01(S). Pursuant to R.C. 2925.01(Q), the definition of "school"

includes "any school operated by a board of education." "School premises" is defined to

include "[t]he parcel of real property on which any school is situated." R.C. 2925.01(R)(1).

{¶ 33} Here, Phillips complains that the prosecuting attorney did not present

evidence regarding whether Westgate Alternative qualified as a "school" under R.C.

2925.01(Q). However, the prosecuting attorney did not have to present such evidence;

Westgate Alternative's status as a school was established on summary judgment.

{¶ 34} Civ.R. 56(D) states:

If on motion under this rule summary judgment is not

rendered upon the whole case or for all the relief asked and a

trial is necessary, the court in deciding the motion, shall

examine the evidence or stipulation properly before it, and

shall if practicable, ascertain what material facts exist without

controversy and what material facts are actually and in good

faith controverted. The court shall thereupon make an order

on its journal specifying the facts that are without controversy

* * * and directing such further proceedings in the action as

are just. Upon the trial of the action the facts so specified

shall be deemed established, and the trial shall be conducted

accordingly.

No. 14AP-1026 11

Under this provision, a trial court may issue a summary judgment decision that sets forth

the uncontroverted material facts, thus narrowing the factual issues to be decided at trial.

Thornton v. Premium Glass Co., 5th Dist. No. 09-CA-52, 2010-Ohio-1796, ¶ 19; Thrash v.

Motorists Mut. Ins. Co., 2d Dist. No. 19504, 2003-Ohio-1765, ¶ 24. If a trial court

designates a material fact as uncontroverted, that fact is deemed established and may not

be contested at trial. Zink v. Harrison, 2d Dist. No. 12201 (July 16, 1992); accord Kent v.

Columbus, 10th Dist. No. 96AP-1771 (Aug. 12, 1997) (holding that the appellant was

precluded from admitting evidence at trial to controvert the factual issues determined

under Civ.R. 56(D)).

{¶ 35} Here, the prosecuting attorney appended to his summary judgment motion

the affidavit of Anne Dorrian-Lenzotti, the director of real estate and shared facilities for

the Columbus City Schools. Dorrian-Lenzotti stated in her affidavit that Westgate

Alternative is a Columbus public school. Phillips did not dispute Dorrian-Lenzotti's

testimony. Rather, he conceded in his memorandum contra that "Westgate Alternative

Elementary School is a school operated by the Board of Education – Columbus City

Schools." (R. 15, at 2.)

{¶ 36} The trial court denied both parties' motions for summary judgment, but it

recognized that the parties agreed on many material facts. Consequently, in its summary

judgment ruling, the trial court invoked Civ.R. 56(D) and set forth the undisputed

material facts. One of the facts was that "Westgate Alternative is currently an operating

public school being used by Columbus students." (R. 24, at 2.) Because that material fact

was established in the summary judgment decision, the prosecuting attorney did not need

to present evidence to prove it at trial.

{¶ 37} In his appellate reply brief, Phillips argues that the finding that Westgate

Alternative constituted a school was stale by trial. According to Phillips, Dorrian-

Lenzotti's affidavit testimony only established that Westgate Alternative operated as a

Columbus public school during the 2013-2014 school year. Phillips maintains that the

prosecuting attorney had to prove at trial that Westgate Alternative remained a school for

the 2014-2015 school year.

{¶ 38} We find that, to properly raise this argument, Phillips had to assert it before

trial to give the prosecuting attorney notice that he was challenging an established fact. If

Phillips had raised the argument prior to trial and the trial court had ruled in his favor,

No. 14AP-1026 12

then the prosecuting attorney would have had the opportunity to adduce evidence at trial

to prove that Westgate Alternative was still a school. Because Phillips did not assert the

argument prior to trial, the prosecuting attorney could rely on established fact and refrain

from adducing that evidence. See Alberty-Velez v. Corporacion de Puerto Rico Para la

Difusion Publica, 242 F.3d 418, 424-25 (1st Cir.2001) (once the trial court establishes

uncontroverted facts on summary judgment, the parties have a right to rely on that ruling

by forbearing from introducing any evidence or cross-examining witnesses in regard to

those facts); accord Singh v. George Washington School of Med. & Health, 508 F.3d

1097, 1106 (D.C.Cir.2007) ("[The appellant] neither moved in the district court to vacate

the partial summary judgment, * * * nor otherwise gave effective notice that it sought to

disestablish the prior finding. A trial court's reopening of such an issue without notice to

the parties is error, and reversible error if it causes substantial prejudice.").5

{¶ 39} Additionally, Phillips' argument fails because the trial record contains

evidence that Westgate Alternative remained a school through the 2014-2015 school year.

As we stated above, Phillips answered affirmatively when the trial judge asked him if

Westgate Alternative was an active school.

{¶ 40} Based on the trial court's specification of facts pursuant to Civ.R. 56(D) and

Phillips' testimony, we conclude that the record establishes that Westgate Alternative fits

within the R.C. 2925.01(Q) definition of "school." Accordingly, we overrule Phillips'

second assignment of error.

{¶ 41} By his fourth assignment of error, Phillips argues that application of R.C.

2950.034 to him violates the Ex Post Facto Clause of the United States Constitution. We

disagree.

{¶ 42} Phillips did not assert this argument in the trial court. Instead, Phillips

contended below that application of R.C. 2950.034 to him was retroactive in violation of

Ohio Constitution, Article II, Section 28, and amounted to an unconstitutional taking of

his property. Neither of these arguments implicates the Ex Post Facto Clause.

5 Both of the cited cases applied Fed.R.Civ.P. 56(d)(1) as it existed prior to the 2009 amendments to

Fed.R.Civ.P. 56. There are substantial similarities between former Fed.R.Civ.P. 56(d)(1) and Civ.R. 56(D).

We cite to the federal case law interpreting former Fed.R.Civ.P. 56(d)(1) because we find it instructive in

interpreting Civ.R. 56(D). See Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 18 (when the

language of a federal rule of civil procedure tracks the language of an Ohio rule of civil procedure, case law

interpreting the federal rule is persuasive authority).

No. 14AP-1026 13

{¶ 43} Failure to raise in the trial court the issue of the constitutionality of a statute

or its application, when the issue was apparent at the time of trial, constitutes a waiver of

the issue. State v. Awan, 22 Ohio St.3d 120 (1986), syllabus; accord State v. Pigot, 10th

Dist. No. 06AP-343, 2007-Ohio-141, ¶ 6 (holding that the appellant waived the argument

that the trial court subjected him to an ex post facto law when he did not raise that

argument before the trial court). Such waived issues need not be heard for the first time

on appeal. Awan at syllabus. Since Phillips did not raise his ex post facto argument in the

trial court, he waived it, and we need not address it.

{¶ 44} Notwithstanding Phillips' waiver, we find the ex post facto argument

unpersuasive. "The ex post facto prohibition forbids the Congress and the States to enact

any law 'which imposes a punishment for an act which was not punishable at the time it

was committed; or imposes additional punishment to that then prescribed.' " Weaver v.

Graham, 450 U.S. 24, 28 (1981), quoting Cummings v. Missouri, 71 U.S. 277, 325-26

(1866). In order for a statute to violate the Ex Post Facto Clause, "it must be retrospective,

that is, it must apply to events occurring before its enactment." Weaver at 29. As we

concluded above, R.C. 2950.034 does not apply retrospectively to Phillips. Consequently,

no violation of the Ex Post Facto Clause has occurred. We thus overrule Phillips' fourth

assignment of error.

{¶ 45} By Phillips' fifth assignment of error, he argues that the trial court erred in

finding that his willful violation of the residency restrictions relieved the court of the

obligation to balance the equities involved before granting an injunction. We conclude

that this argument is not a sufficient basis on which to reverse the trial court's judgment.

{¶ 46} Traditionally, a permanent injunction provides equitable relief upon a

showing of immediate and irreparable injury to the complaining party and the lack of an

adequate remedy at law. Franklin Cty. Dist. Bd. of Health v. Paxson, 152 Ohio App.3d

193, 2003-Ohio-1331, ¶ 25 (10th Dist.). In determining whether to grant such an

injunction, a court must engage in "a balancing process designed to weigh the equities

between the parties." Id.

{¶ 47} Here, the trial court concluded that it did not have to weigh the equities

involved for two reasons: (1) Phillips' violation of the residency restrictions was willful

and (2) the prosecuting attorney sought an injunction as a statutory—not equitable—

remedy, and no balancing of equities is necessary before the grant of a statutory

No. 14AP-1026 14

injunction; such injunctions issue upon a showing of the statutory requirements. To

secure a reversal on the basis that the court erred in deciding that it did not have to weigh

the equities, Phillips has to negate both reasons underlying that decision. However, in his

assignment of error, Phillips does not contest the second reason the trial court offered for

refusing to weigh the equities. Consequently, even if the first reason constitutes error, the

trial court's decision remains supported by the second reason. Because the second reason

stands unchallenged, we cannot find error in the trial court's decision to not weigh the

equities. Accordingly, we overrule Phillips' fifth assignment of error.

{¶ 48} For the foregoing reasons, we overrule each of Phillips' five assignments of

error, and we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN, P.J., and HORTON, J., concur.