[Cite as Slane v. Hilliard, 2016-Ohio-306.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

Crystal R. Slane,                                :

                 Plaintiff-Appellant,            :
                                                                    No. 15AP-493
v.                                               :             (C.P.C. No. 10CV-18165)

City of Hilliard et al.,                         :           (REGULAR CALENDAR)

                 Defendants-Appellees.           :

                                          D E C I S I O N

                                     Rendered on January 28, 2016

                 Law Offices of James P. Connors, and James P. Connors, for
                 appellant.

                 Mazanec, Raskin & Ryder Co., L.P.A., Michael S. Loughry,
                 and Robert H. Stoffers, for appellee City of Hilliard.

                 The Law Offices of Raymond H. Decker, and Raymond H.
                 Decker, Jr., for appellee Hilliard City School District.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, J.
        {¶ 1} Plaintiff-appellant, Crystal R. Slane, appeals from a judgment of the
Franklin County Court of Common Pleas granting motions for summary judgment filed
by defendants-appellees, City of Hilliard and Hilliard City School District. For the reasons
that follow, we affirm.
I. Facts and Procedural History
        {¶ 2} During the 2007-2008 academic year, appellant was a 16-year-old student
at Hilliard Darby High School, which is part of the Hilliard City School District
("district"), and within the city of Hilliard ("city"). On October 16, 2007, a vehicle struck
appellant after she entered the crosswalk at the intersection of Scioto Darby Road and
Leppert Road. Appellant described the incident in her affidavit as follows:
No. 15AP-493                                                                  2

           4. I parked in the development and would then walk a short
           distance to the intersection of Scioto Darby and Leppert
           Roads in order to cross the street. Traffic was heavy on
           Scioto Darby Road at that time of the morning. I attended
           what is known as the "zero" period which started at 6:50 a.m.
           The "normal" school start period was approximately an hour
           later. The school zone flashers were not activated or working
           for the zero period students. Normally the traffic is heavy
           and cars travel over the speed limit, and there were no lights
           at the intersection, so the lack of school zone flashers, street
           lights, and properly working traffic signals made me nervous
           and scared since the traffic would not slow down without the
           flashers working and it was hard to know when it was safe to
           cross the street to get to school.

           5. I would cross from the southeast corner of the intersection
           which faced the northeast corner where a signal box
           containing pedestrian signals with "WALK" and "DONT
           WALK" signals was on school property. This pedestrian
           traffic signal was supposed to light up with a WALK or
           DON'T WALK signal, sometimes on its own or sometimes in
           response to pressing a button at the corner. The signals,
           lights, pole, and box supporting them were located on the
           school property. From the start of the 2007-2008 school
           year until the day of my accident, when I was struck by a
           large SUV while trying to cross in the crosswalk, these
           pedestrian signals either never worked at all or never worked
           properly. On several occasions prior to my accident, I tried
           pressing the button to activate the signals so that I could
           safely cross the street, but the signals and button never
           worked so I stopped trying after awhile.

           ***

           7. Both the "WALK" and "DONT WALK" pedestrian traffic
           lights did not work and it was obvious to anyone who was or
           would be at the intersection. It had been this way for at least
           several weeks or months, if not longer, and since I drove to
           school.

           ***

           9. On October 16, 2007, I looked up to see the red lights for
           the traffic to stop in front of me, so I assumed it was safe to
           cross. I made it a few steps into the crosswalk when all the
           sudden without warning I was struck by a vehicle and
           severely injured. I broke my femur bone in my leg and the
No. 15AP-493                                                                                3

                surgeon had to insert a rod and pins into my bone, which
                required surgery.

        {¶ 3} On June 4, 2008, appellant brought a negligence action against the city and
Jesse J. Alfaro, the driver of the vehicle that struck her. The trial court dismissed that
action without prejudice on June 8, 2010. When appellant refiled the action against the
city on December 13, 2010, she added the district as an additional defendant but she did
not refile her complaint against Alfaro.1
        {¶ 4} On June 29, 2011, the district filed a motion for summary judgment
claiming that it was immune from liability to appellant. On August 25, 2011, the city filed
a motion for summary judgment, also claiming immunity. The trial court initially granted
both motions. However, on June 23, 2014, the trial court vacated both its October 9, 2013
entry granting summary judgment in favor of the district and its October 24, 2013 entry
granting summary judgment in favor of the city. The parties subsequently conducted
additional discovery and submitted supplemental memoranda regarding the pending
motions for summary judgment.
        {¶ 5} Appellant presented testimony from other witnesses who claimed that, as
early as the beginning of the school year in August 2007, the "Walk/Don't Walk" signal at
the intersection had either not worked properly or not worked at all. For example,
appellant submitted the affidavit of her classmate, Elizabeth Scotia Knight, who averred,
in relevant part:
                5. * * * From the start of [the 2007] school year, I noticed that
                the pedestrian light signals were not working. They were dim
                and hard to see. They did not work very well. Sometimes they
                worked, but most often they did not work properly or not
                work at all.

                6. * * * The lights did not "beep" or make any noise even when
                working properly, so pushing the button for a walk signal did
                not help.

        {¶ 6} Another Hilliard Darby High School student by the name of Erin M. Ranney
testified that the "Walk/Don't Walk" signal at the intersection did not work when she
pressed the button on the light pole. She estimated that she observed this problem with
the signal around September 2007.

1 Appellant also named American Electric Power Co. as a defendant in the refiled case, but that claim was
later dismissed.
No. 15AP-493                                                                            4

       {¶ 7} Evidence was also produced that in the early 2000s, the city began
conducting periodic inspections of traffic and pedestrian signals throughout the city.
According to William Walton, Jr., a city maintenance technician, the city inspects the
signals at each intersection on a rotating basis at least once per year.
       {¶ 8} Concerning the flashing lights on the school zone signs, appellant deposed
Ellette Schamp, who has served as the city's traffic engineer since 1997. According to
Schamp, in 1998 the city installed signs in advance of the intersection of Leppert Road
and Scioto Darby Road alerting drivers of the reduced speed limit of 20 miles per hour in
a school zone. Schamp testified that the city activates flashing lights on the signs during
school hours. The posted speed limit on Leppert Road and Scioto Darby Road is 35 miles
per hour when school is not in session. According to Schamp, a timer activates the
flashing lights a pre-determined number of minutes before the first tardy bell and then
turns the lights off a pre-determined number of minutes after the earliest dismissal bell.
Schamp testified that she determines the time of the first tardy bell and earliest dismissal
bell by consulting the school district website at the beginning of each school year and
confirming that information with a telephone call to the district. Schamp testified that the
city does not adjust the timer to account for pre-school and after-school events.
       {¶ 9} The district's Director of Business, Jeffrey Franklin, was also deposed and
testified that the decision when to activate the flashing lights on "school zone" signs is
within the discretion of the city. According to Franklin, the unwritten policy adopted by
the city is to activate the flashing lights 20 minutes before the first tardy bell. Franklin
testified that the zero period is not part of the normal school day.
       {¶ 10} On April 13, 2015, the trial court ruled that the city and the district were
entitled to statutory immunity and granted the motions for summary judgment.
Appellant filed a timely notice of appeal to this court on May 13, 2015.
II. Assignments of Error
       {¶ 11} Appellant assigns the following assignments of error for our review:
              1. The trial court erred by granting defendant City of Hilliard's
              motion for summary judgment.

              2. The trial court erred by granting defendant Hilliard City
              School District's motion for summary judgment.
No. 15AP-493                                                                              5

III. Standard of Review
       {¶ 12} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party 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 come to but one conclusion, that conclusion being adverse to the nonmoving party.
Byrd v. Arbors East Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935,
¶ 6, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
       {¶ 13} " '[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim.' " Id. at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d 280,
292 (1996). Once the moving party meets its initial burden, the nonmovant must set forth
specific facts demonstrating a genuine issue for trial. Id., citing Dresher at 293. Because
summary judgment is a procedural device to terminate litigation, courts should award it
cautiously after resolving all doubts in favor of the nonmoving party. Id., citing Murphy
v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
       {¶ 14} Appellate review of summary judgment is de novo. Id. at ¶ 5. When an
appellate court reviews a trial court's disposition of a summary judgment motion, it
applies the same standard as the trial court and conducts an independent review, without
deference to the trial court's determination. Id., citing Maust v. Bank One Columbus,
N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992); Brown v. Cty. Commrs., 87 Ohio App.3d
704, 711 (4th Dist.1993).
IV. Legal Analysis
       {¶ 15} The trial court ruled that the city and the district could not be held liable to
appellant because there was no dispute that the alleged negligence of the city and the
district arose out of the performance or nonperformance of a governmental function and
No. 15AP-493                                                                                6

because the exceptions to immunity set out in R.C. 2744.02(B)(1) through (5) did not
apply.
         A. First Assignment of Error
         {¶ 16} In her first assignment of error, appellant contends that the trial court erred
when it granted summary judgment in favor of the city. Appellant claims that the city was
negligent in failing to repair the malfunctioning "Walk/Don't Walk" signal at the
intersection of Scioto Darby Road and Leppert Road, and in failing to illuminate the
"school zone" sign for the zero period. Appellant further contends that the negligent acts
or omissions of the city were a legal cause of her injuries and that such negligence is
actionable under the exceptions to immunity set forth in R.C. 2744.02(B)(3) and (5).
         {¶ 17} "R.C.   Chapter   2744    addresses    when    political   subdivisions,   their
departments and agencies, and their employees are immune from liability for their
actions." Gibbs v. Columbus Metro. Housing Auth., 10th Dist. No. 11AP-711, 2012-Ohio-
2271, ¶ 8, citing Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 8. The
statutory framework requires courts to employ a three-tier analysis to determine whether
a political subdivision is entitled to immunity under R.C. 2744.02. Id., citing Smith v.
McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 13; Lambert at ¶ 8. "The analysis begins
with a general grant of immunity that affords the political subdivision protection from
liability 'in damages in a civil action for injury, death, or loss to person or property
allegedly caused by any act or omission of the political subdivision or an employee of the
political subdivision in connection with a governmental or proprietary function.' " Gibbs
at ¶ 8, quoting R.C. 2744.02(A)(1).           "However, the immunity provided by R.C.
2744.02(A)(1) is not absolute, but is subject to various exceptions set forth in R.C.
2744.02(B)." Smith v. Martin, 176 Ohio App.3d 567, 2008-Ohio-2978, ¶ 11 (10th Dist.).
Consequently, "[t]he second tier of the analysis focuses on the five exceptions to immunity
listed in R.C. 2744.02(B), which can expose a political subdivision to liability." Gibbs at
¶ 8, citing Smith, 2011-Ohio-4674, at ¶ 14; Lambert at ¶ 9. If any of the R.C. 2744.02(B)
exceptions apply, then the third tier of the analysis requires an assessment of whether any
defenses in R.C. 2744.03 apply to reinstate immunity. Gibbs at ¶ 8, citing Smith, 2011-
Ohio-4674, at ¶ 15; Lambert at ¶ 9.
         {¶ 18} It is within this statutory framework that we must review the trial court's
ruling on immunity.
No. 15AP-493                                                                              7

       1. City of Hilliard
       a. Flashing lights on "school zone" signs
       {¶ 19} R.C. 2744.01(C)(2) defines the term "governmental function" in relevant
part, as follows:
              (e) The regulation of the use of, and the maintenance and
              repair of, roads, highways, streets, avenues, alleys, sidewalks,
              * * * and public grounds[.]

       {¶ 20} R.C. 2744.02(B) sets forth the exceptions to the general rule of immunity in
relevant part, as follows:
              Subject to sections 2744.03 and 2744.05 of the Revised Code,
              a political subdivision is liable in damages in a civil action for
              injury, death, or loss to person or property allegedly caused by
              an act or omission of the political subdivision or of any of its
              employees in connection with a governmental or proprietary
              function, as follows:

              ***

              (3) Except as otherwise provided in section 3746.24 of the
              Revised Code, political subdivisions are liable for injury,
              death, or loss to person or property caused by their negligent
              failure to keep public roads in repair * * *.

              (4) Except as otherwise provided in section 3746.24 of the
              Revised Code, political subdivisions are liable for injury,
              death, or loss to person or property that is caused by the
              negligence of their employees and that occurs within or on the
              grounds of, and is due to physical defects within or on the
              grounds of, buildings that are used in connection with the
              performance of a governmental function * * *.

              (5) In addition to the circumstances described in divisions
              (B)(1) to (4) of this section, a political subdivision is liable for
              injury, death, or loss to person or property when civil liability
              is expressly imposed upon the political subdivision by a
              section of the Revised Code * * *.

       {¶ 21} Appellant first alleges that the city was negligent in the performance of a
governmental function by failing to illuminate "school zone" signs for the zero period.
The evidence, however, does not permit an inference that the city's negligence, if any, falls
within the exceptions set forth in R.C. 2744.02(B)(3).
No. 15AP-493                                                                            8

       {¶ 22} Appellant's affidavit provides in relevant part: "I attended what is known as
the 'zero' period which started at 6:50 a.m.           The 'normal' school start period was
approximately an hour later. The school zone flashers were not activated or working for
the zero period students." (Slane Affidavit, ¶ 4.) Based on appellant's affidavit, appellant
sustained her injury at or before 6:50 a.m. Given the undisputed testimony of Schamp
and Franklin, appellant sustained her injury prior to the normal school day and prior to
the time of day when the city illuminates school zone signs. Appellant has not cited any
statute or administrative regulation that would require the city to activate the flashing
lights on school zone signs for pre-school activities.
       {¶ 23} Even if we were to accept appellant's argument that the city had a duty to
activate the flashing lights for the zero period, the city's failure to do so does not fall
within the exception to immunity set forth in R.C. 2744.02(B)(3). As noted above, R.C.
2744.02(B)(3) states that "political subdivisions are liable for injury, death, or loss to
person or property caused by their negligent failure to keep public roads in repair."
(Emphasis added.) Pursuant to R.C. 2744.01(H): " '[p]ublic roads' means public roads,
highways, streets, avenues, alleys, and bridges within a political subdivision. 'Public
roads' does not include berms, shoulders, rights-of-way, or traffic control devices unless
the traffic control devices are mandated by the Ohio manual of uniform traffic control
devices." (Emphasis added.)
       {¶ 24} R.C. 4511.21(B) pertaining to speed limits within school zones provides, in
relevant part:
                 It is prima-facie lawful * * * for the operator of a motor vehicle
                 * * * to operate the same at a speed not exceeding the
                 following:

                 (1)(a) Twenty miles per hour in school zones during school
                 recess and while children are going to or leaving school during
                 the opening or closing hours, and when twenty miles per hour
                 school speed limit signs are erected[. ] * * * Nothing in this
                 section or in the manual and specifications for a uniform
                 system of traffic control devices shall be construed to require
                 school zones to be indicated by signs equipped with flashing
                 or other lights, or giving other special notice of the hours in
                 which the school zone speed limit is in effect.

(Emphasis added.)
No. 15AP-493                                                                                9

       {¶ 25} Given the plain language of R.C. 4511.21(B) and 2744.02(H), flashing lights
on school zone signs are not considered "public roads." For this reason, the exception to
political subdivision immunity set forth in R.C. 2744.02(B)(3) does not apply and the city
is immune from liability to appellant, as a matter of law, for any negligence with regard to
school zone signs.
       {¶ 26} Appellant has argued, in the alternative, that the exception to immunity set
forth in R.C. 2744.02(B)(5) applies in this case. R.C. 2744.02(B)(5) provides that "[i]n
addition to the circumstances described in divisions (B)(1) to (4)[,] * * * a political
subdivision is liable for injury * * * when civil liability is expressly imposed upon the
political subdivision by a section of the Revised Code." In this regard, we note that R.C.
723.01 imposes a duty on all municipal corporations of "care, supervision, and control of
the public highways, streets, avenues, alleys, sidewalks [and] public grounds * * * within
the municipal corporation."      Appellant argues that this provision expressly imposes
liability upon the city for its failure to illuminate the school zone signs for the zero period,
and that the exception to immunity under R.C. 2744.02(B)(5) applies. We disagree.
       {¶ 27} In 2003, R.C. 723.01 was amended to add the following language: "[t]he
liability or immunity from liability of a municipal corporation for injury * * * allegedly
caused by a failure to perform the responsibilities imposed by this section shall be
determined pursuant to divisions (A) and (B)(3) of section 2744.02 of the Revised Code."
Given the language of the amendment, even if we were to find that R.C. 723.01 expressly
imposed liability on the city for failing to illuminate school zone signs for the zero period,
the city is immune from liability under R.C. 2744.02(B)(3) because the flashing lights on
school zone signs are not part of the "public roads."
       {¶ 28} Based on the foregoing, we hold that the trial court did not err when it
determined that the city was immune from liability to appellant, as a matter of law, from
any negligence of its employees with respect to the illumination of school zone signs.
       b. "Walk/Don't Walk" signal
       {¶ 29} The trial court concluded that appellant did not produce evidence that the
alleged negligence of the city in failing to maintain the "Walk/Don't Walk" signal at the
intersection fell within the exception to immunity set forth in R.C. 2744.02(B)(3). The
trial court first determined that appellant failed to present evidence that the "Walk/Don't
Walk" signal in question was part of the "public roads." In the alternative, the trial court
No. 15AP-493                                                                         10

determined that appellant failed to present evidence that the city had either actual or
constructive notice that the "Walk/Don't Walk" signal had malfunctioned.
      {¶ 30} Under the Political Subdivision Tort Liability Act, immunity is an
affirmative defense. See, e.g., Jones v. Lucas Metro. Hous. Auth., 6th Dist. No. L-96-212
(Aug. 29, 1997); Haynes v. Franklin, 135 Ohio App.3d 82 (12th Dist.1999). Accordingly,
the burden of proof is on the political subdivision to establish general immunity. Id. See
also Browning v. Fostoria, 3d Dist. No. 13-09-28, 2010-Ohio-2163, ¶ 18; Horen v. Bd. of
Edn. of Toledo Pub. Schools, 6th Dist. No. L-09-1143, 2010-Ohio-3631, ¶ 33. The parties
agree that the city is entitled to general immunity under to R.C. 2744.02(A) inasmuch as
the maintenance and repair of public roads is a governmental function. R.C.
2744.01(C)(2)(e).
      {¶ 31} When a political subdivision establishes general immunity, the burden then
shifts to the plaintiff to demonstrate that one of the exceptions to immunity applies. Id.
See also Maggio v. Warren, 11th Dist. No. 2006-T-0028, 2006-Ohio-6880, ¶ 38; Brady
v. Bucyrus Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460, ¶ 24 (3d Dist.). In this
instance, appellant has the burden to produce some evidence that the "Walk/Don't Walk"
signals in question are part of the "public roads" as that term is defined in R.C.
2744.01(H). Walters v. Columbus, 10th Dist. No. 07AP-917, 2008-Ohio-4258, ¶ 20. See
also Darby v. Cincinnati, 1st Dist. No. C-130430, 2014-Ohio-2426, ¶ 18-19. Under R.C.
2744.01(H), " '[p]ublic roads' does not include * * * traffic control devices unless the
traffic control devices are mandated by the Ohio manual of uniform traffic control
devices." (Emphasis added.)
      {¶ 32} R.C. 4511.09 mandated the adoption of a uniform manual by the state
department of transportation, and R.C. 4511.11 requires adherence thereto by local
authorities. Royce v. Smith, 68 Ohio St.2d 106, 109 (1981); Pierce v. Ohio Dept. of
Transp., 23 Ohio App.3d 124, 127 (10th Dist.1985). As such, the manual is an appropriate
aid to the factfinder in determining the local authority's negligence. Elabed v.
Lemanowicz, 8th Dist. No. 53128 (Dec. 10, 1987), citing Royce, Pierce, and Bartos v.
Diasio, 8th Dist. No. 49104 (May 16, 1985).
      {¶ 33} In Webb v. Edwards, 165 Ohio App.3d 158, 2005-Ohio-6379, ¶ 23 (4th
Dist.), the Fourth District issued the following commentary regarding the Ohio Manual of
Uniform Traffic Control Devices ("OMUTCD"):
No. 15AP-493                                                                            11

              The OMUTCD contains mandatory, advisory and permissive
              conditions, differentiated by the use of the terms "shall,"
              "should" and "may." Standards include the word "shall," and
              are considered mandatory. Advisory conditions include the
              word "should" and are considered to be advisable usage, but
              are not mandatory. Permissive conditions include the word
              "may" and carry no requirement or recommendation.

Accord Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487 (10th Dist.1989); Leskovac
v. Ohio Dept. of Transp., 71 Ohio App.3d 22 (10th Dist.1990).
       {¶ 34} In ruling on the city's motion for summary judgment, the trial court adopted
the reasoning of the trial court in the 2008 case and held as follows:
              This Court previously held that "[t]his case does not involve a
              failure to keep a public road in repair or to remove
              obstructions from public roads. Therefore, even if Hilliard
              negligently maintained or repaired a 'walk/don't walk' signal
              at the intersection where Plaintiff was injured, that failure
              does not fall within the limited exception that R.C.
              2744.02(B)(3) provides to the general grant of immunity from
              tort liability that applies to political subdivisions." See
              March 15, 2010 Nunc Pro Tunc Decision and Entry Granting
              Motion of Defendant City of Hilliard Only for Summary
              Judgment Filed December 17, 2009. Based upon this
              persuasive authority, the Court determines that a failure to
              keep the walk/don't walk signal in repair does not fall within
              the R.C. 2744.02(B)(3) exception.

(Apr. 13, 2015 Decision and Entry, 5-6.)
       {¶ 35} The city contends that appellant "failed to introduce any evidence to the
contrary or otherwise present any argument as to why this holding should be reversed."
(Appellee City of Hilliard's Brief, 8.) We agree.
       {¶ 36} We note that the relevant provisions of the OMUTCD are not part of the
trial court record in this case. We further note that appellant has not argued that the
manual requires "Walk/Don't Walk" signals at the intersection in question.
Consequently, appellant has failed to produce evidence that the OMUTCD mandates
"Walk/Don't Walk" signals at the intersection of Scioto Darby Road and Leppert Road. In
the absence of such evidence, appellant has no evidentiary support for her claim that the
"Walk/Don't Walk" signal at the intersection is part of the "public roads" as that term is
defined in R.C. 2744.01(H). Walters at ¶ 20 ("By its clear language, it is evident that the
General Assembly did not intend all erected traffic control devices to be considered part of
No. 15AP-493                                                                          12

a public road."). Because there is no evidence that the "Walk/Don't Walk" signal at Scioto
Darby Road and Leppert Road is part of the "public roads," the exception to immunity set
forth in R.C. 2744.02(B)(3) is inapplicable.       Appellant simply assumes that the
"Walk/Don't Walk" signal is part of the "public roads," without providing any argument or
evidence to support that assumption.
       {¶ 37} Based on the foregoing, we hold that the trial court did not err when it
determined that the city was immune from liability to appellant, as a matter of law, from
any negligence of its employees with respect to the "Walk/Don't Walk" signal. In so
holding, we recognize that much of the argument in this case revolved around the issue of
constructive notice. However, in the absence of evidence to support a finding that the
"Walk/Don't Walk" signal is part of the "public roads," the city's notice of the alleged
defect in the "Walk/Don't Walk" signal is irrelevant to the issue of immunity under the
exception set forth in R.C. 2744.02(B)(3). Accordingly, we shall not address the trial
court's alternative holding regarding notice.   Appellant's first assignment of error is
overruled.
       B. Second Assignment of Error
       1. Hilliard City School District
       {¶ 38} In appellant's second assignment of error, she argues that the trial court
erred when it granted summary judgment in favor of the district. We disagree.
       {¶ 39} R.C. 2744.01(C) defines a "governmental function" in relevant part, as
follows:
             (2) A "governmental function" includes, but is not limited to,
             the following:

             ***

             (c) The provision of a system of public education;

             ***

             (g) The construction, reconstruction, repair, renovation,
             maintenance, and operation of buildings that are used in
             connection with the performance of a governmental function
             * * *;

             ***
No. 15AP-493                                                                                13

                (u) The design, construction, reconstruction, renovation,
                repair, maintenance, and operation of any school athletic
                facility, school auditorium, or gymnasium * * *.

       {¶ 40} R.C. 2744.02(B)(4) provides an exception to immunity as follows: "political
subdivisions are liable for injury, death, or loss to person * * * caused by the negligence of
their employees and that occurs within or on the grounds of, and is due to physical
defects within or on the grounds of, buildings that are used in connection with the
performance of a governmental function." (Emphasis added.) Appellant argues that the
district was negligent in failing to illuminate school zone signs for the zero period and in
failing to maintain the "Walk/Don't Walk" signal.
       {¶ 41} As we have previously noted, R.C. 4511.21(B) specifically states that there is
no requirement that school zones be equipped with flashing lights. Appellant has pointed
to no provision in the Revised Code or the manual that would require illumination of
school zone signs for pre-school activities such as the zero period. Moreover, there is no
dispute in the testimony that the city assumed the responsibility for the timing of the
flashing lights on the school zone sign in question. Similarly, there is no dispute in the
testimony that the city assumed the responsibility for the maintenance and repair of the
"Walk/Don't Walk" signal pursuant to its statutory obligation of "care, supervision, and
control of the public highways, streets, avenues, alleys, sidewalks [and] public grounds
* * * within the municipal corporation."              R.C. 723.01 and 2744.02(B)(3). Ohio law
imposes no such duty on the district. See Mussivand v. David, 45 Ohio St.3d 314, 318
(1989) (The existence of a legal duty in a negligence action is generally a question of law.).
       {¶ 42} The trial court determined that, even if the district owed appellant a duty
with respect to the school zone sign and the "Walk/Don't Walk" signal, the exception to
immunity set forth in R.C. 2744.02(B)(4) did not apply given the undisputed fact that the
injury occurred on a public roadway and not within the grounds of buildings the district
uses in connection with the performance of its governmental function. Appellant argues
that the portion of public roadway where appellant sustained her injury was located on
district grounds because it is located within a designated "school zone."2

2 R.C. 4511.21(B)(1)(c) pertaining to "speed limits" provides: "As used in this section, 'school zone' means
that portion of a street or highway passing a school fronting upon the street or highway that is encompassed
by projecting the school property lines to the fronting street or highway, and also includes that portion of a
state highway."
No. 15AP-493                                                                                14

        {¶ 43} The undisputed evidence in this case establishes that the vehicle struck
appellant while she was walking on a public roadway. Appellant did not sustain her
injuries within or on the grounds of a school building, school athletic facility, school
auditorium, or gymnasium. Even accepting appellant's claim that both the school zone
sign and the "Walk/Don't Walk" signal are located on district property, there is no dispute
in the evidence that appellant sustained her injury on a public roadway and not within or
on the grounds of a school building, school athletic facility, school auditorium, or
gymnasium. Appellant has provided no legal support for her contention that the
territorial boundaries of the district include public roadways within the designated school
zone.3 Thus, the trial court did not err when it determined that the exception to immunity
set forth in R.C. 2744.02(B)(4) did not apply in this case, as a matter of law.
        {¶ 44} Moreover, with respect to the school zone sign, even if we were to conclude
that there is a factual issue whether appellant sustained her injury on grounds used by the
district in the performance of a governmental function, the physical defect exception to
immunity set forth in R.C. 2744.02(B)(4) applies only "if the instrumentality that caused
[the] injury did not operate as intended due to a perceivable condition or if the
instrumentality contained a perceivable imperfection that impaired its worth or utility."
Jones v. Delaware City School Dist. Bd. of Edn., 5th Dist. No. 2013 CAE 01 0009, 2013-
Ohio-3907, ¶ 22, citing Leasure v. Adena Local School Dist., 4th Dist. No. 11CA3249,
2012-Ohio-3071. See also Yeater v. Bd. of Edn., LaBrae School Dist., 11th Dist. No. 2009-
T-0107, 2010-Ohio-3684. Appellant has presented no evidence that the flashing lights on
the school zone sign were either not operating as intended or that there was a perceivable
imperfection with the lights that impaired their utility. Rather, when construed in a light
most favorable to appellant, the evidence demonstrates only that the city elected not to
activate the lights for the zero period. Accordingly, there is no issue of fact regarding the
applicability of the physical defect exception to immunity under R.C. 2744.02(B)(4) as it
pertains to the flashing lights on the school zone sign.
        {¶ 45} For the foregoing reasons, appellant's second assignment of error is
overruled.

3 A "city school district" is defined in R.C. 3311.02 in relevant part as follows: "The territory within the
corporate limits of each city, excluding the territory detached therefrom for school purposes and including
the territory attached thereto for school purposes."
No. 15AP-493                                                                 15

V. Conclusion
      {¶ 46} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                              Judgment affirmed.

                         BROWN and HORTON, JJ., concur.
                              _________________


J-S92034-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

U.S. BANK NATIONAL ASSOCIATION, AS :         IN THE SUPERIOR COURT OF
TRUSTEE FOR MASTR ASSET BACKED     :               PENNSYLVANIA
SECURITIES TRUST 2006-ABI,         :
                                   :
              Appellee             :
                                   :
  v.                               :
                                   :
ALAN M. MURDOCH AND CORRINE C.     :
MURDOCH,                           :
                                   :
              Appellants           :          No. 883 WDA 2016

                  Appeal from the Order May 19, 2016
            in the Court of Common Pleas of Washington County
                    Civil Division, at No(s): 2013-01497

BEFORE:    SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 07, 2017

     Alan M. and Corrine C. Murdoch (the Murdochs) appeal from the May

19, 2016 order that granted the motion for summary judgment filed by U.S.

Bank National Association, as trustee for MASTR Asset Backed Securities

Trust 2006-ABI (U.S. Bank), in this mortgage foreclosure action. We affirm.

     In September 2005, the Murdochs executed a mortgage in favor of

Wells Fargo Bank, N.A., on property located in McMurray, Washington

County, Pennsylvania. In August 2007, the Murdochs stopped making their

monthly payments. Wells Fargo assigned the mortgage to U.S. Bank, which

notified the Murdochs of its intention to foreclose.    U.S. Bank filed a

complaint in mortgage foreclosure in March 2013. The trial court ultimately

*Retired Senior Judge assigned to the Superior Court.
J-S92034-16

granted U.S. Bank’s motion for summary judgment by order of May 19,

2016.

        The Murdochs timely filed a notice of appeal. By order served on June

21, 2016, the trial court ordered the Murdochs to file a concise statement of

errors complained of on appeal within 21 days.         The Murdochs filed their

statement 22 days later, on Tuesday, July 13, 2016.

              Our Supreme Court [has held] that failure to comply with
        the minimal requirements of Pa.R.A.P. 1925(b) will result in
        automatic waiver of the issues raised. Given the automatic
        nature of this type of waiver, we are required to address the
        issue once it comes to our attention. Indeed, our Supreme
        Court does not countenance anything less than stringent
        application of waiver pursuant to Rule 1925(b): [A] bright-line
        rule eliminates the potential for inconsistent results that existed
        [previously], when ... appellate courts had discretion to address
        or to waive issues raised in non-compliant Pa.R.A.P. 1925(b)
        statements. Succinctly put, it is no longer within this Court’s
        discretion to ignore the internal deficiencies of Rule 1925(b)
        statements.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224 (Pa. Super. 2014) (en banc) (quotation marks, citations, and

emphasis omitted). “[E]ven if a trial court ignores the untimeliness of a Rule

1925(b) statement and addresses the merits, those claims still must be

considered waived.” Id. at 225.

        The Murdochs acknowledge that their 1925(b) statement was filed on

July 13, 2016; however, they claim that this was “exactly 21 days” after the

order was served on June 21, 2016. The Murdochs’ Reply Brief at 4. Their

math is wrong: as there are 30 days in June, the 21 st day after June 21 was

                                       -2-
J-S92034-16

in fact July 12.    Accordingly, we are constrained to conclude that the

Murdochs have waived all of their issues on appeal.

     Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2017

                                    -3-


     15-738
     Munoz v. Lynch

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   24th day of June, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   OSVALDO OMAR MUNOZ, aka JUAN MANUEL
13   CAMPOS,
14            Petitioner,
15
16                -v.-                                           15-738
17
18   LORETTA E. LYNCH, UNITED STATES ATTORNEY
19   GENERAL,
20             Respondent.
21   - - - - - - - - - - - - - - - - - - - -X
22
23   FOR PETITIONER:                         Mitchell C. Zwaik, Ronkonkoma, NY.
24
25   FOR RESPONDENT:                         D. Nicholas Harling (Benjamin C.
26                                           Mizer, Anthony P. Nicastro, on the
27                                           brief), Trial Attorney, Office of

                                                1
 1                                Immigration Litigation, U.S.
 2                                Department of Justice,
 3                                Washington, D.C.
 4
 5        Petition for review of a decision of the Board of
 6   Immigration Appeals.
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the petition is DENIED.
10
11        Petitioner Osvaldo Omar Munoz, a native and citizen of
12   Argentina, seeks review of a February 10, 2015 decision of the
13   Board of Immigration Appeals (“BIA”) affirming a September 18,
14   2012 decision of an Immigration Judge (“IJ”) denying Munoz’s
15   application for cancellation of removal and ordering him
16   removed to Argentina. In re Osvaldo Omar Munoz, No. A091 208
17   376 (B.I.A. Feb. 10, 2015), aff’g No. A091 208 376 (Immig. Ct.
18   N.Y. City Sept. 18, 2012). The IJ concluded that Munoz’s
19   conviction for endangering the welfare of a child was not an
20   aggravated felony, so that he was eligible for cancellation of
21   removal, but the IJ denied cancellation of removal on the ground
22   that endangerment of a child under New York law is categorically
23   child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). We assume the
24   parties’ familiarity with the underlying facts and procedural
25   history in this case.

26        We review the IJ’s and BIA’s opinions “for the sake of
27   completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
28   2006). We review the IJ’s factual findings for substantial
29   evidence, and questions of law de novo. Yangin Weng v. Holder,
30   562 F.3d 510, 513 (2d Cir. 2009).

31        1. “[W]e require [p]etitioner to raise issues to the BIA
32   in order to preserve them for judicial review.” Foster v. INS,
33   376 F.3d 75, 78 (2d Cir. 2004) (internal quotation marks and
34   emphasis omitted). Failure to do so “constitutes a clear
35   jurisdictional bar.” Id. at 77.

36        Munoz failed to preserve the issue of whether he was
37   removable for a crime of child abuse under 8 U.S.C. §
38   1227(a)(2)(E)(i). Munoz’s arguments before the IJ focused
39   almost exclusively on whether he was convicted of an aggravated

                                    2
 1   felony, and only briefly mentioned the child abuse charge. His
 2   brief to the BIA challenged only the discretionary denial of
 3   cancellation of removal. And his notice of appeal stated only
 4   that the evidence of his sexual contact with a minor was
 5   insufficient to show that he committed “abuse of a child.” The
 6   BIA deemed this brief reference to abuse of a child insufficient
 7   to challenge the IJ’s conclusion that Munoz was removable, and
 8   we agree. Accordingly, Munoz’s argument is unexhausted and we
 9   lack jurisdiction to consider it.1

10        2. We generally lack jurisdiction to review discretionary
11   denial of cancellation of removal, but retain jurisdiction to
12   review constitutional claims or questions of law related to such
13   a denial. 8 U.S.C. § 1252(a)(2)(B)(i), (D). An error of law
14   includes “seriously mischaracteriz[ing]” or “totally
15   overlook[ing]” evidence in the record. Mendez v. Holder, 566
16   F.3d 316, 323 (2d Cir. 2009).

17        The IJ did not “seriously mischaracterize” or “totally
18   overlook” the evidence in the record. Munoz’s argument that
19   the IJ and BIA committed error reduces to him arguing over how
20   the IJ weighed the relevant factors to deny him cancellation
21   of removal. We lack jurisdiction to review the IJ’s balancing
22   of the equities for such claims. Xiao Ji Chen v. U.S. Dep’t
23   of Justice, 471 F.3d 315, 332 (2d Cir. 2006).

24        Accordingly, and finding no merit in Munoz’s other
25   arguments, we hereby DENY the petition for review.

26                                      FOR THE COURT:
27                                      CATHERINE O’HAGAN WOLFE, CLERK

     1
         We do not suggest that this argument would have had merit had it been made.

                                          3


Matter of Anthony v Jerry V. (2020 NY Slip Op 00095)

Matter of Anthony v Jerry V.

2020 NY Slip Op 00095

Decided on January 7, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 7, 2020

Friedman, J.P., Webber, Singh, Moulton, JJ.

10719N 531108/06

[*1] In re Donna T. Anthony, M.D., etc., Petitioner-Respondent,
vJerry ., Respondent-Appellant.

Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug of counsel), for appellant.
Garfunkel Wild, P.C., Great Neck (Eve Green Koopersmith of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Frank P. Nervo, J.), entered October 24, 2018, which, inter alia, granted petitioner's motion to renew its motion for involuntary medication of respondent and, upon renewal, authorized petitioner to administer such emergency medications as it deemed necessary, unanimously dismissed, without costs, as moot.
As petitioner has been released from involuntary hospitalization under Mental Hygiene Law § 9.27, we find, on the record before us, that the instant appeal is now moot.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 7, 2020
CLERK


329 N.W.2d 673 (1983)
STATE of Iowa ex rel. Judith A. WARREN, Appellant,
v.
Steven M. MAHAN, Appellee, Cross-Appellant.
No. 67654.
Supreme Court of Iowa.
February 16, 1983.
Douglas L. Tindal, Asst. Washington County Atty., for appellant.
James F. Elliott, Robert M. Sherman and Robert R. Lang, of Legal Services Corp. of Iowa, Ottumwa, for appellee.
Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and CARTER, JJ.
CARTER, Justice.
The State, acting on behalf of a mother who receives public assistance, filed a petition under the Uniform Support of Dependents Law, Iowa Code chapter 252A, seeking a determination of paternity and an award of support. The petition was captioned "State of Iowa ex rel. Judith A. Warren, petitioner, vs. Steven M. Mahan, respondent." The petition stated that Judith Warren had never been married to Steven Mahan but that he was the father of her minor child. She requested that respondent be ordered to contribute to the support of "petitioner and said child." The respondent filed a motion for summary judgment, asserting that the action was not brought on behalf of a dependent who was entitled to relief under the provisions of chapter 252A.
*674 The trial court concluded that under the statutory definition of "dependent," only the minor child was entitled to enforce a right of support. The court did not dismiss the action. Instead, it was ordered that "counsel for petitioner shall add the minor child as a petitioner." Instead of complying with this directive, the assistant county attorney who was counsel of record in the action sought and was granted an interlocutory appeal. Respondent also has been granted permission to appeal with respect to the issue of whether the trial court erred in not dismissing the action.
In seeking reversal of the trial court's order, petitioner suggests that it is a standard and much-followed practice in proceedings under chapter 252A involving paternity and child support to commence the actions in the name of the custodial parent of the minor child whose support is at issue. It is asserted that hundreds of cases annually are commenced in this manner "without apparent problems." Even if we assume that this is so in cases where the practice has not been challenged, we cannot agree that this circumstance allows us to misapply applicable legislative directives in those cases where a party to the action asks that the proper procedure be invoked.
For purposes of resolving the issue, we examine the statutory language in chapter 252A to discern legislative intent. It is stated that the purpose of the act is to "secure support ... for dependent spouses, children and poor relatives from persons legally responsible for their support." Iowa Code § 252A.1 (1981). Where paternity is at issue, chapter 252A may be used to determine that issue. Greenstreet v. Clark, 239 N.W.2d 143, 147 (Iowa 1976).
Section 252A.6(1) provides that an action under chapter 252A is commenced by either a "petitioner" or "petitioner's representative" who files a verified petition in a court of equity, alleging that the "petitioner" is in need of support, and is entitled to support from the respondent who is named in the petition. A "petitioner" is defined in section 252A.2(5) as "each dependent person for whom support is sought," and a "petitioner's representative" is defined in section 252A.2(7) to include: a "county attorney, state's attorney ... and any other public officer ... charged by law with the duty of instituting, maintaining or prosecuting a proceeding under [chapter 252A]." A "dependent" includes "a spouse, child, mother, father, grandparent or grandchild who is in need of and entitled to support" from the respondent. Iowa Code § 252A.2(4). Because the dependent child's mother in the present case does not qualify as a "dependent" within the foregoing definition, we believe that it necessarily follows that she may not be a petitioner.
The petition in the present case seeks to recover support on behalf of "petitioner [who is named as Judith Warren] and said child." While the child is a dependent whose right of support may be adjudicated in the action, Judith Warren is not. The trial court's order partially sustaining the motion for summary judgment properly eliminated any claim to support that she is asserting in her own behalf. Contrary to the appellant's contention, the issue presented involves proper designation of the person whose right of support is being adjudicated rather than the party to whom the payment will ultimately be made. Directions, if any, by the court as to whom the payment of any judgment shall be disbursed is governed by section 252A.6(12), but any determination of that question at this time would be premature.
On respondent's cross-appeal, it is urged that the trial court erred in permitting the petition to be amended so as to name the minor child as a petitioner. We disagree. The petition as originally drawn clearly indicated that the child's right of support is an issue in the case. The amendment which was permitted only serves to limit the claim to one seeking enforcement of such support as is owed a "dependent" under section 252A.2(4). We believe that such amendment was properly permitted as an alternative to dismissal. It closely resembles the procedure which we approved in Moody v. Christiansen, 306 N.W.2d 775, 777 (Iowa 1981).
*675 We find no basis for reversal on either appeal. The trial court's orders are affirmed, and the cause is remanded for further proceedings in the district court. Petitioner shall have ten days following the issuance of the procedendo within which to amend the petition as directed by the trial court's order of November 18, 1981.
AFFIRMED AND REMANDED.


                                              COURT OF APPEALS OF VIRGINIA

              Present: Judges Alston, Decker and Senior Judge Coleman
UNPUBLISHED

              WILLETTA BLOUNT HOLMES
                                                                                MEMORANDUM OPINION*
              v.      Record No. 0282-14-2                                              PER CURIAM
                                                                                NOVEMBER 4, 2014
              CITY OF RICHMOND DEPARTMENT
               OF SOCIAL SERVICES

                                 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                              Margaret P. Spencer, Judge

                                (Charles R. Samuels, on brief), for appellant.

                                (Kate O’Leary; Marc E. Yeaker, Guardian ad litem for the minor
                                children; Office of the City Attorney, on brief), for appellee.

                      Willetta Blount Holmes, mother, appeals an order terminating her parental rights to her

              children, S.H. and E.B., and approving a permanent placement goal of placement with relatives for

              her children, Al.B. and Av.B. Mother argues the trial court erred in: (1) “holding that the

              Richmond Department of Social Services [(RDSS)] complied with its affirmative duty mandated by

              . . . Code § 16.1-283(A) to investigate all reasonable options for placement of a child with relatives

              as a condition precedent to entering an order terminating the residual parental rights” of mother

              regarding S.H. and E.B.; (2) holding that mother failed to substantially remedy the conditions which

              led to or required the continuation of the foster care placement for the four children; (3) holding that

              mother failed to maintain continuing contact with and provide or substantially plan for the future of

              the children for a period of six months after the placement of the children in foster care; and

              (4) admitting into evidence Dr. Craig S. King’s February 6, 2013 confidential psychological

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evaluation of mother. Upon review of the record and briefs of the parties, we conclude that this

appeal is without merit.1 Accordingly, we summarily affirm the decision of the trial court. Rule

5A:27.

         Mother appealed to the trial court the juvenile and domestic relations district court’s (JDR

court) orders terminating mother’s parental rights to S.H. and E.B. and approving relative placement

for Al.B. and Av.B. The trial court heard evidence and argument on January 7, 2014. On January

13, 2014, the trial court entered an order terminating mother’s parental rights to S.H. and E.B. and

approving relative placement for Al.B. and Av.B. On February 19, 2014, the trial court entered

form orders entitled “Order for Involuntary Termination of Residual Parental Rights” for the

children E.B. and S.H., citing Code § 16.1-283(C)(1) and (2) as the bases for the terminations.

         Mother has eight children. Six of the children first came into the custody of RDSS on

October 27, 2011. Custody of four of these six children is at issue in this appeal. On October 27,

2011, mother’s oldest child brought Al.B. to the hospital with a broken leg. Al.B. was eighteen

months old at the time. Medical staff determined that the leg had been broken for three to four

weeks and was caused by significant blunt force trauma. However, mother had not sought care for

the child. While they were waiting for test results, mother came to the hospital and removed Al.B.

from the emergency room without speaking with medical staff. The police located mother, and

mother agreed to allow the child to be transported back to the hospital. Mother made no

arrangements for the care of the other five children when she returned to the hospital with Al.B;

therefore, they went into the custody of RDSS. RDSS also took custody of Al.B. based on the

severity of his injury and mother’s failure to obtain medical treatment for the child.

         1
         By order entered on October 7, 2014, this Court granted appellant’s petition for
rehearing and vacated the Court’s decision issued in the case on September 9, 2014.

                                                  -2-
       The initial goal for the children was relative placement. At that time, mother had no stable

housing. Saundra Collier, the foster care worker for the children, testified that Child Protective

Services (CPS) had been working with mother for the past two years, assisting her with utilities

payments and providing home services. Yet, despite the assistance, mother still had not maintained

stable housing.

       Collier testified that in May 2012, the goal for the children was changed to return to home.

This change took place after mother’s sister failed to follow up with RDSS concerning possible

relative placement. RDSS began to work with mother to obtain the goal of return to home. RDSS

recommended, and the JDR court ordered, that mother attend parenting classes through Stop Child

Abuse Now (SCAN), complete psychological therapy, and follow up with a psychiatrist. RDSS

also provided in-home services. Over a two-year period, mother only signed up for two SCAN

classes and was unable to complete the twenty SCAN classes required by the court. In addition,

when RDSS gained custody of the children, the four school-aged children were not registered for

school. At that time, those children were ages nine, ten, thirteen, and fourteen years old.

       In April of 2012, mother found housing and RDSS assisted her with the rental payments.

RDSS also purchased furniture for the family and paid for her utilities, including some past due

utility bills. RDSS paid for mother’s psychological counseling and bus tickets for her job search.

However, mother did not maintain steady employment. Mother attended therapy and saw a

psychiatrist for a period of time. RDSS provided mother transportation to therapy and for visitation

with the children.

       Collier testified mother failed to take the children to medical and dental appointments and

also failed to attend many of those appointments when they were scheduled by RDSS. Mother’s

three-year-old child required dental surgery, including tooth extractions, due to poor dental hygiene.

Mother also failed to timely pay her rent, and RDSS made her rental payments for a period of time.

                                                 -3-
At the time of the trial court hearing, mother was behind in both her rent payments and utility

payments.

        Because mother failed to follow through with the recommended services, in the summer of

2013, the foster care goals changed for the four children who are the focus of this appeal. The two

oldest children returned to mother’s custody. The goals for Av.B. and Al.B. were changed to

placement with relatives, and both were residing with their paternal relatives. Collier testified Av.B.

had a well-established relationship since birth with the relatives of his father. His father is also

“involved with him” and is supportive of the placement with his relatives. Al.B.’s father is also

involved in his life.

        The goal for E.H., who was seven years old at the time of trial, was to be adopted by her

paternal grandmother. Collier testified that for E.H. adoption, rather than placement with the

grandmother, was the better goal because the grandmother needed financial assistance to care for

the child and that assistance would only be available if E.H. is adopted. E.H. had been in the care of

the paternal grandmother since December 2012.

        Collier testified the goal for S.H. was changed to adoption when her paternal grandmother

changed her mind about relative placement because she “didn’t want to have to deal with” mother.

Collier stated “there were no other relatives that came forward.” Collier testified S.H has been in a

prospective adoptive home since October 27, 2011 and was doing “great.” Collier stated mother no

longer had visitation with S.H. based on an incident that took place in May of 2012.

        Evidence was presented that mother initially had visitation with the children, but over time

she had limited contact with them while they were in the custody of RDSS. Collier testified mother

was rude to the caretakers of the children when mother would make telephone contact with the

children. In addition, Collier stated the telephone calls from mother were infrequent. Mother

testified that she was told by CPS that she could not contact the children. At trial, mother did not

                                                  -4-
know the addresses of three of the children. Mother also testified her income consists of a monthly

Social Security check and money from babysitting two or three children in her home.

          Dr. King performed three psychological evaluations of mother since May of 2012. His

February 6, 2013 evaluation of mother was admitted into evidence without objection by mother.

Dr. King testified that mother had reported hearing voices and having hallucinations when she is

stressed, such as when her children were removed from her custody. At trial, mother denied having

these issues.

          Dr. King also testified mother had shown a pattern of an inability to meet the basic needs of

the children over a significant period of time. He stated mother had not been able to obtain

visitation over a consistent period of time and the children had a number of emotional and

behavioral problems. He said that despite the fact that four of her children have been removed from

her care, she was still behind on rent and utility payments. Dr. King opined it would be “very

difficult” to return the four children to her care. Dr. King further stated that mother “does not have

the ability to adequately provide for her children at this time.”

          Dr. King also evaluated S.H., who was twelve years old at the time of the evaluation. He

concluded her academic, emotional, and behavioral functioning “had significantly and drastically

improved while she was in the care of [her foster family] compared to when she was with her

mother.” He testified S.H. exhibited regressive behaviors in the past only after she had visits with

her mother. Dr. King opined it would “be best” for S.H to stay in the “stable environment” of the

foster family.

          The guardian ad litem for the children opined that the goals proposed by RDSS regarding

each of the children were appropriate and it was unfortunate that the family could not safely remain

intact.

                                                  -5-
       “When addressing matters concerning a child . . . the paramount consideration of a trial

court is the child’s best interests.” Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123,

128, 409 S.E.2d 460, 463 (1991). “In matters of a child’s welfare, trial courts are vested with broad

discretion in making the decisions necessary to guard and to foster a child’s best interests.” Farley

v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On appeal, we presume that the trial

court “thoroughly weighed all the evidence, . . . and made its determination based on the child’s best

interests.” Id. at 329, 387 S.E.2d at 796. Furthermore, “[w]here, as here, the trial court heard the

evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless

plainly wrong or without evidence to support it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs.,

3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

       Appellant argues the trial court erred in holding RDSS complied with its affirmative duty to

investigate all reasonable options for placement of S.H. and E.H with relatives as a condition

precedent to entering an order terminating her parental rights to these children.

       However, appellant did not present these arguments to the trial court. “The Court of

Appeals will not consider an argument on appeal which was not presented to the trial court.”

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18.

Accordingly, Rule 5A:18 bars our consideration of this assignment of error on appeal.

                       Although Rule 5A:18 allows exceptions for good cause or
               to meet the ends of justice, appellant does not argue that we should
               invoke these exceptions. See e.g., Redman v. Commonwealth, 25
               Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
               oneself of the exception, a defendant must affirmatively show that a
               miscarriage of justice has occurred, not that a miscarriage might
               have occurred.” (emphasis added)). We will not consider, sua
               sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

       Furthermore, RDSS does not have the duty “in every case to investigate the home of

every relative of the children, however remote, as a potential placement.” Sauer v. Franklin
                                                 -6-
Cnty. Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 642 (1994). The duty to

investigate is a rule of reason dependent upon the particular facts and circumstances of each

individual case. “As long as evidence in the record supports the trial court’s ruling and the trial

court has not abused its discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30

Va. App. 532, 538, 518 S.E.2d 336, 338 (1999).

        Here, Collier testified she asked mother about relatives and RDSS “reached out to the

relatives.” Concerning S.H., Collier testified that, initially, the paternal grandmother “was

interested” in a relative placement, however, she “said she didn’t want to have to deal with

[S.H.’s mother].” Collier stated no other relatives came forward, therefore, RDSS changed the

goal for S.H. to adoption. Collier also testified RDSS pursued placement of the children with

mother’s sister, who failed to follow up with RDSS concerning possible relative placement.

        In addition, RDSS recommended that E.H. be adopted by her paternal grandmother rather

than “placed” with her grandmother based on financial concerns. The guardian ad litem represented

that E.H.’s paternal grandmother had demonstrated a great deal of commitment, was “supportive,”

and recognized the importance of family connections. He also stated that adoption “appeared to be

the only viable way [the grandmother] could provide for” E.H. and a family adoption is a “positive

outcome” for the child. In addition, as addressed below, clear and convincing evidence was

presented supporting the termination of mother’s parental rights to E.H. and S.H.

        A court may terminate parental rights if it finds, based upon clear and convincing evidence,

it is in the best interests of the child and that

                 [t]he parent or parents, without good cause, have been unwilling or
                 unable within a reasonable period of time not to exceed twelve
                 months from the date the child was placed in foster care to remedy
                 substantially the conditions which led to or required continuation
                 of the child’s foster care placement, notwithstanding the

                                                    -7-
                reasonable and appropriate efforts of social, medical, mental health
                or other rehabilitative agencies to such end.

Code § 16.1-283(C)(2).

                [S]ubsection C termination decisions hinge not so much on the
                magnitude of the problem that created the original danger to the
                child, but on the demonstrated failure of the parent to make
                reasonable changes. Considerably more “retrospective in nature,”
                subsection C requires the court to determine whether the parent has
                been unwilling or unable to remedy the problems during the period
                in which he has been offered rehabilitation services.

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005) (quoting

City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463,

466 (2003)).

        Here, the evidence showed E.H. and S.H. had been in foster care for over two years. Yet

mother had not completed parenting classes and remained behind on rent and utility payments

despite receiving significant financial assistance and services from RDSS. Mother’s contact with

her children diminished over time, and she has no contact with S.H. At trial, she did not even know

the addresses of three of her children. In addition, Dr. King, who had evaluated mother three times

since May 2012, opined mother did “not have the ability to adequately provide for her children at

[that] time.” Dr. King also testified mother had mental health issues. Furthermore, the evidence

showed E.H. and S.H. were in stable environments and were doing well. Dr. King also evaluated

S.H. and concluded her academic, emotional, and behavioral functioning “had significantly and

drastically improved while she was in the care of [her foster family] compared to when she was

with her mother.”

        “‘[P]ast actions and relationships over a meaningful period serve as good indicators of what

the future may be expected to hold.’” Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194

(1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)). Furthermore,

“[i]t is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out

                                                   -8-
when, or even if, a parent will be capable of resuming his responsibilities.” Kaywood v. Halifax

Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

        The record supports the trial court’s conclusion that termination of mother’s parental rights

was in the best interests of E.H. and S.H.

        Mother also asserts the trial court erred by approving the change in permanency plan for

Al.B. and Av.B. to placement with relatives because she substantially remedied the situation which

brought the children into foster care.

        Proof by a preponderance of the evidence is the appropriate standard in a case involving the

modification of foster care plans pursuant to Code § 16.1-282. Padilla v. Norfolk Div. of Soc.

Servs., 22 Va. App. 643, 645, 472 S.E.2d 648, 649 (1996).

        As addressed above, evidence was presented that mother did not substantially remedy the

situation which brought her children into foster care and she did not have the ability to adequately

provide for her children. In addition, the goals of the permanency plans for both Av.B. and Al.B.

were to place the children with paternal relatives. The guardian ad litem represented to the trial

court that Al.B.’s father and a network of relatives were available to him in the locality of his

relative placement. The guardian ad litem stated the relative who would obtain custody of Al.B. “is

in a good position to secure his safety . . . connect him with resources and opportunities to maintain

sort of a safe connection with the child’s mother.”

        As to Av.B.’s relative placement, evidence was presented that Av.B. had a well-established

relationship since birth with the relatives of his father. Veronica Barnes, Av.B.’s paternal aunt,

testified Av.B. had lived with her intermittently for almost half of his nine-year life. She had had

custody of him for the past year. Further, she testified she is able to care for him and he would also

spend time with his paternal grandmother who lived nearby.

                                                  -9-
       “In its capacity as factfinder, . . . the circuit court retains ‘broad discretion in making the

decisions necessary to guard and to foster a child’s best interests.’” Toms, 46 Va. App. at 266, 616

S.E.2d at 769 (quoting Farley, 9 Va. App. at 328, 387 S.E.2d at 795).

       RDSS proved, by a preponderance of the evidence, that the permanent goal of the foster care

plan “placement with relatives” was in the best interests of Av.B. and Al.B. Accordingly, the trial

court did not err by entering the permanency planning orders for these two children.

       Finally, mother contends the trial court erred in accepting into evidence Dr. King’s

psychological evaluation of her dated February 6, 2013. However, mother did not make an

objection to the trial court concerning the admission of this report into evidence. In addition,

mother made no objection to Dr. King’s trial testimony concerning the evaluation. “No ruling of

the trial court . . . will be considered as a basis for reversal unless an objection was stated 0with

reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court

of Appeals to attain the ends of justice.” Rule 5A:18. Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.

       For these reasons, we summarily affirm the decision of the trial court. See Rule 5A:27.

                                                                                Affirmed.

                                                 - 10 -


663 So.2d 929 (1995)
Ex parte LIFE INSURANCE COMPANY OF GEORGIA.
(In re Sharen L. GREEN v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Sheryl VANCHE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Christina SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; Janelle S. SMITH v. LIFE INSURANCE COMPANY OF GEORGIA, et al.; and Priscilla DUFFEE v. LIFE INSURANCE COMPANY OF GEORGIA, et al.).
No. 1940753.
Supreme Court of Alabama.
June 9, 1995.
*930 Davis Carr and James W. Lampkin II of Pierce, Carr & Alford, Mobile, I. David Cherniak, W. Alexander Gray, Jr. and E. Erich Bergdolt of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, Samuel Neil Crosby of Stone, Granade, Crosby & Blackburn, Bay Minette, for petitioner.
Bryan G. Duhé of Duhé & Barnard, P.C., Mobile, for respondents.
BUTTS, Justice.
Life Insurance Company of Georgia (hereinafter referred to as "Life of Georgia") petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to (1) vacate its order requiring Life of Georgia to produce certain internal audit documents without affording it the opportunity to assert and be heard on its objections, and (2) vacate its order compelling production of certain customer lists by Life of Georgia in response to a "pattern and practice" request for production.

I.
In 1991, Garry Winsett and Richard Bohlken, as agents for Life of Georgia, persuaded Sharen L. Green, Sheryl Vanche, Christina Smith, Janelle S. Smith, and Priscilla Duffee (hereinafter collectively referred to as "the plaintiffs") to purchase life insurance policies. The plaintiffs claim, however, that Winsett and Bohlken represented to them, at that time, that they were enrolling in a retirement plan and did not disclose that they were, in fact, purchasing life insurance policies.
Subsequently, the plaintiffs sued Life of Georgia, Winsett, and Bohlken in the Mobile Circuit Court, alleging, among other things, breach of contract and fraud. On December 7, 1993, the plaintiffs' cases were consolidated, for discovery purposes only, and, on June 20, 1994, the action was transferred, pursuant to Life of Georgia's request, to the Baldwin Circuit Court.
During the discovery process, the plaintiffs, on January 23, 1995, requested Life of Georgia to produce any and all writings generated as a result of any internal investigations, accountings, or audits performed on the accounts of Winsett and/or Bohlken. On February 8, 1995, the plaintiffs noticed the depositions of Ronald E. Wallace and Jack Niedermayer, Life of Georgia employees who had performed an audit of Winsett's accounts after Winsett had resigned from Life of Georgia. As in the plaintiffs' deposition notice to Life of Georgia, Wallace and Niedermayer were requested to produce documents relating to the audit of Winsett's account.
On the advice of Life of Georgia's counsel, Wallace refused to answer any questions concerning the audit he had performed on Winsett's *931 accounts, claiming that the information was protected by the work-product doctrine, the attorney-client privilege, and the self-critical analysis privilege. Additionally, Wallace testified that he was not in possession of any such documents.
On February 10, 1995, the plaintiffs moved for an order to show cause, seeking to have Life of Georgia held in contempt for failing to produce the audit of Winsett's accounts at Wallace's deposition. On February 15, 1995, Life of Georgia responded, alleging, among other things, that Wallace had been deposed in his individual capacity and not as a Rule 30(b)(6), Ala.R.Civ.P., representative and that it had until February 22, 1995, to respond to the plaintiffs' request for production. On that same date, the trial court granted the plaintiffs' motion for an order to show cause and ordered Life of Georgia to produce Wallace and the audit documents for another deposition to be held within 14 days.
On February 22, 1995, Life of Georgia responded to the plaintiffs' request for production of the audit documents, asserting that the investigation of Winsett's accounts was protected by the work-product doctrine, the attorney-client privilege, and the self-critical analysis privilege. Life of Georgia sought a protective order from the trial court. Life of Georgia moved for the trial court to reconsider its order to show cause; the court denied that motion, without a hearing, on February 27, 1995.

II.
Life of Georgia argues here that the trial court abused its discretion in issuing the order to show cause and in denying its motion for a reconsideration regarding the production of the audit documents. Specifically, Life of Georgia contends that the production was ordered prematurely and improperly through a deposition notice to Wallace, in his individual capacity, without allowing it the opportunity to assert that the audit documents were privileged and, therefore, not subject to discovery.
A party may serve on another party a request to produce designated documents that are not privileged. Rule 34(a), Ala. R.Civ.P. The party requested to produce the designated documents must serve a written response within 30 days after service of the request. Rule 34(b)(1)(B), Ala.R.Civ.P. Further, Rule 30(b)(6), Ala.R.Civ.P., recognizes that a party may in his notice, and in a subpoena, name as a deponent a public or private corporation. In that event, the corporation must "designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf." Rule 30(b)(6), Ala.R.Civ.P.
Pursuant to Rule 34(b)(1)(B), Ala.R.Civ.P., Life of Georgia's response to the plaintiffs' request to produce Wallace's audit of Winsett's account was due on February 22, 1995. Additionally, Wallace was noticed in his individual capacity and not as a Rule 30(b)(6) representative of Life of Georgia. Therefore, we conclude that the trial court prematurely ordered production of the audit-related documents under a deposition notice directed not to Life of Georgia but to an individual, Wallace. Moreover, the trial court did not provide Life of Georgia the opportunity to be heard on its asserted privileges or require the plaintiffs to meet the burden of Rule 26.[1]
Mandamus is a drastic and extraordinary writ, to only be issued where there is a clear legal right in the petitioner to the order sought; an imperative duty on the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly invoked jurisdiction of the court. Ex parte Bozeman, 420 So.2d 89 (Ala.1982). A writ of mandamus is the proper means of review to determine whether the trial court has abused its discretion in discovery matters. Ex parte AMI West Alabama General Hosp., 582 So.2d 484 (Ala.1991). However, the writ is seldom issued in regard to discovery matters, because the trial judge possesses great discretion in those matters. Ex parte AMI West Alabama General Hosp., supra.
*932 As noted above, we hold that the trial court erred in prematurely ordering Life of Georgia to produce the audit documents without affording it an opportunity to be heard on its asserted privileges. The trial court abused its discretion in entering that order. Therefore, we conclude that Life of Georgia has demonstrated a clear legal right to be heard on its asserted privileges and to require the plaintiffs to meet the burden of Rule 26. We grant its petition for a writ of mandamus directing the trial court to vacate its discovery order to the extent that it ordered Life of Georgia to produce the documents without affording it that right.

III.
Additionally, Life of Georgia asks that the trial court be directed to vacate its order compelling production of certain customer lists. However, on January 18, 1995, this Court denied an earlier petition for a writ of mandamus filed by Life of Georgia seeking the same relief. Accordingly, as to this request, Life of Georgia's petition is denied.
PETITION GRANTED IN PART; DENIED IN PART.
MADDOX, ALMON, HOUSTON, and INGRAM, JJ., concur.
NOTES
[1]  Rule 26(b)(3) provides, in pertinent part, that a party seeking discovery of materials prepared in anticipation of litigation must make a showing of "substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."


16 A.3d 1240 (2011)
127 Conn.App. 78
Sixto SIERRA
v.
C & S WHOLESALE GROCERS, INC., et al.
No. 31567.
Appellate Court of Connecticut.
Argued January 31, 2011.
Decided April 19, 2011.
*1241 Neil Johnson, Hartford, for the appellant (plaintiff).
Nicholas W. Francis, Hartford, for the appellant (defendant C & S Wholesale Grocers, Inc.).
BISHOP, ROBINSON and BORDEN, Js.
BISHOP, J.
In this workers' compensation matter, the plaintiff, Sixto Sierra, appeals from the decision of the workers' compensation review board (board), which affirmed the decision of the workers' compensation commissioner for the first district (commissioner) dismissing his claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall. We affirm the decision of the board.
The following facts, as found by the commissioner, and procedural history are relevant to the plaintiff's appeal. At the time of the events giving rise to this appeal, the plaintiff was employed by the defendant C & S Wholesale Grocers, Inc.,[1] where he worked as a selector, using a pallet jack in a warehouse to pick grocery orders, place them onto pallets, wrap them and load them onto a truck. On December 14, 2004, while in the course of his employment, the plaintiff suffered a crushing injury to his abdomen. The plaintiff was transported to Baystate Medical Center in Springfield, Massachusetts, where he eventually underwent three abdominal surgeries. The plaintiff testified that, since the day of the injury, he has been in constant pain, primarily in his stomach and back.
In his report dated May 25, 2006, W. Jay Krompinger, an orthopedic surgeon who had been treating the plaintiff for his injuries in 2005, opined that, from an orthopedic standpoint, the plaintiff had reached maximum medical improvement, with an 8 percent permanent partial disability to the lumbar spine.
On July 16, 2007, general surgeon, Rocco Orlando III, opined that the injury to the plaintiff's abdominal wall equaled a 50 percent disability of the back. In a subsequent letter dated December 1, 2007, Orlando further opined that the plaintiff had no capacity for physical work but, with vocational training, might be able to develop work skills for sedentary employment. *1242 In his subsequent deposition, Orlando clarified his impairment rating by explaining that he provided an assessment of the impairment to the plaintiff's abdominal wall, not the lumbar spine, as he is not qualified to make an assessment regarding an impairment to the lumbar spine. Orlando posited that the American Medical Association guidelines (guidelines) are deficient in dealing with impairments to the abdominal wall, and, therefore, his assessment of a 50 to 70 percent impairment was based mostly on his own personal opinion.
On the basis of the foregoing, the commissioner concluded that the plaintiff sustained a 50 percent permanent partial disability of his abdominal wall but that General Statutes § 31-308[2] does not include the abdominal wall as a body part for which a disability benefit may be awarded. The commissioner, accordingly, rejected the plaintiff's claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall. The commissioner found Krompinger's 8 percent permanent partial disability rating to the lumbar spine to be credible and persuasive and determined that the plaintiff is not permanently and totally disabled.
The plaintiff filed a motion to correct various findings made by the commissioner, which was denied in its entirety.[3] Thereafter, the plaintiff appealed to the board, claiming that the commissioner's decision was contrary to the Supreme Court's opinion in Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 730 A.2d 1149 (1999). In essence, the plaintiff claimed on appeal that the evidence that he presented as to the permanent disability to his abdominal wall, an unscheduled body part under § 31-308, should have caused an equal increase in the permanent disability assessed to his back, a scheduled body part under § 31-308. The board disagreed and affirmed decision of the commissioner. This appeal followed.
Our standard of review for workers' compensation issues is well established. "The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... The review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts.... [I]t is [obligated] to hear the appeal on the record and not retry the facts.... On appeal, the board must determine whether there is any evidence in the record to support the commissioner's findings and award.... Our scope of review of [the] actions of the [board] is [similarly]... limited.... [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed." (Internal quotation marks omitted.) DiBlase v. Logistec Connecticut, Inc., 123 Conn.App. 753, 757-58, 3 A.3d 128, cert. denied, 299 Conn. 908, 10 A.3d 524 (2010).
*1243 In this appeal, as in his appeal to the board, the plaintiff's sole claim is that the commissioner failed to attribute his abdominal wall injury to his back, and, therefore, the commissioner's ruling contravened the Supreme Court's holding in Barton v. Ducci Electrical Contractors, Inc., supra, 248 Conn. at 793, 730 A.2d 1149. We are not persuaded.
In Barton, the Supreme Court concluded that § 31-308(b) allows for compensation for injuries only to scheduled body parts. Id., at 811, 730 A.2d 1149. The Court stated, however, that "an injured employee could receive compensation for injury to an unscheduled body part or organ under the amended version of § 31-308(b), to the extent that the injury related to the loss of or loss of use of a scheduled body part or member, because such injury always would be compensable as it pertained to a scheduled body part or member." Id., at 809, 730 A.2d 1149. Thus, the teaching of Barton is that although a commissioner has the discretion to award benefits for injury to an unscheduled body part, to the extent such an injury implicates a scheduled body part, a trial commissioner is not required, by Barton, to make such a correlation. Indeed, such an award must be based on competent medical evidence. Safford v. Owens Brockway, 262 Conn. 526, 533, 816 A.2d 556 (2003). "Competent evidence does not mean any evidence at all. It means evidence on which the trier properly can rely and from which it may draw reasonable inferences." (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 114 Conn.App. 822, 845, 970 A.2d 834, cert. denied, 293 Conn. 907, 978 A.2d 1109 (2009). "It is properly within the commissioner's discretion to accept or reject all, or part of, a medical opinion." Safford v. Owens Brockway, supra, at 536, 816 A.2d 556.
Here, the commissioner found that although Orlando initially attributed a 50 percent disability to the plaintiff's back on the basis of his abdominal injury, Orlando later indicated that he was not qualified to make an assessment of an injury to the lumbar spine and, accordingly, limited his assessment to the plaintiff's abdominal wall injury.[4] Additionally, as noted earlier, Orlando indicated that the guidelines are inadequate for rating impairments to the abdominal wall and that he had based his rating on personal experience. The board concluded, and we agree, that the commissioner was within his province to reject Orlando's opinion in light of the "deficiencies identified with [his] testimony...." The only other evidence presented as to the impairment to the plaintiff's back was the opinion of Krompinger, assessing an 8 percent permanent partial disability. In the absence of competent medical evidence attributing the plaintiff's back injury to his abdominal wall injury, we cannot conclude that the commissioner's decision was unreasonable, arbitrary, illegal or constituted an abuse of discretion. Accordingly, the board properly affirmed the commissioner's decision dismissing the plaintiff's claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall.
The decision of the workers' compensation review board is affirmed.
In this opinion the other judges concurred.
NOTES
[1]  Gallagher Bassett Services, the insurer for C & S Wholesale Grocers, Inc., also was named as a defendant.
[2]  General Statutes § 31-308(b) provides in relevant part: "With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee.... All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to...." In chart form, § 31-308(b) lists the compensable injuries to individual body parts.
[3]  Of particular relevance to this appeal was the plaintiff's claim that the commissioner should have concluded that the permanent partial impairment to his abdominal wall should have been considered as an impairment to his back in accordance with § 31-308(b).
[4]  Orlando further acknowledged that the plaintiff's impairment did not pertain to any of his skeletal structures.


IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-573-CR
AND
NO. 3-92-574-CR

THE STATE OF TEXAS,

	APPELLANT

vs.

TODD M. LANE,

	APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY

NOS. 37,151 & 37,152, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING

PER CURIAM
	Appellee was accused by information of driving while intoxicated and possessing
less than two ounces of marihuana.  Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1993);
Tex. Health & Safety Code Ann. § 481.121 (West 1992).  Appellee filed motions to suppress
evidence in both causes, challenging the legality of the traffic stop from which the evidence in
both causes was derived.  After a hearing, the motions to suppress were granted on October 13,
1992.  On October 21, the county court at law granted appellee's motions to dismiss each cause,
apparently without a hearing.  On October 22, the State filed its notices of appeal.  Tex. Code
Crim. Proc. Ann. art. 44.01(a)(1), (5) (West Supp. 1993).
	The notices of appeal do not indicate whether the State appeals the orders
suppressing evidence, the orders dismissing the causes, or both.  The State's points of error in
each cause, however, complain only of the granting of the motions to suppress.  Under the
circumstances, this Court is not called upon to address the propriety of the orders of dismissal. (1)
	The State did not perfect its appeals from the orders granting the motions to
suppress evidence.  The criminal district attorney for Hays County did not certify to the trial court
that the appeals were not taken for the purpose of delay and that the evidence in question is of
substantial importance to the State.  State v. Brown, 843 S.W.2d 267 (Tex. App.--Austin 1992,
no pet.).
	The appeals are dismissed.

[Before Justices Powers, Kidd and B. A. Smith]
Appeal Dismissed on Both Causes
Filed:   April 21, 1993
[Do Not Publish]

1.        Were we to reach these orders, we would hold that the county court at law exceeded its
constitutional and statutory authority by dismissing these causes on appellee's motion.  When a
motion to suppress evidence is granted, it is the responsibility of the prosecutor, not the trial
court, to determine whether further prosecution is sustainable.  State v. Nolan, 808 S.W.2d 556,
560 (Tex. App.--Austin 1991, no pet.).