By Attorney Gregory R. Farkas, Frantz Ward LLP
The expense and potential pitfalls of electronic discovery have now been well documented. Courts and legislatures have struggled to balance the general policy in favor of broad discovery of factual information against the burden electronic discovery can impose. One aspect of electronic discovery where these competing concerns are especially challenging is requests to forensically examine an opposing party’s computer. Two recent Ohio appellate opinions, Bennett v. Martin (10th App. Dist. Nov. 24, 2009), 2009-Ohio-6195 (“Bennett”), and Cornwell v. Northern Ohio Surgical Ctr., Ltd. (6th App. Dist. Dec. 31, 2009), 2009-Ohio-6975 (“Cornwell”), provide the first detailed Ohio appellate guidance on when such examinations are proper and how they should be conducted.
What is Forensic Imaging?
Forensic imaging or “mirror imaging” has been defined as “a forensic duplicate, which replicates bit for bit, sector by sector, all allocated and unallocated space, including slack space on a computer hard drive." Balboa Threadworks, Inc. v. Stucky, 2006 U.S. Dist. LEXIS 29265 at *3 (D. Kan. March 24, 2006). In other words, it makes an identical copy of all electronic information stored on the computer. This allows the party making the image to review all information contained on the computer, potentially including deleted files and messages. Because of the amount of information contained on a forensic image, a request for such an image has been compared to a request to rummage through your client’s file cabinets. See Steve Puiszis, An “Old School” Approach to Requests for Electronic Imaging of Computers (October 5, 2009), available at http://forthedefense.org/post/An-e2809cold-schoole2809d-approach-to-requests-for-forensic-imaging-of-computers.aspx.
When is Forensic Imaging Appropriate?
The intrusive nature of forensic imaging is recognized in the Advisory Committee Note to Fed. R. Civ. P. 34(a), which cautions that "[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems." Consistent with this caution, federal courts have generally allowed forensic imaging of computer systems only where there is evidence that a party’s production of electronic information was incomplete or that electronic information may have been lost or destroyed. See, e.g., Carrie v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (explaining forensic examination should not be permitted automatically but must be allowed only based on facts and circumstances of individual case); McCurdy Grp., LLC v. Am. Biomedical Grp., Inc., 9 F. App’x 822, 831 (10th Cir. 2001); Scotts Co. v. Liberty Mut. Ins. Co., 2007 U.S. Dist. LEXIS 43005 (S.D. Ohio June 12, 2007); Henderson v. U.S. Bank, N.A., 2009 U.S. Dist. LEXIS 40968 (E.D. Wis. Apr. 29, 2009); Diepenhurst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551 (W.D. Mich. June 30, 2006). State court decisions considering such requests have generally followed suit. See, e.g., In re Weekley Homes, L.P., 295 S.W. 3d 309, 319 (Tex. 2009) (discussing production of forensic images under Texas Rules of Civil Procedure and applying federal case law in determining search was not appropriate).
While the Staff Notes to Ohio Civil Rule 34 do not contain the same caution language as the Federal Advisory Committee Note, the Bennett and Cromwell decisions applied federal precedent in determining whether forensic imaging was appropriate. In Bennett, the Tenth District held that the trial court’s finding that the party from whom discovery was sought had “repeatedly represented that they had disclosed all responsive documents when they had not” and the party’s “lackadaisical and dilatory approach to providing discovery” justified ordering forensic imaging. 2009-Ohio-6195 at ¶47-48.
Similarly, in Cornwell there were allegations that specific language appearing in a letter, but not in a medical note, may have been deleted from the electronic copy of the note. 2009-Ohio-6975 at ¶35. There were also questions about whether the computer at issue had been infected with viruses and was operating properly and the plaintiffs had pled a claim for spoliation of evidence claim. Id. at ¶35-36. The Sixth District agreed with the trial court that, taken together, these circumstances warranted review of a forensic image of the computer in question. Id.
While Cromwell appears to be correctly decided on its facts, the reference to spoliation should not be read overly broadly to allow unsupported allegations of spoliation to trigger an obligation to produce forensic images. Cf. State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-861 at ¶15-16 (explaining the need to provide some evidence of spoliation before forensic examination of computers is appropriate in criminal cases); Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 13-14 (D.D.C. 2009) (explaining that most electronic productions will contain apparent gaps due to the nature of electronic documents and that more than allegation or suspicion of improper conduct is required before forensic examination will be required); Superior Prod. Partnership v. Gordon Auto Body Parts Co., Ltd., No. 06-CV-916, 2009 U.S. Dist. LEXIS 25890 at *2-3 (S.D. Ohio Mar. 12, 2009) (refusing to allow forensic search as a sanction for discovery misconduct where party seeking exam had not provided any evidence that relevant e-mails had been lost or destroyed by inadequate litigation hold); Balfour Beatty Rail Inc., 2007 U.S. Dist. LEXIS 43005 at *6 (M.D. Fla. Jan. 18, 2007); Powers v. Thomas M. Cooley Law Sch., 2006 U.S. Dist. LEXIS 67706 at *14 (W.D. Mich. Sept. 21, 2006).
What Do You Do About Privileged or Confidential Information?
In addition to the threshold issue of whether forensic imaging was appropriate, both the Bennett and Cornwell decisions also addressed the protocol for the forensic imaging process. Given the nature and amount of information that can be disclosed through the review of a forensic image, courts have held that a detailed protocol explaining how the review will be conducted is required See, e.g., In re Weekley Homes, 295 S.W.3d at 318 (explaining that only qualified expert, rather than parties themselves, should be allowed access to image, that search terms or other limitations on review should be agreed to beforehand, and that “privilege, privacy and confidentiality” concerns must be addressed).
In Bennett, the Tenth District found that while forensic imaging was appropriate, the trial court abused its discretion in ordering production of the forensic image without entering a detailed protocol that explained how the image would be used and searched. 2009-Ohio-6195 at ¶48. The Tenth District found that the trial court’s order was inadequate despite containing a provision for redaction of privileged information by the producing party. Id. The appellate court remanded the case and urged the trial court to adopt a protocol that would limit review of the forensic image to relevant information and protect personal information from disclosure. Id.
In Cornwell, crafting an appropriate protocol was complicated by the fact the computer at issue contained privileged medical records of patients who were not parties to the case. 2009-Ohio-6975 at ¶24. Because the computer contained privileged record, the parties resisting production claimed that any review of the forensic image could subject them to liability under Biddle v. Warren Gen Hosp. (1999), 86 Ohio St. 3d 395, 1999-Ohio-115. Id. at ¶27. The Sixth District recognized the validity of these concerns, but held that the proposed protocol adequately addressed them.
Specifically, the court noted that the expert retained to make the image would not be reviewing the actual content of the files, but rather would be searching for key words approved by the court and looking at file log and registry information that would not contain the substance of patients’ medical information. Id. at ¶25-26. The court also recognized that the proposed protocol allowed the producing party to review the list of files identified through the searches and submit a privilege log to the court before the substance of any of the files was disclosed. Id. at ¶29. Despite the sensitivity of the information at issue, the Sixth District found that these safeguards were sufficient to allow the forensic imaging.
Bennett and Cornwell are clear that development of a detailed protocol explaining how the forensic image will be made and searched is an essential component of any request for such information. The protocol must take into account the likelihood that privileged, confidential or irrelevant personal information may be uncovered during the search process and explain in detail how such information will be protected. Also, as in many other areas of electronic discovery, cooperation between the parties in developing such a protocol may lower costs and reduce the risks and burdens for everyone. See, e.g., The Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedonaconference.org/dltForm?did=proclamation.pdf.
Conclusion
Bennett and Cornwell are the first Ohio appellate opinions that contain detailed guidance on when forensic imaging of computers may be appropriate. Consistent with the old saying that “pigs get fed and hogs get slaughtered,” the decisions make clear that automatic and broad requests for forensic imaging are not the best way to obtain such data. Rather, a party should lay the necessary groundwork for such a request either through pre-suit investigation or other discovery and narrowly tailor the request to avoid “fishing expedition” and privilege objections. Parties faced with broad and unsupported claims for forensic imaging can rely on Bennett and Cornwell as persuasive authority that such requests are improper.
For more information, contact Gregory R. Farkas, Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1635 gfarkas@frantzward.com
Editor's Note: This article is provided for the professional education of attorney and judges in Ohio. It does not necessarily reflect the opinions of Judge James L. Kimbler.
Friday, January 29, 2010
Retirement Plan Decision
By Ohio Supreme Court Justice Paul Pfeifer
For young people just starting out in the workforce, retirement plans usually aren’t a top priority. But as the years roll along priorities change, and retirement plans become mighty important. Here at the Supreme Court of Ohio we recently reviewed a case that focused on how one man’s retirement plans went awry.
In 1998, Robert N. McLaughlin, a member of the Ohio Public Employees Retirement System (“PERS”), applied for retirement. He elected to receive his pension benefits under “Plan D,” which provides a joint-survivorship annuity paying him for life and thereafter paying his surviving spouse. Robert designated his wife as his beneficiary.
But that all changed five years later when Robert divorced his wife and elected to have his pension-payment plan changed to Plan B, which provides a single-life annuity to the retiree with no monthly payments to any surviving spouse.
Robert signed a form which stated, in part, that he understood “that the single life annuity is to be paid throughout my life only and terminates at my death with no further payment.”
The form also stated that he had the right to make later changes. This was an important point because, in March 2006, Robert married Donna J. Shisler. He now wanted to make another change. The following month Robert designated Donna as his PERS beneficiary, but he did not at that time change his pension-payment plan – he continued to be paid a monthly benefit based on a single-life annuity under Plan B.
In December 2006, Robert requested an application to change his payment plan. He completed the application in late January 2007, but he mistakenly elected all of the listed payment plans (Plans A, C, and D) instead of following the instructions and choosing only one plan.
PERS returned the form to him with instructions that he was required to choose one plan. Finally, on February 25, 2007, Robert completed and signed the application to change his pension-payment plan from Plan B to Plan D – a joint-survivorship annuity, with Donna as the beneficiary. Robert mailed it to PERS on March 1, 2007. The next day, he died.
PERS received Robert’s request form on March 5, 2007. When Donna eventually requested survivor benefits based on Robert’s attempted change of the pension-payment plan, PERS refused because he had died before the application was received.
Donna filed a complaint in the court of appeals seeking to compel PERS to accept Robert’s application and to pay her the monthly survivor benefit in accordance with his intentions. The court of appeals ruled against her; after that, the case came before us for a final review.
Donna argued that PERS abused its discretion in denying her survivorship benefits. She claimed that under Ohio law, a properly executed PERS member’s request for a change in a pension plan is effective on the date it is received, notwithstanding the member’s prior death.
The pertinent law states that following a marriage or remarriage, a member may elect a new plan of payment, and that the newly elected plan “shall become effective on the date of receipt by the board of an application form…”
By a five-to-two vote, our court concluded that the language of this law “expressly provides that an election to change a retiree’s pension-payment plan after remarriage is not effective until it is received by the PERS board.”
According to the majority, Donna correctly observed “that this provision does not specify that an election to change a pension-payment plan is invalidated if the retiree dies before the election is received by the PERS board.” The majority concluded, however, that by reading this law in conjunction with other related laws, the plan is indeed invalidated if the retiree dies before the PERS board receives the application to change it.
Justice Evelyn Lundberg Stratton and I cast the dissenting votes in this case because we believed PERS abused its discretion by denying Donna’s request.
As the majority conceded, the pertinent provision in the law “does not specify that an election to change a pension-payment plan is invalidated if the retiree dies before the election is received by the PERS board.”
Accordingly, nothing in the law necessitates invalidation of Robert’s election to change his payment plan simply because he died before the PERS board received his plan change; our court should not add language to the law that does not exist.
Moreover, by finding it necessary to read this law in conjunction with other related laws in order to arrive at its conclusion, the majority implicitly recognized that the law, as written, is ambiguous. And because of that ambiguity – as we have determined in prior cases – we must read it “liberally in favor of the interests of the public employees and their dependents that the pension statutes were designed to protect.” Furthermore, we must also avoid an illogical or absurd result in interpreting this ambiguous provision.
Had we applied these long-standing rules of construing statutes, our court should have concluded that Robert intended that Donna receive the joint-survivorship annuity upon his death and that he took all the steps required by the law to make that happen.
And it’s not as if his intentions were unknown. He sent in a completed form that selected all the payment plans, an oversight that perhaps could have and should have been corrected with a simple phone call. Instead he was asked to send another completed form, which he did. There is nothing else Robert could have done to effectuate his intentions, except not die.
Justice Stratton and I concluded that PERS abused its discretion in adopting an interpretation of the law that was not supported by its plain language, and that the majority’s holding was contrary to our duties to liberally construe pension provisions in favor of members and their beneficiaries, and to avoid illogical results.
Nevertheless, the majority reached a different conclusion, and thus Donna won’t receive any benefits from Robert’s pension.
EDITOR’S NOTE: The case referred to is: State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St.3d 148, 2009-Ohio-2522. Case No. 2008-2102. Decided June 4, 2009. Majority opinion Per Curiam.
Thursday, January 28, 2010
Judge Kimbler's Criminal Docket for January 28, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's courtroom on January 28, 2010 for criminal cases:
Rodney Boger, 44, of Northridge Oval in Brooklyn, was sentenced to three years of community control sanctions, with 30 days in jail, on three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. Boger’s car was ordered forfeited to law enforcement.
Adam DeStefanis, 26, of Highpoint Drive in Medina, was sentenced to eight months in prison for a probation violation on original charges of Trafficking in Cocaine Within the Vicinity of a School, a fourth-degree felony and Possession of Drugs, a fifth-degree felony.
Deon Guider, 19, of Morningview Avenue in Akron, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.
Daniel Hotchkiss, 44, of New York, was sentenced to six months in prison on one count of Possession of Heroin, a fifth-degree felony.
David Ritchey, 18, of Main Street in Wadsworth, was sentenced to two years in prison on two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies.
Felicia Robinson, 34, of Meigs Boulevard in Brook Park, was sentenced to seven months in prison on one count of Complicity to Commit Trafficking in Cocaine, a fifth-degree felony.
Daniel Simons, 24, of Fremont Drive in Columbia Station, was sentenced to three years of community controls sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Amanda Schuckert, 25, of Boneta Road in Medina, was sentenced to three years of community control sanctions, with a period served in a Community Based Control Facility, on one count of Possession of Heroin, a third-degree felony.
Christopher Bates, 24, of Bronson Street in Medina, pleaded no contest to one count of Domestic Violence, a fourth-degree felony. Sentencing is scheduled for March 11.
Raymond Gunderman, 29, of Manitoulin Pike in Brunswick, pleaded not guilty to one count of Unlawful Possession of Dangerous Ordnance and Illegal Manufacture or Processing of Explosives, a second-degree felony, and one count of Illegal Manufacture of Drugs or Cultivation of Marijuana, a fourth-degree felony. A jury trial is scheduled for March 29.
Julie Holderbaum, 44, of Knox Boulevard in Akron, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for March 5.
Kelsey Sheppard, 18, of West Main Street in Spencer, pleaded no contest to one count of Theft from the Elderly, a third-degree felony. Sentencing is scheduled for March 5.
Willie Thomas, 57, of East 128th Street in Cleveland, pleaded no contest and was sentenced to six months in prison on one count of Forgery, a fifth-degree felony.
Rodney Boger, 44, of Northridge Oval in Brooklyn, was sentenced to three years of community control sanctions, with 30 days in jail, on three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. Boger’s car was ordered forfeited to law enforcement.
Adam DeStefanis, 26, of Highpoint Drive in Medina, was sentenced to eight months in prison for a probation violation on original charges of Trafficking in Cocaine Within the Vicinity of a School, a fourth-degree felony and Possession of Drugs, a fifth-degree felony.
Deon Guider, 19, of Morningview Avenue in Akron, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.
Daniel Hotchkiss, 44, of New York, was sentenced to six months in prison on one count of Possession of Heroin, a fifth-degree felony.
David Ritchey, 18, of Main Street in Wadsworth, was sentenced to two years in prison on two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies.
Felicia Robinson, 34, of Meigs Boulevard in Brook Park, was sentenced to seven months in prison on one count of Complicity to Commit Trafficking in Cocaine, a fifth-degree felony.
Daniel Simons, 24, of Fremont Drive in Columbia Station, was sentenced to three years of community controls sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Amanda Schuckert, 25, of Boneta Road in Medina, was sentenced to three years of community control sanctions, with a period served in a Community Based Control Facility, on one count of Possession of Heroin, a third-degree felony.
Christopher Bates, 24, of Bronson Street in Medina, pleaded no contest to one count of Domestic Violence, a fourth-degree felony. Sentencing is scheduled for March 11.
Raymond Gunderman, 29, of Manitoulin Pike in Brunswick, pleaded not guilty to one count of Unlawful Possession of Dangerous Ordnance and Illegal Manufacture or Processing of Explosives, a second-degree felony, and one count of Illegal Manufacture of Drugs or Cultivation of Marijuana, a fourth-degree felony. A jury trial is scheduled for March 29.
Julie Holderbaum, 44, of Knox Boulevard in Akron, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for March 5.
Kelsey Sheppard, 18, of West Main Street in Spencer, pleaded no contest to one count of Theft from the Elderly, a third-degree felony. Sentencing is scheduled for March 5.
Willie Thomas, 57, of East 128th Street in Cleveland, pleaded no contest and was sentenced to six months in prison on one count of Forgery, a fifth-degree felony.
Jury Finds Defendant Guilty in Judge Kimbler's Court of Complicity to Commit Drug Trafficking
Raffael D. Lawson, of Jones Road in Litchfield, Ohio, was found guilty of two counts of complicity to commit drug trafficking in Judge Kimbler's court following a two day jury trial. The case began on Monday, January 25. The presentation of evidence took until Tuesday afternoon. The jury started deliberating on Tuesday afternoon and returned a verdict on Wednesday afternoon.
Originally Mr. Lawson was charged with a felony of the second degree and a felony of the first degree. At the conclusion of the State's case Mr. Lawson's attorney made a motion for a directed verdict on the first degree felony. The basis of the motion was that the State hadn't proved that the substance involved in that charge was a "controlled substance".
The evidence was that while a co-defendant of Mr. Lawson's, a Ms. Josephine Church, claimed that the substance was cocaine, in reality it did not contain cocaine. Judge Kimbler granted the motion, ruling that the stature required the State to prove that the substance was in fact a "controlled substance".
Since, however, offering to sell a controlled substance is a felony, Judge Kimbler only granted the motion for a directed verdict on the specification regarding the amount of cocaine. As a result, that charge became a fourth degree felony.
Following the reading of the two verdicts, Judge Kimbler remanded Mr. Lawson to the Medina County Jail while awaiting sentencing. A pre-sentence investigation was ordered. Sentence will be imposed at a later date.
Originally Mr. Lawson was charged with a felony of the second degree and a felony of the first degree. At the conclusion of the State's case Mr. Lawson's attorney made a motion for a directed verdict on the first degree felony. The basis of the motion was that the State hadn't proved that the substance involved in that charge was a "controlled substance".
The evidence was that while a co-defendant of Mr. Lawson's, a Ms. Josephine Church, claimed that the substance was cocaine, in reality it did not contain cocaine. Judge Kimbler granted the motion, ruling that the stature required the State to prove that the substance was in fact a "controlled substance".
Since, however, offering to sell a controlled substance is a felony, Judge Kimbler only granted the motion for a directed verdict on the specification regarding the amount of cocaine. As a result, that charge became a fourth degree felony.
Following the reading of the two verdicts, Judge Kimbler remanded Mr. Lawson to the Medina County Jail while awaiting sentencing. A pre-sentence investigation was ordered. Sentence will be imposed at a later date.
Ohio Supreme Court Rules Township Trustees Are Not ‘Party’ With Legal Standing to File Mandamus Action Challenging Annexation
2009-0186. State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., Slip Opinion No. 2010-Ohio-169.
Montgomery App. No. 22664, 2008-Ohio-6542. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-169.pdf
(Jan. 28, 2010) In a decision announced today, the Supreme Court of Ohio ruled that by filing objections with county commissioners to an annexation petition pursuant to R.C. 709.023(D), a board of township trustees does not gain legal standing to later file a mandamus action challenging the commissioners’ approval of the requested annexation.
The Court’s 5-2 majority decision, which affirmed a ruling of the 2nd District Court of Appeals, was authored by Justice Terrence O’Donnell.
The case involved an October 2007 petition filed with the Montgomery County Board of Commissioners by Waterwheel Farms Inc. seeking to have 78.489 acres of its property located within Butler Township annexed into the adjacent city of Union. The petition specified that annexation was sought under R.C. 709.023 as an “Expedited Type II Annexation” in which the property owner and the municipality had mutually agreed to all terms and conditions of annexation.
Prior to the county commissioners’ consideration of the petition, as permitted by statute, the Board of Trustees of Butler Township adopted a resolution setting forth objections to the proposed annexation and forwarded that resolution to the county commissioners. The objection claimed that the annexation of Waterwheel Farms’ property by the city would cause road maintenance problems for a portion of a road adjacent to but not within the annexed area, because the city had not entered into an agreement regarding maintenance of that roadway. The commissioners subsequently approved the requested annexation notwithstanding the township’s objection.
The township trustees filed suit asking the Montgomery County Court of Common Pleas to issue a declaratory judgment that the commissioners had acted contrary to law in approving the annexation and seeking a writ of mandamus that would compel the commissioners to rescind their order approving the petition. The trial court granted a motion by Union to dismiss the trustees’ complaint on the basis that only a “party” to an expedited annexation proceeding under R.C. 709.023 had legal standing to file a mandamus action challenging the commissioners decision in the case, and the township was not a “party” as that term is defined in the applicable statute
The township appealed the common pleas court ruling to the 2nd District Court of Appeals. On review, the court of appeals affirmed the trial court’s ruling that the township trustees were not a party with legal standing to sue for reversal of the commissioners’ decision granting annexation. Butler Township sought and was granted Supreme Court review of the trial and appellate court decisions.
Writing for the Court in today’s decision, Justice O’Donnell noted that effective in March 2002, the General Assembly enacted several new sections of state law establishing expedited proceedings for the approval of annexations in which all of the affected property owners and a city agreed in advance on the terms and conditions set forth in an annexation petition. The key issue in this case was whether or not the definition of a “party” set forth in R.C. 709.021(D) is or is not applicable to the type of expedited proceedings undertaken under R.C. 709.023.
Although the definition of a party in R.C. 709.021(D) includes “each township any portion of which is included within the territory proposed for annexation,” Justice O’Donnell wrote, “(S)ubsection (D) expressly provides that this definition applies to R.C. 709.022 and 709.024, but R.C. 709.023 is not mentioned. ‘The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the other.’ ... It is well recognized that a court cannot read words into a statute, but must give effect to the words used in the statute. The General Assembly could have applied the R.C. 709.021(D) definition of ‘party’ to R.C. 709.023 if it had intended to do so. It chose otherwise. Our duty is to construe the statutes as written. In doing so, we conclude that the General Assembly did not intend the definition of ‘party’ in R.C. 709.021(D) to apply to R.C. 709.023; hence R.C. 709.021 does not confer party status on a township in an R.C. 709.023 special annexation proceeding.”
“Based on the foregoing, we conclude that a township that files a resolution objecting to an annexation petition pursuant to R.C. 709.023(D) in an R.C. 709.023 annexation proceeding is not a ‘party’ as that term is used in R.C. 709.023(G) and therefore lacks standing to seek a writ of mandamus to compel the board of county commissioners to make findings on each of the conditions set forth in R.C. 709.023(E).” In light of that conclusion, the majority held that a second issue raised by the township trustees in their complaint was moot and therefore declined to address it.
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.
Justice Robert R. Cupp entered a dissent, joined by Justice Evelyn Lundberg Stratton, in which he disagreed with the majority’s holding that the absence of a reference to R.C. 709.023 proceedings in the statutory definition of a “party” deprives an affected township of standing to contest the granting of an expedited annexation petition.
“Taken together, the provisions allowing a township to object to a proposed annexation under R.C. 709.023 and requiring the board of county commissioners to determine whether the seven conditions specified in R.C. 709.023(E) for such an annexation have been met show that a township, some of whose territory is to be annexed, is a ‘party’ who may file a mandamus action under R.C. 709.023(G),” wrote Justice Cupp. “As the township and its amici point out, only the township has an interest in challenging an improperly approved annexation under R.C. 709.023. Surely R.C. 709.023 does not expressly allow affected townships to object to an annexation and to require the board of county commissioners to determine whether all of the statutorily specified conditions for such annexations have been met, only to exclude townships from filing a mandamus action under division (G) to challenge an improperly approved annexation. ... I would reverse the court of appeals’ judgment and remand this matter to that court for a determination whether the board of county commissioners’ resolution approving the annexation in this case satisfied the requirement that the board of commissioners find that all of the seven conditions in R.C. 709.023(E) have been met.
Contacts
Wanda L. Carter, 614.255.5441, for the Butler Township Board of Trustees.
John A. Cumming, 937.496.7797, for the Montgomery County Board of Commissioners.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Montgomery App. No. 22664, 2008-Ohio-6542. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-169.pdf
(Jan. 28, 2010) In a decision announced today, the Supreme Court of Ohio ruled that by filing objections with county commissioners to an annexation petition pursuant to R.C. 709.023(D), a board of township trustees does not gain legal standing to later file a mandamus action challenging the commissioners’ approval of the requested annexation.
The Court’s 5-2 majority decision, which affirmed a ruling of the 2nd District Court of Appeals, was authored by Justice Terrence O’Donnell.
The case involved an October 2007 petition filed with the Montgomery County Board of Commissioners by Waterwheel Farms Inc. seeking to have 78.489 acres of its property located within Butler Township annexed into the adjacent city of Union. The petition specified that annexation was sought under R.C. 709.023 as an “Expedited Type II Annexation” in which the property owner and the municipality had mutually agreed to all terms and conditions of annexation.
Prior to the county commissioners’ consideration of the petition, as permitted by statute, the Board of Trustees of Butler Township adopted a resolution setting forth objections to the proposed annexation and forwarded that resolution to the county commissioners. The objection claimed that the annexation of Waterwheel Farms’ property by the city would cause road maintenance problems for a portion of a road adjacent to but not within the annexed area, because the city had not entered into an agreement regarding maintenance of that roadway. The commissioners subsequently approved the requested annexation notwithstanding the township’s objection.
The township trustees filed suit asking the Montgomery County Court of Common Pleas to issue a declaratory judgment that the commissioners had acted contrary to law in approving the annexation and seeking a writ of mandamus that would compel the commissioners to rescind their order approving the petition. The trial court granted a motion by Union to dismiss the trustees’ complaint on the basis that only a “party” to an expedited annexation proceeding under R.C. 709.023 had legal standing to file a mandamus action challenging the commissioners decision in the case, and the township was not a “party” as that term is defined in the applicable statute
The township appealed the common pleas court ruling to the 2nd District Court of Appeals. On review, the court of appeals affirmed the trial court’s ruling that the township trustees were not a party with legal standing to sue for reversal of the commissioners’ decision granting annexation. Butler Township sought and was granted Supreme Court review of the trial and appellate court decisions.
Writing for the Court in today’s decision, Justice O’Donnell noted that effective in March 2002, the General Assembly enacted several new sections of state law establishing expedited proceedings for the approval of annexations in which all of the affected property owners and a city agreed in advance on the terms and conditions set forth in an annexation petition. The key issue in this case was whether or not the definition of a “party” set forth in R.C. 709.021(D) is or is not applicable to the type of expedited proceedings undertaken under R.C. 709.023.
Although the definition of a party in R.C. 709.021(D) includes “each township any portion of which is included within the territory proposed for annexation,” Justice O’Donnell wrote, “(S)ubsection (D) expressly provides that this definition applies to R.C. 709.022 and 709.024, but R.C. 709.023 is not mentioned. ‘The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the other.’ ... It is well recognized that a court cannot read words into a statute, but must give effect to the words used in the statute. The General Assembly could have applied the R.C. 709.021(D) definition of ‘party’ to R.C. 709.023 if it had intended to do so. It chose otherwise. Our duty is to construe the statutes as written. In doing so, we conclude that the General Assembly did not intend the definition of ‘party’ in R.C. 709.021(D) to apply to R.C. 709.023; hence R.C. 709.021 does not confer party status on a township in an R.C. 709.023 special annexation proceeding.”
“Based on the foregoing, we conclude that a township that files a resolution objecting to an annexation petition pursuant to R.C. 709.023(D) in an R.C. 709.023 annexation proceeding is not a ‘party’ as that term is used in R.C. 709.023(G) and therefore lacks standing to seek a writ of mandamus to compel the board of county commissioners to make findings on each of the conditions set forth in R.C. 709.023(E).” In light of that conclusion, the majority held that a second issue raised by the township trustees in their complaint was moot and therefore declined to address it.
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.
Justice Robert R. Cupp entered a dissent, joined by Justice Evelyn Lundberg Stratton, in which he disagreed with the majority’s holding that the absence of a reference to R.C. 709.023 proceedings in the statutory definition of a “party” deprives an affected township of standing to contest the granting of an expedited annexation petition.
“Taken together, the provisions allowing a township to object to a proposed annexation under R.C. 709.023 and requiring the board of county commissioners to determine whether the seven conditions specified in R.C. 709.023(E) for such an annexation have been met show that a township, some of whose territory is to be annexed, is a ‘party’ who may file a mandamus action under R.C. 709.023(G),” wrote Justice Cupp. “As the township and its amici point out, only the township has an interest in challenging an improperly approved annexation under R.C. 709.023. Surely R.C. 709.023 does not expressly allow affected townships to object to an annexation and to require the board of county commissioners to determine whether all of the statutorily specified conditions for such annexations have been met, only to exclude townships from filing a mandamus action under division (G) to challenge an improperly approved annexation. ... I would reverse the court of appeals’ judgment and remand this matter to that court for a determination whether the board of county commissioners’ resolution approving the annexation in this case satisfied the requirement that the board of commissioners find that all of the seven conditions in R.C. 709.023(E) have been met.
Contacts
Wanda L. Carter, 614.255.5441, for the Butler Township Board of Trustees.
John A. Cumming, 937.496.7797, for the Montgomery County Board of Commissioners.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Ohio Supreme Court Rules Felonious Assault, Attempted Murder Are ‘Allied Offenses’ Subject to Single Sentence
2008-2037. State v. Williams, Slip Opinion No. 2010-Ohio-147.
Cuyahoga App. No. 89726, 2008-Ohio-5286. Judgment of the court of appeals reversed in part, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton and O'Connor, JJ., concur.
Cupp, J., concurs in judgment only.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-147.pdf
(Jan. 27, 2010) The Supreme Court of Ohio ruled today that pursuant to Ohio’s multiple-count statute:
a defendant’s conviction for felonious assault based on causing serious physical harm [R.C. 2903.11(A)(2)] is an allied offense of an attempt to commit murder while committing an offense of violence [R.C. 2903.02(B) and 2923.02],
a defendant’s conviction for felonious assault based upon causing or attempting to cause physical harm by means of a deadly weapon [R.C. 2903.11(A)(2)] is an allied offense of attempted murder [R.C. 2093.02(B)], and
therefore these respective counts of felonious assault merge with the respective counts of attempted murder.
In accordance with this holding and the court’s recent holding in State v. Whitfield, Slip Op. No. 2010-Ohio-2, the court reversed the judgment of the 8th District Court of Appeals finding that Kevin Williams could only be convicted of one count of attempted murder in this case, and remanded the case to the Cuyahoga County Court of Common Pleas for the prosecutor to elect which of the allied offenses to pursue on sentencing. Today’s majority opinion was authored by Justice Terrence O’Donnell.
After an argument broke out between Williams and another participant in a 2006 dice game in East Cleveland, Williams pulled a gun. As the other players, including LayShawn McKinney, attempted to run away, Williams fired two shots, one of which struck McKinney in the back, paralyzing him. McKinney and others identified Williams as the shooter, and he was arrested.
Williams was subsequently charged and convicted on two counts of felonious assault: one for knowingly causing physical harm to McKinney, and one for using a deadly weapon to cause physical harm. He was also found guilty on two counts of attempted murder: one for purposely attempting to kill McKinney and the second for attempting to kill McKinney during the commission of a crime of violence (i.e., felonious assault). At sentencing, Williams’ attorneys moved the trial court to: 1) merge his two felonious assault counts into a single conviction; 2) merge his two attempted murder counts into a single conviction; and 3) merge the felonious assault conviction into the attempted murder conviction resulting in a single conviction for attempted murder subject to a single sentence based on the statutory penalties for that offense. The trial court declined to merge any of the counts, and proceeded to convict and sentence Williams on all four felony charges. The resulting prison terms, including additional time for a firearm specification and a separate conviction for possession of a gun under disability, totaled 20 years.
Williams appealed. On review, the 8th District Court of Appeals reversed and remanded the case to the trial court, holding that the felonious assault and aggravated murder counts were allied offenses of similar import under Ohio’s multiple-count statute, R.C. 2941.25. The court of appeals directed the trial court to merge the four counts into a single conviction for attempted murder, and to resentence Williams accordingly. The Cuyahoga County prosecutor’s office sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s majority opinion, Justice O’Donnell wrote: “A two-step analysis is required to determine whether two crimes are allied offenses of similar import. ... Recently, in State v. Cabrales (2008), we stated: ‘In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ ... If the offenses are allied, the court proceeds to the second step and considers whether the offenses were committed separately or with a separate animus.”
Applying the Cabrales criteria to the facts of this case, Justice O’Donnell wrote: “(F)or each bullet Williams fired at McKinney, he was found guilty of one count of felonious assault and one count of attempted murder. Accordingly, we consider whether the attempted murder and felonious assault charges relating to each gunshot are allied offenses of similar import. ... In order to commit the offense of attempted murder as defined in R.C. 2903.02(B), one must purposely or knowingly engage in conduct that, if successful, would result in the death of another as a proximate result of committing or attempting to commit an offense of violence. Since felonious assault is an offense of violence, R.C. 2901.01(A)(9), the commission of attempted murder, as statutorily defined, necessarily results from the commission of an offense of violence, here, felonious assault. Accordingly, felonious assault as defined in R.C. 2903.11(A)(1) is an allied offense of attempted murder as defined by R.C. 2903.02(B) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have resulted in the death of another as a proximate result of committing felonious assault. He did so by knowingly firing a gun at McKinney and paralyzing him with one bullet. Thus, he committed the offenses of attempted murder and felonious assault with a single act and animus. Accordingly, while he may be found guilty of both offenses, he may be sentenced for only one.”
“In order to commit the offense of attempted murder as defined in R.C. 2903.02(A), one must engage in conduct that, if successful, would result in purposely causing the death of another; and to commit felonious assault as defined in R.C. 2903.11(A)(2), one must cause or attempt to cause physical harm to another by means of a deadly weapon. Considering these elements in the abstract, although they do not align exactly, when Williams attempted to cause harm by means of a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death of the victim. Here, felonious assault as defined by R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have purposely caused the death of another by knowingly firing a bullet that missed McKinney; thus these offenses were both committed with the same animus. Therefore, while Williams may be found guilty of both offenses, he may be sentenced for only one.”
Having thus determined that the 8th District erred in ordering that Williams be resentenced for a single count of attempted murder, the Court remanded the case to the trial court for new proceedings consistent with today’s decision.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O’Connor. Justice Robert R. Cupp concurred in judgment only. Justice Paul E. Pfeifer dissented without opinion.
Justice Judith Ann Lanzinger entered a separate opinion in which she concurred with the majority’s holdings that both counts of felonious assault were allied offenses of attempted murder that should have been merged with the latter offense for sentencing, and also agreed that, pursuant to Whitfield,the case should be remanded to allow the state to elect which offense Williams should be sentenced for. She disagreed, however, with the majority’s conclusion that Williams is subject to resentencing on two separate counts, stating that in her view the court of appeals correctly determined that the two counts of attempted murder on which he was found guilty also should have been merged, and therefore Williams should be resentenced on a single count.
In support of that position, Justice Lanzinger suggested that a line of recent decisions interpreting the multiple-count statute, R.C. 2941.25, has been skewed by the Court’s continuing adherence to a 1999 case, State v. Rance, in which it held that the determination of whether crimes are allied offenses subject to merger must be based on an “abstract comparison” of the statutory elements of the charged crimes, without reference to the specific facts of a particular case. She wrote: “Whether the commission of one offense necessarily resulted in commission of the other is best resolved when the actual evidence adduced at trial is allowed to be considered. I realize that in Cabrales this court ‘clarified’ the test set forth in State v. Rance, ... but I would go further to frankly reverse Rance. For omitting consideration of the evidence at trial is contrary to the statute, which states that the defendant’s conduct must be considered in comparing the offenses: Did the commission of the one offense in this case necessarily result in the commission of the other? If so, the offenses are allied and of similar import.”
Contacts
Kristen Sobieski, 216.698.2226, for the Cuyahoga County prosecutor’s office.
John Martin, 216.443.3675, for Kevin Williams.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Cuyahoga App. No. 89726, 2008-Ohio-5286. Judgment of the court of appeals reversed in part, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton and O'Connor, JJ., concur.
Cupp, J., concurs in judgment only.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-147.pdf
(Jan. 27, 2010) The Supreme Court of Ohio ruled today that pursuant to Ohio’s multiple-count statute:
a defendant’s conviction for felonious assault based on causing serious physical harm [R.C. 2903.11(A)(2)] is an allied offense of an attempt to commit murder while committing an offense of violence [R.C. 2903.02(B) and 2923.02],
a defendant’s conviction for felonious assault based upon causing or attempting to cause physical harm by means of a deadly weapon [R.C. 2903.11(A)(2)] is an allied offense of attempted murder [R.C. 2093.02(B)], and
therefore these respective counts of felonious assault merge with the respective counts of attempted murder.
In accordance with this holding and the court’s recent holding in State v. Whitfield, Slip Op. No. 2010-Ohio-2, the court reversed the judgment of the 8th District Court of Appeals finding that Kevin Williams could only be convicted of one count of attempted murder in this case, and remanded the case to the Cuyahoga County Court of Common Pleas for the prosecutor to elect which of the allied offenses to pursue on sentencing. Today’s majority opinion was authored by Justice Terrence O’Donnell.
After an argument broke out between Williams and another participant in a 2006 dice game in East Cleveland, Williams pulled a gun. As the other players, including LayShawn McKinney, attempted to run away, Williams fired two shots, one of which struck McKinney in the back, paralyzing him. McKinney and others identified Williams as the shooter, and he was arrested.
Williams was subsequently charged and convicted on two counts of felonious assault: one for knowingly causing physical harm to McKinney, and one for using a deadly weapon to cause physical harm. He was also found guilty on two counts of attempted murder: one for purposely attempting to kill McKinney and the second for attempting to kill McKinney during the commission of a crime of violence (i.e., felonious assault). At sentencing, Williams’ attorneys moved the trial court to: 1) merge his two felonious assault counts into a single conviction; 2) merge his two attempted murder counts into a single conviction; and 3) merge the felonious assault conviction into the attempted murder conviction resulting in a single conviction for attempted murder subject to a single sentence based on the statutory penalties for that offense. The trial court declined to merge any of the counts, and proceeded to convict and sentence Williams on all four felony charges. The resulting prison terms, including additional time for a firearm specification and a separate conviction for possession of a gun under disability, totaled 20 years.
Williams appealed. On review, the 8th District Court of Appeals reversed and remanded the case to the trial court, holding that the felonious assault and aggravated murder counts were allied offenses of similar import under Ohio’s multiple-count statute, R.C. 2941.25. The court of appeals directed the trial court to merge the four counts into a single conviction for attempted murder, and to resentence Williams accordingly. The Cuyahoga County prosecutor’s office sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s majority opinion, Justice O’Donnell wrote: “A two-step analysis is required to determine whether two crimes are allied offenses of similar import. ... Recently, in State v. Cabrales (2008), we stated: ‘In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ ... If the offenses are allied, the court proceeds to the second step and considers whether the offenses were committed separately or with a separate animus.”
Applying the Cabrales criteria to the facts of this case, Justice O’Donnell wrote: “(F)or each bullet Williams fired at McKinney, he was found guilty of one count of felonious assault and one count of attempted murder. Accordingly, we consider whether the attempted murder and felonious assault charges relating to each gunshot are allied offenses of similar import. ... In order to commit the offense of attempted murder as defined in R.C. 2903.02(B), one must purposely or knowingly engage in conduct that, if successful, would result in the death of another as a proximate result of committing or attempting to commit an offense of violence. Since felonious assault is an offense of violence, R.C. 2901.01(A)(9), the commission of attempted murder, as statutorily defined, necessarily results from the commission of an offense of violence, here, felonious assault. Accordingly, felonious assault as defined in R.C. 2903.11(A)(1) is an allied offense of attempted murder as defined by R.C. 2903.02(B) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have resulted in the death of another as a proximate result of committing felonious assault. He did so by knowingly firing a gun at McKinney and paralyzing him with one bullet. Thus, he committed the offenses of attempted murder and felonious assault with a single act and animus. Accordingly, while he may be found guilty of both offenses, he may be sentenced for only one.”
“In order to commit the offense of attempted murder as defined in R.C. 2903.02(A), one must engage in conduct that, if successful, would result in purposely causing the death of another; and to commit felonious assault as defined in R.C. 2903.11(A)(2), one must cause or attempt to cause physical harm to another by means of a deadly weapon. Considering these elements in the abstract, although they do not align exactly, when Williams attempted to cause harm by means of a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death of the victim. Here, felonious assault as defined by R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02. ... Williams knowingly engaged in conduct that, if successful, would have purposely caused the death of another by knowingly firing a bullet that missed McKinney; thus these offenses were both committed with the same animus. Therefore, while Williams may be found guilty of both offenses, he may be sentenced for only one.”
Having thus determined that the 8th District erred in ordering that Williams be resentenced for a single count of attempted murder, the Court remanded the case to the trial court for new proceedings consistent with today’s decision.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O’Connor. Justice Robert R. Cupp concurred in judgment only. Justice Paul E. Pfeifer dissented without opinion.
Justice Judith Ann Lanzinger entered a separate opinion in which she concurred with the majority’s holdings that both counts of felonious assault were allied offenses of attempted murder that should have been merged with the latter offense for sentencing, and also agreed that, pursuant to Whitfield,the case should be remanded to allow the state to elect which offense Williams should be sentenced for. She disagreed, however, with the majority’s conclusion that Williams is subject to resentencing on two separate counts, stating that in her view the court of appeals correctly determined that the two counts of attempted murder on which he was found guilty also should have been merged, and therefore Williams should be resentenced on a single count.
In support of that position, Justice Lanzinger suggested that a line of recent decisions interpreting the multiple-count statute, R.C. 2941.25, has been skewed by the Court’s continuing adherence to a 1999 case, State v. Rance, in which it held that the determination of whether crimes are allied offenses subject to merger must be based on an “abstract comparison” of the statutory elements of the charged crimes, without reference to the specific facts of a particular case. She wrote: “Whether the commission of one offense necessarily resulted in commission of the other is best resolved when the actual evidence adduced at trial is allowed to be considered. I realize that in Cabrales this court ‘clarified’ the test set forth in State v. Rance, ... but I would go further to frankly reverse Rance. For omitting consideration of the evidence at trial is contrary to the statute, which states that the defendant’s conduct must be considered in comparing the offenses: Did the commission of the one offense in this case necessarily result in the commission of the other? If so, the offenses are allied and of similar import.”
Contacts
Kristen Sobieski, 216.698.2226, for the Cuyahoga County prosecutor’s office.
John Martin, 216.443.3675, for Kevin Williams.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Ohio Supreme Court Agrees With AG’s Reading of Law Banning Electronic Transmission of Pornography to Minors
ourt Agrees With AG’s Reading of Law Banning Electronic Transmission of Pornography to Minors
Am. Booksellers Found. for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149.
Certified Questions of State Law, United States Court of Appeals for the Sixth Circuit, Nos. 07-4375 and 07-4376. Certified questions answered in the affirmative.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-149.pdf
(Jan. 27, 2010) The Supreme Court of Ohio today agreed with the state attorney general’s interpretation that a state law banning electronic transmission to minors of pornography or other material “harmful to juveniles” applies only to personally directed communications such as instant messaging, person-to-person emails and private chat rooms, and exempts from liability material that is posted on generally accessible websites and in public chatrooms.
Today’s 7-0 decision, authored by Justice Paul E. Pfeifer, did not address the constitutionality of the statute at issue, R.C. 2907.31(D), but merely answered limited questions of law submitted to the Court by the U.S. 6th Circuit Court of Appeals regarding which types of electronic communication are and are not subject to prosecution under the statute.
R.C. 2907.31 makes it a crime to directly disseminate or offer to disseminate to a juvenile any material or performance that is “obscene or harmful to juveniles” as those terms are defined elsewhere in state law. In Paragraph D of that statute, which prohibits the dissemination of harmful or obscene material to a juvenile “by means of an electronic method of remotely transmitting information,” the law exempts from prosecution: 1) a person who “has inadequate information to know or have reason to believe that a particular recipient of (adult material) is a juvenile;” and 2) a person making adult material available electronically if “the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”
In 2007, the U.S. District Court for the Southern District of Ohio granted an injunction sought by the American Booksellers Foundation for Free Expression barring the state attorney general and county prosecutors from enforcing the provisions of R.C. 2907.31 that address electronic dissemination of harmful or obscene materials. The district court based its ruling on findings that the challenged provisions are unconstitutionally “overbroad” and “violate the strict scrutiny test of the First Amendment.” The state, represented by Attorney General Richard Cordray and county prosecutors, appealed the district court’s ruling to the U.S. 6th Circuit Court of Appeals.
After reviewing the parties’ written pleadings, the 6th Circuit asked the Supreme Court of Ohio to review the statutory language under dispute and the interpretation of that language advanced by the attorney general, and then to answer two specific questions: 1. “Is the Attorney General correct in construing R.C. 2907.31(D) to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?” 2. “Is the Attorney General correct in construing R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?”
Writing for the Supreme Court in today’s decision, Justice Pfeifer concluded that, “(b)ased on the plain language of R.C. 2907.31(D), we answer both certified questions in the affirmative.”
He wrote: “Of particular significance, because the certified questions are based on the manner in which the Attorney General construes the statutes at issue, is a sentence in the Attorney General's brief in which he claims that R.C. 2907.31(D)(2) ‘clarifies that a person who does not “know or have reason to believe that a particular recipient of the information or offer is a juvenile” does not violate the statute upon transmitting harmful-to-juveniles material, even if a minor receives it.’ We conclude that the scope of R.C. 2907.31(D) is limited to electronic communications that can be personally directed, because otherwise the sender of matter harmful to juveniles cannot know or have reason to believe that a particular recipient is a juvenile.”
“Pursuant to R.C. 2907.31(D)(2), R.C. 2907.31(D)(1) is not violated when matter harmful to juveniles is disseminated by a method of mass distribution that does not allow the sender to prevent the distribution to particular recipients. Based on our understanding of generally accessible websites and public chat rooms, they are open to all, including juveniles, and current usage and technology do not allow a person who posts thereon to prevent particular recipients, including juveniles, from accessing the information posted. ... We conclude that a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate R.C. 2907.31(D), because such a posting does not enable that person to ‘prevent a particular recipient from receiving the information.’”
Noting that the certified questions of law and arguments advanced by the parties in this case focus on particular types of electronic communications, namely email, instant messaging, private chat rooms, public chat rooms and generally accessible Web sites, Justice Pfeifer wrote that today’s ruling “is accordingly constrained by that focus and should not be construed as necessarily governing other types of electronic transmissions, whether currently in use or developed in the future.”
Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Michael M. Bamberger, 212.768.6756, for American Booksellers Foundation for Free Expression et al.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Am. Booksellers Found. for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149.
Certified Questions of State Law, United States Court of Appeals for the Sixth Circuit, Nos. 07-4375 and 07-4376. Certified questions answered in the affirmative.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-149.pdf
(Jan. 27, 2010) The Supreme Court of Ohio today agreed with the state attorney general’s interpretation that a state law banning electronic transmission to minors of pornography or other material “harmful to juveniles” applies only to personally directed communications such as instant messaging, person-to-person emails and private chat rooms, and exempts from liability material that is posted on generally accessible websites and in public chatrooms.
Today’s 7-0 decision, authored by Justice Paul E. Pfeifer, did not address the constitutionality of the statute at issue, R.C. 2907.31(D), but merely answered limited questions of law submitted to the Court by the U.S. 6th Circuit Court of Appeals regarding which types of electronic communication are and are not subject to prosecution under the statute.
R.C. 2907.31 makes it a crime to directly disseminate or offer to disseminate to a juvenile any material or performance that is “obscene or harmful to juveniles” as those terms are defined elsewhere in state law. In Paragraph D of that statute, which prohibits the dissemination of harmful or obscene material to a juvenile “by means of an electronic method of remotely transmitting information,” the law exempts from prosecution: 1) a person who “has inadequate information to know or have reason to believe that a particular recipient of (adult material) is a juvenile;” and 2) a person making adult material available electronically if “the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”
In 2007, the U.S. District Court for the Southern District of Ohio granted an injunction sought by the American Booksellers Foundation for Free Expression barring the state attorney general and county prosecutors from enforcing the provisions of R.C. 2907.31 that address electronic dissemination of harmful or obscene materials. The district court based its ruling on findings that the challenged provisions are unconstitutionally “overbroad” and “violate the strict scrutiny test of the First Amendment.” The state, represented by Attorney General Richard Cordray and county prosecutors, appealed the district court’s ruling to the U.S. 6th Circuit Court of Appeals.
After reviewing the parties’ written pleadings, the 6th Circuit asked the Supreme Court of Ohio to review the statutory language under dispute and the interpretation of that language advanced by the attorney general, and then to answer two specific questions: 1. “Is the Attorney General correct in construing R.C. 2907.31(D) to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?” 2. “Is the Attorney General correct in construing R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?”
Writing for the Supreme Court in today’s decision, Justice Pfeifer concluded that, “(b)ased on the plain language of R.C. 2907.31(D), we answer both certified questions in the affirmative.”
He wrote: “Of particular significance, because the certified questions are based on the manner in which the Attorney General construes the statutes at issue, is a sentence in the Attorney General's brief in which he claims that R.C. 2907.31(D)(2) ‘clarifies that a person who does not “know or have reason to believe that a particular recipient of the information or offer is a juvenile” does not violate the statute upon transmitting harmful-to-juveniles material, even if a minor receives it.’ We conclude that the scope of R.C. 2907.31(D) is limited to electronic communications that can be personally directed, because otherwise the sender of matter harmful to juveniles cannot know or have reason to believe that a particular recipient is a juvenile.”
“Pursuant to R.C. 2907.31(D)(2), R.C. 2907.31(D)(1) is not violated when matter harmful to juveniles is disseminated by a method of mass distribution that does not allow the sender to prevent the distribution to particular recipients. Based on our understanding of generally accessible websites and public chat rooms, they are open to all, including juveniles, and current usage and technology do not allow a person who posts thereon to prevent particular recipients, including juveniles, from accessing the information posted. ... We conclude that a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate R.C. 2907.31(D), because such a posting does not enable that person to ‘prevent a particular recipient from receiving the information.’”
Noting that the certified questions of law and arguments advanced by the parties in this case focus on particular types of electronic communications, namely email, instant messaging, private chat rooms, public chat rooms and generally accessible Web sites, Justice Pfeifer wrote that today’s ruling “is accordingly constrained by that focus and should not be construed as necessarily governing other types of electronic transmissions, whether currently in use or developed in the future.”
Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Michael M. Bamberger, 212.768.6756, for American Booksellers Foundation for Free Expression et al.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuesday, January 26, 2010
Ohio Supreme Court Upholds PUCO Ruling Approving ‘Flat Rate’ Monthly Charge For Gas Distribution Service
2008-1837 and 2009-0314. Ohio Consumers’ Counsel v. Pub. Util. Comm., Slip Opinion No. 2010-Ohio-134.
Public Utilities Commission, Nos. 07-589-GA-AIR, 07-590-GA-ALT, and 07-591-GA-AAM (case No. 2008-1837), and Nos. 07-829-GA-AIR, 07-830-GA-ALT, 07-831-GA-AAM, 08-169-GA-ALT, and 06-1453-GA-UNC (case No. 2009-0314). Orders affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-134.pdf (Jan. 26, 2010) The Supreme Court of Ohio today affirmed orders of the Public Utilities Commission of Ohio (PUCO) that approved a change in the way two natural gas companies recover their costs of distribution service. The Court’s 7-0 decision was authored by Justice Paul E. Pfeifer.
In 2008, the PUCO issued separate orders authorizing a change in the rate structures used by Duke Energy of Ohio (Duke) and East Ohio Gas Company, d.b.a. Dominion East Ohio (Dominion East Ohio), to calculate the portion of their customers’ monthly natural gas bills covering distribution service. Prior to 2008, the rate formulas approved by the PUCO for Duke and Dominion East Ohio required the utilities to recover a relatively small percentage of their distribution costs through a flat monthly charge assessed on each customer, and to recover the remainder of their distribution costs via a surcharge on each cubic foot of gas used by a customer during the billing period.
In its 2008 orders, the PUCO authorized Duke and Dominion East Ohio to adopt a new “Straight Fixed Variable” (SFV) rate design for recovery of their distribution costs. Under the SFV rate structure, the utility companies were authorized to significantly increase the flat monthly distribution fee charged to each customer, and to significantly decrease the distribution-related surcharge on each cubic foot of gas used.
Two consumer groups, the state Office of Consumers’ Counsel (OCC) and Ohio Partners for Affordable Energy (OPAE), exercised their right to appeal the commission’s orders to the Supreme Court. The Court consolidated the cases for review.
Writing for the Court in today’s decision, Justice Pfeifer rejected multiple arguments raised by the OCC and OPAE, who asserted that the PUCO acted unreasonably and/or unlawfully in approving the new distribution rate structure.
With regard to the opponents’ claims that the commission did not provide a reasonable justification for departing from a traditional usage-based distribution rate structure to the SFV model, Justice Pfeifer wrote that the PUCO’s order linked the change to historic increases in the cost of natural gas, and a responsive decline in gas usage by the utilities’ customers. He wrote: “Because the PUCO attributed the utilities’ revenue deficiency to declining customer usage, the commission determined that a new rate design – one that separates or ‘decouples’ the utilities’ recovery of its cost of delivering gas (which are predominately fixed) from the amount of gas that customers actually use (which varies month to month) – was necessary to ensure that Duke and Dominion have sufficient revenues to cover their fixed costs. The PUCO determined that such a rate design would best provide the utilities with adequate and stable revenues and ensure that they would be able to continue to provide safe and reliable service. The commission also found that breaking the link between fixed-cost recovery and gas sales would remove any disincentive of the utilities to promote energy conservation and efficiency.”
The Court also rejected the opponents’ claims that in moving from a predominantly usage-based rate model to a “flat rate” assessed equally on all customers, the PUCO had unfairly increased the share of distribution costs paid by low-usage customers and decreased the amount of those costs collected from high-volume gas users. Pointing to findings by the commission that the relative cost of providing distribution service to a given class of customers “is largely the same regardless of how much gas a customer users,” Justice Pfeifer wrote: “According to the commission, because utilities recovered most of their fixed costs under traditional rate design through a volumetric component, high-use customers were overpaying their own fixed costs and subsidizing low-use customers. The SFV rate design addresses this problem by spreading fixed costs more evenly among all customers and thereby requiring low-use customers to pay a more proportionate share of those costs.”
Justice Pfeifer wrote that OCC and OPAE had failed to meet their burden in seeking to overturn PUCO orders: “In this appeal, OCC and OPAE challenge how the commission designed the rates for gas-distribution service for Duke’s and Dominion’s residential customers. They ask us to intervene in an area–rate design–that is within the commission’s expertise. But appellants have not sustained their burden of showing that the commission’s orders in these cases are unlawful or unreasonable, or that the rate-making process itself was unlawfully carried out. ... Therefore, we affirm the decisions of the Public Utilities Commission of Ohio.”
Contacts
Joseph P. Serio, 614.466.8574, for the Office of Consumer Counsel.
Colleen L. Mooney, 614.488.5739, for Ohio Partners for Affordable Energy.
Duane W. Luckey, 614.466.4395, for the Public Utilities Commission of Ohio.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Public Utilities Commission, Nos. 07-589-GA-AIR, 07-590-GA-ALT, and 07-591-GA-AAM (case No. 2008-1837), and Nos. 07-829-GA-AIR, 07-830-GA-ALT, 07-831-GA-AAM, 08-169-GA-ALT, and 06-1453-GA-UNC (case No. 2009-0314). Orders affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-134.pdf (Jan. 26, 2010) The Supreme Court of Ohio today affirmed orders of the Public Utilities Commission of Ohio (PUCO) that approved a change in the way two natural gas companies recover their costs of distribution service. The Court’s 7-0 decision was authored by Justice Paul E. Pfeifer.
In 2008, the PUCO issued separate orders authorizing a change in the rate structures used by Duke Energy of Ohio (Duke) and East Ohio Gas Company, d.b.a. Dominion East Ohio (Dominion East Ohio), to calculate the portion of their customers’ monthly natural gas bills covering distribution service. Prior to 2008, the rate formulas approved by the PUCO for Duke and Dominion East Ohio required the utilities to recover a relatively small percentage of their distribution costs through a flat monthly charge assessed on each customer, and to recover the remainder of their distribution costs via a surcharge on each cubic foot of gas used by a customer during the billing period.
In its 2008 orders, the PUCO authorized Duke and Dominion East Ohio to adopt a new “Straight Fixed Variable” (SFV) rate design for recovery of their distribution costs. Under the SFV rate structure, the utility companies were authorized to significantly increase the flat monthly distribution fee charged to each customer, and to significantly decrease the distribution-related surcharge on each cubic foot of gas used.
Two consumer groups, the state Office of Consumers’ Counsel (OCC) and Ohio Partners for Affordable Energy (OPAE), exercised their right to appeal the commission’s orders to the Supreme Court. The Court consolidated the cases for review.
Writing for the Court in today’s decision, Justice Pfeifer rejected multiple arguments raised by the OCC and OPAE, who asserted that the PUCO acted unreasonably and/or unlawfully in approving the new distribution rate structure.
With regard to the opponents’ claims that the commission did not provide a reasonable justification for departing from a traditional usage-based distribution rate structure to the SFV model, Justice Pfeifer wrote that the PUCO’s order linked the change to historic increases in the cost of natural gas, and a responsive decline in gas usage by the utilities’ customers. He wrote: “Because the PUCO attributed the utilities’ revenue deficiency to declining customer usage, the commission determined that a new rate design – one that separates or ‘decouples’ the utilities’ recovery of its cost of delivering gas (which are predominately fixed) from the amount of gas that customers actually use (which varies month to month) – was necessary to ensure that Duke and Dominion have sufficient revenues to cover their fixed costs. The PUCO determined that such a rate design would best provide the utilities with adequate and stable revenues and ensure that they would be able to continue to provide safe and reliable service. The commission also found that breaking the link between fixed-cost recovery and gas sales would remove any disincentive of the utilities to promote energy conservation and efficiency.”
The Court also rejected the opponents’ claims that in moving from a predominantly usage-based rate model to a “flat rate” assessed equally on all customers, the PUCO had unfairly increased the share of distribution costs paid by low-usage customers and decreased the amount of those costs collected from high-volume gas users. Pointing to findings by the commission that the relative cost of providing distribution service to a given class of customers “is largely the same regardless of how much gas a customer users,” Justice Pfeifer wrote: “According to the commission, because utilities recovered most of their fixed costs under traditional rate design through a volumetric component, high-use customers were overpaying their own fixed costs and subsidizing low-use customers. The SFV rate design addresses this problem by spreading fixed costs more evenly among all customers and thereby requiring low-use customers to pay a more proportionate share of those costs.”
Justice Pfeifer wrote that OCC and OPAE had failed to meet their burden in seeking to overturn PUCO orders: “In this appeal, OCC and OPAE challenge how the commission designed the rates for gas-distribution service for Duke’s and Dominion’s residential customers. They ask us to intervene in an area–rate design–that is within the commission’s expertise. But appellants have not sustained their burden of showing that the commission’s orders in these cases are unlawful or unreasonable, or that the rate-making process itself was unlawfully carried out. ... Therefore, we affirm the decisions of the Public Utilities Commission of Ohio.”
Contacts
Joseph P. Serio, 614.466.8574, for the Office of Consumer Counsel.
Colleen L. Mooney, 614.488.5739, for Ohio Partners for Affordable Energy.
Duane W. Luckey, 614.466.4395, for the Public Utilities Commission of Ohio.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Monday, January 25, 2010
Judge Collier's Criminal Docket for January 25, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s courtroom on January 25, 2010 for criminal cases:
Cynthia Calvillo, 33, of Holly Brook Drive in Brunswick, was sentenced to two years of community control sanctions on one count of Trafficking in Drugs, a fifth-degree felony.
Donald Hamilton, 21, of Main Street in Wadsworth, was sentenced to four years in prison on one count of Robbery, a second-degree felony.
Michael Kowal, 28, of Coventry Drive in Brunswick, was sentenced to one year in prison on one count of Possession of Heroin and one count of Theft, both of which are fifth-degree felonies.
Ryan Maki, 18, of Brookwood Avenue in Wadsworth, was sentenced to five years of community control sanctions on three counts of Trafficking in Marijuana, all of which are fifth-degree felonies.
Jilonda Maxwell, 25, of Hildreth Avenue in Columbus, was sentenced to six months in prison on one count of Receiving Stolen Property, a fourth-degree felony.
Robert Suchan, 52, of Tollis Parkway in Broadview Heights, was sentenced to pay restitution in the total amount of $3,212.35 on one count of Theft of a Motor Vehicle, a fourth-degree felony, and one count of Vandalism, a fifth-degree felony.
Jerry Barker, 34, of Bond Avenue in Lorain, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for April 5.
Michael Reese, 34, of Mansfield, pleaded not guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. The charges each carry a Sexual Violent Predator Specification. A jury trial is scheduled for April 26.
Jennifer Thomas, 21, of Water Street in Wadsworth, pleaded no contest to one count of Trafficking in Marijuana, a fifth-degree felony. Sentencing is scheduled for March 8.
Lawrence Tierney, 40, of Maiden Court in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 28.
Cynthia Calvillo, 33, of Holly Brook Drive in Brunswick, was sentenced to two years of community control sanctions on one count of Trafficking in Drugs, a fifth-degree felony.
Donald Hamilton, 21, of Main Street in Wadsworth, was sentenced to four years in prison on one count of Robbery, a second-degree felony.
Michael Kowal, 28, of Coventry Drive in Brunswick, was sentenced to one year in prison on one count of Possession of Heroin and one count of Theft, both of which are fifth-degree felonies.
Ryan Maki, 18, of Brookwood Avenue in Wadsworth, was sentenced to five years of community control sanctions on three counts of Trafficking in Marijuana, all of which are fifth-degree felonies.
Jilonda Maxwell, 25, of Hildreth Avenue in Columbus, was sentenced to six months in prison on one count of Receiving Stolen Property, a fourth-degree felony.
Robert Suchan, 52, of Tollis Parkway in Broadview Heights, was sentenced to pay restitution in the total amount of $3,212.35 on one count of Theft of a Motor Vehicle, a fourth-degree felony, and one count of Vandalism, a fifth-degree felony.
Jerry Barker, 34, of Bond Avenue in Lorain, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for April 5.
Michael Reese, 34, of Mansfield, pleaded not guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. The charges each carry a Sexual Violent Predator Specification. A jury trial is scheduled for April 26.
Jennifer Thomas, 21, of Water Street in Wadsworth, pleaded no contest to one count of Trafficking in Marijuana, a fifth-degree felony. Sentencing is scheduled for March 8.
Lawrence Tierney, 40, of Maiden Court in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 28.
Saturday, January 23, 2010
Open and Obvious Doctrine
By Ohio Supreme Court Justice Paul Pfeifer
When Albert and Dorothy Lang arrived at the Holly Hill Motel one evening in early April 1999, they had no idea of the tragic ending that awaited them, nor any inkling of the legal journey that would begin that night and end here – at the Supreme Court of Ohio.
Because Albert was 78 years old, suffered from emphysema, and carried a portable oxygen tank, Dorothy requested a handicapped-accessible room. The motel didn’t have any such rooms available, but the front desk clerk told Dorothy they could have a room that required them to climb only one step.
They took that room, but soon discovered they actually had to climb two steps, and there were no handrails. With Dorothy’s help Albert climbed the first step, but on the second he fell and broke his hip. Albert ultimately died a little over three months after his fall.
After Albert’s death Dorothy sued the motel for negligence. In her complaint she alleged – and an expert witness confirmed – that the step Albert tripped over exceeded the height limitations in the Ohio Basic Building Code and that this created a dangerous condition that was exacerbated by the absence of handrails, which were also required under the Building Code.
The motel, and the builder who constructed the steps, moved for summary judgment – meaning they asked for judgment without a trial. They argued that even if the step was in violation of the code, it was nonetheless an open and obvious condition and that they therefore owed no duty of care to the Langs. The motion for summary judgment was granted.
Dorothy appealed the judgment. Her attorneys argued that the open-and-obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is a violation of the Building Code.
What is the open-and-obvious doctrine? It’s a legal principle that says where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.
When the court of appeals reviewed the case, it determined that the step was an open and obvious condition, and that a Building Code violation does not negate the application of the open-and-obvious doctrine. The court of appeals therefore affirmed the judgment of the trial court.
After that, the case came before us for a final review. By a six-to-one vote our court affirmed the judgment of the court of appeals. How did the majority reach that conclusion?
Our court has previously held that exceptions to the open-and-obvious doctrine can be made when the landowner violated a statute – that is, a law passed by the General Assembly. But in this case, the majority drew a distinction between duties arising from statutes and duties arising from administrative rules, which “are created by administrative employees who act to implement the General Assembly’s public-policy decisions.”
Thus, the majority concluded that an exception to the doctrine does not apply to violations of the Building Code, which is an administrative rule. The majority also noted that there are innumerable administrative rules adopted each year and that it would be virtually impossible to comply with all of them.
I cast the dissenting vote because I disagreed with this conclusion. When Albert Lang was injured at the Holly Hill Motel, it was, at least in part, because of building code violations. But our court decided that his widow couldn’t proceed with a lawsuit because those violations that allegedly caused his injuries and hastened his death were open and obvious.
But in reaching that decision our court clings to the past and ignores a modern trend in the law. Many commentators and courts have recognized the unfairness of the open-and-obvious doctrine. One commentator has stated that “an undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiff’s conduct.”
I agree with the Supreme Court of New Mexico that “a risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care.” I also agree with that court’s holding that “it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved ‘an unreasonable risk of danger to a business visitor.’”
In the Lang’s case, the dangers were open because they were not hidden, but they were not obvious. The presence or absence of a handrail is not obvious until one reaches for it and it is either there or not. The proper height of a step, as prescribed by building codes, is not obvious, especially to a nonprofessional, without taking measurements.
The building code violations that allegedly caused Albert’s injuries were open, but they were not obvious. This case presents an example of why the open-and-obvious doctrine should be abolished; it does not allow the consideration of all the factors that are relevant to determine negligence or fault.
Even so, it is not necessary to abolish the open-and-obvious doctrine to properly resolve this case. Building code violations are different from other open and obvious dangers because building codes are administrative rules and therefore “are to be given the force and effect of law.” In other words, “administrative agency rules are an administrative means for the accomplishment of a legislative end.”
But the majority opinion minimizes the standing of administrative rules, and clearly considers them not worthy of the force and effect of law. There is even a suggestion that because administrative rules are changed so frequently, compliance with them is virtually impossible and, therefore, apparently optional.
We should not have such a blasé attitude toward administrative rules. They are the law, unless unreasonable or contrary to statute, and compliance with them is mandatory; the failure to comply with them should have consequences.
Nevertheless, the majority ruled differently, and thus Albert’s widow was prevented from proceeding with her lawsuit.
EDITOR’S NOTE: The case referred to is: Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495. Case Nos. 2007-1222 and 2007-1370. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.
Judge Kimbler's Criminal Docket for January 22, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court for criminal cases on January 21:
Morgan Bentley, 29, of Washington Street in Wadsworth, was sentenced to one year in prison on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are third-degree felonies.
Wendy Knox, 41, of Normandy Park Drive in Medina, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony.
Kristina Ramsey, 30, of Lee Lane in Mansfield, was sentenced to three years of community control sanctions on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies.
Denice Thompson, 31, of Medina Road in Medina, was sentenced to three years of community control sanctions on one count of Misuse of Credit Cards, a fifth-degree felony.
Andrew Wallace, 27, of Whitehall, Ohio, was sentenced to three years of community control sanctions, with one year in a Community Based Control Facility, on one count of Possession of Cocaine, a fifth-degree felony.
Gregg Coyne, 40, of Big Injun Trail in Chippewa Lake, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for March 24.
Clifford Floyd, 28, of Lafayette Road in Medina, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for March 22.
Stan Hatch, 63, of Indiana, pleaded not guilty to one count of Possession of Cocaine, a first-degree felony and one count of Possessing Criminal Tools, a fifth-degree felony. Both charges carry forfeiture specifications and the drug charge specifies that the defendant is a major drug offender. A jury trial is scheduled for January 29.
Jamie Maynard, 22, of Abbeyville Road in Medina, pleaded not guilty to one count of Possession of Drugs, a fourth-degree felony. A jury trial is scheduled for March 16.
Ryan Porter, 21, of Bank Street in Lodi, pleaded not guilty to one count of Possession of Cocaine, a third-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for March 22.
Marian Potcovaru, 28, of Medina, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for March 23.
Morgan Bentley, 29, of Washington Street in Wadsworth, was sentenced to one year in prison on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are third-degree felonies.
Wendy Knox, 41, of Normandy Park Drive in Medina, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony.
Kristina Ramsey, 30, of Lee Lane in Mansfield, was sentenced to three years of community control sanctions on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies.
Denice Thompson, 31, of Medina Road in Medina, was sentenced to three years of community control sanctions on one count of Misuse of Credit Cards, a fifth-degree felony.
Andrew Wallace, 27, of Whitehall, Ohio, was sentenced to three years of community control sanctions, with one year in a Community Based Control Facility, on one count of Possession of Cocaine, a fifth-degree felony.
Gregg Coyne, 40, of Big Injun Trail in Chippewa Lake, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for March 24.
Clifford Floyd, 28, of Lafayette Road in Medina, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for March 22.
Stan Hatch, 63, of Indiana, pleaded not guilty to one count of Possession of Cocaine, a first-degree felony and one count of Possessing Criminal Tools, a fifth-degree felony. Both charges carry forfeiture specifications and the drug charge specifies that the defendant is a major drug offender. A jury trial is scheduled for January 29.
Jamie Maynard, 22, of Abbeyville Road in Medina, pleaded not guilty to one count of Possession of Drugs, a fourth-degree felony. A jury trial is scheduled for March 16.
Ryan Porter, 21, of Bank Street in Lodi, pleaded not guilty to one count of Possession of Cocaine, a third-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for March 22.
Marian Potcovaru, 28, of Medina, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for March 23.
Tuesday, January 19, 2010
Judge Collier's Criminal Docket for January 19, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s court for criminal cases on January 19, 2009:
Aylonda Day, 29, of Longwood Avenue in Cleveland, was sentenced to one year in prison on one count of Receiving Stolen Property, a fifth-degree felony.
Nicholas Phillips, 21, of River Styx Road in Medina, was sentenced to one year in prison for a probation violation on an original charge of Breaking and Entering, a fifth-degree felony.
Daniel Wayne, 27, of West Lafayette Road in Medina, was sentenced to six months in prison on one count of Trafficking in Cocaine, a fifth-degree felony.
Damon Bryan, 41, of Mexico, pleaded not guilty to the following charges: three counts of Theft from the Elderly, all of which are first-degree felonies; 12 counts of Theft from the Elderly, all of which are second-degree felonies; six counts of Theft from the Elderly, all of which are third-degree felonies; and six counts of Theft from the Elderly, all of which are fourth-degree felonies. A jury trial is scheduled for May 17.
Jason Cantrell, 35, of La Vista West in Lodi, pleaded not guilty to one count of Attempted Burglary, a fifth-degree felony. A jury trial is scheduled for March 29.
Yordando Gallardo, 20, of Miami, Florida, pleaded not guilty to one count of Complicity to Commit Forgery, a fifth-degree felony. A jury trial is scheduled for April 28.
Donald Garrett, 70, of Grafton Road in Brunswick, pleaded not guilty to one count of Rape, a first-degree felony, and one count of Gross Sexual Imposition, a third-degree felony. A jury trial is scheduled for March 22.
Daniel Glover, 38, of Freeman Avenue in Cleveland, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for April 26.
Billy Tingler, 41, of North Academy Street in Lodi, pleaded not guilty to the following charges: two counts of Rape, both of which are first-degree felonies; two counts of Kidnapping, both of which are first-degree felonies; two counts of Endangering Children, both of which are second-degree felonies; and two counts of Breaking and Entering, both of which are fifth-degree felonies. Sexual Motivation specifications are attached to the Kidnapping charges. A jury trial is scheduled for March 15.
Aylonda Day, 29, of Longwood Avenue in Cleveland, was sentenced to one year in prison on one count of Receiving Stolen Property, a fifth-degree felony.
Nicholas Phillips, 21, of River Styx Road in Medina, was sentenced to one year in prison for a probation violation on an original charge of Breaking and Entering, a fifth-degree felony.
Daniel Wayne, 27, of West Lafayette Road in Medina, was sentenced to six months in prison on one count of Trafficking in Cocaine, a fifth-degree felony.
Damon Bryan, 41, of Mexico, pleaded not guilty to the following charges: three counts of Theft from the Elderly, all of which are first-degree felonies; 12 counts of Theft from the Elderly, all of which are second-degree felonies; six counts of Theft from the Elderly, all of which are third-degree felonies; and six counts of Theft from the Elderly, all of which are fourth-degree felonies. A jury trial is scheduled for May 17.
Jason Cantrell, 35, of La Vista West in Lodi, pleaded not guilty to one count of Attempted Burglary, a fifth-degree felony. A jury trial is scheduled for March 29.
Yordando Gallardo, 20, of Miami, Florida, pleaded not guilty to one count of Complicity to Commit Forgery, a fifth-degree felony. A jury trial is scheduled for April 28.
Donald Garrett, 70, of Grafton Road in Brunswick, pleaded not guilty to one count of Rape, a first-degree felony, and one count of Gross Sexual Imposition, a third-degree felony. A jury trial is scheduled for March 22.
Daniel Glover, 38, of Freeman Avenue in Cleveland, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for April 26.
Billy Tingler, 41, of North Academy Street in Lodi, pleaded not guilty to the following charges: two counts of Rape, both of which are first-degree felonies; two counts of Kidnapping, both of which are first-degree felonies; two counts of Endangering Children, both of which are second-degree felonies; and two counts of Breaking and Entering, both of which are fifth-degree felonies. Sexual Motivation specifications are attached to the Kidnapping charges. A jury trial is scheduled for March 15.
Judge Collier's Supreme Court Report for December, 2009
At the beginning of December Judge Collier had 716 cases pending on his docket. During the month 110 cases were filed. These cases broke down into the following categories:
Other Torts: 6
Workers’ Compensation: 3
Foreclosures: 40
Administrative Appeals: 1
Other Civil: 41
Criminal: 19
During the month 21 cases were either transferred in, reactivated, or redesignated. These 21 cases broke down in the following categories:
Other Torts: 1
Foreclosures: 11
Criminal: 9
Combining all three of these numbers means that during December Judge Collier had 847 cases to handle.
During the month Judge Collier disposed of 139 cases. These 139 cases broke down into the following categories:
Other Torts: 10
Workers’ Compensation: 2
Foreclosures: 57
Other Civil: 46
Criminal: 24
Subtracting the 139 cases disposed of from the 847 pending at some point during December means that at the end of December, 2009, Judge Collier had 708 cases pending in his courtroom.
Other Torts: 6
Workers’ Compensation: 3
Foreclosures: 40
Administrative Appeals: 1
Other Civil: 41
Criminal: 19
During the month 21 cases were either transferred in, reactivated, or redesignated. These 21 cases broke down in the following categories:
Other Torts: 1
Foreclosures: 11
Criminal: 9
Combining all three of these numbers means that during December Judge Collier had 847 cases to handle.
During the month Judge Collier disposed of 139 cases. These 139 cases broke down into the following categories:
Other Torts: 10
Workers’ Compensation: 2
Foreclosures: 57
Other Civil: 46
Criminal: 24
Subtracting the 139 cases disposed of from the 847 pending at some point during December means that at the end of December, 2009, Judge Collier had 708 cases pending in his courtroom.
Sunday, January 17, 2010
Ohio Supreme Court Submits Amendments to Rules of Practice and Procedure to Ohio General Assembly
The Supreme Court of Ohio filed amendments on Thursday, December 14, 2010, to the annual update to the Rules of Practice and Procedure with the Ohio General Assembly, including changes to the criminal discovery process that were developed through a collaborative process involving the criminal defense bar and prosecutors.
The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments call for a more open discovery process in Criminal Rule 16 and revise several rules of appellate procedure to implement a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.
The new discovery process would allow defense counsel access to materials that, under the current rule, were never disclosed. Changes in Crim. R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment. Revisions to the proposed amendments published in October 2009 include language giving a court greater discretion in regulating discovery in cases of a pro se defendant, additional language to give sufficient time for an expert to evaluate statements of a sexual abuse victim who is less than 13 years of age, and several clarifying changes.
The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers after Chief Justice Thomas J. Moyer urged them to develop proposed rules that would be considered for adoption by the Supreme Court.
“These changes in the process for conducting a criminal trial are substantive improvements to the system, and they represent what can happen when professionals from different sides of an issue come together to bring about positive change,” said Chief Justice Moyer.
The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Revisions to the proposed amendments published in October included the deletion of proposed amendments to App. R. 22 and 30. Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict could also be subject to en banc consideration.
Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal granted under proposed Crim. R. 16(F)(2) to review a trial court’s ruling on a prosecutor’s non-disclosure of material. Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.
The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.
According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. The Court may revise and file the amendments with the General Assembly prior to May 1, 2010. The amendments would take effect on July 1, 2010, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.
Click here to go to Rule Amendment page on the Ohio Supreme Court Website.
Contact: Chris Davey or Bret Crow at 614.387.9250.
The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments call for a more open discovery process in Criminal Rule 16 and revise several rules of appellate procedure to implement a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.
The new discovery process would allow defense counsel access to materials that, under the current rule, were never disclosed. Changes in Crim. R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment. Revisions to the proposed amendments published in October 2009 include language giving a court greater discretion in regulating discovery in cases of a pro se defendant, additional language to give sufficient time for an expert to evaluate statements of a sexual abuse victim who is less than 13 years of age, and several clarifying changes.
The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers after Chief Justice Thomas J. Moyer urged them to develop proposed rules that would be considered for adoption by the Supreme Court.
“These changes in the process for conducting a criminal trial are substantive improvements to the system, and they represent what can happen when professionals from different sides of an issue come together to bring about positive change,” said Chief Justice Moyer.
The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Revisions to the proposed amendments published in October included the deletion of proposed amendments to App. R. 22 and 30. Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict could also be subject to en banc consideration.
Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal granted under proposed Crim. R. 16(F)(2) to review a trial court’s ruling on a prosecutor’s non-disclosure of material. Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.
The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.
According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. The Court may revise and file the amendments with the General Assembly prior to May 1, 2010. The amendments would take effect on July 1, 2010, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.
Click here to go to Rule Amendment page on the Ohio Supreme Court Website.
Contact: Chris Davey or Bret Crow at 614.387.9250.
Saturday, January 16, 2010
Judge Kimbler's Criminal Docket for January 15, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge James Kimbler's courtroom on January 15, 2010 for his criminal docket:
Randy Neumann-Boles, 55, of state Route 224 in Sullivan, was sentenced to seven years in prison on one count of Aggravated Vehicular Assault, a second-degree felony. Her driver’s license also was suspended for 10 years. Neumann-Boles was found guilty by a bench trial in November. She was driving a car on state Route 18 in September 2008 when she crossed the centerline and hit another vehicle head on. Her blood alcohol level measured .0138.
Carl Bentley Jr., 29, of Miner Drive in Medina, was sentenced to six months in prison for a probation violation on an original charge of Theft of a Check, a fifth-degree felony.
Anthony Grayson, 20, of Silverston Street in Barberton, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.
Diana Hannahs, 29, of Norwalk Road in Medina, was sentenced to three years of community control sanctions on one count of Burglary, a fifth-degree felony.
Nicholas Healy, 30, of San Diego, was sentenced to one year in prison on one count of Possession of Heroin, a third-degree felony.
Richard Homchik, 43, of Burns Street in Mansfield, was sentenced to two years of community control sanctions on one count of Theft of a Check, a fifth-degree felony.
Michael Isenhart, 45, of Oak Court in Lodi, was sentenced to six months in prison for a probation violation on original charges of Tampering with Evidence, a third-degree felony, and Possession of Cocaine, a fifth-degree felony.
Joshua Perdue, 21, of North Main Street in Rittman, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Theft of a Firearm, a third-degree felony, and one count of Breaking and Entering, a fifth-degree felony. He also was ordered to pay $500 restitution to one of his victims.
Wallie Price, 28, of Park Street in Wadsworth, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Jessica Daversa, 23, of Chatham Road in Spencer, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Possession of Drugs, a fifth-degree felony. Four forfeiture specifications are attached to the charges. A jury trial is scheduled for March 22.
Gregory Dearfield, 23, of Dale Avenue in Cleveland, pleaded no contest to one count of Trafficking in Drugs, Counterfeit Controlled Substance, a fifth-degree felony. Sentencing is scheduled for February 25.
Daniel Hapsic, 46, of Mineral Ridge, Ohio, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 8.
Daniel Kurtz, 19, of Renwood Drive in Parma, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for March 15.
Jerrell Neptune, 21, of Grafton Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for March 16.
Michael Peck, 22, of Savannah Trail in Medina, pleaded not guilty to one count of Theft of a Firearm, a third-degree felony. A jury trial is scheduled for March 9.
Eugene Strader, 29, of Topaz Lane in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for March 17.
Randy Neumann-Boles, 55, of state Route 224 in Sullivan, was sentenced to seven years in prison on one count of Aggravated Vehicular Assault, a second-degree felony. Her driver’s license also was suspended for 10 years. Neumann-Boles was found guilty by a bench trial in November. She was driving a car on state Route 18 in September 2008 when she crossed the centerline and hit another vehicle head on. Her blood alcohol level measured .0138.
Carl Bentley Jr., 29, of Miner Drive in Medina, was sentenced to six months in prison for a probation violation on an original charge of Theft of a Check, a fifth-degree felony.
Anthony Grayson, 20, of Silverston Street in Barberton, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.
Diana Hannahs, 29, of Norwalk Road in Medina, was sentenced to three years of community control sanctions on one count of Burglary, a fifth-degree felony.
Nicholas Healy, 30, of San Diego, was sentenced to one year in prison on one count of Possession of Heroin, a third-degree felony.
Richard Homchik, 43, of Burns Street in Mansfield, was sentenced to two years of community control sanctions on one count of Theft of a Check, a fifth-degree felony.
Michael Isenhart, 45, of Oak Court in Lodi, was sentenced to six months in prison for a probation violation on original charges of Tampering with Evidence, a third-degree felony, and Possession of Cocaine, a fifth-degree felony.
Joshua Perdue, 21, of North Main Street in Rittman, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Theft of a Firearm, a third-degree felony, and one count of Breaking and Entering, a fifth-degree felony. He also was ordered to pay $500 restitution to one of his victims.
Wallie Price, 28, of Park Street in Wadsworth, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Jessica Daversa, 23, of Chatham Road in Spencer, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Possession of Drugs, a fifth-degree felony. Four forfeiture specifications are attached to the charges. A jury trial is scheduled for March 22.
Gregory Dearfield, 23, of Dale Avenue in Cleveland, pleaded no contest to one count of Trafficking in Drugs, Counterfeit Controlled Substance, a fifth-degree felony. Sentencing is scheduled for February 25.
Daniel Hapsic, 46, of Mineral Ridge, Ohio, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 8.
Daniel Kurtz, 19, of Renwood Drive in Parma, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for March 15.
Jerrell Neptune, 21, of Grafton Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for March 16.
Michael Peck, 22, of Savannah Trail in Medina, pleaded not guilty to one count of Theft of a Firearm, a third-degree felony. A jury trial is scheduled for March 9.
Eugene Strader, 29, of Topaz Lane in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for March 17.
Friday, January 15, 2010
Judge Kimbler's Supreme Court Report for December 2009
At the beginning of December Judge Kimbler had 749 cases pending on his docket. During the month 113 cases were filed. These cases broke down into the following categories:
Other Torts: 7
Workers’ Compensation: 2
Foreclosures: 51
Other Civil: 34
Criminal: 19
During the month 15 cases were either transferred in, reactivated, or redesignated. These 15 cases broke down in the following categories:
Foreclosures: 7
Administrative Appeals: 1
Other Civil: 1
Criminal: 6
Combining all three of these numbers means that during December Judge Kimbler had 877 cases to handle.
During the month Judge Kimbler disposed of 132 cases. These 132 cases broke down into the following categories:
Other Torts: 8
Workers’ Compensation: 5
Foreclosures: 59
Administrative Appeals: 1
Other Civil: 38
Criminal: 21
Subtracting the 132 cases disposed of from the 877 pending at some point during December means that at the end of December, 2009, Judge Kimbler had 745 cases pending in his courtroom.
Other Torts: 7
Workers’ Compensation: 2
Foreclosures: 51
Other Civil: 34
Criminal: 19
During the month 15 cases were either transferred in, reactivated, or redesignated. These 15 cases broke down in the following categories:
Foreclosures: 7
Administrative Appeals: 1
Other Civil: 1
Criminal: 6
Combining all three of these numbers means that during December Judge Kimbler had 877 cases to handle.
During the month Judge Kimbler disposed of 132 cases. These 132 cases broke down into the following categories:
Other Torts: 8
Workers’ Compensation: 5
Foreclosures: 59
Administrative Appeals: 1
Other Civil: 38
Criminal: 21
Subtracting the 132 cases disposed of from the 877 pending at some point during December means that at the end of December, 2009, Judge Kimbler had 745 cases pending in his courtroom.
Monday, January 11, 2010
Judge Collier's Criminal Docket for January 11, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on January 11, 2009 for criminal cases:
Nicholas Apple, 22, of North Vine Street, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Drugs, a third-degree felony.
Jefferson Mathess, 18, of Ivy Hill Lane in Medina, was sentenced to one year in prison on one count of Misuse of Credit Cards, a fifth-degree felony.
Heather Menear, 25, of West 58th Street in Cleveland, was sentenced to one year in prison on one count of Theft, a fifth-degree felony.
Jeffrey Taylor, 36, of Jamaica, New York, was sentenced to one year in prison on one count of Possession of Marijuana, a third-degree felony.
Cindy Arnold, 29, of East Bowman Street in Wooster, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 14.
Zachary Belford, 23, of High Street in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for February 10.
Jeanie Burgett, 34, of Avalon Drive in Grafton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 19.
Christopher Collins, 37, of Greenwich Road in Wadsworth, pleaded not guilty to one count of Felonious Assault, a second-degree felony. A jury trial is scheduled for February 24.
Jeremy Emert, 19, of Norwalk Road in Medina, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 12.
Richard House Jr., 52, of Rice Road in Spencer, pleaded not guilty to one count of Domestic Violence and one count of Having Weapons While Under Disability, both of which are third-degree felonies. A jury trial is scheduled for February 3.
Mary Sanders, 27, of West Sunset Drive in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 14.
James Senz, 39, of Congress Road in West Salem, pleaded not guilty to one count of Felonious Assault, a second-degree felony. A jury trial is scheduled for February 24.
Nicholas Apple, 22, of North Vine Street, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Drugs, a third-degree felony.
Jefferson Mathess, 18, of Ivy Hill Lane in Medina, was sentenced to one year in prison on one count of Misuse of Credit Cards, a fifth-degree felony.
Heather Menear, 25, of West 58th Street in Cleveland, was sentenced to one year in prison on one count of Theft, a fifth-degree felony.
Jeffrey Taylor, 36, of Jamaica, New York, was sentenced to one year in prison on one count of Possession of Marijuana, a third-degree felony.
Cindy Arnold, 29, of East Bowman Street in Wooster, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 14.
Zachary Belford, 23, of High Street in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for February 10.
Jeanie Burgett, 34, of Avalon Drive in Grafton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 19.
Christopher Collins, 37, of Greenwich Road in Wadsworth, pleaded not guilty to one count of Felonious Assault, a second-degree felony. A jury trial is scheduled for February 24.
Jeremy Emert, 19, of Norwalk Road in Medina, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 12.
Richard House Jr., 52, of Rice Road in Spencer, pleaded not guilty to one count of Domestic Violence and one count of Having Weapons While Under Disability, both of which are third-degree felonies. A jury trial is scheduled for February 3.
Mary Sanders, 27, of West Sunset Drive in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 14.
James Senz, 39, of Congress Road in West Salem, pleaded not guilty to one count of Felonious Assault, a second-degree felony. A jury trial is scheduled for February 24.
COMMERCIAL AND INDUSTRIAL FORECLOSURES CAN HAVE AN OCCUPYING CLAIMANT LAW LIEN. R.C. 5303.07.
by Attorney Brendan Edward Delay (0036929)
ATTORNEY & COUNSELOR-AT-LAW
Westlake, OHIO 44145
Telephone (440) 333-3708
Facsimile (440) 333-3779
e-mail brendandelay@ameritech.net
I used to work as a Teamster warehousemen for a year while in college at the University of Rochester. While working in a new warehouse in New York State, I became aware of the liens that rack companies, makers of industrial rollers and conveyers and laser readers can have on the improvements they build into a warehouse. These liens are removed when these improvements are paid off.
Later, when working as an attorney defending foreclosures, I encountered a situation in which my judgment told me contained an occupying claimant’s lien. So I looked up the statutes books to find that Ohio had an occupying claimant’s lien. Later in this article I will repeat its text.
The Occupying Claimants Lien has been part of the common law of Ohio for more than one century and part of the statutes for more than half a century. With the tsunami wave of foreclosures in recent years, this type of lien was thrown up in the surf in my practice. I have been doing some foreclosure defense since 1991 in the commercial real estate collapse that happened when the 1986 Tax Reform Act took away many real estate development tax breaks. This issue was a new one for me. You may benefit from learning about it.
The improvements can even be a building or a paved parking lot. Think of the various ways property can be improved by one who occupies it. Then think of how that property might be taken by another party, such as in a foreclosure. Then contemplate how the law has provided a way of protecting the provider of those improvements so the provider gets paid for the value.
In this article, I will provide a sample affirmative defense and offset, and a pro forma affidavit, to give the practitioner an idea how to bring in the evidence. Lawyers who do not defend many foreclosures may at first regard the foreclosing bank as having some right going back to the time of the Western Reserve, and having priority over all but taxes. That is not true in the case of the occupying claimant’s lien, since it may predate a mortgage and may predate the refinancing of a mortgage debt by another lender.
When the parties sign onto a commercial mortgage, the bank does not always subordinate the Occupying Claimants Lien to that mortgage. Therefore the Occupying Claimant’s Lien will be senior and superior to the mortgage or judgment lien. The practitioner should examine the Mortgage attached to the Complaint as an Exhibit. Look to see if it subordinates any occupying claimant’s lien.
The Occupying Claimants Lien has been part of the common law of Ohio for more than one century and part of the statutes for more than half a century. If this lien exists, it should be set up as not only an affirmative defense, but an offset and perhaps an avoidance under Civil Rule 8, and litigated in the form of a Counterclaim to establish its validity and date. The reason it can be an avoidance is that even if the bank has a right to foreclose, the amount of the lien can be so great that if it has priority, then the bank may get nothing or very little money after the smoke clears at the Sheriff’s Sale.
SUBSTANTIVE LAW
5303.07 Occupying claimant law.
In an action for the recovery of real property the parties may avail themselves of the benefit of sections 5303.08 to 5303.17, inclusive, of the Revised Code.
Effective Date: 10-01-1953
5303.08
TITLE [53] LIII REAL PROPERTY
CHAPTER 5303: ACTIONS RELATING TO REALTY
5303.08 Cases in which occupying claimant is paid for improvements.
A person who, without fraud or collusion on his part, obtained title to and is in the quiet possession of lands or tenements, claiming to own them, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, is paid the value of lasting improvements made by the occupying claimant on the land, or by the person under whom he holds, before the commencement of suit on the adverse claim by which such eviction may be effected, unless the occupying claimant refuses to pay to the party establishing a better title the value of the lands without such improvements, on demand by him or his heirs, when such occupying claimant holds:
(A) Under a plain and connected title, in law or equity, derived from the records of a public office;
(B) By deed, devise, descent, contract, bond, or agreement, from and under a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
(C) Under sale on execution against a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
(D) Under a sale for taxes authorized by the laws of this state;
(E) Under a sale and conveyance made by executors, administrators, or guardians, or by any other person, in pursuance of an order or decree of court, where lands are directed to be sold.
Effective Date: 10-01-1953
5303.14 Proceedings if verdict is for occupying claimant.
If, under section 5303.11 of the Revised Code, the jury reports a sum in favor of the occupying claimant, on the assessment and valuation of the valuable and lasting improvements, deducting therefrom the damages, sustained by waste, together with the net annual value of the rents and profits which the defendant received after commencement of the action, the successful claimant, or his heirs, or, if they are minors, their guardians, may demand of the occupying claimant the value of the land without the improvements so assessed and tender a deed of it to him, or pay him the sum so allowed by the jury in his favor, within such reasonable time as the court allows.
Effective Date: 10-01-1953
Affidavit of Seamus Oldtimer
Seamus Oldtimer is the person who knows best about the Occupying Claimant’s Lien since he knows from his own personal knowledge that the lien was set in place in 1952.
I, Seamus Oldtimer, being first duly sworn, and being competent to testify, do hereby state from personal knowledge that:
1. I am the President and sole shareholder of Defendant/Counterclaimant Old Timer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 227879, in this case.
2. Defendant/Counterclaimant Oldtimer Warehouse & Storage Company occupies and has always occupied since 1952 the warehouse section and part of the office located at 26943 Westwood Road, Westlake, Ohio 44145. Defendant/Counterclaimant OldTimer Warehouse & Storage Company paid for the building of the 4,000 square feet of the 14,000 square foot office building located at 26943 Westwood Road, Westlake, Ohio 44145, owned by Defendant Realty Company and paid for the warehouse racks, air conditioning and cooling equipment installed in the 1960’s and thereafter. These improvements and additions have not been paid for by the building and land owner at any time.
3. I know that the value of these improvements and additions is $125,000.
4. Defendant/Counterclaimant OldTimer Warehouse & Storage Company is the occupying claimant to this building.
5. Defendant/Counterclaimant OldTimer Warehouse & Storage Company’s occupying claimant’s lien predates Bank’s mortgage and judgment lien by about 50 years, since it was established as a lien starting in the early 1950’s.
FURTHER AFFIANT SAYETH NAUGHT.
________________________________
Seamus Oldtimer
Affirmative Defenses & Offset
These were set forth in the Answer and are now restated here for convenience. The Affidavit has proven the defenses.
1. Defendant/Counterclaimant OldTimer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 is an Occupying Claimant, with an interest first in time and first in right and superior and senior to that of Plaintiff Bank due to the effort and funds placed in constructing the lasting improvements such as walls, roof, doors, interior demising walls, and windows of the building located on Westwood Road in the early 1950s, and its efforts from that era to the early 21st Century in maintaining and altering the building and placing interior shelving in it, which occurred long before this foreclosure action was started. The value of these improvements may exceed $400,000, which value Defendant/Counterclaimant OldTimer Warehouse & Storage Company is entitled to, and from any proceeds of Sheriff’s Sale on sale on execution as a first and senior lien. R. C. 5303.08 (c).
2. Defendant/Counterclaimant OldTimer Warehouse & Storage Company as Occupying Claimant is entitled to an offset from of any Sheriff’s Sales proceeds on sale on execution of the value of the aforesaid lasting improvements and maintenance thereon. R. C. 5303.08 (c).
3. The Mortgage attached to the Amended Complaint as Exhibit “B” is limited to a “MAXIMUM LIEN. The maximum amount of loan indebtedness secured by this Mortgage shall not exceed at any one time $350,000.00.” Thus, Plaintiff Bank may not recover at Sheriff’s Sale more than two thirds of $350,000, that is $233,268, since that is the maximum amount of loan indebtedness secured by this Mortgage, minus the value of the Occupying Claimant improvements.
4. The Mortgage attached to the Amended Complaint as Exhibit “B” recorded on March 31, 2003 is not a valid and subsisting first lien on the Property, but is instead a second or third lien, junior to the Defendant/Counterclaimant OldTimer Warehouse & Storage Company as Occupying Claimant.
5. Defendant Realty Company, incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 for its Answer and Defendant OldTimer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 are entitled to their equity of redemption.
6. The interest of Defendant/Counterclaimant OldTimer Warehouse & Storage Company since May 19, 1952, Ohio Corporate Charter Number 22809, as Occupying Claimant was not subordinated by the language of the Mortgage to the mortgage interest of Key Bank and is therefore senior in time and first in right to that junior mortgage interest.
7. The occupying claimant’s lien is not an equitable lien subject to a creditor’s bill, but a statutory lien. R.C. 5308.08.
I did have a telecommunications tower case with Judge Kimbler some years ago, but have not had an occupying claimant’s lien case. That topic may come up in your practice, soon or years from now. Put this in your memory bank. Or over a collegial lunch, one of your fellow practitioners may bring up “an interesting problem” he or she may have with improvements to real estate. You will look smart if you have this answer. You would have learned about it due to the innovative way of sharing legal information implemented by Judge Kimbler’s blog. Small county lawyers can be just as smart as big city lawyers: don’t let any big city lawyer tell you different. As for me, I am in the suburbs. Any questions: call me!
Editor's Note: The above article is presented as a public service by Judge James L. Kimbler. Its publication does not indicate how Judge Kimbler would rule on any disputed point of law.
ATTORNEY & COUNSELOR-AT-LAW
Westlake, OHIO 44145
Telephone (440) 333-3708
Facsimile (440) 333-3779
e-mail brendandelay@ameritech.net
I used to work as a Teamster warehousemen for a year while in college at the University of Rochester. While working in a new warehouse in New York State, I became aware of the liens that rack companies, makers of industrial rollers and conveyers and laser readers can have on the improvements they build into a warehouse. These liens are removed when these improvements are paid off.
Later, when working as an attorney defending foreclosures, I encountered a situation in which my judgment told me contained an occupying claimant’s lien. So I looked up the statutes books to find that Ohio had an occupying claimant’s lien. Later in this article I will repeat its text.
The Occupying Claimants Lien has been part of the common law of Ohio for more than one century and part of the statutes for more than half a century. With the tsunami wave of foreclosures in recent years, this type of lien was thrown up in the surf in my practice. I have been doing some foreclosure defense since 1991 in the commercial real estate collapse that happened when the 1986 Tax Reform Act took away many real estate development tax breaks. This issue was a new one for me. You may benefit from learning about it.
The improvements can even be a building or a paved parking lot. Think of the various ways property can be improved by one who occupies it. Then think of how that property might be taken by another party, such as in a foreclosure. Then contemplate how the law has provided a way of protecting the provider of those improvements so the provider gets paid for the value.
In this article, I will provide a sample affirmative defense and offset, and a pro forma affidavit, to give the practitioner an idea how to bring in the evidence. Lawyers who do not defend many foreclosures may at first regard the foreclosing bank as having some right going back to the time of the Western Reserve, and having priority over all but taxes. That is not true in the case of the occupying claimant’s lien, since it may predate a mortgage and may predate the refinancing of a mortgage debt by another lender.
When the parties sign onto a commercial mortgage, the bank does not always subordinate the Occupying Claimants Lien to that mortgage. Therefore the Occupying Claimant’s Lien will be senior and superior to the mortgage or judgment lien. The practitioner should examine the Mortgage attached to the Complaint as an Exhibit. Look to see if it subordinates any occupying claimant’s lien.
The Occupying Claimants Lien has been part of the common law of Ohio for more than one century and part of the statutes for more than half a century. If this lien exists, it should be set up as not only an affirmative defense, but an offset and perhaps an avoidance under Civil Rule 8, and litigated in the form of a Counterclaim to establish its validity and date. The reason it can be an avoidance is that even if the bank has a right to foreclose, the amount of the lien can be so great that if it has priority, then the bank may get nothing or very little money after the smoke clears at the Sheriff’s Sale.
SUBSTANTIVE LAW
5303.07 Occupying claimant law.
In an action for the recovery of real property the parties may avail themselves of the benefit of sections 5303.08 to 5303.17, inclusive, of the Revised Code.
Effective Date: 10-01-1953
5303.08
TITLE [53] LIII REAL PROPERTY
CHAPTER 5303: ACTIONS RELATING TO REALTY
5303.08 Cases in which occupying claimant is paid for improvements.
A person who, without fraud or collusion on his part, obtained title to and is in the quiet possession of lands or tenements, claiming to own them, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, is paid the value of lasting improvements made by the occupying claimant on the land, or by the person under whom he holds, before the commencement of suit on the adverse claim by which such eviction may be effected, unless the occupying claimant refuses to pay to the party establishing a better title the value of the lands without such improvements, on demand by him or his heirs, when such occupying claimant holds:
(A) Under a plain and connected title, in law or equity, derived from the records of a public office;
(B) By deed, devise, descent, contract, bond, or agreement, from and under a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
(C) Under sale on execution against a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
(D) Under a sale for taxes authorized by the laws of this state;
(E) Under a sale and conveyance made by executors, administrators, or guardians, or by any other person, in pursuance of an order or decree of court, where lands are directed to be sold.
Effective Date: 10-01-1953
5303.14 Proceedings if verdict is for occupying claimant.
If, under section 5303.11 of the Revised Code, the jury reports a sum in favor of the occupying claimant, on the assessment and valuation of the valuable and lasting improvements, deducting therefrom the damages, sustained by waste, together with the net annual value of the rents and profits which the defendant received after commencement of the action, the successful claimant, or his heirs, or, if they are minors, their guardians, may demand of the occupying claimant the value of the land without the improvements so assessed and tender a deed of it to him, or pay him the sum so allowed by the jury in his favor, within such reasonable time as the court allows.
Effective Date: 10-01-1953
Affidavit of Seamus Oldtimer
Seamus Oldtimer is the person who knows best about the Occupying Claimant’s Lien since he knows from his own personal knowledge that the lien was set in place in 1952.
I, Seamus Oldtimer, being first duly sworn, and being competent to testify, do hereby state from personal knowledge that:
1. I am the President and sole shareholder of Defendant/Counterclaimant Old Timer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 227879, in this case.
2. Defendant/Counterclaimant Oldtimer Warehouse & Storage Company occupies and has always occupied since 1952 the warehouse section and part of the office located at 26943 Westwood Road, Westlake, Ohio 44145. Defendant/Counterclaimant OldTimer Warehouse & Storage Company paid for the building of the 4,000 square feet of the 14,000 square foot office building located at 26943 Westwood Road, Westlake, Ohio 44145, owned by Defendant Realty Company and paid for the warehouse racks, air conditioning and cooling equipment installed in the 1960’s and thereafter. These improvements and additions have not been paid for by the building and land owner at any time.
3. I know that the value of these improvements and additions is $125,000.
4. Defendant/Counterclaimant OldTimer Warehouse & Storage Company is the occupying claimant to this building.
5. Defendant/Counterclaimant OldTimer Warehouse & Storage Company’s occupying claimant’s lien predates Bank’s mortgage and judgment lien by about 50 years, since it was established as a lien starting in the early 1950’s.
FURTHER AFFIANT SAYETH NAUGHT.
________________________________
Seamus Oldtimer
Affirmative Defenses & Offset
These were set forth in the Answer and are now restated here for convenience. The Affidavit has proven the defenses.
1. Defendant/Counterclaimant OldTimer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 is an Occupying Claimant, with an interest first in time and first in right and superior and senior to that of Plaintiff Bank due to the effort and funds placed in constructing the lasting improvements such as walls, roof, doors, interior demising walls, and windows of the building located on Westwood Road in the early 1950s, and its efforts from that era to the early 21st Century in maintaining and altering the building and placing interior shelving in it, which occurred long before this foreclosure action was started. The value of these improvements may exceed $400,000, which value Defendant/Counterclaimant OldTimer Warehouse & Storage Company is entitled to, and from any proceeds of Sheriff’s Sale on sale on execution as a first and senior lien. R. C. 5303.08 (c).
2. Defendant/Counterclaimant OldTimer Warehouse & Storage Company as Occupying Claimant is entitled to an offset from of any Sheriff’s Sales proceeds on sale on execution of the value of the aforesaid lasting improvements and maintenance thereon. R. C. 5303.08 (c).
3. The Mortgage attached to the Amended Complaint as Exhibit “B” is limited to a “MAXIMUM LIEN. The maximum amount of loan indebtedness secured by this Mortgage shall not exceed at any one time $350,000.00.” Thus, Plaintiff Bank may not recover at Sheriff’s Sale more than two thirds of $350,000, that is $233,268, since that is the maximum amount of loan indebtedness secured by this Mortgage, minus the value of the Occupying Claimant improvements.
4. The Mortgage attached to the Amended Complaint as Exhibit “B” recorded on March 31, 2003 is not a valid and subsisting first lien on the Property, but is instead a second or third lien, junior to the Defendant/Counterclaimant OldTimer Warehouse & Storage Company as Occupying Claimant.
5. Defendant Realty Company, incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 for its Answer and Defendant OldTimer Warehouse & Storage Company incorporated in Ohio on May 19, 1952, Ohio Corporate Charter Number 22809 are entitled to their equity of redemption.
6. The interest of Defendant/Counterclaimant OldTimer Warehouse & Storage Company since May 19, 1952, Ohio Corporate Charter Number 22809, as Occupying Claimant was not subordinated by the language of the Mortgage to the mortgage interest of Key Bank and is therefore senior in time and first in right to that junior mortgage interest.
7. The occupying claimant’s lien is not an equitable lien subject to a creditor’s bill, but a statutory lien. R.C. 5308.08.
I did have a telecommunications tower case with Judge Kimbler some years ago, but have not had an occupying claimant’s lien case. That topic may come up in your practice, soon or years from now. Put this in your memory bank. Or over a collegial lunch, one of your fellow practitioners may bring up “an interesting problem” he or she may have with improvements to real estate. You will look smart if you have this answer. You would have learned about it due to the innovative way of sharing legal information implemented by Judge Kimbler’s blog. Small county lawyers can be just as smart as big city lawyers: don’t let any big city lawyer tell you different. As for me, I am in the suburbs. Any questions: call me!
Editor's Note: The above article is presented as a public service by Judge James L. Kimbler. Its publication does not indicate how Judge Kimbler would rule on any disputed point of law.
Sunday, January 10, 2010
Home Insurer in Indiana Hammered for Causing Mistrial
Lawyers USA has an article by Pat Murphy concerning $26,000.00 in sanctions imposed on an insurance company in Indiana after a mistrial. You can read the article by clicking here.
State Laws Regarding Cell Phone Use and/or Texting While Driving
Below is a table showing states that have enacted laws prohibiting the use of cell phones and/or other wireless devices while driving. If a law is labeled "primary" it means that a police officer can make a traffic stop upon observing the driver using the device. If it is labeled "secondary" it means that an officer has to have another reason for the stop, like speeding, but once the stop is made, and the behavior is observed, then the officer can issue the citation for the behavior. This table was sent to me by a local attorney. If you have any questions about the laws enacted, please consult the laws of the appropriate state.
Friday, January 08, 2010
LawTalk With Medina Municipal Court Judge Dale Chase
Attorney John Celebrezze, host of the community access television show LawTalk, has Judge Dale Chase of the Medina Municipal Court as his guest in January. If you click on the link below, you can watch the fist part of the interview. If you click here, you can see all three parts that are posted on You Tube. You can also see the show on community access television in Brunswick, Medina, and Wadsworth.
Cases Filed in the Medina County Common Pleas Court, General Division, in December of 2009
Material is not available.
Judge Kimbler's Criminal Docket for January 7, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom for criminal cases on Thursday, January 7, 2010:
Maque Bledsoe, 29, of Rocker Drive in Cincinnati, was sentenced to three years of community control sanctions on one count of Carrying a Concealed Weapon, a fourth-degree felony.
Jennifer Cayce, 33, of Abbeyville Road in Medina, was sentenced to one year in prison on one count of Trafficking in Drugs, a third-degree felony.
Eric Finding, 20, of East Street in Wadsworth, was sentenced to eight months in prison for a probation violation on an original charge of Breaking and Entering, a fifth-degree felony.
Lee Keller, 35, of Pearl Road in Brunswick, was sentenced to five years of community control sanctions on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony and two additional counts of Receiving Stolen Property, also fourth-degree felonies. Two forfeiture specifications were attached to the charges.
Jesse Shorter, 20, of South Main Street in West Salem, was sentenced to one year in prison on one count of Robbery, a third-degree felony.
Robert Walsh, 26, of Guilford Boulevard in Medina, was sentenced to four years of community control sanctions on one count of Theft, a fifth-degree felony.
Jeffrey Berlin, 38, of East Ohio Avenue in Rittman, pleaded no contest to one count of Illegal Processing of Drug Documents, a fifth-degree felony. Sentencing is scheduled for February 12.
Amanda Roberts, 29, of Avon Lake Road in Lodi, pleaded not guilty to one count of Possession of Drugs, a fourth-degree felony. A jury trial is scheduled for March 1.
Michael Ruddy, 54, of Substation Road in Medina, pleaded not guilty to one count of Felonious Assault, a second-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for March 8.
Abigail Sharkey, 27, of Kings Creek in Lodi, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for March 9.
Stephen Swain, 26, of Knickerbocker Drive in Sheffield Lake, pleaded no contest to one count of Domestic Violence. Sentencing is scheduled for February 12.
Maque Bledsoe, 29, of Rocker Drive in Cincinnati, was sentenced to three years of community control sanctions on one count of Carrying a Concealed Weapon, a fourth-degree felony.
Jennifer Cayce, 33, of Abbeyville Road in Medina, was sentenced to one year in prison on one count of Trafficking in Drugs, a third-degree felony.
Eric Finding, 20, of East Street in Wadsworth, was sentenced to eight months in prison for a probation violation on an original charge of Breaking and Entering, a fifth-degree felony.
Lee Keller, 35, of Pearl Road in Brunswick, was sentenced to five years of community control sanctions on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony and two additional counts of Receiving Stolen Property, also fourth-degree felonies. Two forfeiture specifications were attached to the charges.
Jesse Shorter, 20, of South Main Street in West Salem, was sentenced to one year in prison on one count of Robbery, a third-degree felony.
Robert Walsh, 26, of Guilford Boulevard in Medina, was sentenced to four years of community control sanctions on one count of Theft, a fifth-degree felony.
Jeffrey Berlin, 38, of East Ohio Avenue in Rittman, pleaded no contest to one count of Illegal Processing of Drug Documents, a fifth-degree felony. Sentencing is scheduled for February 12.
Amanda Roberts, 29, of Avon Lake Road in Lodi, pleaded not guilty to one count of Possession of Drugs, a fourth-degree felony. A jury trial is scheduled for March 1.
Michael Ruddy, 54, of Substation Road in Medina, pleaded not guilty to one count of Felonious Assault, a second-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for March 8.
Abigail Sharkey, 27, of Kings Creek in Lodi, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for March 9.
Stephen Swain, 26, of Knickerbocker Drive in Sheffield Lake, pleaded no contest to one count of Domestic Violence. Sentencing is scheduled for February 12.
Wednesday, January 06, 2010
Dog Bite Victim May Sue for Statutory Damages and Common Law Negligence In the Same Case
Beckett v. Warren, Slip Opinion No. 2010-Ohio-4.
Summit App. No. 23909, 2008-Ohio-4689. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4.pdf
(Jan. 6, 2010) The Supreme Court of Ohio ruled today that a plaintiff may, in the same case, pursue claims for dog bite injury under both the state’s specific dog bite statute, R.C. 955.28, and common law negligence. The court’s 5-2 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.
The case involved a minor child who suffered injuries to her head and scalp when she was mauled by a dog owned by Richard Warren and Mary Wood while she was a visitor in their home. The child’s mother, Yoshanta Beckett, filed suit against Warren and Wood, asserting a strict liability claim under R.C. 955.28, a provision of state law that allows a person who is injured by another person’s dog to recover damages from the dog’s owner without proving that the owner knew the dog was dangerous or that the owner acted negligently in failing to prevent the attack. Strict liability claims asserted under the statute are limited to recovery of compensatory damages (i.e., the cost of medical treatment, lost wages and other actual losses suffered as a result the dog attack).
Beckett’s complaint also asserted a common law negligence claim, seeking both compensatory and punitive damages from Warren and Wood based on an allegation that their dog had attacked another person a few weeks earlier, and that the owners therefore knew the dog was dangerous but failed to take precautions to protect her daughter.
During pretrial proceedings, the trial judge ruled that Beckett could not pursue both her statutory and common law causes of action, and must elect to prosecute either one or the other. Over Beckett’s repeated objections, the case proceeded to trial on only the statutory claim for which no punitive damages were available, which precluded Beckett from presenting evidence of the previous dog attack. The jury returned a verdict in favor of Beckett, awarding compensatory damages totaling $5,000. Beckett sought a new trial, arguing that the damages award was inadequate and that the judgment was not sustained by the weight of the evidence. The trial court denied the motion.
Beckett appealed, arguing that the trial court erred in refusing to allow her to simultaneously pursue recovery under both the strict liability statute and a common law claim of negligence. The 9th District Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial in which Beckett would be permitted to pursue both her statutory and common law causes of action. The 9th District subsequently certified that its ruling was in conflict with a 1983 decision of the 6th District Court of Appeals. The Supreme Court agreed to review the case to resolve the conflict between appellate districts, and also agreed to consider a discretionary cross-appeal on a closely related proposition of law.
In today’s decision, Justice Stratton wrote: “There are two bases for recovery in Ohio for injuries sustained as a result of a dog bite: common law and statutory. ... (I)n a common law action for bodily injuries caused by a dog, a plaintiff must show that (1) the defendant owned or harbored the dog, (2) the dog was vicious, (3) the defendant knew of the dog’s viciousness, and (4) the dog was kept in a negligent manner after the keeper knew of its viciousness. ... In a common law action for bodily injuries caused by a dog, as in any other common law tort action, punitive damages may be awarded.”
“R.C. 955.28 ... imposes strict liability upon the owner, keeper, or harborer of a dog ‘for any injury, death, or loss to person or property that is caused by the dog’ unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. ... The statutory cause of action ‘eliminated the necessity of pleading and proving the keeper’s knowledge of the dog’s viciousness.’ ... Consequently, in an action for damages under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship] of the dog, (2) whether the dog’s actions were the proximate cause of the injury, and (3) the monetary amount of the damages. ... In an action brought under the statute, punitive damages are not recoverable. ... Thus, the defendant’s knowledge of the dog’s viciousness and the defendant’s negligence in keeping the dog are irrelevant in a statutory action.”
With regard to the relationship between the statutory and common law causes of action, Justice Stratton cited the Supreme Court’s 1964 holding in Warner v. Wolfe that R.C. 955.28 “creates a new and different cause of action in no way dependent upon common-law principles and does not abrogate the common-law right of action for damage or injury caused by a dog. A suit may be instituted either under the statute or at common law.” While the trial court in this case interpreted the language of the Warner decision as requiring a plaintiff to choose between the two available causes of action, Justice Stratton wrote: “We disagree. Our focus in ... Warner was not on whether the statutory and common law claims for dog bite injuries could be pursued simultaneously, but rather whether the statutory cause of action abrogated the common law cause of action, which we held it did not. ... There is no language in R.C. 955.28 to indicate that it was intended to be the sole cause of action for personal injuries sustained from a dog. Nor is there any language in the statute to indicate that a plaintiff is required to elect between pursuing a common law action or a statutory action at trial. Rather, we must conclude that the statute was enacted to protect the public and hold owners strictly liable for the actions of their dogs without permitting ‘one free bite.’ Thus, the statute itself does not preclude a simultaneous common law action for damages for bodily injuries caused by a dog.”
In rejecting the defendants’ argument that allowing statutory and negligence claims to be argued to the same jurors would result in confusion about to which cause of action various items of evidence should be applied, Justice Stratton wrote: “When the plaintiff pursues both a statutory and common law claim for bodily injuries caused by a dog, a judge can easily instruct the jury that if it finds no evidence of the defendant’s knowledge of the dog’s viciousness, then only compensatory damages under the statutory cause of action are available. In that case, the plaintiff is entitled to compensatory damages to be made whole under the intent of the statute. ... (A) judge can just as easily instruct the jury that if it finds that the plaintiff proved that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent manner, the jury may award the additional remedy of punitive damages under the common law action. Compensatory damages remain the same under either theory of recovery, i.e., there is no double recovery. The remedies are not inconsistent under the law.”
Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor and Robert R. Cupp. Justice Judith Ann Lanzinger concurred in judgment only.
Justice Terrence O’Donnell entered a dissent that was joined by Justice Paul E. Pfeifer. Justice O’Donnell wrote that by departing from the Court’s clear holding in Warner v. Wolfe that a plaintiff in a dog bite may bring suit “‘either under the statute or at common law’ ... The majority chooses to abandon our precedent and forge a new trail, throwing these cases to the dogs.”
“It makes no sense to have a trial court judge explain to jurors the law of two inconsistent theories of recovery, and then instruct them to apply the law of one to some facts and the law of another to other facts while ignoring the facts relating to the first rule of law,” wrote Justice O’Donnell. “It is logically inconsistent to tell a jury to consider a dog’s vicious propensity for a common-law negligence claim and, at the same time, instruct the same jurors to ignore that evidence in connection with evidence relating to a statutory claim.”
Contacts
Michael J. O’Shea, 440.241.0011, for Yoshanta Beckett et al.
Donald P. Wiley, 330.499.6000, for Richard Warren et al.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
Summit App. No. 23909, 2008-Ohio-4689. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4.pdf
(Jan. 6, 2010) The Supreme Court of Ohio ruled today that a plaintiff may, in the same case, pursue claims for dog bite injury under both the state’s specific dog bite statute, R.C. 955.28, and common law negligence. The court’s 5-2 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.
The case involved a minor child who suffered injuries to her head and scalp when she was mauled by a dog owned by Richard Warren and Mary Wood while she was a visitor in their home. The child’s mother, Yoshanta Beckett, filed suit against Warren and Wood, asserting a strict liability claim under R.C. 955.28, a provision of state law that allows a person who is injured by another person’s dog to recover damages from the dog’s owner without proving that the owner knew the dog was dangerous or that the owner acted negligently in failing to prevent the attack. Strict liability claims asserted under the statute are limited to recovery of compensatory damages (i.e., the cost of medical treatment, lost wages and other actual losses suffered as a result the dog attack).
Beckett’s complaint also asserted a common law negligence claim, seeking both compensatory and punitive damages from Warren and Wood based on an allegation that their dog had attacked another person a few weeks earlier, and that the owners therefore knew the dog was dangerous but failed to take precautions to protect her daughter.
During pretrial proceedings, the trial judge ruled that Beckett could not pursue both her statutory and common law causes of action, and must elect to prosecute either one or the other. Over Beckett’s repeated objections, the case proceeded to trial on only the statutory claim for which no punitive damages were available, which precluded Beckett from presenting evidence of the previous dog attack. The jury returned a verdict in favor of Beckett, awarding compensatory damages totaling $5,000. Beckett sought a new trial, arguing that the damages award was inadequate and that the judgment was not sustained by the weight of the evidence. The trial court denied the motion.
Beckett appealed, arguing that the trial court erred in refusing to allow her to simultaneously pursue recovery under both the strict liability statute and a common law claim of negligence. The 9th District Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial in which Beckett would be permitted to pursue both her statutory and common law causes of action. The 9th District subsequently certified that its ruling was in conflict with a 1983 decision of the 6th District Court of Appeals. The Supreme Court agreed to review the case to resolve the conflict between appellate districts, and also agreed to consider a discretionary cross-appeal on a closely related proposition of law.
In today’s decision, Justice Stratton wrote: “There are two bases for recovery in Ohio for injuries sustained as a result of a dog bite: common law and statutory. ... (I)n a common law action for bodily injuries caused by a dog, a plaintiff must show that (1) the defendant owned or harbored the dog, (2) the dog was vicious, (3) the defendant knew of the dog’s viciousness, and (4) the dog was kept in a negligent manner after the keeper knew of its viciousness. ... In a common law action for bodily injuries caused by a dog, as in any other common law tort action, punitive damages may be awarded.”
“R.C. 955.28 ... imposes strict liability upon the owner, keeper, or harborer of a dog ‘for any injury, death, or loss to person or property that is caused by the dog’ unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. ... The statutory cause of action ‘eliminated the necessity of pleading and proving the keeper’s knowledge of the dog’s viciousness.’ ... Consequently, in an action for damages under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship] of the dog, (2) whether the dog’s actions were the proximate cause of the injury, and (3) the monetary amount of the damages. ... In an action brought under the statute, punitive damages are not recoverable. ... Thus, the defendant’s knowledge of the dog’s viciousness and the defendant’s negligence in keeping the dog are irrelevant in a statutory action.”
With regard to the relationship between the statutory and common law causes of action, Justice Stratton cited the Supreme Court’s 1964 holding in Warner v. Wolfe that R.C. 955.28 “creates a new and different cause of action in no way dependent upon common-law principles and does not abrogate the common-law right of action for damage or injury caused by a dog. A suit may be instituted either under the statute or at common law.” While the trial court in this case interpreted the language of the Warner decision as requiring a plaintiff to choose between the two available causes of action, Justice Stratton wrote: “We disagree. Our focus in ... Warner was not on whether the statutory and common law claims for dog bite injuries could be pursued simultaneously, but rather whether the statutory cause of action abrogated the common law cause of action, which we held it did not. ... There is no language in R.C. 955.28 to indicate that it was intended to be the sole cause of action for personal injuries sustained from a dog. Nor is there any language in the statute to indicate that a plaintiff is required to elect between pursuing a common law action or a statutory action at trial. Rather, we must conclude that the statute was enacted to protect the public and hold owners strictly liable for the actions of their dogs without permitting ‘one free bite.’ Thus, the statute itself does not preclude a simultaneous common law action for damages for bodily injuries caused by a dog.”
In rejecting the defendants’ argument that allowing statutory and negligence claims to be argued to the same jurors would result in confusion about to which cause of action various items of evidence should be applied, Justice Stratton wrote: “When the plaintiff pursues both a statutory and common law claim for bodily injuries caused by a dog, a judge can easily instruct the jury that if it finds no evidence of the defendant’s knowledge of the dog’s viciousness, then only compensatory damages under the statutory cause of action are available. In that case, the plaintiff is entitled to compensatory damages to be made whole under the intent of the statute. ... (A) judge can just as easily instruct the jury that if it finds that the plaintiff proved that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent manner, the jury may award the additional remedy of punitive damages under the common law action. Compensatory damages remain the same under either theory of recovery, i.e., there is no double recovery. The remedies are not inconsistent under the law.”
Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor and Robert R. Cupp. Justice Judith Ann Lanzinger concurred in judgment only.
Justice Terrence O’Donnell entered a dissent that was joined by Justice Paul E. Pfeifer. Justice O’Donnell wrote that by departing from the Court’s clear holding in Warner v. Wolfe that a plaintiff in a dog bite may bring suit “‘either under the statute or at common law’ ... The majority chooses to abandon our precedent and forge a new trail, throwing these cases to the dogs.”
“It makes no sense to have a trial court judge explain to jurors the law of two inconsistent theories of recovery, and then instruct them to apply the law of one to some facts and the law of another to other facts while ignoring the facts relating to the first rule of law,” wrote Justice O’Donnell. “It is logically inconsistent to tell a jury to consider a dog’s vicious propensity for a common-law negligence claim and, at the same time, instruct the same jurors to ignore that evidence in connection with evidence relating to a statutory claim.”
Contacts
Michael J. O’Shea, 440.241.0011, for Yoshanta Beckett et al.
Donald P. Wiley, 330.499.6000, for Richard Warren et al.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
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