Judge Kimbler's Criminal Docket for May 27, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, May 27, 2010:

Jennifer Endean, 32, of Cuyahoga Falls, was sentenced to three years of community control sanctions on one count of Identity Fraud and one count of Forgery, both of which are fifth-degree felonies.

Thong Phaphouvaninh, 49, of Apple Blossom Lane in Orville, was sentenced to two years of community control sanctions on one count of Safecracking, a fifth-degree felony.

Robert Turba, 37, of Olde Eight Road in Northfield, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $500 restitution to his victim.

Shannon West, 19, of Smith Road in Spencer, was sentenced to one year in prison on one count of Theft from the Elderly, a third-degree felony.

Anthony Zavesky, 26, of Williamsburg Oval in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Cocaine and one count of Trafficking in Marijuana, both of which are fifth-degree felonies.

James Brienzo, 36, of First Street N.W. in Barberton, pleaded not guilty to one count of Complicity to Commit Theft, a fifth-degree felony. A jury trial is scheduled for July 26.

Darnell Milton, 40, of East 110th Street in Cleveland, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for July 26.

Marvin Neal, 23, of Bursley Road in Spencer, pleaded not guilty to two counts of Felonious Assault, both of which are second-degree felonies. A jury trial is scheduled for July 27.

Donald Nichols, 30, of Indian Hollow Road in Grafton, pleaded not guilty to one count of Railroad Vandalism or Criminal Trespass; Interference with Operation of Train, a fourth-degree felony. A jury trial is scheduled for July 27.

Terry Starcher, 44, of 4th Street in Barberton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 28.

Andrea Walker, 36, of Firsby Avenue in Cleveland, pleaded no contest and was sentenced to six months in prison on one count of Theft of a Motor Vehicle, a fourth-degree felony.

Ohio Supreme Court:Criminal Trial in Absentia Against Corporation Cannot Proceed in Municipal Court

Cleveland v. Washington Mut. Bank, Slip Opinion No. 2010-Ohio-2219.
Cuyahoga App. No. 91379, 2008-Ohio-6956. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2219.pdf

(May 26, 2010) The Supreme Court of Ohio today ruled that a state statute, which the city of Cleveland contended permitted a criminal trial in the absence of the defendant, does not apply to criminal trials against corporations in municipal court initiated by affidavit or complaint.

After failing to make ordered repairs to properties it owned in Cleveland and failing to appear at multiple hearings, the Cleveland Municipal Court found Washington Mutual Bank guilty of building and housing code violations and imposed a fine of $100,000. A three-judge panel of the Eighth District Court of Appeals overturned the housing court’s judgment and vacated the fine against the property owner. The City of Cleveland appealed and the Supreme Court agreed to take the case.

In an opinion authored by Justice Robert R. Cupp, the Court noted that R.C. 2941.47 only refers to a criminal case against a corporation instituted by indictment or information in common pleas courts not a misdemeanor prosecution instituted by complaint or affidavit in municipal courts.

“Because this criminal prosecution was brought by affidavit or complaint in municipal court rather than by indictment or information in common pleas court, R.C. 2941.47 does not apply,” Justice Cupp wrote.

Justice Cupp wrote that the cases cited by the city to prove its authority do not concern similar circumstances to this case. He also pointed out that the question of “whether R.C. 2941.47 provides for a trial of a corporation in absentia in proceedings other than those brought by affidavit or complaint in a municipal court” is not before the Court in this case.

The Supreme Court affirmed the appeals court judgment and remanded for further proceedings.

Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Maureen O’Connor concurred separately and urged the General Assembly to study the problem of high rates of foreclosure in urban neighborhoods dominated by absentee landlords who permit properties to go into ruin and decay. “City prosecutors working in municipal and common pleas courts must have a mechanism through which they can constitutionally provide notice to landlords but proceed with trial in absentia if a landlord fails to respond to defend the claim. Legislative modification of R.C. 2941.47 to permit a municipal court to proceed in absentia is one manner in which this goal can be accomplished.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Karyn J. Lynn, 216.664.4504, for City of Cleveland.

Vladimir P. Belo, 614.227.2300, for Washington Mutual Bank.

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: Criminal Complaint ‘Filed’ When Deposited With Clerk

Zanesville v. Rouse, Slip Opinion No. 2010-Ohio-2218.
Muskingum App. No. CT08-0035, 2009-Ohio-2689. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2218.pdf

(May 26, 2010) The Supreme Court of Ohio today ruled that a document is “filed” when it is deposited properly for filing with the clerk of courts. The Supreme Court also ruled that even when a document lacks a clerk’s endorsement indicating it has been filed, filing may be proved by other means.

The case centers on whether a domestic violence case was validly filed with the clerk of the Zanesville Municipal Court. The clerk accepted the document and placed the document in a case file, but did not physically place a date stamp on the complaint document.

In the Court’s 6-0 decision, authored by Justice Judith Ann Lanzinger, she wrote: “We observe, however, that the filing of a document does not depend on the performance of a clerk’s duties. … The clerk’s duty to certify the act of filing arises only after a document has been filed.”

Justice Lanzinger pointed to several Supreme Court cases and the Rules of Superintendence that differentiate filing and certification of filing by the clerk. “In short, the time or date stamp does not cause the filing, the filing causes the certification,” she summarized.

As to situations when a document lacks an endorsement from a clerk, Justice Lanzinger wrote of other means available to prove a filing in this case.

“When the named defendant filed his motion to dismiss based upon lack of jurisdiction, Zanesville responded with a brief and exhibits including a printout of the electronic docket sheet and an affidavit from the clerk of courts as proof that the case had been filed. The clerk’s affidavit explains that it is clear from her records that the complaint was filed on February 28, 2006, because the electronic docket for this case indicates a ‘filing date’ of February 28, 2006. Furthermore, it was the clerk’s practice to create a new case file and corresponding electronic docket upon receipt of a complaint, and such a file and docket was created.”

The Supreme Court reversed the appeals court’s judgment and reinstated the trial court’s judgment.

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Terrence O’Donnell concurred separately, writing he would reverse the appeals court’s judgment based on the holding in King v. Penn, “which stands for the proposition that ‘[w]hen a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is ‘filed.’ The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.’”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Scott T. Hillis, 740.455.3350, for the City of Zanesville.

Elizabeth N. Gaba, 614.586.1586, for Ronald Rouse Jr.

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."

Civil Rule Prohibits Using Placeholder Names When Defendant is Known in Case

2009-0580. Erwin v. Bryan, Slip Opinion No. 2010-Ohio-2202.
Tuscarawas App. No. 08-CA-28, 2009-Ohio-758. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Grendell, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Diane V. Grendell, J., of the Eleventh Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2202.pdf

(May 25, 2010) The Supreme Court of Ohio today ruled that the rules of civil procedure do not allow a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed.

The case centered on a wrongful death lawsuit filed by Cora Erwin, whose husband, Russell, died July 15, 2004, several days after his release from the hospital.

On July 10, 2006, within the two-year statute of limitations (time limit) after Mr. Erwin’s death, Mrs. Erwin filed a wrongful death lawsuit naming as defendants Dr. Bryan, Union Hospital, and five unnamed “John Doe” defendants described in the complaint as other physicians unknown to Mrs. Erwin at the time of filing whose acts or omissions may have contributed to Mr. Erwin’s death. On July 15, 2006, the statute of limitations for filing a wrongful death claim arising from Mr. Erwin’s death expired.

On June 29, 2007, after her attorneys had deposed Dr. Bryan, Mrs. Erwin sought leave to amend her complaint to substitute the name of Dr. William Swoger, a physician who had been involved in the intubation of her husband during his hospitalization, for one of the “John Doe” defendants. The trial judge granted leave to amend the complaint, and Dr. Swoger and his medical practice, Union Internal Medical Specialties Inc. (UIMS), were served with copies of the amended complaint naming them as defendants. Dr. Swoger and UIMS subsequently filed a motion for summary judgment dismissing them as defendants on the basis that Mrs. Erwin had not asserted claims against them until after the July 15, 2006 statute of limitations had expired. The trial court granted summary judgment in favor of Dr. Swoger and UIMS based on the statute of limitations.

Mrs. Erwin appealed the trial court’s grant of summary judgment, arguing that because she had included then-unknown John Doe physicians as defendants in her original and timely complaint, Civil Rule 15(D) allowed her to amend that complaint within one year after the original filing date by substituting the name of an actual defendant for a John Doe defendant. The 5th District Court of Appeals reversed the trial court’s grant of summary judgment and reinstated Mrs. Erwin’s claims against Dr. Swoger and UIMS. The Supreme Court agreed to review the 5th District’s decision.

The majority opinion authored by Justice Terrence O’Donnell stated: “According to its unambiguous language, Civ.R. 15(D) provides that a plaintiff may designate a defendant in a complaint by any name and description when the plaintiff does not know the name of that party. Thus, Civ.R. 15(D) does not permit a plaintiff to designate a defendant by a fictitious name when the plaintiff actually knows the name of that defendant.

“Further, when a plaintiff designates a defendant by a fictitious name, Civ.R. 15(D) requies that the plaintiff provide a description of the defendant in the pleadings and aver in the complaint the fact that the plaintiff could not discover the name. The rule also directs that the summons contain the words ‘name unknown’ and be personally served on the defendant,” he continued.

Justice O’Donnell pointed out that “To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action. That is not the purpose of Civ.R. 15(D), and any indication that such a use is sanctioned by the court is disavowed.”

The Supreme Court reversed the appeals court judgment and reinstated the judgment of the trial court granting summary judgment in favor of Swoger and UIMS.

Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger, and 11th District Court of Appeals Judge Diane V. Grendell, who sat in place of Justice Robert R. Cupp.

In his dissent, Justice Paul E. Pfeifer cited Chief Justice Celebrezze’s dissent in a 1985 Supreme Court case: “‘Clearly, Rule 15(C) was designed to assist plaintiffs by allowing amendments to relate back to the time of the original filing and was not intended to add yet another obstacle in the path to the courthouse ‘Because of relation back, the intervening statute of limitation does not interfere with the opportunity to amend.’ I can’t offer a more coherent or concise explanation as to why the court is as wrong today as it was in 1985.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Rocco D. Potenza, 330.670.7300, for Dr. William Swoger & Union Internal Medicine Specialties Inc.

Paul W. Flowers, 216.344.9393, for Cora Erwin and Estate of Russell Erwin.

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."

Judge Kimbler's Court Schedule for May 26-June 1, 2010

Click here to view the schedule for Judge Kimbler's courtroom for the dates of May 26 through June 1, 2010.

Judge Collier's Criminal Docket for May 24, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on Monday, May 24 for criminal cases:

Raymel King, 23, of Medina, was sentenced to one year in prison on one count of Possession of Drugs, a third-degree felony, and one count of Possession of Crack Cocaine, a fourth-degree felony.

Timothy Carson, 24, of Reeves Lane in Medina, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for August 23.

Jennifer Durica, 25, of Grafton Road in Valley City, pleaded not guilty to two counts of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for August 30.

Husband and Wife Change Pleas in Judge Kimbler's Courtroom

On Monday, May 24, 2010, Mr. Allen J. Pawl and Ms. Kimberly A. Henry of Springbrook Street in Medina, who are married, entered pleas of "no contest" to charges for drug trafficking and drug possession. Both were charged with one count of Trafficking in Drugs in the Vicinity of a Juvenile, and with Possession of Drugs. Both charges are fourth degree felonies. Judge Kimbler referred each of them to the Medina County Adult Probation Department. Judge Kimbler will impose sentence on July 9, 2010.

Judge Kimbler also took a change of plea today from Ms. Jamie Maynard of Abbeyville Road in Medina, who was charged with one count of Possession of Drugs, a fifth degree felony. Ms. Maynard entered a plea of "no contest" and was found guilty. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on July 9, 2010.

In all three cases, Judge Kimbler continued the bond. Ms. Maynard is being evaluated for placement in a community based correctional facility in Lorain County.

Judge Kimbler's Criminal Docket for May 21, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Friday, May 21, 2010, for criminal cases:

Caleb Klinksiek, 20, of Sturbridge Lane in Brunswick, was sentenced to three years in prison on one count of Robbery, a second-degree felony.

Brian Milici, 26, of Edwards Road in Doylestown, was sentenced to five years in prison on one count of Felonious Assault, a second-degree felony, which carries a firearm specification, and one count of Carrying a Concealed Weapon, a fourth-degree felony.

Eric Brown, 24, of Creed Street in Struthers, pled not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for July 26.

Dawn Hyde, 38, of Olive Street in Elyria, pled not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 28.

Lawrence Miller, 29, of Caleb Drive in Copley, pled not guilty to one count of Identity Theft, a fifth-degree felony. A jury trial is scheduled for July 20.

Judge Kimbler's Court Schedule for May 24-28, 2010

You can click here to see Judge Kimbler's court schedule for the week of Monday, May 24 through Friday, May 28, 2010.

Akron Man Convicted of Vehicular Homicide

Ference D. Schmidt of Hametown Road in Akron was found guilty by Judge James L. Kimbler in a non-jury trial. Judge Kimbler found that Mr. Schmidt committed two counts of Aggravated Vehicular Homicide and one count of Aggravated Vehicular Assault on October 8, 2010. The charge of Aggravated Vehicular Homicide is a felony of the third degree and the charge of Aggravated Vehicular Assault is a felony of the fourth degree.

The non-jury trial started on Monday, May 17 and the evidence concluded on Wednesday, May 19. Judge Kimbler then took the case under advisement and announced his decision on Thursday, May 20.

The evidence established that Mr. Schmidt was on his way to Dragway 42 in West Salem, Ohio, with three of his friends. He was driving a 2008 Dodge Charger, which he had just purchased on October 1. The car was capable of going 170 miles per hour and had a engine that produced 396 horsepower.

Mr. Schmidt was traveling westbound on US 224 in Harrisville Township when he struck a van being operated by a Mr. Lawrence Erb. Mr. Erb and his wife were in the van and were crossing US 224 at the Harris Road intersection. According to witnesses the Erb van was visible at a distance of over 1000 feet from the intersection going westbound. The van had cleared the eastbound lanes and was in the driving lane of the westbound lanes when the collision took place.

According to the airbag command module, the Charger was traveling at a speed of 124 miles per hour five seconds before the crash and was going at 117 miles per hour when the brakes were applied 2.8 seconds before the crash. At the time of the crash the Charger was traveling at a speed of 75 miles per hour. Mr. and Mrs. Erb were killed in the crash and one of Mr. Schmidt's passengers was hospitalized for seven days.

Following the announcement of the verdict, the State made a motion to revoke Mr. Schmidt's bond. Judge Kimbler granted that motion, revoked his bond, and ordered a pre-sentence investigation. Judge Kimbler will impose sentence on June 17, 2010.

During the trial the State called 14 witnesses and Mr. Schmidt called six witnesses. Mr. Schdmidt did not testify. Over 120 exhibits were introduced into evidence. The State was represented by Medina County Prosecuting Attorney Dean Holman and Assistant Medina County Prosecuting Attorney Joe Deangelo. Mr. Schmidt was represented by Attorney Lawrence Whitney of Akron, Ohio.

Court Rules Appeal of Sex Offender Classification is a Criminal Matter

2009-0971. State v. Clayborn, Slip Opinion No. 2010-Ohio-2123.
Franklin App. No. 08AP-593, 2009-Ohio-1751. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., concur in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2123.pdf

(May 20, 2010) The Supreme Court of Ohio today ruled that an appeal from a sexual offender classification must be appealed in the criminal case and filed within 30 days.

The Court’s 6-0 decision, authored by Justice Evelyn Lundberg Stratton, affirmed a ruling by the 10th District Court of Appeals, but for reasons different from those stated by the appellate court.

The issue before the Supreme Court was “whether an appeal of an R.C. Chapter 2950 sexual-offender classification is an appeal of a criminal matter that must be filed within 30 days after judgment in the case is entered, or whether it is a civil matter for which the 30-day deadline is tolled until the defendant has been served with a copy of the judgment entry.”

On May 27, 2008, Byron Clayborn pleaded guilty to one second-degree felony count of pandering sexually oriented matter involving a minor. In a May 30, 2008, judgment entry, the trial court noted that the conviction automatically classified Clayborn as a Tier II sexual offender under the Adam Walsh Act. Clayborn filed a notice of appeal 46 days after the judgment entry. The appeals court held that the appeal was criminal, and therefore untimely, and dismissed his appeal. The Supreme Court accepted the case as a discretionary appeal.

Clayborn’s attorneys argued that sexual-offender classifications are intended to be administrative, not punitive, and are therefore civil determinations. They argued the clerk of court did not serve Clayborn with a copy of the trial court judgment as mandated by civil procedure rules and that this lack of service indefinitely tolled the time for filing his notice of appeal.

Justice Stratton wrote that the Supreme Court agreed with the appeals court “concluding that Clayborn was appealing ‘from a quintessential criminal case – a case initiated with an indictment alleging that Clayborn committed criminal offenses and concluded with a conviction for one of those offenses and a two-year sentence.’”

Justice Stratton pointed to three Supreme Court decisions in cases since 1998 that dealt with various forms of the sex offender classification statute. “Our holdings in Cook, Wilson, and Ferguson do not turn the sex offender classification proceedings in the underlying criminal case, which has a criminal case number, into a civil case,” she wrote. “While sex-offender-classification proceedings are civil in nature and require a civil manifest-weight-of-the-evidence standard, we hold that an appeal from a sexual offender classification is a civil matter within the context of a criminal case. Therefore, although the court reviews the classification matter on civil standards, the appeal requirements applicable to criminal cases, nonetheless apply.”

Justice Stratton noted that Clayborn could seek relief through a motion for delayed appeal under the rules of appellate procedure.

Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justices Paul E. Pfeifer and Judith Ann Lanzinger concurred in judgment only.

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Allen V. Adair, 614.719.2061, for Byron Clayborn

Steven L. Taylor, 614.462.3960, for the state and Franklin County Prosecutor.

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."

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Medina Doctor Wins Malpractice Jury Trial

A jury in Judge Collier's court returned a verdict in favor of Gregory L. Arko, D.O., of Medina in a malpractice lawsuit filed by Jackie Napier of Sullivan, Ohio and his wife JoAnn.

In his complaint Mr. Napier alleged that Dr. Arko misread an x-ray of his lungs by "failing to note a lingular mass in Plaintiff's lower left lung lobe" and by mislabeling the x-ray as "normal." He further alleged that as a result of this alleged negligence he suffered a "late diagnosis of cancer, severe pain, invasive surgery, chemotherapy with devastating side effects, medical expenses, lost wages, and has a 70% chance of cancer re-occurrence within five years." Mrs. Napier alleged that as a result of the alleged misreading of the x-ray, she sustained the loss of the services and affection of her husband. Dr. Arko denied these allegations.

The jury heard several days of testimony and returned but returned the verdict in favor of Dr. Akro after a relatively short period of deliberation.

Court Rules Customer May Pursue Direct Recovery From Hotel that Added Nonexistent Local Taxes to Bills

Rather Than Suing City/County In Whose Name Bogus Tax Was Collected

Volbers-Klarich v. Middletown Mgt., Inc., Slip Opinion No. 2010-Ohio-2057.
Butler App. No. CA2008-07-160, 2009-Ohio-1651. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2057.pdf

(May 18, 2010) The Supreme Court of Ohio ruled today that when a vendor charges its customer a nonexistent tax, the funds collected are not a tax collected for the benefit of the taxing authority and the customer may seek recovery of those payments by filing a civil action directly against the vendor. The Court’s 6-0 decision was authored by Justice Evelyn Lundberg Stratton.

In August of 2002, Julie Volbers-Klarich and members of her family stayed at a Hampton Inn hotel in Fairfield, Ohio that was owned by Middletown Management Inc. When she paid for the room, Volbers-Klarich alleges that in addition to state sales tax, her bill included an additional 6.5 percent charge that was identified as being for Butler County and City of Fairfield excise taxes. Volbers-Klarich subsequently learned that Butler County did not begin charging its current 3 percent excise tax on hotel rooms until Oct. 1, 2003, and that the City of Fairfield has never imposed an excise tax on hotel rooms.

Volbers-Klarich filed suit against Middletown Management in the Butler County Court of Common Pleas. Her complaint sought direct recovery from the hotel owners of the amounts she paid for the fictitious taxes, and also alleged additional damages based on claims of civil fraud, breach of statutory duty, negligence, breach of contract, conversion, and violations of the Ohio Corrupt Practices Act and Ohio Consumer Sales Practices Act (OCSPA). She also sought certification of a class action on behalf of other Hampton Inn customers who had been charged the non-existent local taxes.

Middletown Management filed a motion for summary judgment dismissing Volbers-Klarich’s complaint on the basis that it failed to state a claim for which relief could be granted. In a ruling granting the summary judgment motion, the trial court cited prior Ohio court decisions holding that persons seeking to recover alleged improper or excessive tax payments that were collected by a vendor do not have a direct cause of action against the vendor, but must instead seek recovery from the taxing entity in whose name the tax was collected. The trial court also held that Volbers-Klarich’s complaint had not asserted her fraud claim with the required degree of particularity, and had not met the evidentiary criteria required to support a class action claim under the OCSPA.

Volbers-Klarich appealed. On review, the 12th District Court of Appeals affirmed the action of the trial court, holding that “when a customer seeks a refund of taxes, even when they are nonexistent taxes, the customer must apply to the taxing authority for a refund.” Volbers-Klarich sought and was granted Supreme Court review of the lower courts’ rulings.

In today’s decision, which partially reversed the 12th District, Justice Stratton pointed out that three prior court decisions cited by the court of appeals, Décor Carpet Mills v. Lindley (1980), Parker v. Giant Eagle (2002), and Bergmoser v. Smart Document Solutions (2007), are distinguishable from this case because they involved the wrongful collection of an existing tax, while the “taxes” added to Volbers-Klarich’s hotel bill had never been authorized by law.

She wrote: “When a vendor charges its customer a nonexistent tax, the funds collected are not a tax collected for the benefit of the taxing authority. Consequently, under these limited circumstances, the customer need not seek a refund from the government entity that purportedly imposed the tax, but may file suit directly against the vendor to recover those funds.”

The court also affirmed the dismissal of the appellant's class action claim alleging a violation of the OCSPA for failing to state a claim upon which relief could be granted. However, the court reversed the dismissal of appellant's claim alleging fraud finding that appellant's complaint pleaded fraud with sufficient particularity to satisfy Civ. R. 9(B).

Because the trial court granted summary judgment against Volbers-Klarich based on limited legal issues, Justice Stratton noted, “(T)he trial court never specifically addressed the claims seeking certification of a class action alleging a breach of statutory duty to collect taxes, negligence, breach of contract, conversion, and violation of the Ohio Corrupt Practices Act. In light of this reversal, these claims must now be addressed on remand, as well as her claim alleging fraud and her individual claim alleging a violation of the OCSPA.”

Justice Stratton’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Kenneth J. Ignozzi, 937.223.8888, for Judy Volbers-Klarich.

James C. Frooman, 513.651.6800, for Middletown Management Inc. & Middletown Innkeepers Inc.

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."

Judge Collier's April Medina County Probation Report

Veronica Perry, Chief Probation Officer for the Medina County Probation Department reports that in April Judge Collier made the following assignments or referrals to her department:

Intensive Supervised Probation Assignments: 5
General Supervision Assignments: 1
Home Incarceration Assignments: 1
Bond Reporting Assignments: 1
Pre-Sentence Investigation Report Referrals: 7
Expungment Referrals: 2

Medina County Judges Dispose of 257 Cases, Take in 262

Judge Kimbler and Judge Collier have filed their Ohio Supreme Court docket report for April of 2010. The reports show that Judge Kimbler and Judge Collier took in 262 cases and disposed of 257 cases in April of 2010. The numbers break down as follows:

Judge Kimbler started April with 726 cases, took in 132 cases, reactivated or transferred in 18 cases, and had 896 cases to dispose of at some point during April. Judge Kimbler terminated 133 cases in April. At the end of April Judge Kimbler had 743 cases on his docket.

Judge Collier started April with 736 cases, took in 130 cases, reactivated or transferred in 12 cases, and had 885 cases to dispose of at some point during April. Judge Collier terminated 124 cases in April. At the end of April, Judge Collier had 761 cases on his docket.

The biggest category for both Judge Kimbler and Judge Collier was Foreclosures with 48 Foreclosure cases assigned to each of them in April.

The next biggest category for both Judge Kimbler and Judge Collier was Other Civil with Judge Collier having 48 cases assigned to him for that category and Judge Kimbler having 46 cases assigned to him for that category.

Rounding out the top three categories is Criminal with Judge Collier having 20 cases assigned to him for that category and 25 cases assigned to Judge Kimbler for that category.

Non-Jury Vehicular Homicide Trial Starts in Judge Kimbler's Courtroom

Ference D. Schmidt of Hametown Road in Akron, Ohio, waived his right to a jury trial on Monday, May 17, and elected to be tried by Judge Kimbler. Mr. Schmidt is charged with two counts of vehicular homicide and one count of vehicular assault. The homicide charges are both felonies of the third degree and the assault charge is a felony of the fourth degree.

The charges arose out of a car accident that took place on October 8, 2008, at the intersection of Harris Road and Route 224 in Harrisville Township. The state alleges that Mr. Schmidt recklessly operated his car and that his reckless operation caused a collision between his car and a car that was operated by a Lawrence Erb. The State alleges that the collision killed Mr. and Mrs. Erb and seriously injured a passenger in Mr. Schmidt's car.

The trial is expected to last the rest of the week. The State has subpoenaed over 20 witnesses. The State is bring represented by Medina County Prosecutor Dean Holman and Assistant County Prosecutor Joe Dangelo. Mr. Schmidt is represented by Attorney Larry Whitney of Akron, Ohio.

Judge Collier's Criminal Docket for May 17, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on Monday, May 17. for criminal cases::

Jerry Barker, 34, of Bond Avenue in Lorain, was sentenced to one year in prison on one count of Having Weapons While Under Disability, a third-degree felony.

Damon Bryan, 41, of Medina, pleaded guilty to eight counts of Theft from the Elderly and one count of Theft. One count is a first-degree felony; four counts are second-degree felonies; two counts are third-degree felonies; and two counts are fourth-degree felonies. He was sentenced to seven years in prison.

Lawrence Green, 27, of Grafton Road in Liverpool Township, was sentenced to one year in prison for a probation violation on an original charge of Trafficking in Drugs Within the Vicinity of a Juvenile, a fourth-degree felony.

Jay Nelson, 47, of Deerfield Avenue NW in Marshallville, was sentenced to nine months in prison for a probation violation on an original charge of Non-Support of Dependents, a fifth-degree felony.

Matthew Perkins, 22, of Lafayette Road in Medina, was sentenced to 18 months in prison for a probation violation on an original charge of Attempted Child Endangering, a fourth-degree felony.

Sheri Schaefer, 28, of Daniels Road in Creston, was sentenced to two years in prison for a probation violation on original charges of Trafficking in Drugs and Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, both of which are third-degree felonies.

April Wilbanks, 21, of North Portage Street in Doylestown, was sentenced to six months in prison for a probation violation on an original charge of Receiving Stolen Property, Credit Card, a fifth-degree felony.

Russell Wilson, 39, of Oakwood Avenue in Wadsworth, pleaded guilty to and was sentenced to six months in prison on one count of Trafficking in Marijuana, a fifth-degree felony, and one count of Possession of Marijuana, a fourth-degree misdemeanor.

Steven Bonsell, 33, of Front Street in Berea, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 25.

Michael Dechiara, 23, of Ridgecrest Drive in Wadsworth, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for June 28.

Pamela Fern, 28, of Charlotte Drive in Brunswick, pleaded not guilty to one count of Identity Theft, a fifth-degree felony. A jury trial is scheduled for August 30.

Nathan Haynes, 35, of Wakefield Drive in Akron, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for July 14.

Floyd Henderson, 54, of Borden Street in Youngstown, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for July 23.

Eric Henninger, 34, of Summit Street in Wadsworth, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for June 28.

Jeremy Stafford, 21, of Congress Street in Lodi, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for June 14.

Joseph Stephens, 25, of Wootring Street in Delaware, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for August 30.

Sarah Vaccarelli, 31, of Maplewood Farms in Medina, pleaded no contest to three counts of Forgery, all of which are fifth-degree felonies. A jury trial is scheduled for August 25.

Donald Wojciechowski, 35, of Crestway Oval in Brunswick, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for June 30.

Backers of Proposed Sovereignty Amendment to Ohio Constitution Get Green Light to Start Collecting Signatures

The Ohio Ballot Board has given the green light to a group that will start collecting signatures to put what it calls the Ohio Sovereignty Amendment on the November, 2010, Ohio ballot.

The amendment would, among other things, allow juries to nullify laws and trial judges would have to so instruct juries of this right. The language of the proposed amendment that would grant jurors this right reads as follows:

Jury Nullification

All juries shall be comprised only of Ohio Citizens, and in the course of serving in any criminal or civil action in an Ohio court, shall have the right to hear and determine both the facts and the law of the case. And, in the event the jury determines that the law presented or applied against the defendant shall serve to an unjust end, the jury shall have the absolute right, without objection or interference from the court, to suspend or nullify the law as applied in such case. Such determination shall require at least a three-fourths vote of the members of the jury in favor of nullification. The judicial or administrative officer in charge of the proceedings shall instruct the jury of its right of nullification of the law in every case before commencement of trial.

The proposed amendment also declares Ohio to be a "republic" as shown by this section:

General Duty of the State

The state of Ohio shall operate solely as a free and independent republic and within the Union of federated states comprising The United States of America, and its government shall faithfully, diligently, and prudently exercise all powers and authorities granted to it by this Constitution.

Also, only local elected boards of education would have the power to regulate schools, as shown by this section of the proposed amendment:

Control of Education at Local Level

Public educational curriculum and operations, except funding, for children through the twelfth grade shall be regulated solely at the local school district level.

Other parts of the amendment deal with granting the Ohio county sheriffs the primary power to enforce federal laws in Ohio. This is shown by the following section:

Prohibition Against Federal and Foreign Agents

No enforcement action shall be exercised by any federal or foreign agency against the people in Ohio except through the county Sheriff and upon presentment of a valid judicial warrant, in which instance said Sheriff shall apprehend and deliver the accused to the appropriate authority at the county jail. The Sheriff may rely on assistance from relevant federal or foreign agents, at his sole discretion.

The whole text of the proposed amendment may be read by clicking here. In order to appear on the November ballot, the group backing this amendment must obtain over 402,275 valid signatures of registered voters by June 30, including signatures from at least 44 of the 88 counties in Ohio equaling 5 percent of the 2006 vote for governor in each of those counties.

Judge Kimbler's Criminal Docket for May 13, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom for criminal cases on May 13, 2010:

Brandon Fazekas, 23, of Clinton Road in Doylestown, was sentenced to 236 days in jail on three counts of Breaking and Entering, all of which are fifth-degree felonies.

Clifford Floyd, 29, of Lafayette Road in Medina, was sentenced to seven months in prison on one count of Domestic Violence, a fourth-degree felony.

Cody Jones, 22, of Front Street in Burbank, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.

Gregory Weaver, 24, of West Lake Avenue in Barberton, was sentenced to six months in prison on one count of Trafficking in Marijuana, a fifth-degree felony.

Tonya Faulkner, 34, of Driftwood in Rittman, pleaded not guilty to one count of Complicity to Commit Trafficking in Cocaine, a fourth-degree felony. A jury trial is scheduled for July 13.

Daniel Kleinsmith, 45, of Broad Boulevard in North Ridgeville, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 14.

Michael McCarty, 23, of Grandview Avenue in Wadsworth, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Dangerous Drug, a fourth-degree felony; and three counts of Breaking and Entering, all of which are fifth-degree felonies. A jury trial is scheduled for July 19.

Xan McCarty, 22, of County Road 620 in Ashland, pleaded no contest to one count of Burglary, a third-degree felony. Sentencing is scheduled for June 10.

Max Perino, 21, of Mill Street in Lodi, pleaded not guilty to one count of Possession of LSD, a fourth-degree felony. A jury trial is scheduled for July 12.

Angel Perry, 25, of East Avenue in Akron, pleaded not guilty to one count of Complicity to Commit Trafficking in Cocaine and Possession of Cocaine, both of which are fourth-degree felonies. A jury trial is scheduled for July 12.

William Robinson, 29, of Lansing Avenue in Cleveland, pleaded not guilty to one count of Breaking and Entering, a fifth-degree felony. A jury trial is scheduled for July 14.

Dionel Rodriguez, 26, of Miami, Florida, pleaded no contest to one count of Forgery, a fifth-degree felony. Sentencing is scheduled for June 10.

Felicia Simmons-Southern, 49, of George Zeiger Drive in Beachwood, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for July 21.

Nathanial Stefanko, 30, of Silvercreek Road in Wadsworth, pleaded not guilty to one count of Receiving Stolen Property, a fourth-degree felony. A jury trial is scheduled for July 20.

Corey Zoss, 25, of Kauffman Avenue in Sterling, pleaded not guilty to one count of Theft, a third-degree felony. A jury trial is scheduled for July 19.

Cleveland Man Sentenced to Prison After Change of Plea

Keanon O. Jackson of West 31st Street in Cleveland, Ohio, appeared in Judge Kimbler's court for the continuation of a hearing on his motion to suppress evidence. Prior to the commencement of the hearing, however, the State and Mr. Jackson reached an agreement. Under the terms of the agreement Mr. Jackson would enter a plea of "no contest" to two counts of drug possession. The first count was for Drug Possession, (Marijuana), a felony of the fifth degree and the second count was for Drug Possession, (Cocaine), a felony of the second degree. The State and Mr. Jackson also agreed to recommend a prison sentence of six months on the first count and a prison sentence of two years on the second count.

Mr. Jackson then changed his plea on both counts. Judge Kimbler found him guilty of both counts and sentenced him to prison. The prison sentence on the first count was for six months and the prison sentence on the second count was for two years. The two prison sentences run concurrently. Judge Kimbler also suspended his license for six months and imposed a mandatory fine of $7500.00, but suspended the fine and waived all court costs. Judge Kimbler also imposed a mandatory three year period of post-release control when Mr. Jackson is released from prison.

Judge Collier's Criminal Docket for May 10, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier’s courtroom for criminal cases on May 10, 2010:

Jason Cantrell, 35, of La Vista West in Lodi, was sentenced to one year in prison on one count of Burglary, a fifth-degree felony.

Mario Dennis, 30, of West Union Street in Medina, was sentenced to one year in prison for a probation violation on an original charge of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony.

Sarah Kafantaris, 22, of Manhattan Drive in Brunswick, was sentenced to five years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.

Joseph Mullen, 21, of Otoe Avenue in Tallmadge, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Theft of a Firearm, a third-degree felony.

James Schubert, 19, of Day Street in Ravenna, was sentenced to 180 days in jail for a probation violation on an original charge of Possession of Drugs, a fifth-degree felony. His probation also was continued for five years.

Jamie Shupe, 38, of Glenway Drive in Brook Park, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Theft, a fifth-degree felony.

Jamal Starcher, 19, of College Street in Wadsworth, was sentenced to one year in prison for a probation violation on three original counts of Trafficking in Marijuana, all of which are fifth-degree felonies.

Ken Finan, 34, of West Clifton Boulevard in Lakewood, pleaded no contest to one count of Trafficking in Marijuana, a fifth-degree felony. The charge carries a forfeiture specification. Sentencing is scheduled for June 21.

Sara Homan, 21, of Ward Road in Columbus, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for August 23.

Jason Tice, 40, of North Main Street in West Salem, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for June 21.

Stephen Tyler, 44, of New York, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for August 23.

226 New Attorneys Sworn in by Ohio Supreme Court

A total of 226 new attorneys who met the challenges of law school, passed the bar exam, and met all other requirements for admission were sworn in today at a ceremony officially admitting them to the bar. Supreme Court of Ohio Justice Robert R. Cupp offered remarks at the ceremony, which took place during a special session of the Supreme Court at the historic Ohio Theatre.

Justice Cupp cautioned the attorneys that while the legal profession includes interesting challenges and new opportunities, it also requires the assumption of more responsibility. “For one cannot accept the benefits of the legal profession without also accepting its obligations,” he said. “And these include following the rules of ethical conduct both to the letter and in the spirit, and putting the client’s interests ahead of your own interests.”

Justice Maureen O’Connor administered the oath to the new attorneys.

Lisa Weekley Coulter, chair of the Board of Bar Examiners, presented a motion to admit the successful applicants. Also present at the ceremony were Chief Justice Eric Brown and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.

Robert H. Rawson Jr., dean of the Case Western Reserve University School of Law, and Barbara J. Howard, president of the Ohio State Bar Association, also offered remarks.

“We deans who have had the privilege of mentoring you as students have full confidence in your preparation, in your energy, in your aspirations and in your values,” Dean Rawson said. “Consequently, we are confident you are poised to begin successful careers and to make substantial contributions to our profession.”

OSBA President Howard welcomed the new lawyers to the profession. “We invite each of you to become active members of the association,” she said. “We also urge you to engage not only in the OSBA community, but in the geographic community you call home. For both professional responsibility and civic duty are integral parts of a lawyer’s commitment.”

The attorneys sworn in today passed the February 2010 bar examination and satisfied all of the Supreme Court’s other requirements for admission. Overall, 271 applicants out of 413 (65.6 percent) received passing scores while 79 percent of the 238 first-time applicants received passing scores.

Following the ceremony, the attorneys were encouraged to visit the Ohio Judicial Center, including the Supreme Court Courtroom and the Law Library. New attorneys were also urged to file their registration paperwork and learn about the Supreme Court’s mentoring program.

The bar exam is administered by the Supreme Court, which regulates the practice of law in Ohio, including the admission of new attorneys, the biennial registration of current attorneys, attorney discipline in cases of misconduct, and the administration of continuing legal education.

The oath of office session was recorded and will be re-broadcast on the Ohio Channel’s local public broadcasting stations. For more information, and to view an archived video of the ceremony online, visit www.ohiochannel.org.

Contact: Chris Davey or Bret Crow at 614.387.9250.

Judge Kimbler's April Probation Department Report

Veronica Perry, Chief Probation Officer for the Medina County Adult Probation Department, reports that in April of 2010 Judge Kimbler assigned 19 defendants to be supervised by her Department. Of those 19 defendants, 9 were assigned to intensive supervision and 10 were assigned to general supervision.

Ms. Perry also reports that Judge Kimbler assigned 15 defendants to do community service as a condition of their probation; assigned 1 defendant to electronic monitored home incarceration as part of that defendant's sentence; and assigned 2 defendant to his court's Mental Health Docket.

Judge Kimbler made several referrals to the Adult Probation Department. Ten defendants were referred to the Department for reporting as part of their bond; 10 defendants were referred to the Department for pre-sentence investigation reports; 1 defendant was referred to the Department for a report as to whether that defendant's record could be expunged; and 1 defendant was referred to the Department for an evaluation for Judge Kimbler's Mental Health Docket.

Two Women Enter Pleas in Judge Kimbler's Court

On Monday, May 10, 2010, Ashley R. Isaac of Neff Road in Valley City appeared in Judge Kimbler's courtroom on a charge of Possession of Drugs, LSD, a felony of the third degree. The indictment also contained a forfeiture specification for $1378.00. Ms. Isaac's case had been set for trial, but, she decided to enter a plea instead. Judge Kimbler took the change of plea and ordered a pre-sentence investigation.

Ms. Isaac is tentatively set for sentencing on June 17, 2010. Prior to pronouncing sentence, Judge Kimbler will determine whether the State is entitled to the forfeiture of the money.

On Monday, Lavinia L. Pierce-Rives of East 43rd Street in Cleveland, Ohio, was also set for trial on a charge of Receiving Stolen Property, a fourth degree felony. Ms. Pierce-Rives also entered a plea of "no contest" and was found guilty. As in Ms. Isaac's case, Judge Kimbler ordered a pre-sentence investigation and will pronounce sentence of June 17, 2010. Judge Kimbler continued the bond in both cases.

Wadsworth Man Enters Plea to Drug Offenses, PSI Ordered

Terence R. Martter of Trease Road in Wadsworth, Ohio, appeared in Judge Kimbler's courtroom on Monday, May 10, 2010. His case was scheduled for a jury trial on four counts of Drug Trafficking. One of the counts involved marijuana and the other three involved cocaine.

The three cocaine charges each carry a mandatory prison term. In two of the cocaine charges the mandatory term is between one year and five years. In the other cocaine charge the mandatory term is between two years and eight years.

Instead of going to trial, however, Mr. Martter entered a plea of "no contest" to each charge. Judge Kimbler then found him guilty of all four charges and ordered a pre-sentence investigation. Mr. Martter will be sentenced on June 17, 2010. Mr. Martter remains in the county jail until his sentencing date.

Indiana Man Enters Plea, Sentenced to Prison for Cocaine Possession

Stan Hatch of Fort Wayne, Indiana, appeared in Judge Kimbler’s courtroom on Monday, May 10, 2010 on a charge of Drug Possession and Possession of Criminal Tools. The drug involved was over 500 grams of Cocaine. Mr. Hatch entered a plea of “no contest” to both charges and was found guilty of both charges. He also agreed to the forfeiture of his 2008 Silverado pick-up truck and $1019.00 in cash.

Immediately after taking the plea, Judge Kimbler imposed a mandatory prison term of eight years on the Drug Possession charge and a 12 month sentence on the Possession of Criminal Tools. The prison sentences are to be served concurrently. Judge Kimbler also ordered a five year mandatory period of post-release control and also imposed a mandatory fine of $10,000.00, but suspended the collection of the fine.

Over 700 Attend Law Day Memorial for Chief Justice Tom Moyer

More than 700 colleagues, friends and family, including about 150 judges, attended a memorial tribute today for the late Chief Justice Thomas J. Moyer on Law Day at his beloved Ohio State University.

The ceremony included a procession of robed judges from the federal bench, Ohio courts and out-of-state courts led by the Pipes and Drums of the Cleveland Police.

In recognizing Chief Justice Moyer’s significant contributions in a remarkable life dedicated to civility, public service and the rule of law, each of the six current Justices offered their personal reflections on the Chief. Former Justices and other national and state judicial and legal leaders offered personal tributes in addition to a video tribute. Ohio State University President E. Gordon Gee also offered remarks.

Some speakers chose to highlight his longevity, his jurisprudence, his administrative accomplishments. Many more focused on his character as a judge, a leader and a person.

“With a leadership style that is best described as a gentle hand from behind, he sought for us to encourage civility, work tirelessly, be patient to a fault, and commit ourselves fully to serving the greater good at the expense of ourselves,” said Supreme Court Administrative Director Steven C. Hollon, who served under Chief Justice Moyer for more than 10 years.

At the time of his death on April 2, Chief Justice Moyer was the longest-serving current Chief Justice in the country, having served for more than 23 years as Chief Justice, and the second longest-serving Chief Justice in the history of the Supreme Court of Ohio.

There was probably no better place to say goodbye one last time than the new Ohio Union on campus. Chief Justice Moyer’s 50-year relationship with Ohio State began in the late 1950s as an undergraduate student. A native of Sandusky, he earned his B.A. and J.D. degrees from Ohio State in 1961 and 1964, respectively.

His numerous awards include recognition as one of 40 outstanding alumni in 1987, at Ohio State’s 300th commencement. He also served as chair of the OSU Alumni Association Board of Directors from 1997-99. Additionally, Chief Justice Moyer received an Honorary Doctor of Laws degree from Ohio State in 1993. Most recently, he served as summer quarter commencement speaker on Aug. 30.

During the event, Utah Supreme Court Chief Justice Christine Durham announced that Chief Justice Moyer had been posthumously awarded the Harry L. Carrico Award for Judicial Innovation for 2010 from the National Center for State Courts.

The National Anthem was sung by Calvin Griffin of the OSU Glee Club. The Pledge of Allegiance was led by Adrian McElmore, Rondeisha Finney and Alex McFarland, members of the Vision Youth Advisory Board. Dr. Richard Ellsworth, pastor emeritus of the Central College Presbyterian Church, offered the opening and closing prayers.

Remarks were also offered by Dean Alan Michaels of the Michael E. Moritz College of Law at The Ohio State University; The Honorable Robert M. Duncan, a former federal judge and the first African American to serve on the Supreme Court of Ohio; Judge Sheila Farmer of the Ohio 5th District Court of Appeals and chair of the Ohio Judicial Conference; Barbara Howard, president of the Ohio State Bar Association; Nancy Rogers, former Ohio Attorney General and OSU professor of law; Stephen P. Anway, former law clerk to Chief Justice Moyer; and Mrs. Mary Moyer.

Members of the OSU Men’s and Women’s Glee Club led the assembly in the singing of Carmen Ohio.

A memorial page decided to Chief Justice Moyer, including a selection of tributes from people across Ohio and the United States, is available at www.sc.ohio.gov.

Contact: Chris Davey or Bret Crow at 614.387.9250.

Non-Asbestos Claims May Be Severed and Go to Trial Even Though Asbestos Claims in Same Suit Dismissed

When Plaintiff Asserts Asbestos and Non-Asbestos Related Claims in Same Tort Action

2009-1070. Riedel v. Consol. Rail Corp., Slip Opinion No. 2010-Ohio-1926.
Cuyahoga App. Nos. 91237, 91238, and 91239, 2009-Ohio-1242. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1926.pdf

(May 6, 2010) The Supreme Court of Ohio ruled today that when the plaintiff in a civil lawsuit asserts both asbestos-related and non-asbestos-related claims in the same tort action, the non-asbestos claims may be severed and proceed to trial immediately even though the asbestos-related claims are administratively dismissed under R.C. 2307.93.

The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, affirmed a ruling by the 8th District Court of Appeals.

Since the enactment of R.C. 2307.91 through 2307.98, which took effect in September 2004, all plaintiffs bringing asbestos-related lawsuits in Ohio trial courts are required to produce a preliminary medical report making a prima facie (sufficient on its face) showing that the claimant suffers from a current medical impairment that is attributable to asbestos exposure. In cases where the plaintiff does not make such a showing, the court is required to administratively dismiss his case “without prejudice,” meaning that the plaintiff’s claim is not extinguished and may be refiled at a later date if and when the plaintiff makes a showing of actual asbestos-related medical impairment.

In this case, two former railroad workers, Jack Riedel and Danny Six, and the widow of a third, Josephine Weldy, filed suits in the Cuyahoga County Court of Common Pleas alleging various occupational-disease claims under the Federal Employers’ Liability Act and the Locomotive Inspection Act arising out of their employment with Consolidated Rail Corporation. Because the complaints included claims for asbestosis based on occupational exposure to asbestos, they were assigned to the court’s separate asbestos docket, a special docket established to manage Cuyahoga County’s heavy caseload of asbestos claims.

Consolidated Rail moved for an administrative dismissal under R.C. 2307.93(A)(1), alleging that Riedel and the other plaintiffs had failed to make the required prima facie showing of current asbestos-related medical impairment. Finding that the evidence submitted by Riedel was insufficient to establish a prima facie case, the court granted Consolidated Rail’s motion for administrative dismissal as to the asbestos-related claims, but severed the remaining claims and ordered them to be scheduled for trial.

Consolidated Rail appealed, arguing that the trial court erred in (1) ruling that the administrative-dismissal provisions of R.C. 2307.93 did not apply to the non-asbestos claims asserted by the plaintiffs, and (2) severing the non-asbestos claims for trial. The 8th District Court of Appeals affirmed the judgment of the trial court, stating, “The administrative dismissal provision is limited to the asbestos-related claims that are specified in R.C. 2307.92.” Consolidated Rail sought and was granted Supreme Court review of the 8th District’s decision.

In today’s unanimous decision, Justice Pfeifer wrote: “R. C. 2307.93(A)(1) provides that a ‘plaintiff in any tort action who alleges an asbestos claim shall file … prima-facie evidence of the exposed person’s physical impairment that meets the minimum requirements specified in [R.C. 2307.92(B), (C), or (D)].’ R.C. 2307.92(B), (C), and (D) set forth the minimum requirements of a prima facie showing in claims alleging injury related to exposure to asbestos. This provision plainly indicates that the General Assembly intended to require all asbestos-claim plaintiffs, irrespective of the action in which the claims are filed, to provide prima-facie evidence of physical impairment related to asbestos in order to avoid dismissal. This provision clearly cannot apply to claims of injury due to exposure to other toxic substances, such as the claims by Riedel of injury due to diesel exhaust.”

“R.C. 2307.93(C) provides that a ‘court shall administratively dismiss the plaintiff’s claim without prejudice’ when the plaintiff fails to make the prima-facie showing required by R.C. 2307.93(A)(1). Consolidated Rail argues that the General Assembly's use of ‘claim’ in R.C. 2307.93(C) is broad enough to refer to the more comprehensive ‘tort action,’ as used in R.C. 2907.93(A)(1). We disagree.

… A claim that has been administratively dismissed may be reinstated only when the plaintiff is able to make a prima-facie showing as to the asbestos claim. R.C. 2907.93(C). Based on Consolidated Rail’s interpretation of ‘claim’ as encompassing the entire ‘tort action,’ non-asbestos claims paired with an asbestos claim would remain unresolved, possibly forever, unless the plaintiff could make a prima-facie showing as to the asbestos claim. We consider that result unreasonable or absurd. Accordingly, it is our duty to construe the statute to avoid this result.”

“We conclude that the administrative-dismissal provision of R.C. 2307.93(C) applies only to asbestos claims, even when the tort action in which the claim is brought includes non-asbestos claims. We also conclude that when a tort action includes an asbestos claim that is administratively dismissed, non-asbestos claims can be severed from the asbestos claim and proceed to trial. Furthermore, we conclude that the trial court in this case properly severed the non-asbestos claims from the asbestos claims. We affirm the judgment of the court of appeals.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Justice Stratton also entered a separate concurring opinion, joined by Justices O’Connor, O’Donnell and Lanzinger, to address Consolidated Rail’s argument that litigating non-asbestos claims on the already overloaded Cuyahoga County asbestos docket would thwart the purpose of H.B. 292, which was intended to expedite asbestos cases. She wrote: “The adjudication of the non-asbestos claims is a matter best decided at the local level. Once the non-asbestos claims have been severed from the asbestos claims, the local court should determine whether the non-asbestos claims may be adjudicated on the asbestos docket or should be transferred to the court’s general docket. I believe that this is a matter of docket control that is best left to court administration at the local level.”

Contacts
David A. Damico, 412.995.3000, for Consolidated Rail Corporation et al.

Christopher M. Murphy, 716.884.2000, for Riedel, Danny Six and Josephine Weldy.

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."

Court Rules Nurse Does Not Hold ‘Position of Trust’ That Would Bar Her From Intervention Program

For First Offense Theft of Drugs from Hospital Where She Was Employed

2009-0825. State v. Massien, Slip Opinion No. 2010-Ohio-1864.
Summit App. No. 24369, 2009-Ohio-1521. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O’Donnell, and Lanzinger, JJ., concur.
Cupp, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1864.pdf

(May 5, 2010) The Supreme Court of Ohio ruled today that a nurse employed in a hospital, who steals drugs in the course of her employment, does not occupy a “position of trust” and is not categorically ineligible for Intervention in Lieu of Conviction (ILC).

The Court’s 6-0 decision, authored by Justice Maureen O’Connor, affirmed a ruling by the 9th District Court of Appeals.

R.C. 2951.041 allows Ohio trial courts, at their discretion, to refer a first-time offender charged with a qualifying offense who meets certain requirements to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense. If the defendant successfully completes the intervention plan, the trial court dismisses the proceedings against the offender without a finding of guilt and may seal the records relating to the offense. Among other requirements, to be eligible for ILC, an offender must qualify for community control sanctions (rather than a prison sentence) under R.C. 2929.13(B)(2)(b). A separate statutory provision, R.C. 2929.13(B)(1) lists several findings that disqualify an offender from eligibility for sentencing under R.C. 2929.13(B)(2)(b) and, therefore, for placement in an ILC program. One of these findings, set forth in R.C. 2929.13(B)(1)(d), bars from eligibility an offender who “held a public office or position of trust and [whose] offense related to that office or position.”

In this case nurse Sally Massien was charged with taking drugs from the Akron hospital where she was employed. As a first-time offender, she requested ILC. The trial court granted Massien’s request over the objection of the Summit County prosecutor’s office. The prosecutor appealed, arguing that because Massien was entrusted with special access to drugs as a nurse, and had abused that trust by taking drugs illegally in the course of her employment, she violated a “position of trust,” and was therefore barred from participation in an ILC program. On review, the 9th District Court of Appeals affirmed the trial court’s judgment that Massien did not occupy a position of trust for purposes of the sentencing statute, and the trial court had not erred in finding her eligible for ILC.

The 9th District subsequently certified that its decision in this case was in conflict with State v. France, a 2006 decision in which the 10th District Court of Appeals held that a nurse who stole drugs in the course of her employment at a hospital had abused a position of trust and was ineligible for ILC. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court in today’s decision, Justice O’Connor noted that a number of Ohio’s district courts have interpreted the phrase “position of trust,” as used in R.C. 2929.13(B)(1)(d), and have reached conflicting results. While some districts have construed that language narrowly to apply only to government officials and public servants, other courts have construed it more broadly to apply to virtually any public or private individual whose offense involved a breach of trust.

Justice O’Connor wrote: “By including the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d) without limitation, the General Assembly evidenced its intent not to limit its application to public officials. However, we do not believe that the legislature intended the phrase to apply to all individuals who breach any private expectation of trust.” After reviewing the specific statutory language at issue, and analyzing it in context with eight parallel provisions of R.C. 2929.13(B)(1) that each identify a specific aggravating circumstance that justifies a sentence of imprisonment rather than community control, she wrote: “Each sentencing factor crafted by the legislature applies to a narrow aggravating circumstance that may justify the imposition of a prison sentence rather than the preferred community control for fourth- and fifth-degree felonies. ... Given the narrow application of the sentencing factors identified in R.C. 2929.13(B)(1) and (B)(1)(d), ... we believe that the General Assembly intended a limited application of the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d). Limiting the application of the section to private individuals who occupy a special relationship of trust and confidence equivalent to a fiduciary relationship and whose offense relates to that fiduciary relationship prevents the disqualification of persons who are not clearly meant to be excluded from ILC.”

Applying this standard, the court considered whether Massien occupied a special relationship of trust and confidence equivalent to a fiduciary relationship as a result of her employment as a nurse. In analyzing the relationship of a nurse with a hospital employer, Justice O’Connor quoted earlier court decisions defining a fiduciary as “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” She wrote: “Nurses are persons of ‘superior knowledge and skill,’ who have a duty to their patients to employ the degree of care, skill, and diligence that a nurse of ordinary care should employ in like circumstances. ... However, the duty of care imposed by law on a nurse toward his or her patients does not create a fiduciary relationship between the nurse and his or her employer-hospital. Further, a nurse’s job duties are not sufficiently discretionary to transform the relationship with his or her employer-hospital into a fiduciary relationship.”

“A nurse occupies a necessary and important supportive role in caring for patients and administering medication. However, as is illustrated by the respective duties of nurses and physicians, discretion relating to the diagnosis and treatment of a patient is statutorily in the hands of the physician, not the nurse. A nurse employed by a hospital does not occupy a position of discretion and, therefore, does not occupy a fiduciary relationship. Because a nurse is not a fiduciary by virtue of his or her employment with a hospital, he or she does not occupy a ‘position of trust’ for the purpose of R.C. 2929.13(B)(1)(d). Therefore, a nurse who steals drugs from the hospital in which he or she is employed is not categorically ineligible for ILC by virtue of his or her employment.”

Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Robert R. Cupp concurred with the majority judgment, but entered a separate opinion stating that in his view the “position of trust” language relied upon by the state in this case applies only to public officials, public servants and those holding public positions of trust. He wrote: “R.C. 2929.13(B)(1)(d) addresses three situations. It is the first category that is at issue in this case: offenders who ‘held a public office or position of trust and the offense related to that office or position.’ The statute uses the phrase ‘a public office or position of trust,’ indicating that the ‘office’ and the ‘position of trust’ are both of a public nature. In this regard, the article ‘a’ operates as a grammatical signal that both ‘office’ and ‘position of trust’ are parallel terms modified by ‘public.’ ... I do not believe that positions of trust held by private individuals which positions are not in the nature of a public trust are included within the first category listed in R.C. 2929.13(B)(1)(d).”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.

Karen H. Brouse, 330.928.7878, for Sally Massien.

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."

12-Year Time Limit for Filing Child Sexual Abuse Suits Does Not Stop Running Based on Repressed Memories

Limitations Period Begins to Run on Victim’s 18th Birthday

2009-0953. Pratte v. Stewart, Slip Opinion No. 2010-Ohio-1860.
Greene App. No. 08-CA-95, 2009-Ohio-1768. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1860.pdf

(May 5, 2010) The Supreme Court of Ohio ruled today that 2006 legislation unambiguously sets a 12-year statute of limitations (time limit) for the filing of civil lawsuits based on childhood sexual abuse that occurred after the Aug. 3, 2006 effective date of that legislation and applies that same 12-year limitations period to the filing of suits based on abuse that occurred prior to Aug. 3, 2006, if no prior claim has been filed and if the limitations period under the previous version of the law had not expired before the new law took effect.

The Court held further that the 12-year time limit for filing child sexual abuse suits does not begin to run until a child victim reaches the age of majority (18). The Court additionally held that after a victim’s 18th birthday, the 12-year limitations period is not tolled (stopped from running) based on the victim’s failure to “discover” or recall the abuse due to repressed memories of those events because the legislation does not contain a tolling provision for persons with repressed memories.

The Court’s 6-0 decision, which affirmed a ruling by the 2nd District Court of Appeals, was written by Justice Maureen O’Connor.

Effective Aug. 3, 2006, the General Assembly enacted R.C. 2305.111(C), legislation that increased the state’s former statute of limitations for a child sexual abuse victim to file a civil suit against his or her alleged abuser from one year after the victim reached the age of majority to 12 years after reaching the age of majority – in effect, extending the filing deadline to the victim’s 30th birthday.

On April 14, 2008, Amy Pratte, who was then 33 years old, filed a civil suit in the Greene County Court of Common Pleas seeking damages from Rodney Stewart for alleged sexual abuse she suffered as a child. In her complaint, Pratte alleged that she had unconsciously repressed the memories of Stewart’s abusive conduct throughout her childhood and as a young adult, until a news story she saw on April 20, 2007 caused her to recover those memories.

While acknowledging that the statutory time limit in R.C. 2305.111(C) had expired before she filed her claims against Stewart, Pratte argued that a 1994 Supreme Court of Ohio decision, Ault v. Jasko, had held that the statute of limitations for filing child sexual abuse claims is tolled during any period in which a victim failed to “discover” that abuse because he or she had repressed memories of those events. Pratte asserted that because the legislature had not expressly denounced Ault when it enacted R.C. 2305.111(C), Ault remained controlling precedent and allowed her to file suit against Stewart within one year after recovering her memories of the abuse on April 20, 2007, regardless of her age at the time of filing.

Stewart filed a motion asking the trial court to dismiss Pratte’s complaint on the basis that it had not been filed within the 30th-birthday deadline set forth in R.C. 2305.111. The trial court granted Stewart’s motion to dismiss, finding that the legislative intent in granting a minor 12 years after reaching majority in which to bring an action for childhood sexual abuse was to permit the minor a period of time to recall repressed memories. The trial court therefore rejected Pratte’s arguments and held that her claim was filed beyond the time permitted by R.C. 2305.111(C).

Pratte appealed. The 2nd District Court of Appeals affirmed the trial court’s judgment, holding that “the legislature by enacting R.C.2305.10(G) states that the twelve-year limitation period applies regardless of the previous rule of law established in Ault.” The court of appeals further concluded that the legislature intended to apply R.C. 2305.111(C) retroactively. Pratte sought and was granted Supreme Court review of the 2nd District’s decision.

Writing for a unanimous Court in today’s decision, Justice O’Connor pointed to uncodified language included in the bill enacting R.C. 2305.111 that she said plainly indicated legislative intent that the new 12-year statute of limitations be applied retroactively to child sexual abuse claims that arose prior to Aug. 3, 2006, for which no prior civil action had been filed and for which the limitations period applicable under the prior version of the law had not expired.

Based on that language and the Court’s determination that the changes to the limitations period enacted by the legislature were remedial in nature and did not interfere with Pratte’s exercise of a substantive right, Justice O’Connor concluded: “In accordance with the constitutional principles espoused in Groch (v. Gen. Motors Corp., 2008), the retroactive application of the 12-year limitations period in R.C. 2305.111(C) does not violate Section 16, Article I of the Ohio Constitution. Pratte did not have a vested right in the common-law discovery rule announced in Ault, and we would offend the separation-of-powers doctrine by invalidating the legislature’s decision to impose a reasonable statute of limitations for claims of childhood sexual abuse.”

In also rejecting Pratte’s claim that the repressed memory tolling mechanism in Ault remained viable after the enactment of R.C. 2305.111(C), Justice O’Connor wrote: “We find that the language of R.C. 2305.111(C) is plain and unambiguous. ... The statute clearly provides that a cause of action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood abuse accrues upon the date on which the victim reaches the age of majority. The only exception to the accrual of the cause of action on the date the victim reaches the age of majority is when the defendant fraudulently conceals facts from the plaintiff. While R.C. 2305.111(C) explicitly sets forth a tolling provision for cases involving fraudulent concealment, the statute does not contain a tolling provision for persons with repressed memories of childhood sexual abuse. The legislature could have included a tolling provision for repressed memory, but it chose not to do so. That decision is a legislative prerogative that we are not permitted to overrule. Pratte is asking this court to disregard that rule and to contravene established axioms of statutory construction by inserting words in the statute that were not used by the General Assembly.”

“We are cognizant of the proposition that some victims of childhood sexual abuse may not recover their memories of the abuse prior to the expiration of the 12-year statute of limitations, and we are not without compassion for those victims,” Justice O’Connor wrote. “But this court would invade the province of the legislature and violate the separation of powers if it rewrote the statute to include a tolling provision for repressed memory. ... This court will not engage in such a practice and must leave it to the General Assembly to rewrite the statute if it deems it necessary.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Konrad Kircher, 513.229.7996, for Amy Pratte.

Scott E. Wright, 614.228.2678, for Rodney Stewart.

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 Reports Judicial Primary Election Results

Ohio voters will elect judges to the Supreme Court of Ohio, appeals courts, common pleas courts, and county courts this year. Seventeen races in Tuesday’s primary were contested.

While about one-third of the contested races were on the ballot in Cuyahoga County, only one race statewide featured at least two candidates from each party seeking to move ahead to November’s general election.

Lake County Common Pleas Court Judge Eugene Lucci defeated incumbent Judge Colleen O’Toole in the Republican primary for a seat on the 11th District Court of Appeals bench. Meanwhile, Thomas Wright defeated Neil Wilson, a former Painesville Municipal Court judge, to appear on the Democratic ballot in November.

Here are the remaining results of contested judicial races, according to unofficial, preliminary returns based on information supplied by county boards of elections and media reports:

Second District Court of Appeals – Montgomery County Common Pleas Court Judge Michael T. Hall defeated George B. Reynolds in the Republican primary.
Sixth District Court of Appeals – Retired Lucas County Common Pleas Court Judge Stephen Yarbrough defeated Toledo Municipal Court Judge Robert Christiansen and Ottawa County Municipal Court Judge Fritz Hany in the Republican primary.
Eighth District Court of Appeals (Jan. 3, 2011) – Cleveland Municipal Court Judge Kathleen A. Keough defeated Cuyahoga County Common Pleas Court Judge Ronald Suster, Lori A. Dyke, Michael T. Fisher, Margaret M. Gardner and Rob Shea in the Democratic primary.
Eighth District Court of Appeals (Feb. 9, 2011) – Cuyahoga County Common Pleas Court Judge Eileen A. Gallagher defeated Reginald Williams in the Democratic primary.
Ashland County Common Pleas Court – Ronald P. Forsthoefel defeated incumbent Judge Deborah E. Woodward in the Republican primary.
Clermont County Common Pleas Court – Clermont County Municipal Court Judge Thomas R. Herman defeated Daniel J. Breyer in the Republican primary.
Coshocton County Common Pleas Court – Bob Batchelor defeated Van Blanchard in the Republican primary.
Cuyahoga County Common Pleas Court (Jan. 11, 2011) – Incumbent Judge Bridget M. McCafferty defeated James W. Satola in the Democratic primary.
Cuyahoga County Common Pleas Court (Jan. 8, 2011) – Maureen Clancy defeated Cassandra Collier-Williams, John F. Corrigan and Cullen Sweeney in the Democratic primary.
Cuyahoga County Domestic Relations Court – Incumbent Judge Rosemary Grdina Gold defeated Gayle Williams-Byers, Daniel P. Corrigan, Michael A. Dolan, Lynn McLaughlin-Murray and Carl C. Monastra in the Democratic primary.
Cuyahoga County Juvenile Court – Incumbent Judge Peter M. Sikora defeated Almeta A. Johnson in the Democratic primary.
Greene County Common Pleas Court – Mike Buckwalter defeated Raymond Dundes and David Mesaros in the Republican primary.
Hamilton County Juvenile Court – Tracie Hunter defeated Daniel J. Donnellon in the Democratic primary.
Licking County Common Pleas Court – Robert Morris defeated Brian Waltz in the Republican primary.
Wayne County Common Pleas Court – Corey E. Spitler defeated Martin H. Frantz in the Republican primary.
All judges in Ohio are elected to six-year terms. Elections for municipal court judgeships occur in odd-numbered years.

For more information about the candidates on the ballot, consult one of Ohio’s 88 county boards of elections.

Staff at the Supreme Court assembles the election results from the local county boards of elections for administrative purposes, to communicate with new judges about payroll, benefits and other information.

Contact: Chris Davey or Bret Crow, 614.387.9250.

Hospital Wins Civil Jury Trial

On May 4, 2010, a jury returned a verdict in favor of the Wadsworth-Rittman Area Hospital in a lawsuit where the hospital in a personal injury lawsuit. Brenda Hill alleged that she was a patient at the hospital and during her discharge from the hospital the nurse who was helping her to her car was negligent. Her husband also sued for a loss of consortium.

Mrs. Hill alleged that the nurse was negligent in not making sure that the wheelchair's footrests were up before Mrs. Hill attempted to get out of the chair. Mrs. Hill alleged that the nurse stopped to help another patient and when Mrs. Hill got up, she tripped over the footrests.

The jury was impaneled in April, but because Mrs. Hill became ill during the first day of trial, the case was recessed until May 4, 2010. At the time of the continuance, the jury had been selected but had not yet heard opening statements. The trial lasted a day and a half, with the jury being instructed and deliberating on Tuesday, May 4.

Although Judge James Kimbler presided over the jury selection, the parties agreed that the trial could be conducted by another judge since Judge Kimbler was on vacation the week of May 3. The Ohio Supreme Court assigned retired judge Ted Schneiderman, formerly of the Summit County Common Pleas Court to

The Ohio Supreme Court and Slavery in the 1800s

By Judge James L. Kimbler

Since its adoption into the Union, Ohio had always been a “free state”. Indeed, the territory that became Ohio, and four other states, had been designated as “free” of slavery in the Northwest Ordinance of 1787. The Ohio Constitution of 1802, which became the basis of Ohio’s government when it was admitted into the Union in 1803, asserted in its Bill of Rights that “…all men are born equally free and independent, and have certain natural, inherent and unalienable rights…”.

All of this meant that slavery was not recognized in Ohio and that there was not involuntary servitude unless it was a punishment for a crime. The fact that Ohio was a non-slave state did not mean, however, that Ohio courts didn’t struggle with legal issues raised by slavery.

Unlike the states found in New England, Ohio was a state that bordered on a “slave” state, Kentucky. One of Ohio’s biggest cities, Cincinnati, sat on the Ohio River across from Kentucky. This proximity to a slave state meant that Ohio courts had to deal with legal issues raised by slavery.

The legal issues raised by slavery included: whether a person could be convicted under a state statute that made it a crime to aid a runaway slave; whether a contract could be enforced that dealt with the selling of slaves; and, whether a writ of habeas corpus could issue against a sheriff who was holding a prisoner charged with violating the Fugitive Slave Act of 1850.

A review of these decisions reveals the limitations of a legal system that on the one hand didn’t constitutionally condone slavery; but, on the other hand, was called upon to decide questions that arose because slavery was permitted in other states. The reasoning used in these decisions reveals a legal system that was conflicted about slavery.

In some cases the Ohio Supreme Court thought itself free to apply Ohio law. When it could do so, it would apply the law in a way that undermined the institution of slavery. In other decisions, however, it felt itself bound by the United States Constitution. In those cases, unlike the decisions involving just Ohio law, the Court found itself reinforcing the institution of slavery.

InTom v. Dailey (1831), 4 Ohio 368. Tom was a young man who had been born in Kentucky. His mother at one point had been a slave, while his uncle, his mother’s brother, had been free. At one point his uncle had purchased his mother at an auction with the intention of emancipating her, or at least that is what he said. At the time of her emancipation she was pregnant with Tom.

Following Tom’s birth, however, his uncle maintained that the Tom had been born a slave and made plans to sell him to another, a man named Desha. When Tom’s mother heard of this intended sale, she sent Tom to Cincinnati to live with a man named Witt. It was Witt who brought the lawsuit seeking a declaration that Tom was free.
The Ohio Supreme Court held for Tom.

In the opinion syllabus it wrote the following:

“Where a slave is purchased under a promise to emancipate, such promise may be specifically executed in equity, against the purchaser, and against subsequent purchasers, without notice.”

In the body of the opinion, the Court appears outraged by the fact that Tom’s uncle had attempted to sell his nephew after telling his mother that she was freed. The Court cited to a Kentucky case for the principle that an oral agreement to emancipate a slave was sufficient. It then wrote the following:

“We surely may be permitted to apply these doctrines to a case where a brother is seeking to reduce his sister and her offspring to slavery, in direct violation of his repeated and most solemn engagements.” (Emphasis appears in the text).

In Birney v. State (1837), 8 Ohio 230, the Ohio Supreme Court reviewed the conviction of a defendant who had been convicted of violating a state law that made it a crime to harbor a runaway slave. The statute in effect at the time of the decision read, in part, as follows:

"...that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."

Birney argued that the statute was unenforceable because it did not require proof of scienter, that is, that the statute did not require the State to prove that he knew the person he was harboring was a slave. The Ohio Supreme Court agreed with him and reversed his conviction.

Although the Court reversed his conviction, it avoided having to address one of his arguments. Birney had argued that once a slave came into a free state, he or she became emancipated by operation of law. The Court specifically noted that it was not addressing any issue raised by Birney other than the fact that the indictment was defective.

By 1856 the Ohio Supreme Court was ready to address the issue of whether a slave who came into Ohio became emancipated by operation of law, at least in cases where the slave’s owner had permitted or required such entry.

In Anderson v. Poindexter (1856), 6 Ohio St. 622, the Ohio Supreme Court held that the holder of promissory notes that were given to purchase the freedom of a slave whose owner had allowed him to come into Ohio was not entitled to recover on the notes. In reaching this decision, the Ohio Supreme Court wrote the following in the opinion syllabus:

“Neither Ohio nor Kentucky can demand an abrogation of the Constitution and municipal laws of the other, as a matter of comity; and if a person, claimed as a slave in Kentucky, comes into Ohio by the direction or consent of his owner, to perform for him menial services here, even temporarily, the Constitution and laws of Ohio operate on the condition of such person, and effect his immediate emancipation.

There is no law, either in Kentucky or Ohio, by which a man, once free, can afterward be enslaved, except for the violation of some municipal law.”

In cases, however, where the Ohio Supreme Court was dealing with issues of Federal law, it found itself bound to reach a decision that reinforced the institution of slavery. This is shown by two habeas corpus cases where defendants who had been convicted under the Fugitive Slave Law of 1850 sought a hearing before an Ohio state court for a writ of habeas corpus.

This was shown in a case involving a man named Bushnell who was convicted of helping slaves escape. In the first case, Ex Parte Bushnell (1858), 8 Ohio St. 599, the Ohio Supreme Court held that Bushnell could not obtain a writ of habeas corpus because the Federal District Court had acquired jurisdiction. The Court put it this way in the opinion syllabus:

“Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.”

Bushnell raised the argument that the Fugitive Slave Act was unconstitutional. The Ohio Supreme Court didn’t reach that issue since the case was still pending in the United States District Court when Bushnell applied for the writ.

After he was convicted, Bushnell again applied for a writ of habeas corpus. This time the Ohio Supreme Court considered the issue of the constitutionality of the Fugitive Slave Act. In the first paragraph of the opinion syllabus, the Court wrote the following:

“1. The provisions of Art. 4, Sec. 2, of the Constitution of the United States, that "no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," guaranties to the owner of an escaped slave the right of reclamation.” Ex Parte Bushnell (1859), 9 Ohio St. 77.

Thus, unlike the previous cases where the Ohio Supreme Court was applying its own law, in the Bushnell case the Ohio Supreme Court felt itself bound by both the United States Constitution and Federal law to refuse the writ of habeas corpus.

Like the United States itself, the Ohio Supreme Court on the cusp of the Civil War was conflicted about the legal status of slavery. Where it could use Ohio law to rule against the rights of slave owners, it would do so, but it felt itself bound by the United States Constitution to support the rights of slave owners under the Fugitive Slave Act. For the Ohio Supreme Court, as for the nation as a whole, the only way to resolve this conflict was by war and the subsequent adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.