The following defendants appeared in Judge James Kimbler's courtroom on Monday, September 27, and entered changes of plea:
Max A. Perino, 22, of Carsten Road in Medina, Ohio, entered a plea of no contest to one count of Possession of Drugs, LSD, a fourth degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on November 5, 2010 at 8:30 am. On motion of the defendant his bond was modified to an own recognizance bond with weekly telephone reporting.
Joshua D. Darby, 27, of Reagan Parkway in Medina, Ohio, appeared in court on one count of Domestic Violence, a fourth degree felony. On motion of the State the charge was amended to Domestic Violence, a first degree misdemeanor. Mr. Darby entered a guilty plea and was found guilty. Judge Kimbler ordered a pre-sentence investigation and set sentencing for November 5, 2010 at 8:30 am. Bond was continued.
Russell R. James, 27, of Boston Road in Strongsville, Ohio, entered a plea of no contest to one count of Possession of Drugs, Oxycodone, a fifth degree felony. Judge Kimbler found him guilty on the no contest plea and ordered a pre-sentence investigation. Sentence will be imposed on November 5, 2010 at 8:30 am. Bond is continued.
Tuesday, September 28, 2010
Miscellaneous Criminal Case Journal Entries for Week of September 20, 2010
Judge Kimbler filed the following journal entries in criminal cases the week of September 20 through September 24, 2010:
State of Ohio v. James E. Polanski, Case No. 10-CR-0261: Motion by the defense to continue the sentencing hearing is granted. New sentencing date is October 7, 2010 at 8:30 am.
State of Ohio v. Alex R. Huffman, Case No. 10-CR-0247: Motion by the defense to reinstate bond is scheduled for hearing on October 1, 2010 at 1:30 pm.
State of Ohio v. Stacey K. Wilmington, Case No. 10-CR-0342: Motion to continue the jury trial is granted. New trial date is October 19, 2010 at 9:00 am.
State of Ohio v. Max A. Perino, Case No. 10-CR-0149: Motion to convert the jury trial scheduled for September 27, 2010 is hereby converted to a change of plea hearing.
State of Ohio v. Angel M. Perry, Case No. 10-CR-0118: Motion by the defendant to continue the jury trial set for October 25, 2010 is denied.
State of Ohio v. Zachary T. Flinn, Case No. 09-CR-0101: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.
State of Ohio v. Zachary T. Flinn, Case No. 08-CR-0308: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.
State of Ohio v. Michael A. Porach, Case No. 10-CR-0208: Due to another jury trial going forward, the jury trial in this case is continued until October 18, 2010 at 9:00 am.
State of Ohio v. Antwon D. Boggan, Case No. 10-CR-0426: Motion of the State to advance the trial date is granted and the jury trial is now scheduled for November 9, 2010 at 9:00 am.
State of Ohio v. Dustin C. Niemann, Case No. 10-CR-0225: The Court hereby continues the hearing set for September 24, 2010 to October 1, 2010 at 10:30 am.
State of Ohio v. Jennifer L. Overdorf, Case No. 06-CR-0180: Defendant’s motion to modify her sentence is denied.
State of Ohio v. Bryan P. Carlton, Case No. 10-CR-0181: Defendant’s motion to continue the arraignment is granted and the new arraignment date is September 30, 2010 at 8:30 am.
State of Ohio v. James E. Polanski, Case No. 10-CR-0261: Motion by the defense to continue the sentencing hearing is granted. New sentencing date is October 7, 2010 at 8:30 am.
State of Ohio v. Alex R. Huffman, Case No. 10-CR-0247: Motion by the defense to reinstate bond is scheduled for hearing on October 1, 2010 at 1:30 pm.
State of Ohio v. Stacey K. Wilmington, Case No. 10-CR-0342: Motion to continue the jury trial is granted. New trial date is October 19, 2010 at 9:00 am.
State of Ohio v. Max A. Perino, Case No. 10-CR-0149: Motion to convert the jury trial scheduled for September 27, 2010 is hereby converted to a change of plea hearing.
State of Ohio v. Angel M. Perry, Case No. 10-CR-0118: Motion by the defendant to continue the jury trial set for October 25, 2010 is denied.
State of Ohio v. Zachary T. Flinn, Case No. 09-CR-0101: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.
State of Ohio v. Zachary T. Flinn, Case No. 08-CR-0308: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.
State of Ohio v. Michael A. Porach, Case No. 10-CR-0208: Due to another jury trial going forward, the jury trial in this case is continued until October 18, 2010 at 9:00 am.
State of Ohio v. Antwon D. Boggan, Case No. 10-CR-0426: Motion of the State to advance the trial date is granted and the jury trial is now scheduled for November 9, 2010 at 9:00 am.
State of Ohio v. Dustin C. Niemann, Case No. 10-CR-0225: The Court hereby continues the hearing set for September 24, 2010 to October 1, 2010 at 10:30 am.
State of Ohio v. Jennifer L. Overdorf, Case No. 06-CR-0180: Defendant’s motion to modify her sentence is denied.
State of Ohio v. Bryan P. Carlton, Case No. 10-CR-0181: Defendant’s motion to continue the arraignment is granted and the new arraignment date is September 30, 2010 at 8:30 am.
Judge Collier's Criminal Docket for September 27, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom on Monday, September 27, 2010:
Aaron Gatt, 21, of Vandemark Road in Litchfield, was sentenced to five years in prison on one count of Felonious Assault, a second-degree felony. A jury returned a guilty verdict on September 22 after a two-day trial.
Sara Homan, 21, of Ward Road in Columbus, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony. She also had her driver’s license suspended for six months.
Melissa Munford, 37, of North Hawkins Avenue in Akron, was sentenced to two years of community control sanctions on one count of Theft from the Elderly, a fourth-degree felony. She also was ordered to pay $2,044 in restitution and not to have any contact with the victim.
Shane Powers, 36, of Bronson Street in Medina, was sentenced to one year in prison on one count of Violation of a Protection Order, a fifth-degree felony.
Adam Angelone, 24, of Hartneck Road in Valley City, pleaded not guilty to one count of Possession of Marijuana, a fourth-degree felony. A jury trial is scheduled for January 10.
Judith Booth, 41, of Avon Lake Road in Burbank, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for January 10.
Steven Dixon, 23, of Canterbury Lane in Medina, pleaded not guilty to two counts of Possession of Drugs, one of which is a second-degree felony and one of which is a fifth-degree felony. Each charge carries a forfeiture specification. A jury trial is scheduled for December 13.
Perry Hermansen III, 18, of Howe Street in Lodi, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for January 10.
Tyler Horn, 18, of Harold Drive in Richfield, pleaded guilty to two counts of Aggravated Burglary, both of which are first-degree felonies. Sentencing is scheduled for November 8.
Shannon James, 24, of Victor Avenue in Cuyahoga Falls, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 10.
Lynn Power, 60, of Meadow Gateway in Medina, pleaded not guilty to one count of Gross Sexual Imposition, a third-degree felony and one count of Public Indecency, a fourth-degree misdemeanor. A jury trial is scheduled for December 13. He remains in custody at Medina County Jail.
Renee Roditis, 32, of Substation Road in Brunswick, pleaded no contest to three counts of Trafficking in Drugs within the Vicinity of a Juvenile, all of which are fourth-degree felonies. Sentencing is scheduled for November 15.
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 December 15.
Bobby White, 52, of Fenn Road in Medina, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for December 13.
Aaron Gatt, 21, of Vandemark Road in Litchfield, was sentenced to five years in prison on one count of Felonious Assault, a second-degree felony. A jury returned a guilty verdict on September 22 after a two-day trial.
Sara Homan, 21, of Ward Road in Columbus, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony. She also had her driver’s license suspended for six months.
Melissa Munford, 37, of North Hawkins Avenue in Akron, was sentenced to two years of community control sanctions on one count of Theft from the Elderly, a fourth-degree felony. She also was ordered to pay $2,044 in restitution and not to have any contact with the victim.
Shane Powers, 36, of Bronson Street in Medina, was sentenced to one year in prison on one count of Violation of a Protection Order, a fifth-degree felony.
Adam Angelone, 24, of Hartneck Road in Valley City, pleaded not guilty to one count of Possession of Marijuana, a fourth-degree felony. A jury trial is scheduled for January 10.
Judith Booth, 41, of Avon Lake Road in Burbank, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for January 10.
Steven Dixon, 23, of Canterbury Lane in Medina, pleaded not guilty to two counts of Possession of Drugs, one of which is a second-degree felony and one of which is a fifth-degree felony. Each charge carries a forfeiture specification. A jury trial is scheduled for December 13.
Perry Hermansen III, 18, of Howe Street in Lodi, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for January 10.
Tyler Horn, 18, of Harold Drive in Richfield, pleaded guilty to two counts of Aggravated Burglary, both of which are first-degree felonies. Sentencing is scheduled for November 8.
Shannon James, 24, of Victor Avenue in Cuyahoga Falls, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 10.
Lynn Power, 60, of Meadow Gateway in Medina, pleaded not guilty to one count of Gross Sexual Imposition, a third-degree felony and one count of Public Indecency, a fourth-degree misdemeanor. A jury trial is scheduled for December 13. He remains in custody at Medina County Jail.
Renee Roditis, 32, of Substation Road in Brunswick, pleaded no contest to three counts of Trafficking in Drugs within the Vicinity of a Juvenile, all of which are fourth-degree felonies. Sentencing is scheduled for November 15.
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 December 15.
Bobby White, 52, of Fenn Road in Medina, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for December 13.
Court Recognizes Common Law 'Self Protection' Exception to Statutory Attorney-Client Privilege
In Litigation Involving Dispute Between Client and Lawyer or Law Firm
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., Slip Opinion No. 2010-Ohio-4469.
Cuyahoga App. No. 92366, 2009-Ohio-2490. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4469.pdf
(Sept. 28, 2010) The Supreme Court of Ohio held today that Ohio recognizes a common law “self protection” exception to attorney-client privilege that permits an attorney to testify concerning attorney-client communications where such testimony is necessary to establish a claim for legal fees on behalf of the attorney or to allow an attorney to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and a client.
The Court held further that attorney work product including mental impressions, theories and legal conclusions are subject to discovery upon a showing of good cause if the information sought to be discovered is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere.
The Court’s 6-0 decision, authored by Justice Terrence O’Donnell, reversed a ruling by the 8th District Court of Appeals.
From 2003 to 2007, the Cleveland-based law firm of Squire, Sanders & Dempsey (SSD) represented Givaudan Flavors Corporation in product liability litigation. In 2007, Givaudan severed its relationship with SSD and retained new outside counsel. SSD billed Givaudan for $1.8 million in unpaid legal fees. When Givaudan refused to pay, SSD filed suit. Givaudan filed a counterclaim alleging that SSD had overbilled for services it had performed, had billed Givaudan for services that were never performed, and had engaged in other false, deceptive and unethical business practices during the period of representation.
During the pretrial discovery process, Givaudan refused to produce any of the billing records or other documents relating to the legal services SSD had provided during its representation, or to answer most of the questions posed to company officials by SSD during depositions. Givaudan also asserted that because communications between itself and the law firm during the period of representation were exempt from disclosure under the attorney-client privilege, SSD was barred from disclosing documents in its own files that included communications between the law firm and Givaudan. SSD asked the trial court to order Givaudan to comply with its discovery requests and respond fully during depositions in the case.
The trial court granted the motion to compel discovery, holding that a common law exception to the statutory attorney-client privilege set forth in R.C. 2317.02 allows disclosure of otherwise confidential communications when such disclosure is necessary to the fair adjudication of a lawsuit between a lawyer or law firm and a client arising from their business relationship. Givaudan appealed that ruling.
On review, the 8th District Court of Appeals reversed the trial court’s order compelling Givaudan to comply with SSD’s discovery requests. In its opinion, the court of appeals held that the trial court erred in recognizing a self-protection exception to attorney-client privilege, and that communications between SSD and Givaudan during the period of representation were privileged under R.C. 2317.02(A) and were not subject to discovery or disclosure at trial unless SSD could show that Givaudan had waived the privilege either by giving express consent to disclosure or by voluntarily testifying about those communications. SSD sought and was granted Supreme Court review of the 8th District’s decision.
In today’s decision, the Supreme Court reversed the 8th District and reinstated the trial court’s order compelling discovery of communications between Givaudan and SSD during the period of representation. Justice O’Donnell noted that Ohio courts have recognized several exceptions to the attorney-client privilege codified by R.C. 2317.02(A) notwithstanding their absence from the text of the statute. As examples, he pointed to the “crime-fraud” exception that bars use of attorney-client privilege to conceal an attorney’s cooperation with a client’s wrongdoing; the lack-of-good-faith exception that prevents an insurer from using attorney-client privilege to conceal its bad-faith denial of a claim pursuant to state insurance statutes; and the joint-representation exception that prevents one co-litigant from using attorney-client privilege to conceal information from another party represented by the same attorney in the same case.
With regard to the “self-protection” exception at issue in this case, Justice O’Donnell wrote: “The self-protection exception dates back over 150 years to its articulation by Justice Selden in Rochester City Bank v. Suydam, Sage & Co. (N.Y.Sup.Ct.1851) … There, he wrote, ‘[w]here the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secrecy [sic].’ (emphasis added in part.) Since that time, this exception has become firmly rooted in American jurisprudence. The Supreme Court of the United States recognized it in Hunt v. Blackburn (1888) … and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege.”
“Notably, Ohio courts, including this court, have recognized the self-protection exception. In Estate of Butler (1939) the beneficiaries of the estate of Henry V. Butler challenged the administrator’s payment of legal fees to Butler’s attorney, Grover C. Brown. The probate court struck Brown’s testimony regarding the services he rendered to Butler as privileged pursuant to G.C. 11494, the predecessor to R.C. 2317.02(A). The court of appeals reversed, holding that ‘an attorney in matters pertaining to his interest has a right to testify and is not precluded from doing so by virtue of [G.C.] 11494. The rule is very broad which permits testimony of an attorney in support of his claim for fees.’ …We affirmed that decision, explaining that ‘[s]ince the administrator was charged with maladministration in the allowance and payment of Brown’s claim against the estate, the defense of the administrator was dependent upon establishing the correctness of the claim by showing the amount and value of the services which Brown had rendered to Butler. … We noted that ‘the testimony of Brown (should not) have been wholly excluded on the ground that he had been counsel and attorney for Butler.’”
“Further, the self-protection exception to the attorney-client privilege permitting the attorney to testify also applies when the client puts the representation at issue by charging the attorney with a breach of duty or other wrongdoing … (A) client may not rely on attorney-client communications to establish a claim against the attorney while asserting the attorney-client privilege to prevent the attorney from rebutting that claim. Rather, ‘the attorney-client privilege exists to aid in the administration of justice and must yield in circumstances where justice so requires,’ … The same considerations of justice and fairness that undergird the attorney client privilege prevent a client from employing it in litigation against a lawyer to the lawyer’s disadvantage.”
The Court also rejected Givaudan’s claim that SSD was barred by the privilege conferred on attorney work product from deposing Givaudan’s in-house corporate counsel, Frederick King and Jane Garfinkel, regarding the basis for their judgments that SSD was not providing effective legal representation and had overcharged for its services.
Justice O’Donnell wrote: “When the attorney-client relationship has been put at issue by a claim for legal fees or by a claim that the attorney breached a duty owed to the client, good cause exists for the production of attorney work product to the extent necessary to collect those fees or to defend against the client’s claim. … Thus, attorney work product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if they are directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere. Here, attorney work product, including information sought from King and Garfinkel regarding the staffing of the butter-flavor litigation, trial strategy, resources committed, and views that the firm provided inadequate representation through counsel lacking sufficient leadership, qualification, and experience, is directly at issue, as the reasonable value of the legal services performed by Squire Sanders and the quality of its legal work are the pivotal issues in this lawsuit, and the need for this evidence is compelling.”
“ … This information is otherwise unavailable to Squire Sanders because it is within the exclusive possession and knowledge of Givaudan, King, and Garfinkel. Accordingly, testimony of King and Garfinkel and documents related to the value and quality of the legal services rendered by Squire Sanders are not protected from discovery in this case by the work-product doctrine.”
Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a separate opinion concurring with the Court’s judgment but disagreeing with the distinction drawn by the majority between exceptions to and waivers of the attorney client privilege. She wrote: “(I)n its attempt to distinguish waiver from exception, the majority uses overly broad language and declares that an exception ‘falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of [R.C. 2317.02.]’ What the majority fails to recognize is that an exception, like a waiver, arises because of some action taken by the client. It is only when the client puts the attorney’s representation at issue that the privilege no longer applies. The majority, however, would retroactively apply that action and hold that the privilege never existed. Because I believe that common-law exceptions are really no different than common-law waivers, I concur in judgment only.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in the case.
Contacts
John M. Newman, 216.586.7207, for Squire, Sanders & Dempsey LLP.
Anthony J. Hartman, 216.781.5515, for Givaudan Flavors Corp.
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."
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., Slip Opinion No. 2010-Ohio-4469.
Cuyahoga App. No. 92366, 2009-Ohio-2490. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4469.pdf
(Sept. 28, 2010) The Supreme Court of Ohio held today that Ohio recognizes a common law “self protection” exception to attorney-client privilege that permits an attorney to testify concerning attorney-client communications where such testimony is necessary to establish a claim for legal fees on behalf of the attorney or to allow an attorney to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and a client.
The Court held further that attorney work product including mental impressions, theories and legal conclusions are subject to discovery upon a showing of good cause if the information sought to be discovered is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere.
The Court’s 6-0 decision, authored by Justice Terrence O’Donnell, reversed a ruling by the 8th District Court of Appeals.
From 2003 to 2007, the Cleveland-based law firm of Squire, Sanders & Dempsey (SSD) represented Givaudan Flavors Corporation in product liability litigation. In 2007, Givaudan severed its relationship with SSD and retained new outside counsel. SSD billed Givaudan for $1.8 million in unpaid legal fees. When Givaudan refused to pay, SSD filed suit. Givaudan filed a counterclaim alleging that SSD had overbilled for services it had performed, had billed Givaudan for services that were never performed, and had engaged in other false, deceptive and unethical business practices during the period of representation.
During the pretrial discovery process, Givaudan refused to produce any of the billing records or other documents relating to the legal services SSD had provided during its representation, or to answer most of the questions posed to company officials by SSD during depositions. Givaudan also asserted that because communications between itself and the law firm during the period of representation were exempt from disclosure under the attorney-client privilege, SSD was barred from disclosing documents in its own files that included communications between the law firm and Givaudan. SSD asked the trial court to order Givaudan to comply with its discovery requests and respond fully during depositions in the case.
The trial court granted the motion to compel discovery, holding that a common law exception to the statutory attorney-client privilege set forth in R.C. 2317.02 allows disclosure of otherwise confidential communications when such disclosure is necessary to the fair adjudication of a lawsuit between a lawyer or law firm and a client arising from their business relationship. Givaudan appealed that ruling.
On review, the 8th District Court of Appeals reversed the trial court’s order compelling Givaudan to comply with SSD’s discovery requests. In its opinion, the court of appeals held that the trial court erred in recognizing a self-protection exception to attorney-client privilege, and that communications between SSD and Givaudan during the period of representation were privileged under R.C. 2317.02(A) and were not subject to discovery or disclosure at trial unless SSD could show that Givaudan had waived the privilege either by giving express consent to disclosure or by voluntarily testifying about those communications. SSD sought and was granted Supreme Court review of the 8th District’s decision.
In today’s decision, the Supreme Court reversed the 8th District and reinstated the trial court’s order compelling discovery of communications between Givaudan and SSD during the period of representation. Justice O’Donnell noted that Ohio courts have recognized several exceptions to the attorney-client privilege codified by R.C. 2317.02(A) notwithstanding their absence from the text of the statute. As examples, he pointed to the “crime-fraud” exception that bars use of attorney-client privilege to conceal an attorney’s cooperation with a client’s wrongdoing; the lack-of-good-faith exception that prevents an insurer from using attorney-client privilege to conceal its bad-faith denial of a claim pursuant to state insurance statutes; and the joint-representation exception that prevents one co-litigant from using attorney-client privilege to conceal information from another party represented by the same attorney in the same case.
With regard to the “self-protection” exception at issue in this case, Justice O’Donnell wrote: “The self-protection exception dates back over 150 years to its articulation by Justice Selden in Rochester City Bank v. Suydam, Sage & Co. (N.Y.Sup.Ct.1851) … There, he wrote, ‘[w]here the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secrecy [sic].’ (emphasis added in part.) Since that time, this exception has become firmly rooted in American jurisprudence. The Supreme Court of the United States recognized it in Hunt v. Blackburn (1888) … and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege.”
“Notably, Ohio courts, including this court, have recognized the self-protection exception. In Estate of Butler (1939) the beneficiaries of the estate of Henry V. Butler challenged the administrator’s payment of legal fees to Butler’s attorney, Grover C. Brown. The probate court struck Brown’s testimony regarding the services he rendered to Butler as privileged pursuant to G.C. 11494, the predecessor to R.C. 2317.02(A). The court of appeals reversed, holding that ‘an attorney in matters pertaining to his interest has a right to testify and is not precluded from doing so by virtue of [G.C.] 11494. The rule is very broad which permits testimony of an attorney in support of his claim for fees.’ …We affirmed that decision, explaining that ‘[s]ince the administrator was charged with maladministration in the allowance and payment of Brown’s claim against the estate, the defense of the administrator was dependent upon establishing the correctness of the claim by showing the amount and value of the services which Brown had rendered to Butler. … We noted that ‘the testimony of Brown (should not) have been wholly excluded on the ground that he had been counsel and attorney for Butler.’”
“Further, the self-protection exception to the attorney-client privilege permitting the attorney to testify also applies when the client puts the representation at issue by charging the attorney with a breach of duty or other wrongdoing … (A) client may not rely on attorney-client communications to establish a claim against the attorney while asserting the attorney-client privilege to prevent the attorney from rebutting that claim. Rather, ‘the attorney-client privilege exists to aid in the administration of justice and must yield in circumstances where justice so requires,’ … The same considerations of justice and fairness that undergird the attorney client privilege prevent a client from employing it in litigation against a lawyer to the lawyer’s disadvantage.”
The Court also rejected Givaudan’s claim that SSD was barred by the privilege conferred on attorney work product from deposing Givaudan’s in-house corporate counsel, Frederick King and Jane Garfinkel, regarding the basis for their judgments that SSD was not providing effective legal representation and had overcharged for its services.
Justice O’Donnell wrote: “When the attorney-client relationship has been put at issue by a claim for legal fees or by a claim that the attorney breached a duty owed to the client, good cause exists for the production of attorney work product to the extent necessary to collect those fees or to defend against the client’s claim. … Thus, attorney work product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if they are directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere. Here, attorney work product, including information sought from King and Garfinkel regarding the staffing of the butter-flavor litigation, trial strategy, resources committed, and views that the firm provided inadequate representation through counsel lacking sufficient leadership, qualification, and experience, is directly at issue, as the reasonable value of the legal services performed by Squire Sanders and the quality of its legal work are the pivotal issues in this lawsuit, and the need for this evidence is compelling.”
“ … This information is otherwise unavailable to Squire Sanders because it is within the exclusive possession and knowledge of Givaudan, King, and Garfinkel. Accordingly, testimony of King and Garfinkel and documents related to the value and quality of the legal services rendered by Squire Sanders are not protected from discovery in this case by the work-product doctrine.”
Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a separate opinion concurring with the Court’s judgment but disagreeing with the distinction drawn by the majority between exceptions to and waivers of the attorney client privilege. She wrote: “(I)n its attempt to distinguish waiver from exception, the majority uses overly broad language and declares that an exception ‘falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of [R.C. 2317.02.]’ What the majority fails to recognize is that an exception, like a waiver, arises because of some action taken by the client. It is only when the client puts the attorney’s representation at issue that the privilege no longer applies. The majority, however, would retroactively apply that action and hold that the privilege never existed. Because I believe that common-law exceptions are really no different than common-law waivers, I concur in judgment only.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in the case.
Contacts
John M. Newman, 216.586.7207, for Squire, Sanders & Dempsey LLP.
Anthony J. Hartman, 216.781.5515, for Givaudan Flavors Corp.
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."
Carryover of Prior-Year Tax Board Ruling Does Not Trump Auditor's Sexennial Reappraisal of Property
AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2010-Ohio-4468.
Board of Tax Appeals, Nos. 2007-A-764 and 2008-A-157. Decision of the Board of Tax Appeals reversed and cause remanded.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
O'Donnell, J., concurs in reversing the decision of the Board of Tax Appeals but would not remand the cause.
Lanzinger, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4468.pdf
(Sept. 28, 2010) The Supreme Court of Ohio held today that R.C. 5715.19(D), a state law requiring that a tax valuation of property established by a ruling of the State Board of Tax Appeals (BTA) must be “carried over” to subsequent tax years, does not supersede a different statute that requires county auditors to reappraise all real property within their county and establish a new tax valuation for each parcel every six years.
Applying that analysis to a Franklin County case, the Court ruled that the 2005 and 2006 property taxes assessed on a Columbus apartment complex should have been based on the county auditor’s 2005 sexennial reappraisal of that property at $17.9 million, rather than on a carryover of the $20.1 million valuation of the property established by the BTA for the 2002 tax year.
The Court’s decision was authored by Chief Justice Eric Brown.
The case involved the Sawmill Village Apartments, a 340-unit residential complex in northwest Columbus. The owners of the complex appealed the appraised value of the property set by the Franklin County auditor for the 2002 tax year. In 2005, while the owners’ 2002 valuation appeal was still pending before the BTA, the Franklin County Auditor conducted a required sexennial reappraisal of real property within the county and set a new appraised value of the Sawmill Village complex at $17.9 million.
The 2002 appeal was not finally resolved until September 2006, at which time the BTA approved a joint stipulation between the property owners and the Dublin City School District setting the true value of the complex as of Jan. 1, 2002 at $20.1 million. In its order approving the stipulated 2002 valuation of the property, the BTA directed the county auditor to carry the 2002 valuation forward and apply it to succeeding tax years “according to law.” In December 2006, after receiving notice of the BTA ruling, the county auditor’s office not only amended the tax rolls to reflect the value of the complex as $20.1 million for the 2002, 2003 and 2004 tax years, but also increased to $20.1 million the valuation of the property that had been entered on the tax list for the 2005 and 2006 tax years based on the auditor’s 2005 reappraisal of $17.9 million.
The owners appealed the increased valuation for the 2005 and 2006 tax years to the Franklin County Board of Revision (BOR). The Dublin City School District filed objections urging affirmance of the auditor’s valuation. The BOR upheld the auditor’s valuation. The property owners then appealed the BOR ruling to the BTA. The appeals board held that the $20.1 million valuation set by the county auditor based on the “carry forward” provision of R.C. 5715.19(D) was the correct valuation of the property for 2005 and 2006. The owners exercised their right to appeal the BTA’s ruling to the Supreme Court.
In today’s decision, Chief Justice Brown wrote: “According to the school board, because the tax-year-2002 complaint was not ‘finally determined’ until the BTA decision in September 2006, the tax officials acted properly in carrying the stipulated 2002 value of $20,100,000 over to tax years 2005 and 2006. In response, AERC does not question the school board’s reading of the statute but instead points to the auditor’s duties under other statutes – duties that stand in potential conflict with the mandate that the redetermined value for an earlier tax year be carried over to the next year. As the county’s tax assessor, the county auditor is required to value and assess property tax against the taxable property in the county. ... Specifically, the auditor must reappraise property values once every six years and update the values at the interim three-year point.”
“In this case, the auditor encountered potentially conflicting duties. Having carried out his statutory duty to reappraise the property at issue for tax year 2005, the auditor would have been led by the statutes to use and retain that value for 2005 and 2006. But instead, the auditor treated the 2006 stipulation of value for tax year 2002 as retroactively superseding the 2005 reappraisal value. AERC argues that this conflict in the auditor’s duties under different statutes calls for a harmonizing construction that gives effect to the various statutes while avoiding absurd and unintended outcomes.”
“We agree. To give full literal effect to the carryover provision and allow it to supersede the auditor’s ongoing duty to value and revalue real property leads to the absurd result the assessor arrived at in the present case. Here, a revaluation of the property for tax year 2005 was displaced by a different value stipulated for January 1, 2002, that no one had determined or agreed constituted the value on January 1, 2005, or January 1, 2006. To be sure, the carryover does properly apply to a subsequent year in which the auditor has not performed a new valuation of the property pursuant to his statutory duties. But to allow the carryover to displace a new valuation both defeats the purposes of the valuation statutes and thwarts the constitutional mandate that ‘[l]and and improvements thereon’ be ‘taxed by uniform rule according to value.’”
In support of that conclusion, Chief Justice Brown cited the Supreme Court of Ohio’s 1996 decision in Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision. He wrote: “Just as the school board in the present case argues that the carryover provision trumps the 2005 sexennial appraisal, the board of education in Cincinnati contended that the plain language of the carryover provision trumped the board of revision’s duty to hear the fresh complaint for the new triennium. We rejected that contention, finding that the owner’s right to file a complaint for the new triennium potentially conflicted with the carryover and continuing-complaint provisions. That conflict necessitated a harmonizing construction, under which the fresh complaint prevailed against the carryover. By the same logic, the carryover provision should not have displaced the statutory reappraisal in this case.”
Chief Justice Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp. Justice Terrence O’Donnell concurred with the majority’s reversal of the Board of Tax Appeals’ ruling, but indicated that he would not remand the case for further proceedings. Justice Judith Ann Lanzinger concurred in judgment only.
Contacts
J. Kieran Jennings, 216.763.1004, for AERC Saw Mill Village Inc.
Mark H. Gillis, 614.228.5822, for the Dublin City Schools Board of Education.
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."
Board of Tax Appeals, Nos. 2007-A-764 and 2008-A-157. Decision of the Board of Tax Appeals reversed and cause remanded.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
O'Donnell, J., concurs in reversing the decision of the Board of Tax Appeals but would not remand the cause.
Lanzinger, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4468.pdf
(Sept. 28, 2010) The Supreme Court of Ohio held today that R.C. 5715.19(D), a state law requiring that a tax valuation of property established by a ruling of the State Board of Tax Appeals (BTA) must be “carried over” to subsequent tax years, does not supersede a different statute that requires county auditors to reappraise all real property within their county and establish a new tax valuation for each parcel every six years.
Applying that analysis to a Franklin County case, the Court ruled that the 2005 and 2006 property taxes assessed on a Columbus apartment complex should have been based on the county auditor’s 2005 sexennial reappraisal of that property at $17.9 million, rather than on a carryover of the $20.1 million valuation of the property established by the BTA for the 2002 tax year.
The Court’s decision was authored by Chief Justice Eric Brown.
The case involved the Sawmill Village Apartments, a 340-unit residential complex in northwest Columbus. The owners of the complex appealed the appraised value of the property set by the Franklin County auditor for the 2002 tax year. In 2005, while the owners’ 2002 valuation appeal was still pending before the BTA, the Franklin County Auditor conducted a required sexennial reappraisal of real property within the county and set a new appraised value of the Sawmill Village complex at $17.9 million.
The 2002 appeal was not finally resolved until September 2006, at which time the BTA approved a joint stipulation between the property owners and the Dublin City School District setting the true value of the complex as of Jan. 1, 2002 at $20.1 million. In its order approving the stipulated 2002 valuation of the property, the BTA directed the county auditor to carry the 2002 valuation forward and apply it to succeeding tax years “according to law.” In December 2006, after receiving notice of the BTA ruling, the county auditor’s office not only amended the tax rolls to reflect the value of the complex as $20.1 million for the 2002, 2003 and 2004 tax years, but also increased to $20.1 million the valuation of the property that had been entered on the tax list for the 2005 and 2006 tax years based on the auditor’s 2005 reappraisal of $17.9 million.
The owners appealed the increased valuation for the 2005 and 2006 tax years to the Franklin County Board of Revision (BOR). The Dublin City School District filed objections urging affirmance of the auditor’s valuation. The BOR upheld the auditor’s valuation. The property owners then appealed the BOR ruling to the BTA. The appeals board held that the $20.1 million valuation set by the county auditor based on the “carry forward” provision of R.C. 5715.19(D) was the correct valuation of the property for 2005 and 2006. The owners exercised their right to appeal the BTA’s ruling to the Supreme Court.
In today’s decision, Chief Justice Brown wrote: “According to the school board, because the tax-year-2002 complaint was not ‘finally determined’ until the BTA decision in September 2006, the tax officials acted properly in carrying the stipulated 2002 value of $20,100,000 over to tax years 2005 and 2006. In response, AERC does not question the school board’s reading of the statute but instead points to the auditor’s duties under other statutes – duties that stand in potential conflict with the mandate that the redetermined value for an earlier tax year be carried over to the next year. As the county’s tax assessor, the county auditor is required to value and assess property tax against the taxable property in the county. ... Specifically, the auditor must reappraise property values once every six years and update the values at the interim three-year point.”
“In this case, the auditor encountered potentially conflicting duties. Having carried out his statutory duty to reappraise the property at issue for tax year 2005, the auditor would have been led by the statutes to use and retain that value for 2005 and 2006. But instead, the auditor treated the 2006 stipulation of value for tax year 2002 as retroactively superseding the 2005 reappraisal value. AERC argues that this conflict in the auditor’s duties under different statutes calls for a harmonizing construction that gives effect to the various statutes while avoiding absurd and unintended outcomes.”
“We agree. To give full literal effect to the carryover provision and allow it to supersede the auditor’s ongoing duty to value and revalue real property leads to the absurd result the assessor arrived at in the present case. Here, a revaluation of the property for tax year 2005 was displaced by a different value stipulated for January 1, 2002, that no one had determined or agreed constituted the value on January 1, 2005, or January 1, 2006. To be sure, the carryover does properly apply to a subsequent year in which the auditor has not performed a new valuation of the property pursuant to his statutory duties. But to allow the carryover to displace a new valuation both defeats the purposes of the valuation statutes and thwarts the constitutional mandate that ‘[l]and and improvements thereon’ be ‘taxed by uniform rule according to value.’”
In support of that conclusion, Chief Justice Brown cited the Supreme Court of Ohio’s 1996 decision in Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision. He wrote: “Just as the school board in the present case argues that the carryover provision trumps the 2005 sexennial appraisal, the board of education in Cincinnati contended that the plain language of the carryover provision trumped the board of revision’s duty to hear the fresh complaint for the new triennium. We rejected that contention, finding that the owner’s right to file a complaint for the new triennium potentially conflicted with the carryover and continuing-complaint provisions. That conflict necessitated a harmonizing construction, under which the fresh complaint prevailed against the carryover. By the same logic, the carryover provision should not have displaced the statutory reappraisal in this case.”
Chief Justice Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp. Justice Terrence O’Donnell concurred with the majority’s reversal of the Board of Tax Appeals’ ruling, but indicated that he would not remand the case for further proceedings. Justice Judith Ann Lanzinger concurred in judgment only.
Contacts
J. Kieran Jennings, 216.763.1004, for AERC Saw Mill Village Inc.
Mark H. Gillis, 614.228.5822, for the Dublin City Schools Board of Education.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Monday, September 27, 2010
Jury Convicts Litchfield Man of Felonious Assault
A jury in Judge Collier's courtroom convicted Aaron A. Gatt, 21, of Vandermark Road in Litchfield Township of one count of Felonious Assault, a second degree felony. The indictment alleged that Mr. Gatt committed the assault on September 19, 2009. The jury returned its verdict on September 22, 2010, following a two day jury trial.
Although Mr. Gatt argued that he only acted in self-defense and that he was only trying to defend his father's property from a trespasser, the jury rejected both affirmative defenses. On Monday, September 27, 2010, Judge Collier sentenced Mr. Gatt to five years in prison.
Although Mr. Gatt argued that he only acted in self-defense and that he was only trying to defend his father's property from a trespasser, the jury rejected both affirmative defenses. On Monday, September 27, 2010, Judge Collier sentenced Mr. Gatt to five years in prison.
Judge Kimbler Arraignments for September 23, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared for arraignments in Judge Kimbler’s courtroom on Thursday, September 23, 2010:
Joshua Bubner, 26, of Oak Grove in Doylestown, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for November 17.
Isaiah Castro, 23, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for November 23.
Matthew Clegg, 18, of Medina Street in Lodi, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for November 23.
Justin Fiddler, 21, of Broad Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for November 15.
Leannah Fiddler, 40, of Broad Street in Wadsworth, pleaded not guilty to three counts of Trafficking in Drugs, one of which is a fourth-degree felony and two of which are fifth-degree felonies. A jury trial is scheduled for November 22.
Angela Grabill, 36, of Normandy Drive in Wooster, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for November 30.
Perry Hermansen, 38, of Howe Street in Lodi, pleaded not guilty to one count of Trafficking in Drugs, a third-degree felony. A jury trial is scheduled for November 29.
Barbara Lee, 48, of Oak Court in Lodi, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for December 1.
Carrie Mohr, 48, of Akron Road in Marshalville, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for November 9.
Samuel Page, 35, of Pine Street in Wadsworth, pleaded not guilty to one count of Trafficking in Oxycodone, a third-degree felony and two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for November 22.
Donald Petrovic, 26, of Main Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for November 16.
Danielle Robison, 34, of Seacrest Road in Wooster, pleaded no contest to one count of Complicity to Commit Trafficking in Crack Cocaine, a fourth-degree felony. Sentencing is scheduled for October 28.
Joshua Bubner, 26, of Oak Grove in Doylestown, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for November 17.
Isaiah Castro, 23, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for November 23.
Matthew Clegg, 18, of Medina Street in Lodi, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for November 23.
Justin Fiddler, 21, of Broad Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for November 15.
Leannah Fiddler, 40, of Broad Street in Wadsworth, pleaded not guilty to three counts of Trafficking in Drugs, one of which is a fourth-degree felony and two of which are fifth-degree felonies. A jury trial is scheduled for November 22.
Angela Grabill, 36, of Normandy Drive in Wooster, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for November 30.
Perry Hermansen, 38, of Howe Street in Lodi, pleaded not guilty to one count of Trafficking in Drugs, a third-degree felony. A jury trial is scheduled for November 29.
Barbara Lee, 48, of Oak Court in Lodi, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for December 1.
Carrie Mohr, 48, of Akron Road in Marshalville, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for November 9.
Samuel Page, 35, of Pine Street in Wadsworth, pleaded not guilty to one count of Trafficking in Oxycodone, a third-degree felony and two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for November 22.
Donald Petrovic, 26, of Main Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for November 16.
Danielle Robison, 34, of Seacrest Road in Wooster, pleaded no contest to one count of Complicity to Commit Trafficking in Crack Cocaine, a fourth-degree felony. Sentencing is scheduled for October 28.
Akron Woman Sent to Prison for Lodi Outlet Mall Crimes
Judge James L. Kimbler sentenced Kimberly D. Waters, 39, of Lovers Lane in Akron, Ohio to six months in prison for Receiving Stolen Property and Possessing Criminal Tools, both fifth degree felonies. Following the imposition of her sentence, Ms. Waters fell to the floor of Judge Kimbler's courtroom sobbing and crying hysterically. Prior to being sentenced by Judge Kimbler, Ms. Waters had been convicted 15 times of Theft, and had also been convicted of Forgery, Receiving Stolen Property and Passing Bad Checks. There is also a charge of Theft pending against her in the Mahoning County Court of Common Pleas in Youngstown, Ohio. Judge Kimbler also gave her credit for 14 days served in the Medina County Jail prior to being sentenced.
Two Men Sentenced for Medina Robbery
Judge James L. Kimbler sentenced two men for a robbery that they committed on November 25, 2009 at the Regal Cinemas in Medina, Ohio. The victims were a young couple that were dating and were both home on a break from their respective colleges. The defendants were Lucas D. Carter, 19, of Birch Hill Drive in Medina and Sean Swarthout of North Jefferson Street in Medina. Mr. Swarthout was found guilty following a trial to the court while Mr. Carter was found guilty following a change of plea. Both men were convicted of Robbery, a third degree felony.
Judge Kimbler sentenced Mr. Carter to attend the community based correctional facility in Lorain County and then placed him under the supervision of the Medina County Adult Probation Department for three years. In the event that he violates the conditions of his supervision, he is looking at a one year prison sentence, although he would get credit for the time spent at the Lorain County CBCF.
Judge Kimbler sentenced Mr. Swarthout to 180 days in the Medina County Jail, and gave him credit for the 100 days that he was in jail before he was sentenced. Like Mr. Carter, he was put under the supervision of the Medina County Adult Probation Department for three years. In the event that he violates the conditions of his supervision, he is looking at a two year prison sentence.
Judge Kimbler sentenced Mr. Carter to attend the community based correctional facility in Lorain County and then placed him under the supervision of the Medina County Adult Probation Department for three years. In the event that he violates the conditions of his supervision, he is looking at a one year prison sentence, although he would get credit for the time spent at the Lorain County CBCF.
Judge Kimbler sentenced Mr. Swarthout to 180 days in the Medina County Jail, and gave him credit for the 100 days that he was in jail before he was sentenced. Like Mr. Carter, he was put under the supervision of the Medina County Adult Probation Department for three years. In the event that he violates the conditions of his supervision, he is looking at a two year prison sentence.
Sterling Man Gets Year in Prison for Jewelry Theft
Corey A. Zoss, 25, of Kauffman Avenue in Sterling, Ohio, was sentenced by Judge James L. Kimbler to one year in prison for Theft, a third degree felony. The indictment charged Mr. Zoss with taking more than $100,000 but less than $500,000 worth of jewelry from Sterling Jewelers. The Wadsworth Police reported that Sterling Jewelers reported that Mr. Zoss took over $315,000.00 worth of jewelry.
Mr. Zoss worked for UPS at a facility in Wadsworth, Ohio. During his job, he had access to packages that were coming into the facility and that were addressed to Sterling Industries. He told the pre-sentence investigator that he started taking items in December of 2009 and it continued up until March 24, 2010, when Wadsworth Police Officers found him after his work hours at the UPS facility.
Mr. Zoss worked for UPS at a facility in Wadsworth, Ohio. During his job, he had access to packages that were coming into the facility and that were addressed to Sterling Industries. He told the pre-sentence investigator that he started taking items in December of 2009 and it continued up until March 24, 2010, when Wadsworth Police Officers found him after his work hours at the UPS facility.
Spencer Woman Sentenced on RSP
Kelly A. Lafferty, 30, of Liberty Street in Spencer, Ohio, was sentenced by Judge James L. Kimbler for one count of Receiving Stolen Property, a first degree misdemeanor. Judge Kimbler sentenced her to 90 days in jail, but suspended her jail sentence on the condition that she be supervised for one year by the Medina County Adult Probation Department. During that time she has to obey all the conditions of supervision imposed by the Medina County Probation Department, do 24 hours of community service, and not enter the premises of the Circle K on Medina Street in Lodi, Ohio.
Ms. Lafferty's charge arose out of a crime that was committed by her husband and brother-in-law, who robbed the Circle K on Medina Street in Lodi. A car owned by Ms. Lafferty's father was used in the commission of the robbery and property taken from the Circle K was found in Mrs. Lafferty's house. When asked why she was involved in this offense, Mrs. Lafferty told the pre-sentence report investigator: "I'm married to a dummy."
Ms. Lafferty's charge arose out of a crime that was committed by her husband and brother-in-law, who robbed the Circle K on Medina Street in Lodi. A car owned by Ms. Lafferty's father was used in the commission of the robbery and property taken from the Circle K was found in Mrs. Lafferty's house. When asked why she was involved in this offense, Mrs. Lafferty told the pre-sentence report investigator: "I'm married to a dummy."
Friday, September 24, 2010
Woman Gets Year in Prison for Failure to Comply and Child Endangering
Judge Kimbler sentenced Stephanie M. Arthur, 24, of North Harmony Street in Medina, Ohio to one year in prison for Failure to Comply, a third degree felony, and Child Endangering, a first degree misdemeanor. The charges arose out of a high-speed chase that started in Cuyahoga County and continued into Medina County on Interstate 71.
Ms. Arthur who was driving a car that also contained her two year old daughter, Alexis, reached a speed in excess of 100 miles per hour before her vehicle came to a stop after running over spikes that a Highway Patrol trooper put down. When she was removed from the vehicle, she appeared to be under the influence of alcohol, although she only blew a .074 on the breath alcohol content (BAC) test that she was given. When asked why she committed this offense, Ms. Arthur stated that she was "scared and under the influence of alcohol at the time".
Besides ordering her imprisonment, Judge Kimbler suspended her driver's license for three years, which is a hard suspension with no limited driving privileges. Judge Kimbler gave her credit for the 98 days that she had served in the Medina County Jail prior to the imposition of sentence and gave her a 180 day jail sentence for the Child Endangering. Under Ohio law the sentence for the misdemeanor must run concurrent with the prison sentence for the felony.
Ms. Arthur who was driving a car that also contained her two year old daughter, Alexis, reached a speed in excess of 100 miles per hour before her vehicle came to a stop after running over spikes that a Highway Patrol trooper put down. When she was removed from the vehicle, she appeared to be under the influence of alcohol, although she only blew a .074 on the breath alcohol content (BAC) test that she was given. When asked why she committed this offense, Ms. Arthur stated that she was "scared and under the influence of alcohol at the time".
Besides ordering her imprisonment, Judge Kimbler suspended her driver's license for three years, which is a hard suspension with no limited driving privileges. Judge Kimbler gave her credit for the 98 days that she had served in the Medina County Jail prior to the imposition of sentence and gave her a 180 day jail sentence for the Child Endangering. Under Ohio law the sentence for the misdemeanor must run concurrent with the prison sentence for the felony.
Medina Man Gets Year in Prison for Drunk Driving
On Thursday, Judge Kimbler sentenced Angelo T. Lenos, 37, of Reagan Parkway in Medina to one year in prison for a felony offense of driving while under the influence of alcohol. This conviction was Mr. Lenos's sixth drunk driving conviction since 1991 and his seventh drunk driving arrest. Judge Kimbler also ordered the forfeiture of the automobile that Mr. Lenos was driving when he was arrested.
Man Ordered to Make Restitution to Train Company for Shooting
On Thursday, Donald L. Nichols, 31, of Parsons Road in Grafton, Ohio, was sentenced by Judge Kimbler for Interference with the Operation of a Train, a first degree misdemeanor, and Criminal Trespass, a fourth degree misdemeanor. Judge Kimbler gave Mr. Nichols a 180 day jail sentence, but suspended it on condition that he pay restitution of $857.92 to the Wheeling and Lake Erie Railroad; do 24 hours of community service; and pay a monthly community control sanction fee to the Medina County Adult Probation Department. Judge Kimbler also ordered his shotgun forfeited to the State.
The shooting took place at the railroad crossing located on Hunter Road in Spencer Township on February 27, 2010. The shooting damaged the braking system on one of the railroad cars. The Medina County Sheriff Deputy assigned to the case, found five spent shot gun shells in the snow and there were also footprints by the shells. The Deputy followed the footprints back to the house where Mr. Nichols's father lived.
Mr. Nichols's father told the Deputy that the defendant had been at his home that day and that he had a shotgun with him. Mr. Nichols's father also told the Deputy that Mr. Nichols had wanted to shoot the gun on his property and that he told his son to take the shotgun out into a field near his house. The Deputy then contacted Mr. Nichols who agreed to come to the Sheriff's office. Once at the Sheriff's office, he admitted to shooting the train, but said that the shotgun had accidentally discharged.
The shooting took place at the railroad crossing located on Hunter Road in Spencer Township on February 27, 2010. The shooting damaged the braking system on one of the railroad cars. The Medina County Sheriff Deputy assigned to the case, found five spent shot gun shells in the snow and there were also footprints by the shells. The Deputy followed the footprints back to the house where Mr. Nichols's father lived.
Mr. Nichols's father told the Deputy that the defendant had been at his home that day and that he had a shotgun with him. Mr. Nichols's father also told the Deputy that Mr. Nichols had wanted to shoot the gun on his property and that he told his son to take the shotgun out into a field near his house. The Deputy then contacted Mr. Nichols who agreed to come to the Sheriff's office. Once at the Sheriff's office, he admitted to shooting the train, but said that the shotgun had accidentally discharged.
Native of Ukraine Pleads Guilty, May be Deported
Olea Yarochovitch, 25, of Pearl Road in Brunswick, Ohio, appeared in Judge Kimbler's courtroom on Thursday and entered a plea of guilty to one count of Escape, a third degree felony. Judge Kimbler sentenced Mr. Yarochovitch to one year in prison, concurrent with the sentence he is presently serving that was imposed by the Cuyahoga County Common Pleas Court.
Mr, Yarochovitch is Ukrainian citizen and, as a result of this conviction, may be deported by the United States. Prior to taking the plea, Judge Kimbler informed him of that fact and he acknowledged that he understood that a felony conviction could lead to his deportation, denial of the right to become a naturalized citizen, or denial of the right to re-enter the United States if he voluntarily left the country.
Mr, Yarochovitch is Ukrainian citizen and, as a result of this conviction, may be deported by the United States. Prior to taking the plea, Judge Kimbler informed him of that fact and he acknowledged that he understood that a felony conviction could lead to his deportation, denial of the right to become a naturalized citizen, or denial of the right to re-enter the United States if he voluntarily left the country.
Judge Kimbler Probation Violations for September 23, 2010
Case No. Name Officer PV Hearing Date: 9/16/10 Disposition:
08CR0551 09CR0258 Kerschner, Joseph H. Smith 9/23/2010 PV - Sentenced to 20 days MCJ on each case w/credit for 16 days to run concurrent w/each other; ISP supervision; Weekly drug screens for 60 days; continue courtesy supervision with Summit Co.
08CR0363 Lockhart, Angela M. Leibler 9/23/2010 PV - 10 days MCJ w/credit for 10 days; continue on supervision
09CR0101 08CR0308 Flinn, Zachary L. Lesko 9/23/2010 PV - continued until next Thursday 9/30/2010
08CR0405 Debose, Curtis R. Newman 9/23/2010 PV - 3 yrs. Prison w/451 days credit; Probation terminated; costs waived.
08CR0303 McClain, Matthew K. Turchek 9/23/2010 PV - Continued to 10/28/2010
04CR0034 Burns, Douglas C. Copley 9/23/2010 PV - 180 days MCJ w/118 days credit; Probation terminated
07CR0592 Brown, William J. Adams 9/23/2010 PV - No show - CAPIAS ISSUED
08CR0551 09CR0258 Kerschner, Joseph H. Smith 9/23/2010 PV - Sentenced to 20 days MCJ on each case w/credit for 16 days to run concurrent w/each other; ISP supervision; Weekly drug screens for 60 days; continue courtesy supervision with Summit Co.
08CR0363 Lockhart, Angela M. Leibler 9/23/2010 PV - 10 days MCJ w/credit for 10 days; continue on supervision
09CR0101 08CR0308 Flinn, Zachary L. Lesko 9/23/2010 PV - continued until next Thursday 9/30/2010
08CR0405 Debose, Curtis R. Newman 9/23/2010 PV - 3 yrs. Prison w/451 days credit; Probation terminated; costs waived.
08CR0303 McClain, Matthew K. Turchek 9/23/2010 PV - Continued to 10/28/2010
04CR0034 Burns, Douglas C. Copley 9/23/2010 PV - 180 days MCJ w/118 days credit; Probation terminated
07CR0592 Brown, William J. Adams 9/23/2010 PV - No show - CAPIAS ISSUED
Wednesday, September 22, 2010
Jury Rejects Entrapment Defense, Returns Guilty Verdict
A jury in Judge Kimbler's courtroom returned a guilty verdict late Tuesday afternoon in the case of State of Ohio v. Brian P. Medvick. Mr. Medvick was indicted for one count of Drug Trafficking, a fourth degree felony. Mr. Medvick admitted to selling two pills that contained an illegal drug, but claimed that the confidential informant used by the Medway Drug Enforcement Agency had entrapped him into committing the crime.
When a defendant raises the defense of entrapment, he or she has the burden of proving by a preponderance of the evidence that the entrapment took place. Because the burden of proof is on the defense and because a person raising that defense has to admit that he or she committed the offense, it is not often used. Indeed, in over 24 years on the bench, this was the first trial that Judge Kimbler presided over where the defense was raised.
Mr. Medvick was allowed to remain on bond after the jury returned its verdict. A pre-sentence investigation was ordered and sentence will be imposed on November 5, 2010 at 8:30 am.
Mr. Medvick now resides in Strongsville, Ohio, but at the time of offense lived in Brunswick, Ohio. Mr. Medvick is one of approximately 43 defendants who sold drugs to the confidential informant who testified for the State.
When a defendant raises the defense of entrapment, he or she has the burden of proving by a preponderance of the evidence that the entrapment took place. Because the burden of proof is on the defense and because a person raising that defense has to admit that he or she committed the offense, it is not often used. Indeed, in over 24 years on the bench, this was the first trial that Judge Kimbler presided over where the defense was raised.
Mr. Medvick was allowed to remain on bond after the jury returned its verdict. A pre-sentence investigation was ordered and sentence will be imposed on November 5, 2010 at 8:30 am.
Mr. Medvick now resides in Strongsville, Ohio, but at the time of offense lived in Brunswick, Ohio. Mr. Medvick is one of approximately 43 defendants who sold drugs to the confidential informant who testified for the State.
Tuesday, September 21, 2010
Man Changes Plea in Wadsworth Receiving Stolen Property Case
Nathanael J. Stefanko, 30, of Silvercreek Road in Wadsworth, Ohio, appeared in Judge Kimbler's courtroom on Monday, September 20, 2010 and entered a plea of no contest to one charge of Receiving Stolen Property, a fourth degree felony. Judge Kimbler accepted the plea, found Mr. Stefanko guilty and ordered a pre-sentence investigation. Judge Kimbler will impose sentence on October 28, 2010 at 8:30 am. Judge Kimbler continued Mr. Stefanko's bond until imposition of sentence.
Mr. Stefanko is accused of receiving stolen jewelry that was valued between $5,000 and $100,000 on February 22, 2010. While the State is not expected to recommend a sentence when Mr. Stefanko is sentenced, it is anticipated that the victims of the crime will appear and make a victims' impact statement before Judge Kimbler imposes sentence.
Mr. Stefanko is accused of receiving stolen jewelry that was valued between $5,000 and $100,000 on February 22, 2010. While the State is not expected to recommend a sentence when Mr. Stefanko is sentenced, it is anticipated that the victims of the crime will appear and make a victims' impact statement before Judge Kimbler imposes sentence.
Miscellaneous Criminal Case Journal Entries for Week of September 13, 2010
State of Ohio v. Joseph M. Tracy, Case No. 10-CR-0311: Motion to continue the hearing set for September 17, 2010 is granted. The hearing will be held on September 23, 2010 at 2:00 pm.
State of Ohio v. George D. Curlutu, Case No. 09-CR-0149: Motion for judicial release is denied without a hearing.
State of Ohio v. Michael L. Evans, Case No. 06-CR-0341: Defendant's motion to continue his re-sentencing hearing of September 17, 2010 is granted. Re-sentencing is set for October 14, 2010 at 1:30 pm.
State of Ohio v. Keith Bearden, Case No. 10-CR-0242: Defendant's motion to amend bond is denied.
State of Ohio v. Dustin C. Niemann, Case No. 10-CR-0225: Defendant's motion to disclose identity of the informant is scheduled for hearing on September 24, 2010 at 9:45 am.
State of Ohio v. David A. Sidwell, Case No. 10-CR-0214: Defendant's motion to disclose identity of the informant is scheduled for hearing on October 1, 2010 at 9:30 am.
State of Ohio v. Timothy R. Carson, Case No. 10-CR-0175: Defendant's motion to continue the jury trial of September 20, 2010 is granted. Trial is scheduled for November 8, 2010 at 9:00 am. Pretrial is scheduled for November 1, 2010 at 8:30 am. Speedy trial time is tolled.
State of Ohio v. William E. Reindl, III, Case No. 10-CR-0071: Warrant is issued for failure to abide by the terms and conditions of his supervision.
State of Ohio v. Gregory Roberts, Case No. 08-CR-0533: Warrant is issued for failure to abide by the terms and conditions of his supervision.
State of Ohio v. Michael A. Reddish, Case No. 10-CR-0337: Defendant's motion to continue his arraignment on new charges is granted. Arraignment shall take place on September 20, 2010 at 9:00 am.
State of Ohio v. Raymond R. Baratko, Jr., Case No. 05-CR-0311: Case set for status conference on September 30, 2010 at 1:45 pm.
State of Ohio v. Kajuana K. Myers, Case No. 10-CR-0301: Court orders jury trial set for September 15, 2010 continued until October 26, 2010 at 9:00 am for the reason that both defendant and counsel failed to appear. Speedy trial time is tolled.
State of Ohio v. Ryan A. Walter, Case No. 10-CR-0286: Defendant's motion to continue the jury trial set for September 14, 2010 to a change of plea hearing on September 23, 2010 at 8:30 am is granted. Speedy trial time is tolled.
State of Ohio v. George D. Curlutu, Case No. 09-CR-0149: Motion for judicial release is denied without a hearing.
State of Ohio v. Michael L. Evans, Case No. 06-CR-0341: Defendant's motion to continue his re-sentencing hearing of September 17, 2010 is granted. Re-sentencing is set for October 14, 2010 at 1:30 pm.
State of Ohio v. Keith Bearden, Case No. 10-CR-0242: Defendant's motion to amend bond is denied.
State of Ohio v. Dustin C. Niemann, Case No. 10-CR-0225: Defendant's motion to disclose identity of the informant is scheduled for hearing on September 24, 2010 at 9:45 am.
State of Ohio v. David A. Sidwell, Case No. 10-CR-0214: Defendant's motion to disclose identity of the informant is scheduled for hearing on October 1, 2010 at 9:30 am.
State of Ohio v. Timothy R. Carson, Case No. 10-CR-0175: Defendant's motion to continue the jury trial of September 20, 2010 is granted. Trial is scheduled for November 8, 2010 at 9:00 am. Pretrial is scheduled for November 1, 2010 at 8:30 am. Speedy trial time is tolled.
State of Ohio v. William E. Reindl, III, Case No. 10-CR-0071: Warrant is issued for failure to abide by the terms and conditions of his supervision.
State of Ohio v. Gregory Roberts, Case No. 08-CR-0533: Warrant is issued for failure to abide by the terms and conditions of his supervision.
State of Ohio v. Michael A. Reddish, Case No. 10-CR-0337: Defendant's motion to continue his arraignment on new charges is granted. Arraignment shall take place on September 20, 2010 at 9:00 am.
State of Ohio v. Raymond R. Baratko, Jr., Case No. 05-CR-0311: Case set for status conference on September 30, 2010 at 1:45 pm.
State of Ohio v. Kajuana K. Myers, Case No. 10-CR-0301: Court orders jury trial set for September 15, 2010 continued until October 26, 2010 at 9:00 am for the reason that both defendant and counsel failed to appear. Speedy trial time is tolled.
State of Ohio v. Ryan A. Walter, Case No. 10-CR-0286: Defendant's motion to continue the jury trial set for September 14, 2010 to a change of plea hearing on September 23, 2010 at 8:30 am is granted. Speedy trial time is tolled.
Akron Man Changes Plea and Wants to Stay in Jail
Robert E. Patterson, II, 57 of Seminola Avenue, Akron, Ohio, appeared in Judge Kimbler's courtroom on Monday, September 20, 2010, and entered a plea of no contest to one count of Possession of Drugs, (Heroin), a fifth degree felony. Judge Kimbler accepted the plea, found him guilty, and ordered a pre-sentence investigation. Judge Kimbler then set the date of October 28, 2010, for imposition of sentence.
Following the change of plea, Mr. Patterson's attorney made a motion for a reduction in bond. Originally Judge Kimbler had allowed Mr. Patterson to be released on a signature bond, but when he didn't appear for a jury trial, Judge Kimbler revoked the bond and ordered a warrant issued for his arrest.
After Mr. Patterson's attorney made the motion to reinstate the signature bond, Judge Kimbler asked Mr. Patterson why he hadn't appeared for trial. Mr. Patterson explained that he had stopped taking the medication prescribed to treat his bi-polar condition, which led to his non-appearance for trial. When Judge Kimbler asked him if he agreed that the signature bond should be reinstated, he replied that he thought that it was best if he stayed in jail, so Judge Kimbler denied. the motion made by his attorney.
Following the change of plea, Mr. Patterson's attorney made a motion for a reduction in bond. Originally Judge Kimbler had allowed Mr. Patterson to be released on a signature bond, but when he didn't appear for a jury trial, Judge Kimbler revoked the bond and ordered a warrant issued for his arrest.
After Mr. Patterson's attorney made the motion to reinstate the signature bond, Judge Kimbler asked Mr. Patterson why he hadn't appeared for trial. Mr. Patterson explained that he had stopped taking the medication prescribed to treat his bi-polar condition, which led to his non-appearance for trial. When Judge Kimbler asked him if he agreed that the signature bond should be reinstated, he replied that he thought that it was best if he stayed in jail, so Judge Kimbler denied. the motion made by his attorney.
Judge Christopher Collier's Criminal Docket for Monday, September 20, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on September 20, 2010 for criminal cases:
Sherri Hawkins-Smalls, 41, of Beverly Hills Drive in Brunswick, was sentenced to six months in prison on two counts of Trafficking in Cocaine and one count of Possession of Cocaine, all of which are fifth-degree felonies.
Glenda Alfano, 59, of Martin Court in Medina, pleaded no contest to one count of Receiving Stolen Property, Credit Card and one count of Forgery, both of which are fifth-degree felonies. Sentencing is scheduled for November 1.
Robert Anders, 25, of Hazelwood Avenue in Barberton, pleaded not guilty to one count of Trafficking in Drugs, Counterfeit Controlled Substance, a fifth-degree felony. A jury trial is scheduled for December 15.
Pamela Bucci, 20, of York Road in Parma Heights, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 20.
Dirk Dowdley Jr., 22, of Olympia Road in Cleveland, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for December 20.
Jeramiah Haugen, 29, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 5.
Barry Holland, 26, of 33 Street S.W. in Barberton, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony, and two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for November 17.
David Reed, 49, of Bronson Street in Medina, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony, and two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for November 10.
Anthony Waple, 24, of Pearl Road in Strongsville, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for December 20.
Sherri Hawkins-Smalls, 41, of Beverly Hills Drive in Brunswick, was sentenced to six months in prison on two counts of Trafficking in Cocaine and one count of Possession of Cocaine, all of which are fifth-degree felonies.
Glenda Alfano, 59, of Martin Court in Medina, pleaded no contest to one count of Receiving Stolen Property, Credit Card and one count of Forgery, both of which are fifth-degree felonies. Sentencing is scheduled for November 1.
Robert Anders, 25, of Hazelwood Avenue in Barberton, pleaded not guilty to one count of Trafficking in Drugs, Counterfeit Controlled Substance, a fifth-degree felony. A jury trial is scheduled for December 15.
Pamela Bucci, 20, of York Road in Parma Heights, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 20.
Dirk Dowdley Jr., 22, of Olympia Road in Cleveland, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for December 20.
Jeramiah Haugen, 29, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 5.
Barry Holland, 26, of 33 Street S.W. in Barberton, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony, and two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for November 17.
David Reed, 49, of Bronson Street in Medina, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony, and two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for November 10.
Anthony Waple, 24, of Pearl Road in Strongsville, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for December 20.
Saturday, September 18, 2010
Using the "Tort of Another" Doctrine to Recoup Attorney Fees
By Attorney Julie Fenstermaker
Frantz Ward LLP
(Editor's Note: This article is reprinted with permission and is not intended to represent the opinion of Judge James L. Kimbler or any member of his staff.)
In these economic times, companies are keeping a watchful eye on legal expenses. One possible, and often underutilized, avenue of relief is the “tort of another” doctrine. This principle enables a company, in certain instances, to recoup the attorneys’ fees incurred in defending an action that was based solely on another’s wrongdoing.
While the United States’ legal system follows the “American rule,” which requires each party to pay its own legal fees, companies are usually familiar with a way to circumvent this outcome through a contractual provision providing that attorneys’ fees are paid to the prevailing party. In lieu of a contractual provision, or an applicable statute, however, the “tort of another doctrine” can provide another option depending on what jurisdiction you are in and the particular circumstances of the case.
Ohio courts follow the Restatement (Second) of Torts § 914, which provides:
One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorneys’ fees and other expenditures thereby suffered or incurred in the earlier action.
Thus, in Ohio, there is an independent tort exception to the traditional American rule. Such an exception could be extremely useful to companies that are involved in litigation solely because of an employee’s actions or those of a third party. For example, in Reiner v. Kelley, 8 Ohio App. 3d 390 (Franklin Cty. 1983), an action was brought against a law firm and both of its attorneys for fraudulent acts. After finding that one partner had neither participated in, nor ratified the fraudulent acts, the appellate court determined that the law firm was entitled to full indemnity, including both the cost of the judgment that was entered against it and the reasonable value of the fees it had incurred in defending against the third person’s [the plaintiff’s] claims.
Accordingly, counsel should evaluate whether they may be able to assert the “tort of another” doctrine. However, there are some limitations to consider before asserting the doctrine. First, a party invoking the “tort of another” doctrine must take care to introduce sufficient evidence of the specific legal expenses incurred in defending a particular action. In Wilson v. Cadwell, 1988 Ohio App. LEXIS 1883 (Ohio Ct. App., Cuyahoga Cty. 1988), the appellate court rejected the plaintiff’s contention that recoverable fees included those that arose as a “natural and proximate consequence of [the defendant’s] activities” because “the remedy does not encompass other damages incurred by the indemnitee as a consequence of the indemnitor’s tortious conduct.” Because no evidence was presented concerning the specific fees incurred in defending just against the plaintiff’s complaint, none were awarded.
Further, the Cadwell case also suggests that in Ohio a party cannot wait and file a subsequent action to recoup its attorneys’ fees. Instead, it must plead the “tort of another” doctrine as a separate cause of action in the complaint or cross-claim against the responsible party. Id at *8. Further, as the name of the doctrine suggests, it can only be applied where there has been an actual tort committed by the other party. Good Samaritan Hosp. & Health Ctr. v. Wright State Univ., 82 Ohio App. 3d 30, 33 (Franklin Cty. 1992). The doctrine cannot be expanded to seek indemnification from innocent parties. Id.
Finally, use of the “tort of another” doctrine may be limited if the cause of action is preempted by a federal statute. An example of this can be seen in Werner v. Primax Recoveries, Inc., 2008 U.S. Dist. LEXIS 102804 (N.D. Ohio August 6, 2008). While Werner recognized that a party can recover fees incurred in defending an action against a third person for fault of another, the claim in this case was preempted by ERISA, and, therefore, a moot issue.
Despite of such limitations, the “tort of another” doctrine potentially can be a powerful tool for a corporate defendant. Parties should consider this cause of action to recover fees incurred in defending claims in which they are held vicariously liable despite their lack of knowledge or participation in the wrongful acts.
Julie Fenstermaker is an attorney at Frantz Ward LLP where she focuses her practice on intellectual property, business disputes and general commercial litigation. For more information on the "tort of another" doctrine, please contact Julie at 216.515.1660.
Frantz Ward LLP
(Editor's Note: This article is reprinted with permission and is not intended to represent the opinion of Judge James L. Kimbler or any member of his staff.)
In these economic times, companies are keeping a watchful eye on legal expenses. One possible, and often underutilized, avenue of relief is the “tort of another” doctrine. This principle enables a company, in certain instances, to recoup the attorneys’ fees incurred in defending an action that was based solely on another’s wrongdoing.
While the United States’ legal system follows the “American rule,” which requires each party to pay its own legal fees, companies are usually familiar with a way to circumvent this outcome through a contractual provision providing that attorneys’ fees are paid to the prevailing party. In lieu of a contractual provision, or an applicable statute, however, the “tort of another doctrine” can provide another option depending on what jurisdiction you are in and the particular circumstances of the case.
Ohio courts follow the Restatement (Second) of Torts § 914, which provides:
One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorneys’ fees and other expenditures thereby suffered or incurred in the earlier action.
Thus, in Ohio, there is an independent tort exception to the traditional American rule. Such an exception could be extremely useful to companies that are involved in litigation solely because of an employee’s actions or those of a third party. For example, in Reiner v. Kelley, 8 Ohio App. 3d 390 (Franklin Cty. 1983), an action was brought against a law firm and both of its attorneys for fraudulent acts. After finding that one partner had neither participated in, nor ratified the fraudulent acts, the appellate court determined that the law firm was entitled to full indemnity, including both the cost of the judgment that was entered against it and the reasonable value of the fees it had incurred in defending against the third person’s [the plaintiff’s] claims.
Accordingly, counsel should evaluate whether they may be able to assert the “tort of another” doctrine. However, there are some limitations to consider before asserting the doctrine. First, a party invoking the “tort of another” doctrine must take care to introduce sufficient evidence of the specific legal expenses incurred in defending a particular action. In Wilson v. Cadwell, 1988 Ohio App. LEXIS 1883 (Ohio Ct. App., Cuyahoga Cty. 1988), the appellate court rejected the plaintiff’s contention that recoverable fees included those that arose as a “natural and proximate consequence of [the defendant’s] activities” because “the remedy does not encompass other damages incurred by the indemnitee as a consequence of the indemnitor’s tortious conduct.” Because no evidence was presented concerning the specific fees incurred in defending just against the plaintiff’s complaint, none were awarded.
Further, the Cadwell case also suggests that in Ohio a party cannot wait and file a subsequent action to recoup its attorneys’ fees. Instead, it must plead the “tort of another” doctrine as a separate cause of action in the complaint or cross-claim against the responsible party. Id at *8. Further, as the name of the doctrine suggests, it can only be applied where there has been an actual tort committed by the other party. Good Samaritan Hosp. & Health Ctr. v. Wright State Univ., 82 Ohio App. 3d 30, 33 (Franklin Cty. 1992). The doctrine cannot be expanded to seek indemnification from innocent parties. Id.
Finally, use of the “tort of another” doctrine may be limited if the cause of action is preempted by a federal statute. An example of this can be seen in Werner v. Primax Recoveries, Inc., 2008 U.S. Dist. LEXIS 102804 (N.D. Ohio August 6, 2008). While Werner recognized that a party can recover fees incurred in defending an action against a third person for fault of another, the claim in this case was preempted by ERISA, and, therefore, a moot issue.
Despite of such limitations, the “tort of another” doctrine potentially can be a powerful tool for a corporate defendant. Parties should consider this cause of action to recover fees incurred in defending claims in which they are held vicariously liable despite their lack of knowledge or participation in the wrongful acts.
Julie Fenstermaker is an attorney at Frantz Ward LLP where she focuses her practice on intellectual property, business disputes and general commercial litigation. For more information on the "tort of another" doctrine, please contact Julie at 216.515.1660.
Friday, September 17, 2010
Judge Kimbler Probation Violations for September 16, 2010
Medina County Chief Probation Officer Veronica Perry reports that the following probation violations were handled by Judge James L. Kimbler on Thursday, September 16, 2010:
Case No. Name Officer PV Hearing Date: 9/16/10 Disposition:
06CR0647 Waddle, Marvin L. Lesko 9/16/2010 PV denial, continued until after new case disposed of
08CR0405 Debose, Curtis R. Newman 9/16/2010 PV admission, continued to 9/23/10
09CR0523 Berlin, Jeffrey L. Lesko 9/16/2010 PV admission, 15 days MCJ w/cr for 15 days, attend 3 AA meetings per week, complete drug/alcohol intensive out patient treatment within 6 months, if violates again 9 months prison
08CR0550 Boyer, Amber L. Lesko 9/16/2010 PV admission, 1 year prison w/cr for 136 days, concurrent w/sent in Case 09CR0257, all outstanding costs waived
09CR0257 Boyer, Amber L. Lesko 9/16/2010 PV admission, 1 year prison w/cr for 163 days, concurrent w/sent in Case 08CR0550, all outstanding costs waived
09CR0101 Flinn, Zachary L. Lesko 9/16/2010 PV continued to 9/23/10
08CR0308 Flinn, Zachary L. Lesko 9/16/2010 PV continued to 9/23/10
09CR0405 Stricker, Tyler K. Turchek 9/16/2010 PV admission, found guilty, PSI ordered & sentencing sched. 10/21/10
08CR0382 Huntsman, Troy K. Turchek 9/16/2010 PV continued to 10/15/10
07CR0435 Depew, Michael R. Newman 9/16/2010 PV, status conference set for 60 days - 11/11/10
09CR0410 Lawson, Lawrence K. Turchek 9/16/2010 PV admission, cont. on CCS, drug/alcohol assess at Solutions & follow recommendatons; complete Crossroads D & A program; PV costs assessed
08CR0478 Simpson, Jason l. Lesko 9/16/2010 PV admission, 6 mon. prison, cr for 48 days
08CR0363 Lockhart, Angela M. Liebler 9/16/2010 PV continued to 9/23/10
Case No. Name Officer PV Hearing Date: 9/16/10 Disposition:
06CR0647 Waddle, Marvin L. Lesko 9/16/2010 PV denial, continued until after new case disposed of
08CR0405 Debose, Curtis R. Newman 9/16/2010 PV admission, continued to 9/23/10
09CR0523 Berlin, Jeffrey L. Lesko 9/16/2010 PV admission, 15 days MCJ w/cr for 15 days, attend 3 AA meetings per week, complete drug/alcohol intensive out patient treatment within 6 months, if violates again 9 months prison
08CR0550 Boyer, Amber L. Lesko 9/16/2010 PV admission, 1 year prison w/cr for 136 days, concurrent w/sent in Case 09CR0257, all outstanding costs waived
09CR0257 Boyer, Amber L. Lesko 9/16/2010 PV admission, 1 year prison w/cr for 163 days, concurrent w/sent in Case 08CR0550, all outstanding costs waived
09CR0101 Flinn, Zachary L. Lesko 9/16/2010 PV continued to 9/23/10
08CR0308 Flinn, Zachary L. Lesko 9/16/2010 PV continued to 9/23/10
09CR0405 Stricker, Tyler K. Turchek 9/16/2010 PV admission, found guilty, PSI ordered & sentencing sched. 10/21/10
08CR0382 Huntsman, Troy K. Turchek 9/16/2010 PV continued to 10/15/10
07CR0435 Depew, Michael R. Newman 9/16/2010 PV, status conference set for 60 days - 11/11/10
09CR0410 Lawson, Lawrence K. Turchek 9/16/2010 PV admission, cont. on CCS, drug/alcohol assess at Solutions & follow recommendatons; complete Crossroads D & A program; PV costs assessed
08CR0478 Simpson, Jason l. Lesko 9/16/2010 PV admission, 6 mon. prison, cr for 48 days
08CR0363 Lockhart, Angela M. Liebler 9/16/2010 PV continued to 9/23/10
Judge Collier's Criminal Docket for September 7, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on September 7, 2010:
Larry Adkins, 61, of Eric Lane in Wadsworth, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Menacing by Stalking, a fourth-degree felony. He also was ordered to be electronically monitored for the remainder of his probation after he is released from jail; not to have any contact with the victim and not to be within one-quarter mile of the victim; to pay restitution to the victim; to undergo anger management counseling; and to forfeit all his weapons to law enforcement.
Zackary Burgess, 21, of Grafton Road in Grafton, was sentenced to one year in prison for a probation violation on an original charge of Failure to Comply with a Police Officer, a third-degree felony.
Daniel Curtis, 36, of West Bergey Street in Wadsworth, was sentenced to nine months in prison on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,100 in restitution.
Ashley Krettler, 23, of Stone Road in Litchfield, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony.
Bradley Sheridan, 26, of Bradey Avenue in Barberton, was sentenced to nine months in prison for a probation violation on original charges of Theft and Breaking and Entering, both of which are fifth-degree felonies.
Jeremy Stafford, 21, of Congress Street in West Salem, was sentenced to nine months in prison for a probation violation on an original charge of Possession of Cocaine, a fifth-degree felony.
James Tosatto, 46, of Boston Road in Brunswick, was sentenced to 18 months in prison on one count of Domestic Violence, a fourth-degree felony.
Sarah Vaccarelli, 31, of Maplewood Farms in Medina, was sentenced to one year in prison on three counts of Forgery, all of which are fifth-degree felonies.
Kyle Copley, 22, of Skypark Drive in Wadsworth, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for November 17.
Kenneth Cummings, 32, of Triskett Road in Cleveland, pleaded not guilty to the following charges: one count of Trafficking in Crack Cocaine, a fourth-degree and a charge that carries a forfeiture specification; one count of Trafficking in Cocaine within the Vicinity of a Juvenile or School, a fourth-degree felony; and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for November 15.
Martez Hope, 18, of Pearl Road in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 8.
Amie Moore, 20, of Redfern Road in Chippewa Lake, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for December 8.
Carla Rohr, 27, of Old Eagle Drive in Brunswick, pleaded no contest to one count of Permitting Drug Abuse, a fifth-degree felony. Sentencing is scheduled for October 12.
Karen Werner, 46, of Beverly Hills Drive in Brunswick, pleaded guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. Sentencing is scheduled for October 12.
Larry Adkins, 61, of Eric Lane in Wadsworth, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Menacing by Stalking, a fourth-degree felony. He also was ordered to be electronically monitored for the remainder of his probation after he is released from jail; not to have any contact with the victim and not to be within one-quarter mile of the victim; to pay restitution to the victim; to undergo anger management counseling; and to forfeit all his weapons to law enforcement.
Zackary Burgess, 21, of Grafton Road in Grafton, was sentenced to one year in prison for a probation violation on an original charge of Failure to Comply with a Police Officer, a third-degree felony.
Daniel Curtis, 36, of West Bergey Street in Wadsworth, was sentenced to nine months in prison on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,100 in restitution.
Ashley Krettler, 23, of Stone Road in Litchfield, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony.
Bradley Sheridan, 26, of Bradey Avenue in Barberton, was sentenced to nine months in prison for a probation violation on original charges of Theft and Breaking and Entering, both of which are fifth-degree felonies.
Jeremy Stafford, 21, of Congress Street in West Salem, was sentenced to nine months in prison for a probation violation on an original charge of Possession of Cocaine, a fifth-degree felony.
James Tosatto, 46, of Boston Road in Brunswick, was sentenced to 18 months in prison on one count of Domestic Violence, a fourth-degree felony.
Sarah Vaccarelli, 31, of Maplewood Farms in Medina, was sentenced to one year in prison on three counts of Forgery, all of which are fifth-degree felonies.
Kyle Copley, 22, of Skypark Drive in Wadsworth, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for November 17.
Kenneth Cummings, 32, of Triskett Road in Cleveland, pleaded not guilty to the following charges: one count of Trafficking in Crack Cocaine, a fourth-degree and a charge that carries a forfeiture specification; one count of Trafficking in Cocaine within the Vicinity of a Juvenile or School, a fourth-degree felony; and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for November 15.
Martez Hope, 18, of Pearl Road in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 8.
Amie Moore, 20, of Redfern Road in Chippewa Lake, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for December 8.
Carla Rohr, 27, of Old Eagle Drive in Brunswick, pleaded no contest to one count of Permitting Drug Abuse, a fifth-degree felony. Sentencing is scheduled for October 12.
Karen Werner, 46, of Beverly Hills Drive in Brunswick, pleaded guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. Sentencing is scheduled for October 12.
Judge Collier's Criminal Docket for September 13, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court for criminal cases on September 13, 2010:
Jason Gangle, 19, of Ridge Road in Wadsworth, was sentenced to 180 days in jail for a probation violation on an original charge of Burglary, a fourth-degree felony.
Shamus Griffin, 22, of Lunn Road in Strongsville, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Trafficking in Drugs, a fourth-degree felony.
Diana Pierce, 44, of Florida, was sentenced to five years of community control sanctions on one count of Theft and one count of Forgery, both of which are third-degree felonies. She also was ordered not to have any contact with the victim and to pay $126,304.33 in restitution.
Ronnie Speedy, 37, of Bloomfield Avenue in Akron, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Drugs, a third-degree felony.
Daniel Curtis, 36, of West Bergey Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for November 17.
David Fowler, 31, of Medina Road in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a fourth-degree felony. A jury trial is scheduled for October 6.
Cameron Selbee, 19, of Greenwood Avenue in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for November 17.
Timothy Tate, 37, of Mount Gilead, pleaded not guilty to one count of Non-Support of Dependents, a fifth-degree felony. A jury trial is scheduled for November 22.
Jason Gangle, 19, of Ridge Road in Wadsworth, was sentenced to 180 days in jail for a probation violation on an original charge of Burglary, a fourth-degree felony.
Shamus Griffin, 22, of Lunn Road in Strongsville, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Trafficking in Drugs, a fourth-degree felony.
Diana Pierce, 44, of Florida, was sentenced to five years of community control sanctions on one count of Theft and one count of Forgery, both of which are third-degree felonies. She also was ordered not to have any contact with the victim and to pay $126,304.33 in restitution.
Ronnie Speedy, 37, of Bloomfield Avenue in Akron, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Drugs, a third-degree felony.
Daniel Curtis, 36, of West Bergey Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for November 17.
David Fowler, 31, of Medina Road in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a fourth-degree felony. A jury trial is scheduled for October 6.
Cameron Selbee, 19, of Greenwood Avenue in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for November 17.
Timothy Tate, 37, of Mount Gilead, pleaded not guilty to one count of Non-Support of Dependents, a fifth-degree felony. A jury trial is scheduled for November 22.
Thursday, September 16, 2010
Judge Kimbler's Criminal Docket for September 16, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court September 16:
Greg Finnegan, 47, of Beverly Hills Drive in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs and one count of Trafficking in Cocaine, both of which are fifth-degree felonies.
Darnell Milton, 41, of East 110th Street in Cleveland, was sentenced to three years of community control sanctions on one count of Theft of a Motor Vehicle, a fourth-degree felony.
Marvin Neal, 23, of Bursley Road in Spencer, was sentenced to four years in prison on two counts of Felonious Assault, both of which are second-degree felonies. One of the charges specifies that the victim was pregnant at the time of the assault.
William Robinson, 29, of Lansing Avenue in Cleveland, was sentenced to six months in prison on one count of Breaking and Entering, both of which are fifth-degree felonies.
Kevin Taylor, 21, of South Medina Line Road in Wadsworth, was sentenced to 180 days in jail on one count of Failure to Comply with a Police Officer, a third-degree felony.
Nicholas Dufala, 23, of Hamilton Road in Medina, pleaded not guilty to two counts of Theft of a Credit Card, both of which are fifth-degree felonies. A jury trial is scheduled for September 16.
Ryan Johnson, 33, of Euclid Avenue in Cleveland, pleaded guilty and was sentenced to six months in prison on one count of Forgery, a fifth-degree felony.
Michael Pesta, 31, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana and three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. A jury trial is scheduled for October 26.
Sarah Sicking, 29, of Bennington Boulevard in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 15.
Joseph Tracy, 32, of Sunset Drive in Lodi, pleaded not guilty to the following charges: three counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies and 16 counts of Illegal Use of a Minor in Nudity Oriented Material or Performance, all of which are fifth-degree felonies. These are supplemental charges to Tracy’s original charge of one count of Illegal Use of a Minor in Nudity Oriented Material or Performance, a fifth-degree felony. A jury trial is scheduled for October 18.
Noah Torres, 21, of Pearl Road in Brunswick, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony. A jury trial is scheduled for November 16.
Ashley Tucker, 22, of South Hawkins Avenue in Akron, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for October 28.
Jeffery Withrow, 44, of Columbia Road in Valley City, pleaded not guilty to one count of Escape, a second-degree felony. A jury trial is scheduled for November 22.
Greg Finnegan, 47, of Beverly Hills Drive in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs and one count of Trafficking in Cocaine, both of which are fifth-degree felonies.
Darnell Milton, 41, of East 110th Street in Cleveland, was sentenced to three years of community control sanctions on one count of Theft of a Motor Vehicle, a fourth-degree felony.
Marvin Neal, 23, of Bursley Road in Spencer, was sentenced to four years in prison on two counts of Felonious Assault, both of which are second-degree felonies. One of the charges specifies that the victim was pregnant at the time of the assault.
William Robinson, 29, of Lansing Avenue in Cleveland, was sentenced to six months in prison on one count of Breaking and Entering, both of which are fifth-degree felonies.
Kevin Taylor, 21, of South Medina Line Road in Wadsworth, was sentenced to 180 days in jail on one count of Failure to Comply with a Police Officer, a third-degree felony.
Nicholas Dufala, 23, of Hamilton Road in Medina, pleaded not guilty to two counts of Theft of a Credit Card, both of which are fifth-degree felonies. A jury trial is scheduled for September 16.
Ryan Johnson, 33, of Euclid Avenue in Cleveland, pleaded guilty and was sentenced to six months in prison on one count of Forgery, a fifth-degree felony.
Michael Pesta, 31, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana and three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. A jury trial is scheduled for October 26.
Sarah Sicking, 29, of Bennington Boulevard in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 15.
Joseph Tracy, 32, of Sunset Drive in Lodi, pleaded not guilty to the following charges: three counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies and 16 counts of Illegal Use of a Minor in Nudity Oriented Material or Performance, all of which are fifth-degree felonies. These are supplemental charges to Tracy’s original charge of one count of Illegal Use of a Minor in Nudity Oriented Material or Performance, a fifth-degree felony. A jury trial is scheduled for October 18.
Noah Torres, 21, of Pearl Road in Brunswick, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony. A jury trial is scheduled for November 16.
Ashley Tucker, 22, of South Hawkins Avenue in Akron, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for October 28.
Jeffery Withrow, 44, of Columbia Road in Valley City, pleaded not guilty to one count of Escape, a second-degree felony. A jury trial is scheduled for November 22.
Tuesday, September 14, 2010
Judge Kimbler Civil Case Report for August, 2010
Judge Kimbler's administrative assistant, Linda Gerberich, has prepared the August, 2010 Ohio Supreme Court report showing the number of civil cases that were filed and assigned to Judge Kimbler's docket and the cases that disposed of during August. The report show that at the beginning of August Judge Kimbler had 636 civil cases pending on his docket.
During the month 100 new civil cases were filed and assigned to his docket and 11 civil cases were either transferred in from another judge, reactivated or redesignated and assigned to his docket. As a result, at some time during August Judge Kimbler had 747 civil cases pending on his docket.
During August, Judge Kimbler disposed of 133 civil cases and, at the end of August, had 614 civil cases pending on his docket. Cases were disposed of in the following manner:
Cases settled or dismissed prior to trial-9
Cases dismissed-17
Default judgments-41
Transferred to another judge-6
Bankruptcy stays or interlocutory appeals-8
Other terminations-51
Ms. Gerberich also reported that 43 new foreclosures filed in August of 2010. Once again there were more new foreclosures than any other single category, with the next biggest category having 36.
During the month 100 new civil cases were filed and assigned to his docket and 11 civil cases were either transferred in from another judge, reactivated or redesignated and assigned to his docket. As a result, at some time during August Judge Kimbler had 747 civil cases pending on his docket.
During August, Judge Kimbler disposed of 133 civil cases and, at the end of August, had 614 civil cases pending on his docket. Cases were disposed of in the following manner:
Cases settled or dismissed prior to trial-9
Cases dismissed-17
Default judgments-41
Transferred to another judge-6
Bankruptcy stays or interlocutory appeals-8
Other terminations-51
Ms. Gerberich also reported that 43 new foreclosures filed in August of 2010. Once again there were more new foreclosures than any other single category, with the next biggest category having 36.
Two Women Change Plea in Drug Trafficking Cases
Two women who were each charged with trafficking in drugs appeared in Judge Kimbler's courtroom on Tuesday, September 14, and changed their pleas. They were Elizabeth K. O'Connor and Desiree M. O'Neill.
Ms. O'Connor was charged with two counts of Trafficking in Drugs, Oxycodone, a Schedule II drug, with each count being a fourth degree felony. Ms. O'Connor, 48, who lives on West Washington Street in Medina, Ohio will be sentenced on October 21, 2010, following a pre-sentence investigation. Judge Kimbler continued her bond while her case is pending for sentence.
Ms. O'Neill was charged with two counts of Trafficking in Drugs, Cocaine, a Schedule II drug, with each count being a fifth degree felony. Ms. O'Neill, 25, who lives on Beverly Hills Drive in Brunswick, Ohio will also be sentenced on October 21, 2010, following a pre-sentence investigation. At the request of her defense attorney, Ms. O'Neill will be evaluated for placement in a community based correctional facility in either Summit or Lorain county. Judge Kimbler also continued Ms. O'Neill's bond while her case is pending for sentence.
Ms. O'Connor was charged with two counts of Trafficking in Drugs, Oxycodone, a Schedule II drug, with each count being a fourth degree felony. Ms. O'Connor, 48, who lives on West Washington Street in Medina, Ohio will be sentenced on October 21, 2010, following a pre-sentence investigation. Judge Kimbler continued her bond while her case is pending for sentence.
Ms. O'Neill was charged with two counts of Trafficking in Drugs, Cocaine, a Schedule II drug, with each count being a fifth degree felony. Ms. O'Neill, 25, who lives on Beverly Hills Drive in Brunswick, Ohio will also be sentenced on October 21, 2010, following a pre-sentence investigation. At the request of her defense attorney, Ms. O'Neill will be evaluated for placement in a community based correctional facility in either Summit or Lorain county. Judge Kimbler also continued Ms. O'Neill's bond while her case is pending for sentence.
Monday, September 13, 2010
Two Defendants Change Plea in Judge Kimbler's Courtroom on Monday, September 13
Two defendants appeared in Judge Kimbler's courtroom on Monday morning and entered changes of plea to amended charges. The two defendants were Robert E. Dunn, 46, of West 73rd Street, Cleveland, Ohio and Randall Finkell, 25, of State Route 58 in Wellington, Ohio.
Mr. Dunn entered a guilty plea to one count of Failure to Give Notice of a Change of Address, a third degree felony and Mr. Finkel entered a guilty plea to one count of Theft from the Elderly, a fifth degree felony.
In both cases Judge Kimbler continued the bond and ordered a pre-sentence investigation. Both defendants will be sentenced on October 28, 2010 at 8:30 am.
Mr. Dunn entered a guilty plea to one count of Failure to Give Notice of a Change of Address, a third degree felony and Mr. Finkel entered a guilty plea to one count of Theft from the Elderly, a fifth degree felony.
In both cases Judge Kimbler continued the bond and ordered a pre-sentence investigation. Both defendants will be sentenced on October 28, 2010 at 8:30 am.
Judge Kimbler's Criminal Case Report for August, 2010
Medina County Clerk of Courts Kathy Fortney reports that the following activity took place on Judge Kimbler's criminal docket during August, 2010:
At the beginning of August Judge Kimbler had 124 criminal cases pending on his docket. During that month 29 new cases were assigned to his courtroom and 11 cases were transferred to his docket from Courtroom No. 1. Consequently, during August, Judge Kimbler at some point had 164 criminal cases pending on his docket.
During August Judge Kimbler disposed of 28 cases. These cases were disposed of as follows:
Dismissal of the case-4
Diversion-2
Guilty/No Contest to original charge-11
Guilty/No Contest to amended charge-5
Unavailability of defendant for trial or sentencing-4
Transferred to another judge-1
Other terminations-1
As a result of the above dispositions Judge Kimbler had 136 cases pending on his docket at the end of August, 2010.
At the beginning of August Judge Kimbler had 124 criminal cases pending on his docket. During that month 29 new cases were assigned to his courtroom and 11 cases were transferred to his docket from Courtroom No. 1. Consequently, during August, Judge Kimbler at some point had 164 criminal cases pending on his docket.
During August Judge Kimbler disposed of 28 cases. These cases were disposed of as follows:
Dismissal of the case-4
Diversion-2
Guilty/No Contest to original charge-11
Guilty/No Contest to amended charge-5
Unavailability of defendant for trial or sentencing-4
Transferred to another judge-1
Other terminations-1
As a result of the above dispositions Judge Kimbler had 136 cases pending on his docket at the end of August, 2010.
Medina County Adult Probation Department Report for August, 2010
Veronica Perry, Chief Adult Probation Officer for Medina County, reports that Judge Christopher Collier and Judge James Kimbler made the following referrals and assignments to her department in August:
Each judge assigned two defendants to intensive supervision in August.
Thirteen defendants were assigned to general supervision. Judge Collier assigned seven and Judge Kimbler assigned six.
Eight community service referrals were made during August. Judge Kimbler made seven and Judge Collier made one.
Eight defendants were required to report to the Medina County Adult Probation Department as a condition of their bond. Judge Kimbler imposed that condition in six cases and Judge Collier in two cases.
Judge Kimbler made 23 referrals for pre-sentence investigations and Judge Collier made 10 referrals.
Judge Kimbler made one referral for a intervention in lieu of incarceration report and granted two motions for intervention in lieu of conviction.
Each judge made one referral for an expungment of conviction report.
Judge Kimbler made one referral for a report regarding a defendant's eligibility for his Mental Health Docket.
Each judge assigned two defendants to intensive supervision in August.
Thirteen defendants were assigned to general supervision. Judge Collier assigned seven and Judge Kimbler assigned six.
Eight community service referrals were made during August. Judge Kimbler made seven and Judge Collier made one.
Eight defendants were required to report to the Medina County Adult Probation Department as a condition of their bond. Judge Kimbler imposed that condition in six cases and Judge Collier in two cases.
Judge Kimbler made 23 referrals for pre-sentence investigations and Judge Collier made 10 referrals.
Judge Kimbler made one referral for a intervention in lieu of incarceration report and granted two motions for intervention in lieu of conviction.
Each judge made one referral for an expungment of conviction report.
Judge Kimbler made one referral for a report regarding a defendant's eligibility for his Mental Health Docket.
Thursday, September 09, 2010
Judge Kimbler's Criminal Docket for September 8, 2010
State of Ohio v. Terry M. Starcher, Case No. 10-CR-0237: Defendant appeared in court and entered a plea of no contest to one count of Theft, a fifth degree felony. Judge Kimbler found him guilty and ordered a pre-sentence investigation. Judge Kimbler will sentence Mr. Starcher on September 21, 2010 at 8:30 am. Bond was continued.
State of Ohio v. Danielle M. Robison, Case No. 10-CR-0120: Upon motion of the Defendant the jury trial date of September 20, 2010 is hereby continued until September 23, 2010 for a change of plea at 8:30 am. Bond is continued.
State of Ohio v. Antwon D. Boggan, Case No. 10-CR-0426: Motion of the State to transfer this case to Judge Collier’s docket is denied.
State of Ohio v. Kevin M. Foy, Case No. 10-CR-0224: The Court hereby continues the probation violation hearing set for September 8, 2010 to October 26, 2010 at 8:30 am.
State of Ohio v. Thomas M. O’Connor, Case No. 10-CR-0278: Defendant’s motion to continue the jury trial set for October 13, 2010 is granted. Jury trial scheduled for October 20, 2010 at 9:00 pm.
State of Ohio v. David A. Sidwell, Case No. 10-CR-0214: Defendant’s motion to continue the jury trial set for October 18, 2010 is granted. Jury trial scheduled for November 15, 2010 at 9:00 am.
State of Ohio v. Daniel L. Akers, Case No. 10-CR-0347: Defendant’s motion to continue the jury trial is granted. Jury trial scheduled for October 18, 2010 at 9:00 am and pre- trial scheduled for October 12, 2010 at 8:30 am.
State of Ohio v. Jessica Allen, Case No. 09-CR-0491: Defendant’s motion to amend bond will be heard on September 23, 2010 at 2:00 pm.
State of Ohio v. Susan E. Farr, Case No. 10-CR-0081: Competency hearing scheduled for September 17, 2010 at 10:15 am.
State of Ohio v. James V. Justine, Case No. 10-CR-0325: Defendant’s motion to continue the jury trial scheduled for September 13, 2010 is granted. Jury trial scheduled for November 1, 2010 at 9:00 am.
State of Ohio v. Jacob Bayless, Case No. 08-CR-0570: Defendant’s motion to terminate probation is denied.
State of Ohio v. Danielle M. Robison, Case No. 10-CR-0120: Upon motion of the Defendant the jury trial date of September 20, 2010 is hereby continued until September 23, 2010 for a change of plea at 8:30 am. Bond is continued.
State of Ohio v. Antwon D. Boggan, Case No. 10-CR-0426: Motion of the State to transfer this case to Judge Collier’s docket is denied.
State of Ohio v. Kevin M. Foy, Case No. 10-CR-0224: The Court hereby continues the probation violation hearing set for September 8, 2010 to October 26, 2010 at 8:30 am.
State of Ohio v. Thomas M. O’Connor, Case No. 10-CR-0278: Defendant’s motion to continue the jury trial set for October 13, 2010 is granted. Jury trial scheduled for October 20, 2010 at 9:00 pm.
State of Ohio v. David A. Sidwell, Case No. 10-CR-0214: Defendant’s motion to continue the jury trial set for October 18, 2010 is granted. Jury trial scheduled for November 15, 2010 at 9:00 am.
State of Ohio v. Daniel L. Akers, Case No. 10-CR-0347: Defendant’s motion to continue the jury trial is granted. Jury trial scheduled for October 18, 2010 at 9:00 am and pre- trial scheduled for October 12, 2010 at 8:30 am.
State of Ohio v. Jessica Allen, Case No. 09-CR-0491: Defendant’s motion to amend bond will be heard on September 23, 2010 at 2:00 pm.
State of Ohio v. Susan E. Farr, Case No. 10-CR-0081: Competency hearing scheduled for September 17, 2010 at 10:15 am.
State of Ohio v. James V. Justine, Case No. 10-CR-0325: Defendant’s motion to continue the jury trial scheduled for September 13, 2010 is granted. Jury trial scheduled for November 1, 2010 at 9:00 am.
State of Ohio v. Jacob Bayless, Case No. 08-CR-0570: Defendant’s motion to terminate probation is denied.
Tuesday, September 07, 2010
Judge Kimbler's Court Schedule for September 8-14, 2010
You can view Judge Kimbler's Courtroom schedule for the week of September 8 through September 14, 2010 by clicking here.
Judge Kimbler Decision on Motion for Relief from Judgment
Procedural History of the Case
On July 13, 2007, the Plaintiff filed her complaint and named seven defendants. One of the named defendants was Robert L. Klooz. Mr. Klooz did not file an answer to the complaint. One September 26, 2008, the Plaintiff filed a motion for a default judgment against Mr. Klooz. That motion was granted by Judge Collier on October 22, 2008, but the judgment entry that granted the default judgment did not address any of the other claims against the other defendants nor did it contain any finding that there was no just reason for delay in that entry being a final order.
On February 18, 2009, a judgment entry settling the case was signed by Judge Collier. That entry was marked as a final and appealable order. The Medina County Clerk of Court sent out notice of that entry pursuant to Civ.R. 58, notifying all parties and/or counsel of record that the dismissal entry had been filed as a final order.
On November 25, 2009, Mr. Klooz filed a motion for relief from judgment pursuant to Civ. R. 60. That motion is now before this Court for disposition.
Findings of Fact
This lawsuit is the second action that has been brought against Mr. Klooz. (¶5 of Klooz affidavit attached to the motion for relief from judgment.)
When he was served with the first lawsuit, he sent a letter to the opposing attorney and to the court explaining why he was not liable to the plaintiff. (¶6, ¶8 of the Klooz affidavit attached to the motion for relief from judgment).
In the letter filed in the first case, Mr. Klooz set forth why he believed he had no liability to the plaintiff. (¶7 of the Klooz affidavit attached to the motion for relief.).
Mr. Klooz believed that if anything more was required, someone would notify him. (¶9 of the Klooz affidavit attached to the motion for relief.)
The summons that is sent out by the Medina County Clerk of Courts informs a defendant that failure to file an answer will result in a default judgment being entered against the defendant for the amount prayed for in the complaint.
Conclusions of Law
A judgment entry that does not dispose of all the claims in a case, or does not state that there is “no just reason for delay” in the entry being a final order is not a final order. Civ. R. 54 (B).
Such order is subject to revision by the judge issuing the order anytime up until a final order is issued in the case. Civ. R. 54 (B).
A motion for relief from judgment must be filed within a reasonable time, and if the motion is being filed pursuant to Civ. R. 60 (B) (1), (2), and/or (3), not more than one year after the judgment was taken.
To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146 (Ohio 1976), Syllabus ¶ 2.
All three of the requirements must be met for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20, 520 N.E.2d 564. In other words, if the movant cannot satisfy each element, relief from judgment would be improper. Bailey v. Lake Erie Educ. Computer Ass'n, 2000 Ohio App. LEXIS 5160, 11-12 (Ohio Ct. App., Lorain County Nov. 8, 2000)
Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. See GTE Automatic Electric, Inc., supra, Syllabus ¶ 3.
“The burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality. A mere allegation that the movant's failure to file a timely answer was due to "excusable neglect and inadvertence," without any elucidation, cannot be expected to warrant relief.” Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 21.
The Court of Appeals for the Ninth Appellate District, which includes Summit, Lorain, Medina, and Wayne Counties has held that courts should not waive the requirements of the Ohio Rules of Civil Procedure just because a litigant proceeds pro se. See, for example, Martin v. Wayne County Nat'l Bank Trust & Inv. Div., 2004 Ohio 4194, ¶ 16.
Where the facts and circumstances surrounding a case rise to the level of a "complete disregard for the judicial system," "excusable neglect" is necessarily precluded. See Kay v. Marc Glassman, Inc. (1996), 76 Ohio St. 3d 18, 20, 665 N.E.2d 1102; see, also, Dooley v. Lorain, 2000 Ohio App. LEXIS 4928 (Oct. 25, 2000), Lorain App. No. 99CA007487, unreported, at 5.
Although the law favors deciding cases on their merits, a court cannot set aside a default judgment on the sole assertion of a meritorious defense. Manson v. Gurney, 62 Ohio App. 3d 290, 293 (Ohio Ct. App., Summit County 1989).
“Courts will not condone or reward a party's choice to ignore the judicial process by the grant of relief pursuant to Civ. R. 60(B). See Manson, 62 Ohio App. 3d at 294”, see Morgan Adhesives Co. v. Sonicor Instrument Corp., 107 Ohio App. 3d 327, 335-336 (Ohio Ct. App., Summit County 1995).
Issues Presented
The motion for relief presents two issues:
1. Did Mr. Klooz file his motion for relief under the time limits prescribed in Civ. R. 60 (B); and
2. Did he show “excusable neglect” or “inadvertence” as those terms are used in Civ. R. 60 (B)?
Holding
With respect to the two issues listed above, this Court finds that:
1. Mr. Klooz did file his motion for relief from judgment within the time limits set forth in Civ. R. 60 (B); and
2. Mr. Klooz did not show “excusable neglect” or inadvertence as those terms are used in Civ. R. 60 (B).
Discussion
Ms. Perkins argues that since Judge Collier signed the judgment entry granting her a default judgment against Mr. Klooz in October of 2008 and since Mr. Klooz did not file his motion for relief until December of 2009, he failed to file it within one year of the date of the entry. Her argument, however, overlooks the fact that the entry signed by Judge Collier was not a final order. Therefore, under Civ. R. 54, Judge Collier could have rescinded that order at anytime up until the date that the settlement entry was journalized.
This Court finds that if a judge issues a judgment entry that is a default judgment, but does not make that a final order, then the issuance of that order does not trigger the running of the one year period for filing a motion under Civ. R. 60. This Court further finds that in this case that when a default judgment is taken against one defendant and the entry is not a final order, but then at a subsequent time a final order is put on disposing of the claims against the remaining defendants, the time period in which the defaulting defendant may file a motion for relief starts to run upon the filing of the second and final order.
If this was the only issue raised by the Defendant’s motion for relief, this issue would be quickly resolved, but it is not. The second issue is somewhat harder to decide because of the tension between two principles. The first is that disputes should be decided on the merits, and the second is that there should be finality of judgment so that parties involved in litigation can get on with their lives.
Civ. R. 60 (B) is the way that the Ohio Rules of Civil Procedure balance these two interests. On the one hand the existence of the rule is an recognition that there are times when judgments have to be set aside. On the other hand, requiring parties to bring such motions within a certain time frame and requiring them to show that the reason why the judgment was entered was due to “excusable neglect” or inadvertence means that trial courts have discretion to grant such motions. It also means that final judgments won’t be easily set aside.
In the Ninth Appellate District, the Court of Appeals has limited the discretion of trial courts by holding that ignoring the judicial process won’t lead to the granting of relief from otherwise final judgments. If a litigant chooses to ignore the judicial process, he or she does so at his or her peril.
In this case, Mr. Klooz did ignore the judicial process. Although he apparently filed a pro se answer in the case filed in 2006, he chose to totally ignore the effect of being served with a complaint in the 2007 case. Although he was expressly told by the language contained in the summons that a default judgment could be taken against him, he decided to ignore the proceedings and hope for the best. Consequently he should be not be surprised when his gamble leads to problematic results.
This Court finds that his explanation that he expected to be notified by the court or the attorney for the Plaintiff that he needed to take further action not to be reasonable. Indeed, the first time when he received the summons he proceeded to file an answer and did not ignore the judicial process. Inexplicably the second time he gets the notice, he chooses to ignore his obligation to file an answer.
By his own logic, he should have taken action. He states in his affidavit that he was waiting for the court or counsel to tell him whether he needed to file more pleadings. He receives a notice from the court, which arguably tells him that the court expects more information from him, but he ignores it, even though he was supposedly looking for just such a communication.
Given the facts in this case, this Court cannot find that his neglect was either excusable or inadvertent. This Court cannot find that Mr. Klooz acted pursuant to a mistake or pursuant to a surprise. Further, it does find any other reason exists to grant the motion.
Order
Motion for relief from judgment pursuant to Civ. R. 60 (B) is denied.
So Ordered
On July 13, 2007, the Plaintiff filed her complaint and named seven defendants. One of the named defendants was Robert L. Klooz. Mr. Klooz did not file an answer to the complaint. One September 26, 2008, the Plaintiff filed a motion for a default judgment against Mr. Klooz. That motion was granted by Judge Collier on October 22, 2008, but the judgment entry that granted the default judgment did not address any of the other claims against the other defendants nor did it contain any finding that there was no just reason for delay in that entry being a final order.
On February 18, 2009, a judgment entry settling the case was signed by Judge Collier. That entry was marked as a final and appealable order. The Medina County Clerk of Court sent out notice of that entry pursuant to Civ.R. 58, notifying all parties and/or counsel of record that the dismissal entry had been filed as a final order.
On November 25, 2009, Mr. Klooz filed a motion for relief from judgment pursuant to Civ. R. 60. That motion is now before this Court for disposition.
Findings of Fact
This lawsuit is the second action that has been brought against Mr. Klooz. (¶5 of Klooz affidavit attached to the motion for relief from judgment.)
When he was served with the first lawsuit, he sent a letter to the opposing attorney and to the court explaining why he was not liable to the plaintiff. (¶6, ¶8 of the Klooz affidavit attached to the motion for relief from judgment).
In the letter filed in the first case, Mr. Klooz set forth why he believed he had no liability to the plaintiff. (¶7 of the Klooz affidavit attached to the motion for relief.).
Mr. Klooz believed that if anything more was required, someone would notify him. (¶9 of the Klooz affidavit attached to the motion for relief.)
The summons that is sent out by the Medina County Clerk of Courts informs a defendant that failure to file an answer will result in a default judgment being entered against the defendant for the amount prayed for in the complaint.
Conclusions of Law
A judgment entry that does not dispose of all the claims in a case, or does not state that there is “no just reason for delay” in the entry being a final order is not a final order. Civ. R. 54 (B).
Such order is subject to revision by the judge issuing the order anytime up until a final order is issued in the case. Civ. R. 54 (B).
A motion for relief from judgment must be filed within a reasonable time, and if the motion is being filed pursuant to Civ. R. 60 (B) (1), (2), and/or (3), not more than one year after the judgment was taken.
To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146 (Ohio 1976), Syllabus ¶ 2.
All three of the requirements must be met for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20, 520 N.E.2d 564. In other words, if the movant cannot satisfy each element, relief from judgment would be improper. Bailey v. Lake Erie Educ. Computer Ass'n, 2000 Ohio App. LEXIS 5160, 11-12 (Ohio Ct. App., Lorain County Nov. 8, 2000)
Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. See GTE Automatic Electric, Inc., supra, Syllabus ¶ 3.
“The burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality. A mere allegation that the movant's failure to file a timely answer was due to "excusable neglect and inadvertence," without any elucidation, cannot be expected to warrant relief.” Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 21.
The Court of Appeals for the Ninth Appellate District, which includes Summit, Lorain, Medina, and Wayne Counties has held that courts should not waive the requirements of the Ohio Rules of Civil Procedure just because a litigant proceeds pro se. See, for example, Martin v. Wayne County Nat'l Bank Trust & Inv. Div., 2004 Ohio 4194, ¶ 16.
Where the facts and circumstances surrounding a case rise to the level of a "complete disregard for the judicial system," "excusable neglect" is necessarily precluded. See Kay v. Marc Glassman, Inc. (1996), 76 Ohio St. 3d 18, 20, 665 N.E.2d 1102; see, also, Dooley v. Lorain, 2000 Ohio App. LEXIS 4928 (Oct. 25, 2000), Lorain App. No. 99CA007487, unreported, at 5.
Although the law favors deciding cases on their merits, a court cannot set aside a default judgment on the sole assertion of a meritorious defense. Manson v. Gurney, 62 Ohio App. 3d 290, 293 (Ohio Ct. App., Summit County 1989).
“Courts will not condone or reward a party's choice to ignore the judicial process by the grant of relief pursuant to Civ. R. 60(B). See Manson, 62 Ohio App. 3d at 294”, see Morgan Adhesives Co. v. Sonicor Instrument Corp., 107 Ohio App. 3d 327, 335-336 (Ohio Ct. App., Summit County 1995).
Issues Presented
The motion for relief presents two issues:
1. Did Mr. Klooz file his motion for relief under the time limits prescribed in Civ. R. 60 (B); and
2. Did he show “excusable neglect” or “inadvertence” as those terms are used in Civ. R. 60 (B)?
Holding
With respect to the two issues listed above, this Court finds that:
1. Mr. Klooz did file his motion for relief from judgment within the time limits set forth in Civ. R. 60 (B); and
2. Mr. Klooz did not show “excusable neglect” or inadvertence as those terms are used in Civ. R. 60 (B).
Discussion
Ms. Perkins argues that since Judge Collier signed the judgment entry granting her a default judgment against Mr. Klooz in October of 2008 and since Mr. Klooz did not file his motion for relief until December of 2009, he failed to file it within one year of the date of the entry. Her argument, however, overlooks the fact that the entry signed by Judge Collier was not a final order. Therefore, under Civ. R. 54, Judge Collier could have rescinded that order at anytime up until the date that the settlement entry was journalized.
This Court finds that if a judge issues a judgment entry that is a default judgment, but does not make that a final order, then the issuance of that order does not trigger the running of the one year period for filing a motion under Civ. R. 60. This Court further finds that in this case that when a default judgment is taken against one defendant and the entry is not a final order, but then at a subsequent time a final order is put on disposing of the claims against the remaining defendants, the time period in which the defaulting defendant may file a motion for relief starts to run upon the filing of the second and final order.
If this was the only issue raised by the Defendant’s motion for relief, this issue would be quickly resolved, but it is not. The second issue is somewhat harder to decide because of the tension between two principles. The first is that disputes should be decided on the merits, and the second is that there should be finality of judgment so that parties involved in litigation can get on with their lives.
Civ. R. 60 (B) is the way that the Ohio Rules of Civil Procedure balance these two interests. On the one hand the existence of the rule is an recognition that there are times when judgments have to be set aside. On the other hand, requiring parties to bring such motions within a certain time frame and requiring them to show that the reason why the judgment was entered was due to “excusable neglect” or inadvertence means that trial courts have discretion to grant such motions. It also means that final judgments won’t be easily set aside.
In the Ninth Appellate District, the Court of Appeals has limited the discretion of trial courts by holding that ignoring the judicial process won’t lead to the granting of relief from otherwise final judgments. If a litigant chooses to ignore the judicial process, he or she does so at his or her peril.
In this case, Mr. Klooz did ignore the judicial process. Although he apparently filed a pro se answer in the case filed in 2006, he chose to totally ignore the effect of being served with a complaint in the 2007 case. Although he was expressly told by the language contained in the summons that a default judgment could be taken against him, he decided to ignore the proceedings and hope for the best. Consequently he should be not be surprised when his gamble leads to problematic results.
This Court finds that his explanation that he expected to be notified by the court or the attorney for the Plaintiff that he needed to take further action not to be reasonable. Indeed, the first time when he received the summons he proceeded to file an answer and did not ignore the judicial process. Inexplicably the second time he gets the notice, he chooses to ignore his obligation to file an answer.
By his own logic, he should have taken action. He states in his affidavit that he was waiting for the court or counsel to tell him whether he needed to file more pleadings. He receives a notice from the court, which arguably tells him that the court expects more information from him, but he ignores it, even though he was supposedly looking for just such a communication.
Given the facts in this case, this Court cannot find that his neglect was either excusable or inadvertent. This Court cannot find that Mr. Klooz acted pursuant to a mistake or pursuant to a surprise. Further, it does find any other reason exists to grant the motion.
Order
Motion for relief from judgment pursuant to Civ. R. 60 (B) is denied.
So Ordered
Judge Kimbler's Criminal Docket for Tuesday, September 7
Judge James L. Kimbler handled the following criminal cases on Tuesday, September 7, 2010:
State of Ohio v. Marvin K. Waddle, Jr., Case No. 10-CR-0319: Defendant's motion to continue his jury trial is granted. Jury trial is set for October 25, 2010 at 9:00 am. Speedy trial time is tolled until October 25, 2010.
State of Ohio v. Keith Bearden, Case No. 10-CR-0242: Defendant's motion for bond reduction is scheduled for hearing on September 17, 2010 at 9:45 am.
State of Ohio v. Jessica Allen, Case No. 09-CR-0491: Jury trial is scheduled for October 19, 2010 at 9:00 am.
State of Ohio v. John R. Robinson, Case No. 10-CR-0113: Mr. Robinson appeared in court with his attorney and entered a change of plea to three counts of Forgery, a fifth degree felony. In exchange for Mr. Robinson entering the three guilty pleas, the State dismissed two other Forgery counts, although the State reserved the right to ask the Court for an order of restitution on all five counts. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 28, 2010 at 8:30 am. Mr. Robinson's bond was continued.
State of Ohio v. Richard L. Boreman, Case No. 10-CR-0340: Mr. Boreman appeared in court with his attorney and entered pleas of no contest to two counts of Trafficking in Drugs, both of which were fourth degree felonies. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 21, 2010. Mr. Boreman's bond was continued.
State of Ohio v. Stephen B. Simpkins, Case No. 10-CR-0196: Mr. Simpkins appeared in court with his attorney and entered a no contest plea to one count of Trafficking in Drugs, a fourth degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 21, 2010. Judge Kimbler also continued his bond pending imposition of sentence.
State of Ohio v. Marvin K. Waddle, Jr., Case No. 10-CR-0319: Defendant's motion to continue his jury trial is granted. Jury trial is set for October 25, 2010 at 9:00 am. Speedy trial time is tolled until October 25, 2010.
State of Ohio v. Keith Bearden, Case No. 10-CR-0242: Defendant's motion for bond reduction is scheduled for hearing on September 17, 2010 at 9:45 am.
State of Ohio v. Jessica Allen, Case No. 09-CR-0491: Jury trial is scheduled for October 19, 2010 at 9:00 am.
State of Ohio v. John R. Robinson, Case No. 10-CR-0113: Mr. Robinson appeared in court with his attorney and entered a change of plea to three counts of Forgery, a fifth degree felony. In exchange for Mr. Robinson entering the three guilty pleas, the State dismissed two other Forgery counts, although the State reserved the right to ask the Court for an order of restitution on all five counts. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 28, 2010 at 8:30 am. Mr. Robinson's bond was continued.
State of Ohio v. Richard L. Boreman, Case No. 10-CR-0340: Mr. Boreman appeared in court with his attorney and entered pleas of no contest to two counts of Trafficking in Drugs, both of which were fourth degree felonies. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 21, 2010. Mr. Boreman's bond was continued.
State of Ohio v. Stephen B. Simpkins, Case No. 10-CR-0196: Mr. Simpkins appeared in court with his attorney and entered a no contest plea to one count of Trafficking in Drugs, a fourth degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on October 21, 2010. Judge Kimbler also continued his bond pending imposition of sentence.
Friday, September 03, 2010
Judge Kimbler’s Criminal Docket for September 2 and 3, 2010
Judge Kimbler made the following orders in criminal cases on September 2 and 3, 2010:
State of Ohio v. Robert Shattuck, Case No. 10-CR-0257: The Defendant’s motion for intervention in lieu of conviction will be heard on September 23, 2010 at 8:30 am.
State of Ohio v. Ray A. Cottrill, Case No. 10-CR-0374: The Defendant’s motion for treatment in lieu of conviction is scheduled for hearing on September 23, 2010 at 8:30 am.
State of Ohio v. Michael T. Peck, Case No. 09-CR-0584: The Defendant’s probation violation will be heard on September 30, 2010 at 8:30 am.
State of Ohio v. Douglas Burns, Case No. 04-CR-0034: A hearing will be held on the charge that the Defendant violated his probation on September 23, 2010 at 1:45 pm.
State of Ohio v. James M. Storm, Case No. 04-CR-0606: A hearing will be held on the charge that the Defendant violated his probation on September 30, 2010 at 1:30 pm.
State of Ohio v. Randall W. Weekly, Jr., Case No. 10-CR-0024: The Court hereby continues the Defendant’s sentencing to November 5, 2010 at 8:30 am.
State of Ohio v. Randall E. Cady, Case No. 04-CR-0150: Defendant’s motion to waive fine and court costs is granted.
State of Ohio v. Lisa N. Ispan, Case No. 10-CR-0287: Defendant’s motion for intervention in lieu of conviction will be heard on October 15, 2010, following a report on her eligibility for the intervention from the Medina County Adult Probation Department.
State of Ohio v. Douglas S. Kirtley, Case No. 09-CR-0032: The Court hereby continues the probation violation hearing set for September 2, 2010 to September 16, 2010 at 8:30 am.
State of Ohio v. Jeanne N. Nadvit, Case No. 07-CR-0349: A hearing is set on the charge that the Defendant violated his probation on September 24, 2010 at 9:30 am.
State of Ohio v. Robert Shattuck, Case No. 10-CR-0257: The Defendant’s motion for intervention in lieu of conviction will be heard on September 23, 2010 at 8:30 am.
State of Ohio v. Ray A. Cottrill, Case No. 10-CR-0374: The Defendant’s motion for treatment in lieu of conviction is scheduled for hearing on September 23, 2010 at 8:30 am.
State of Ohio v. Michael T. Peck, Case No. 09-CR-0584: The Defendant’s probation violation will be heard on September 30, 2010 at 8:30 am.
State of Ohio v. Douglas Burns, Case No. 04-CR-0034: A hearing will be held on the charge that the Defendant violated his probation on September 23, 2010 at 1:45 pm.
State of Ohio v. James M. Storm, Case No. 04-CR-0606: A hearing will be held on the charge that the Defendant violated his probation on September 30, 2010 at 1:30 pm.
State of Ohio v. Randall W. Weekly, Jr., Case No. 10-CR-0024: The Court hereby continues the Defendant’s sentencing to November 5, 2010 at 8:30 am.
State of Ohio v. Randall E. Cady, Case No. 04-CR-0150: Defendant’s motion to waive fine and court costs is granted.
State of Ohio v. Lisa N. Ispan, Case No. 10-CR-0287: Defendant’s motion for intervention in lieu of conviction will be heard on October 15, 2010, following a report on her eligibility for the intervention from the Medina County Adult Probation Department.
State of Ohio v. Douglas S. Kirtley, Case No. 09-CR-0032: The Court hereby continues the probation violation hearing set for September 2, 2010 to September 16, 2010 at 8:30 am.
State of Ohio v. Jeanne N. Nadvit, Case No. 07-CR-0349: A hearing is set on the charge that the Defendant violated his probation on September 24, 2010 at 9:30 am.
Judge Kimbler's Criminal Docket for September 1, 2010
Judge Kimbler issued the following orders for criminal cases on Wednesday, September 1, 2010:
State of Ohio v. Samantha N. Simonik, Case No. 10-CR-0178: Defendant has applied for the Medina County First Offenders' Program. The Court will hold a hearing on September 16, 2010 for the Defendant to waive her right to a speedy trial.
State of Ohio v. Max A. Perino, Case No. 10-CR-0149: Defendant's motion for a continuance of his jury trial is granted. Jury trial is now scheduled for September 27, 2010 at 9:00 am. The time for trial is tolled until September 27, 2010 since the Court finds this to be a reasonable continuance.
State of Ohio v. Samantha N. Simonik, Case No. 10-CR-0178: Defendant has applied for the Medina County First Offenders' Program. The Court will hold a hearing on September 16, 2010 for the Defendant to waive her right to a speedy trial.
State of Ohio v. Max A. Perino, Case No. 10-CR-0149: Defendant's motion for a continuance of his jury trial is granted. Jury trial is now scheduled for September 27, 2010 at 9:00 am. The time for trial is tolled until September 27, 2010 since the Court finds this to be a reasonable continuance.
Thursday, September 02, 2010
Judge Kimbler Probation Violations for September 2, 2010
08CR0323 Miliano, 9/2/2010 229 days MCJ w/229 days credit; probation terminated and all costs waived.
04CR0606 Storm, James 9/2/2010 PV continued for 1 week; no bond
08CR0325 Lackey, Benjamin 9/2/2010 PV continued to 10/7/2010; OR Bond
09CR0373 Turba, Robert 9/2/2010 180 days MCJ w/42 days credit; Probation terminated; all costs waived
09CR0584 Peck, Michael 9/2/2010 PV Continued, hearing to be set at later date
04CR0034 Burns, Douglas 9/2/2010 PV Continued, hearing to be set at later date
04CR0606 Storm, James 9/2/2010 PV continued for 1 week; no bond
08CR0325 Lackey, Benjamin 9/2/2010 PV continued to 10/7/2010; OR Bond
09CR0373 Turba, Robert 9/2/2010 180 days MCJ w/42 days credit; Probation terminated; all costs waived
09CR0584 Peck, Michael 9/2/2010 PV Continued, hearing to be set at later date
04CR0034 Burns, Douglas 9/2/2010 PV Continued, hearing to be set at later date
Strongsville Man Receives Seven Month Prison Sentence
Judge James L. Kimbler sentenced Eric J. Bruner of Winchester Court in Strongsville to seven months in prison for Possessing Drugs, Heroin, a fifth degree felony. Judge Kimbler ordered that the prison sentence be served concurrently with a sentence imposed by the Cuyahoga County Court of Common Pleas. Judge Kimbler imposed the sentence immediately after taking a change of plea from Mr. Bruner.
Akron Woman Gets Jail Sentence for Obstructing a Police Cruiser
On Thursday, September 2, 2010, Judge James L. Kimbler sentenced Amanda D. Young, 32, of Marcy Street in Akron to 13 days in jail for obstructing a police cruiser that was responding to a complaint of a street disturbance. Judge Kimbler gave Ms. Young credit for the 13 days she spent in jail pending trial and waived court costs. Ms. Young was also charged with taking part in a riot in Medina Municipal Court. She was ordered to pay $536.50 in court costs for that offense.
Ms. Young is the sister of a woman who was dating a man named Frank Gauthier. Mr. Gauthier was involved in a disturbance on West Union Street in Medina. When a Medina police officer came to the scene, Ms. Young stepped in front of the cruiser in an apparent effort to prevent the officer from approaching Mr. Gauthier. The Medina officer's cruiser was only obstructed for a few moments, and eventually Mr. Gauthier was arrested for having weapons while under a disability, tampering with evidence, and carrying a concealed weapon. Mr. Gauthier was sentenced by Judge Collier for these offenses and received a one year prison sentence.
Ms. Young is the sister of a woman who was dating a man named Frank Gauthier. Mr. Gauthier was involved in a disturbance on West Union Street in Medina. When a Medina police officer came to the scene, Ms. Young stepped in front of the cruiser in an apparent effort to prevent the officer from approaching Mr. Gauthier. The Medina officer's cruiser was only obstructed for a few moments, and eventually Mr. Gauthier was arrested for having weapons while under a disability, tampering with evidence, and carrying a concealed weapon. Mr. Gauthier was sentenced by Judge Collier for these offenses and received a one year prison sentence.
Defendants Sentenced by Judge Collier on Monday, August 30, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court August 30:
Christopher Kever, 42, of Queen Avenue in Cleveland, was sentenced to one year in prison for a probation violation on an original charge of Theft, a fifth-degree felony.
Larry McHood, 53, of Phlox Avenue in Barberton, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependents, a fifth-degree felony.
James C. Palmer, 55, of Young Avenue in Medina, was sentenced to 90 days in jail for a probation violation on an original charge of Domestic Violence, a first-degree misdemeanor.
Timothy Senz, 38, of West Liberty Street in Medina, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependents, a fifth-degree felony.
Christopher Kever, 42, of Queen Avenue in Cleveland, was sentenced to one year in prison for a probation violation on an original charge of Theft, a fifth-degree felony.
Larry McHood, 53, of Phlox Avenue in Barberton, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependents, a fifth-degree felony.
James C. Palmer, 55, of Young Avenue in Medina, was sentenced to 90 days in jail for a probation violation on an original charge of Domestic Violence, a first-degree misdemeanor.
Timothy Senz, 38, of West Liberty Street in Medina, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependents, a fifth-degree felony.
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