Judge James Kimbler has adopted a new procedure for certain probation violations. Under the previous system if a probationer violated the terms of his or her supervision, regardless of the reason, the probationer was served with notice of a probation violation and brought into court for a hearing. At that hearing they either admitted to the violation and were sanctioned by Judge Kimbler or the probationer denied the violation and the matter was set for a hearing. The hearing was held at a later date. At that hearing the probationer also had the right to counsel, and if he or she couldn't afford counsel, Judge Kimbler appointed an attorney to represent the probationer.
Under the new system a probationer is given the choice of waiving his or her right to a hearing and consenting to being sanctioned by the probation office supervising the probationer. If they agree to waive the hearing, the probation officer can then sanction them by using non-residential community control sanctions. Such sanctions do not include incarceration in jail, a community based correctional facility, or prison, but can include electronic monitoring at home, ie, "home arrest."
The decision to waive a hearing is entirely up to the probationer. They are given an explanation of their rights, allowed time to consider their options, and if they agree to this procedure, they sign the waiver and Judge Kimbler signs a court order adopting the sanctions authorized by the probation officer.
Judge Kimbler believes that this new approach will lead to faster imposition of sanctions for probation violations; will give the probation officer supervising the offender, who has the most knowledge of the offernder's conduct, more involvement in the process; and will save taxpayer money by cutting down on the need for court appointed attorneys.
Not all violations will be eligible for this procedure. If a probationer, for example, commits a new offense of violence while on probation, that offender will be arrested for violating probation and taken into custody.
Judge Kimbler adopted this new procedure after reading a report from the Buckeye Institute regarding Ohio's criminal justice services that was given to him by Medina County Chief Probation Officer Veronica Perry. The report dealt with ways to deliver more effective criminal justice services at less cost to taxpayers.
Friday, April 29, 2011
Thursday, April 28, 2011
Judge Kimbler Decision Concerning Oral v Written Contract
Case History
The Plaintiffs filed a complaint setting forth six counts. One of the counts was for unjust enrichment; one of the counts was for conversion; two of the counts were for breach of contract for repairs that were done to a barn and other outbuildings; and two counts were for breach of contract for repairs that were done to the Plaintiffs house. The Defendant filed an answer denying liability.
Both parties have filed various motions. The Court's rulings on those motions have been set forth in a separate journal entry. The Defendant also filed a motion for summary judgment on the grounds that the claims were time barred. The Plaintiffs have filed a response to that motion. This journal entry sets forth the Court's ruling on the Defendant's motion for summary judgment.
Findings of Fact
The parties entered into two contracts in 2001 whereby the Defendant was to perform certain repairs on buildings located on real estate owned by the Plaintiffs. The formation of the contracts was done pursuant to a written proposal by the Defendant for repairs to a barn and outbuildings and a written proposal for repairs to the Plaintiffs' house.
Pursuant to the contracts the Defendant started working on the house in 2001 and the Plaintiffs proceeded to pay him over $49,000.00. The last check from the Plaintiffs to the Defendants was issued on September 18, 2001.
Although the work was paid for, the Plaintiffs were apparently not happy with the work. According to an affidavit filed by Jeanne Theis there was work done by the Defendant and/or workers employed by him on March 13, 2002; August 6, 2003; February 19, 2007; September 28, 2007; June 13, 2008; July 3, 2008; and July 4 and July 7, 2008.
The affidavit filed by Mrs. Theis also states that there were additional times when she spoke to the Defendant either at her home or at other locations regarding the work and when it would be completed.
The affidavit also alleges that in July of 2008 the Plaintiffs came home to find that the Defendant's employees had taken material from their home that was to be used in the repair of buildings on their property.
Conclusions of Law
Standard of Review for Motions for Summary Judgment
Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the non-moving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 696 N.E.2d 201, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d. 267.
The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St. 3d 447, 448-449, 663 N.E.2d 639, as follows:
“Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274.
Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St. 3d 510, 513, 651 N.E.2d 937, 940.
When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St. 3d 48, 52, 567 N.E.2d 1027, 1031.
Statute of Limitations for Breach of Contract
The statute of limitations for written contracts is 15 years. R.C. 2305.06.
The statute of limitations for oral contracts is six years. R.C. 2305.07.
What Constitutes a "Contract in Writing?"
"In order for an action to come within the statute of limitations governing actions under R.C. 2305.06, the written instrument must clearly define the unilateral or bilateral obligations of the parties without reference to supplemental evidence to establish the terms of the agreement, contract, or promise. Where such a written instrument exists, the appropriate statute of limitations is fifteen years, as provided in R.C. 2305.06, regardless of whether the agreement, contract, or promise states a sum certain." Claxton v. Mains, 33 Ohio App. 3d 49 (Ohio Ct. App., Franklin County 1986).
"A valid contract involves competent parties, a lawful subject matter, a sufficient consideration, and an actual agreement to do or forebear from doing some particular thing." Griffey v. Rajan, 33 Ohio St. 3d 75, 85 (Ohio 1987).
"In the case of a unilateral contract, as here, the promisor's offer is accepted by the promisee's performance rather than by a return promise to perform. Consequently, when the promisee's performance is executed, enforceable obligations arise without more. Under this analysis, then, appellants' continued employment, as the bargained-for-consideration, rendered the contract to pay severance benefits enforceable, regardless of "mutuality" or a lack thereof."
Helle v. Landmark, Inc., 15 Ohio App. 3d 1, 12 (Ohio Ct. App., Lucas County 1984)
"A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration." Perlmuter Printing Co. v. Strome, Inc. (N.D.Ohio 1976), 436 F. Supp. 409, 414. A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St. 3d 366, 369, 575 N.E.2d 134." Kostelnik v. Helper, 96 Ohio St. 3d 1, 3-4 (Ohio 2002).
If a contract is silent as to the time of performance, the law will imply the term that the performance be made within a "reasonable time." Trucks, Inc. v. Valley Ford Truck Sales, 2006 Ohio 1609 (Ohio Ct. App., Cuyahoga County Mar. 30, 2006).
In a construction contract, the term will be implied that the work will be done in a "workmanlike manner. " Terrace Creek Ass'n v. Smith, 2001 Ohio App. LEXIS 2212 (Ohio Ct. App., Montgomery County May 18, 2001)
The law will also imply the term that payment due under the terms of a contract will be paid within a "reasonable time." Hall v. United States Bank Nat'l Ass'n, 2006 Ohio 303 (Ohio Ct. App., Hamilton County Jan. 27, 2006)
"R.C. 2305.08 states, in part, that "if payment has been made upon any demand founded on a contract, an action may be brought thereon within the time limited by sections 2305.06 and 2305.07 of the Revised Code, after such payment." In Canton Oil Well Serv., Inc. v. White, 1985 Ohio App. LEXIS 7196 (Sept. 23, 1985), Stark App. No. CA-6588, unreported, at 1, 1985 WL 6502, the Fifth Appellate District held that HN13partial payment towards an indebtedness removes the case from the six year statute of limitations found in R.C. 2305.07, and extends the running of the statute as provided in R.C. 2305.08…" Slack v. Cropper, 143 Ohio App. 3d 74, 83-84 (Ohio Ct. App., Portage County 2001)
Holding
This Court finds, for reasons set forth below, that the applicable statute of limitations in this case is fifteen years.
Discussion
The proposals that were given to the Plaintiffs by the Defendant were proposals for a unilateral contract. The obligation of the Plaintiffs was to pay once the work was performed. The Plaintiffs, when they issued the first check to the Defendant, accepted his proposals. At that time the contracts between the parties came into existence. The Court finds that the contracts were "unilateral" because the Plaintiffs had no duty to pay until the Defendant had performed. Once they paid, however, they accepted the contract and it became binding on both parties.
Since the Court believes that the contracts were unilateral contracts, what has to be in writing is the offer, not both the offer and the acceptance. In a unilateral contract, the offer is accepted by performance, not by making a reciprocal promise.
It is true that the written proposal made by the Defendant is ambiguous with respect to exactly what repairs were to be made. This lack of specificity does not mean that there was no contract. It may mean, however, that the Court will have to admit parol evidence to explain some of the words used in the proposals, like, for example, "storm damage." The fact that some words are ambiguous doesn't mean that there was no contract.
Further even if this Court found that the contract was a bilateral contract, the Court would still find that the statute of limitations is 15 years. This is because of R.C. 2503.08. When the Plaintiffs wrote the first check to the Defendant, they made a "payment on a demand". Once they did that, even if there was an oral contract, they brought their cause of action under the statute of limitations set forth in R.C. 2503.06.
This Court does believe that there are remaining issues that can be resolved by motions for summary judgment. Those issues include whether or not a cause of action for "unjust enrichment" can exist if there is a contract between the parties and also include whether Ohio recognizes a cause of action for negligent performance of a contact if the only damages are economic. Those issues, however, are not now before the Court.
Each party is expressly granted leave to file motions for summary judgment up until sixty days before trial. This permission continues even after this Court sets this matter down for either a online pretrial or a pretrial in person.
SO ORDERED.
The Plaintiffs filed a complaint setting forth six counts. One of the counts was for unjust enrichment; one of the counts was for conversion; two of the counts were for breach of contract for repairs that were done to a barn and other outbuildings; and two counts were for breach of contract for repairs that were done to the Plaintiffs house. The Defendant filed an answer denying liability.
Both parties have filed various motions. The Court's rulings on those motions have been set forth in a separate journal entry. The Defendant also filed a motion for summary judgment on the grounds that the claims were time barred. The Plaintiffs have filed a response to that motion. This journal entry sets forth the Court's ruling on the Defendant's motion for summary judgment.
Findings of Fact
The parties entered into two contracts in 2001 whereby the Defendant was to perform certain repairs on buildings located on real estate owned by the Plaintiffs. The formation of the contracts was done pursuant to a written proposal by the Defendant for repairs to a barn and outbuildings and a written proposal for repairs to the Plaintiffs' house.
Pursuant to the contracts the Defendant started working on the house in 2001 and the Plaintiffs proceeded to pay him over $49,000.00. The last check from the Plaintiffs to the Defendants was issued on September 18, 2001.
Although the work was paid for, the Plaintiffs were apparently not happy with the work. According to an affidavit filed by Jeanne Theis there was work done by the Defendant and/or workers employed by him on March 13, 2002; August 6, 2003; February 19, 2007; September 28, 2007; June 13, 2008; July 3, 2008; and July 4 and July 7, 2008.
The affidavit filed by Mrs. Theis also states that there were additional times when she spoke to the Defendant either at her home or at other locations regarding the work and when it would be completed.
The affidavit also alleges that in July of 2008 the Plaintiffs came home to find that the Defendant's employees had taken material from their home that was to be used in the repair of buildings on their property.
Conclusions of Law
Standard of Review for Motions for Summary Judgment
Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the non-moving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 696 N.E.2d 201, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d. 267.
The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St. 3d 447, 448-449, 663 N.E.2d 639, as follows:
“Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274.
Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St. 3d 510, 513, 651 N.E.2d 937, 940.
When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St. 3d 48, 52, 567 N.E.2d 1027, 1031.
Statute of Limitations for Breach of Contract
The statute of limitations for written contracts is 15 years. R.C. 2305.06.
The statute of limitations for oral contracts is six years. R.C. 2305.07.
What Constitutes a "Contract in Writing?"
"In order for an action to come within the statute of limitations governing actions under R.C. 2305.06, the written instrument must clearly define the unilateral or bilateral obligations of the parties without reference to supplemental evidence to establish the terms of the agreement, contract, or promise. Where such a written instrument exists, the appropriate statute of limitations is fifteen years, as provided in R.C. 2305.06, regardless of whether the agreement, contract, or promise states a sum certain." Claxton v. Mains, 33 Ohio App. 3d 49 (Ohio Ct. App., Franklin County 1986).
"A valid contract involves competent parties, a lawful subject matter, a sufficient consideration, and an actual agreement to do or forebear from doing some particular thing." Griffey v. Rajan, 33 Ohio St. 3d 75, 85 (Ohio 1987).
"In the case of a unilateral contract, as here, the promisor's offer is accepted by the promisee's performance rather than by a return promise to perform. Consequently, when the promisee's performance is executed, enforceable obligations arise without more. Under this analysis, then, appellants' continued employment, as the bargained-for-consideration, rendered the contract to pay severance benefits enforceable, regardless of "mutuality" or a lack thereof."
Helle v. Landmark, Inc., 15 Ohio App. 3d 1, 12 (Ohio Ct. App., Lucas County 1984)
"A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration." Perlmuter Printing Co. v. Strome, Inc. (N.D.Ohio 1976), 436 F. Supp. 409, 414. A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St. 3d 366, 369, 575 N.E.2d 134." Kostelnik v. Helper, 96 Ohio St. 3d 1, 3-4 (Ohio 2002).
If a contract is silent as to the time of performance, the law will imply the term that the performance be made within a "reasonable time." Trucks, Inc. v. Valley Ford Truck Sales, 2006 Ohio 1609 (Ohio Ct. App., Cuyahoga County Mar. 30, 2006).
In a construction contract, the term will be implied that the work will be done in a "workmanlike manner. " Terrace Creek Ass'n v. Smith, 2001 Ohio App. LEXIS 2212 (Ohio Ct. App., Montgomery County May 18, 2001)
The law will also imply the term that payment due under the terms of a contract will be paid within a "reasonable time." Hall v. United States Bank Nat'l Ass'n, 2006 Ohio 303 (Ohio Ct. App., Hamilton County Jan. 27, 2006)
"R.C. 2305.08 states, in part, that "if payment has been made upon any demand founded on a contract, an action may be brought thereon within the time limited by sections 2305.06 and 2305.07 of the Revised Code, after such payment." In Canton Oil Well Serv., Inc. v. White, 1985 Ohio App. LEXIS 7196 (Sept. 23, 1985), Stark App. No. CA-6588, unreported, at 1, 1985 WL 6502, the Fifth Appellate District held that HN13partial payment towards an indebtedness removes the case from the six year statute of limitations found in R.C. 2305.07, and extends the running of the statute as provided in R.C. 2305.08…" Slack v. Cropper, 143 Ohio App. 3d 74, 83-84 (Ohio Ct. App., Portage County 2001)
Holding
This Court finds, for reasons set forth below, that the applicable statute of limitations in this case is fifteen years.
Discussion
The proposals that were given to the Plaintiffs by the Defendant were proposals for a unilateral contract. The obligation of the Plaintiffs was to pay once the work was performed. The Plaintiffs, when they issued the first check to the Defendant, accepted his proposals. At that time the contracts between the parties came into existence. The Court finds that the contracts were "unilateral" because the Plaintiffs had no duty to pay until the Defendant had performed. Once they paid, however, they accepted the contract and it became binding on both parties.
Since the Court believes that the contracts were unilateral contracts, what has to be in writing is the offer, not both the offer and the acceptance. In a unilateral contract, the offer is accepted by performance, not by making a reciprocal promise.
It is true that the written proposal made by the Defendant is ambiguous with respect to exactly what repairs were to be made. This lack of specificity does not mean that there was no contract. It may mean, however, that the Court will have to admit parol evidence to explain some of the words used in the proposals, like, for example, "storm damage." The fact that some words are ambiguous doesn't mean that there was no contract.
Further even if this Court found that the contract was a bilateral contract, the Court would still find that the statute of limitations is 15 years. This is because of R.C. 2503.08. When the Plaintiffs wrote the first check to the Defendant, they made a "payment on a demand". Once they did that, even if there was an oral contract, they brought their cause of action under the statute of limitations set forth in R.C. 2503.06.
This Court does believe that there are remaining issues that can be resolved by motions for summary judgment. Those issues include whether or not a cause of action for "unjust enrichment" can exist if there is a contract between the parties and also include whether Ohio recognizes a cause of action for negligent performance of a contact if the only damages are economic. Those issues, however, are not now before the Court.
Each party is expressly granted leave to file motions for summary judgment up until sixty days before trial. This permission continues even after this Court sets this matter down for either a online pretrial or a pretrial in person.
SO ORDERED.
Judge Collier's Criminal Docket for April 25, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 25, 2011 for criminal cases:
Douglas Cook, 23, of Watrusa Avenue in Wadsworth, was sentenced to two years in prison on one count of Burglary, a third-degree felony.
David Clouser, 30, of State Road in Medina, pleaded guilty and was sentenced to two years in prison on one count of Domestic Violence, a third-degree felony.
William Dillon, 19, of Brookland Drive in Medina, pleaded guilty and was sentenced to six years in prison on the following: one count of Aggravated Burglary and one count of Kidnapping, both of which are first-degree felonies; one count of Felonious Assault, a second-degree felony; one count of Burglary, a third-degree felony; one count of Safecracking, a fourth-degree felony; and one count of Receiving Stolen Property, a fifth-degree felony.
Crystal Gargasz, 32, of Ledgestone Drive in Wadsworth, was sentenced to 18 months in prison on two counts of Possession of Heroin, both of which are fifth-degree felonies. Her driver’s license was suspended for six months.
Michael Gomez, 22, of Johnland Avenue in Akron, pleaded guilty and was sentenced to two years in prison on one count of Burglary, a second-degree felony.
Steven Ennis, 44, of Chippewa Road in Medina, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for June 8.
Heather Mayle, 27, of North Main Street in Spencer, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for July 27.
Joseph Weicheck, 29, of Aspen Lake Drive in Brunswick, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for July 18.
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 25, 2011 for criminal cases:
Douglas Cook, 23, of Watrusa Avenue in Wadsworth, was sentenced to two years in prison on one count of Burglary, a third-degree felony.
David Clouser, 30, of State Road in Medina, pleaded guilty and was sentenced to two years in prison on one count of Domestic Violence, a third-degree felony.
William Dillon, 19, of Brookland Drive in Medina, pleaded guilty and was sentenced to six years in prison on the following: one count of Aggravated Burglary and one count of Kidnapping, both of which are first-degree felonies; one count of Felonious Assault, a second-degree felony; one count of Burglary, a third-degree felony; one count of Safecracking, a fourth-degree felony; and one count of Receiving Stolen Property, a fifth-degree felony.
Crystal Gargasz, 32, of Ledgestone Drive in Wadsworth, was sentenced to 18 months in prison on two counts of Possession of Heroin, both of which are fifth-degree felonies. Her driver’s license was suspended for six months.
Michael Gomez, 22, of Johnland Avenue in Akron, pleaded guilty and was sentenced to two years in prison on one count of Burglary, a second-degree felony.
Steven Ennis, 44, of Chippewa Road in Medina, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for June 8.
Heather Mayle, 27, of North Main Street in Spencer, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for July 27.
Joseph Weicheck, 29, of Aspen Lake Drive in Brunswick, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for July 18.
Judge Kimbler's Criminal Docket for April 21, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on April 21, 2011 for criminal cases:
Kenneth Bellomy, 39, of North Avon Avenue in Wadsworth, was sentenced to one year in prison on two counts of Menacing by Stalking, both of which are fourth-degree felonies; two counts of Breaking and Entering, both of which are fifth-degree felonies; and two counts of Violation of a Protection Order, both of which are first-degree misdemeanors.
Anthony Danilo, 27, of Ravine Boulevard in Parma, was sentenced to 10 months in prison on one count of Possession of Heroin, a fifth-degree felony.
Aaron Deems, 31, of South Main Street in West Salem, was sentenced to six months in jail on one count of Possession of Cocaine and one count of Possession of Heroin, both of which are fifth-degree felonies.
Alexandra Varney, 20, of Watrusa Avenue in Wadsworth, was sentenced to six months in jail on one count of Possession of Heroin, a fifth-degree felony. Her driver’s license was suspended for six months.
Michael Witten, 32, of Akron, was sentenced to one year in prison, on one count of Burglary, a third-degree felony and one count of Unauthorized Use of a Vehicle, a fifth-degree felony.
Dennis Heavilin, 62, of River Styx Road in Wadsworth, pleaded not guilty to two counts of Intimidation, both of which are third-degree felonies. The charges both carry firearm specifications. A jury trial is scheduled for June 6.
Chad Stone, 35, of Ellet Avenue in Akron, pleaded not guilty to one count of Theft and one count of Passing Bad Checks, both of which are fifth-degree felonies. A jury trial is scheduled for June 21.
Matthew Tatro, 20, of Front Street in Berea, pleaded guilty to two counts of Unlawful Sexual Conduct with a Minor, all of which are fourth-degree felonies. Sentencing is scheduled for May 26.
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on April 21, 2011 for criminal cases:
Kenneth Bellomy, 39, of North Avon Avenue in Wadsworth, was sentenced to one year in prison on two counts of Menacing by Stalking, both of which are fourth-degree felonies; two counts of Breaking and Entering, both of which are fifth-degree felonies; and two counts of Violation of a Protection Order, both of which are first-degree misdemeanors.
Anthony Danilo, 27, of Ravine Boulevard in Parma, was sentenced to 10 months in prison on one count of Possession of Heroin, a fifth-degree felony.
Aaron Deems, 31, of South Main Street in West Salem, was sentenced to six months in jail on one count of Possession of Cocaine and one count of Possession of Heroin, both of which are fifth-degree felonies.
Alexandra Varney, 20, of Watrusa Avenue in Wadsworth, was sentenced to six months in jail on one count of Possession of Heroin, a fifth-degree felony. Her driver’s license was suspended for six months.
Michael Witten, 32, of Akron, was sentenced to one year in prison, on one count of Burglary, a third-degree felony and one count of Unauthorized Use of a Vehicle, a fifth-degree felony.
Dennis Heavilin, 62, of River Styx Road in Wadsworth, pleaded not guilty to two counts of Intimidation, both of which are third-degree felonies. The charges both carry firearm specifications. A jury trial is scheduled for June 6.
Chad Stone, 35, of Ellet Avenue in Akron, pleaded not guilty to one count of Theft and one count of Passing Bad Checks, both of which are fifth-degree felonies. A jury trial is scheduled for June 21.
Matthew Tatro, 20, of Front Street in Berea, pleaded guilty to two counts of Unlawful Sexual Conduct with a Minor, all of which are fourth-degree felonies. Sentencing is scheduled for May 26.
Four-Year Time Limit to File Suit Claiming Negligent Property Appraisal Runs from Date of Appraisal
Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co., Slip Opinion No. 2011-Ohio-1961.
Hamilton App. No. C-090166. Certified question answered, and judgment of the court of appeals affirmed.
O'Connor, C.J., and Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1961.pdf
(April 27, 2011) The Supreme Court of Ohio held today that the four-year statute of limitations (time limit) for filing a professional negligence lawsuit against a property appraiser under R.C. 2305.09(D) commences to run on the date that the negligent act is committed, not on the date the plaintiff suffers an actual loss arising from the appraiser’s alleged negligence.
Applying that holding to a Hamilton County case, the Court affirmed lower court decisions that dismissed as untimely a lawsuit filed by a mortgage lender in 2008 against a property appraiser based on appraisals that were performed in 2001 and 2002.
The Court’s 7-0 decision was authored by Justice Judith Ann Lanzinger.
In 2001 and 2002, real estate appraiser John Reinhold performed appraisals on three properties that served as collateral for separate mortgage loans made by Airline Union’s Mortgage Company (AUM). The last of these appraisals was completed on June 12, 2002. In various transactions in 2001 and 2002, Flagstar Bank, FSB (Flagstar) purchased the mortgage loans from AUM after having received and reviewed Reinhold’s appraisals of the three properties. Flagstar subsequently re-sold on the secondary market two of the mortgage loans on properties that Reinhold had appraised, and retained the third loan in Flagstar’s own asset portfolio. The two mortgages that had been resold were later subjected to foreclosure after the owners defaulted, leaving deficiency balances on both loans. Under the terms of their purchase agreements, the secondary creditors sought reimbursement from Flagstar, which paid the deficiencies on the two loans. The property securing the mortgage Flagstar had retained in its own portfolio burned down. The owner defaulted on the loan, and the insurance proceeds from the fire left a deficiency balance on the third loan.
On April 28, 2008, Flagstar filed suit against AUM and Reinhold, alleging that the property appraisals on the three defaulted properties were materially inaccurate and that the actual fair market value of each property was significantly less than the appraised value set by Reinhold, on which Flagstar had relied in purchasing those properties from AUM. Reinhold denied any negligence and filed a motion for summary judgment. He argued that the bank’s claims were barred by the statute of limitations for professional negligence set forth in R.C. 2305.09, because Flagstar’s complaint was filed more than four years after the appraisals were performed.
Flagstar responded that the statute of limitations did not begin to run until after the bank sustained a compensable injury. The bank contended that it did not suffer any actual loss, and therefore did not have a cause of action to sue for damages, until the properties were sold at foreclosure and there was a deficiency balance or until the receipt of the insurance proceeds that were insufficient to cover the balance of the loan. Because their complaint against Reinhold and AUM had been filed within four years of those events, Flagstar maintained that the complaint was timely.
The trial court granted summary judgment to Reinhold. Flagstar appealed. On review, the First District Court of Appeals affirmed the trial court’s grant of summary judgment based on the running of the statute of limitations, but certified that its ruling on that issue was in conflict with decisions by two other court of appeals districts. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
In today’s decision affirming the judgment of the 1st District, Justice Lanzinger pointed to a 1989 Supreme Court of Ohio decision, Investors REIT One v. Jacobs, in which “[w]e determined that claims for accountant negligence were governed by R.C. 2305.09(D), the statute generally granting four years to file an action for tort claims not specifically covered in other sections of the Ohio Revised Code. ... We also noted that R.C. 2305.09 expressly includes its own limited discovery rule: ‘If the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discovered. ...’ Because the General Assembly had not included general negligence claims within this limited discovery exception, we held that ‘[t]he discovery rule is not available to claims of professional negligence brought against accountants.’ We later reaffirmed this holding in Grant Thornton v. Windsor House (1991).”
Justice Lanzinger noted that in a 1995 decision, Hater v. Gradison Div. of McDonald & Co. Securities, Inc., the 1st District extended the reasoning of Investors REIT One to negligence claims brought against other financial professionals including brokers, dealers and appraisers. In this case, she wrote, “Because Flagstar’s complaint alleged negligence of an appraiser, a type of professional negligence similar to these cases, the court of appeals relied on Investors REIT One and Hater and held that the complaint was untimely, not having been filed within four years of any of the appraisals performed by Reinhold.”
“ ... We continue to adhere to the rule of law established in Investors REIT One. A cause of action for professional negligence accrues when the act is committed. Just as accountants do, appraisers perform services that for four years may subject them to negligence suits for the consequences of their professional acts. In this case, accepting any suggestion that the statute of limitations be reset for each purchase of a mortgage loan because the purchaser’s damages may be delayed until some point in the future could lead to an unending statute of limitations. Given the volatile nature of the housing market in recent years, we believe that that position is inconsistent with the purposes of statutes of limitations: ‘(1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences engendered by delay − specifically, the difficulties of proof present in older cases.’”
“ ... Any alleged negligence by Reinhold in his property appraisals would have caused the loans to be less secure immediately. As acknowledged during oral argument, but for the appraisal, the loan would not have been made on the same terms that it was. Any cause of action for negligence accrued on the date of the appraisal, and the four-year statute of limitations began to run then. Because Flagstar’s complaint was not filed within four years of the completed appraisals, its claims were barred by the statute of limitations in R.C. 2305.09.”
Contacts
Scott A. King, 937.443.6560, for Flagstar Bank.
Robert J. Gehring, 513.784.1525, for John Reinhold.
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Hamilton App. No. C-090166. Certified question answered, and judgment of the court of appeals affirmed.
O'Connor, C.J., and Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1961.pdf
(April 27, 2011) The Supreme Court of Ohio held today that the four-year statute of limitations (time limit) for filing a professional negligence lawsuit against a property appraiser under R.C. 2305.09(D) commences to run on the date that the negligent act is committed, not on the date the plaintiff suffers an actual loss arising from the appraiser’s alleged negligence.
Applying that holding to a Hamilton County case, the Court affirmed lower court decisions that dismissed as untimely a lawsuit filed by a mortgage lender in 2008 against a property appraiser based on appraisals that were performed in 2001 and 2002.
The Court’s 7-0 decision was authored by Justice Judith Ann Lanzinger.
In 2001 and 2002, real estate appraiser John Reinhold performed appraisals on three properties that served as collateral for separate mortgage loans made by Airline Union’s Mortgage Company (AUM). The last of these appraisals was completed on June 12, 2002. In various transactions in 2001 and 2002, Flagstar Bank, FSB (Flagstar) purchased the mortgage loans from AUM after having received and reviewed Reinhold’s appraisals of the three properties. Flagstar subsequently re-sold on the secondary market two of the mortgage loans on properties that Reinhold had appraised, and retained the third loan in Flagstar’s own asset portfolio. The two mortgages that had been resold were later subjected to foreclosure after the owners defaulted, leaving deficiency balances on both loans. Under the terms of their purchase agreements, the secondary creditors sought reimbursement from Flagstar, which paid the deficiencies on the two loans. The property securing the mortgage Flagstar had retained in its own portfolio burned down. The owner defaulted on the loan, and the insurance proceeds from the fire left a deficiency balance on the third loan.
On April 28, 2008, Flagstar filed suit against AUM and Reinhold, alleging that the property appraisals on the three defaulted properties were materially inaccurate and that the actual fair market value of each property was significantly less than the appraised value set by Reinhold, on which Flagstar had relied in purchasing those properties from AUM. Reinhold denied any negligence and filed a motion for summary judgment. He argued that the bank’s claims were barred by the statute of limitations for professional negligence set forth in R.C. 2305.09, because Flagstar’s complaint was filed more than four years after the appraisals were performed.
Flagstar responded that the statute of limitations did not begin to run until after the bank sustained a compensable injury. The bank contended that it did not suffer any actual loss, and therefore did not have a cause of action to sue for damages, until the properties were sold at foreclosure and there was a deficiency balance or until the receipt of the insurance proceeds that were insufficient to cover the balance of the loan. Because their complaint against Reinhold and AUM had been filed within four years of those events, Flagstar maintained that the complaint was timely.
The trial court granted summary judgment to Reinhold. Flagstar appealed. On review, the First District Court of Appeals affirmed the trial court’s grant of summary judgment based on the running of the statute of limitations, but certified that its ruling on that issue was in conflict with decisions by two other court of appeals districts. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
In today’s decision affirming the judgment of the 1st District, Justice Lanzinger pointed to a 1989 Supreme Court of Ohio decision, Investors REIT One v. Jacobs, in which “[w]e determined that claims for accountant negligence were governed by R.C. 2305.09(D), the statute generally granting four years to file an action for tort claims not specifically covered in other sections of the Ohio Revised Code. ... We also noted that R.C. 2305.09 expressly includes its own limited discovery rule: ‘If the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discovered. ...’ Because the General Assembly had not included general negligence claims within this limited discovery exception, we held that ‘[t]he discovery rule is not available to claims of professional negligence brought against accountants.’ We later reaffirmed this holding in Grant Thornton v. Windsor House (1991).”
Justice Lanzinger noted that in a 1995 decision, Hater v. Gradison Div. of McDonald & Co. Securities, Inc., the 1st District extended the reasoning of Investors REIT One to negligence claims brought against other financial professionals including brokers, dealers and appraisers. In this case, she wrote, “Because Flagstar’s complaint alleged negligence of an appraiser, a type of professional negligence similar to these cases, the court of appeals relied on Investors REIT One and Hater and held that the complaint was untimely, not having been filed within four years of any of the appraisals performed by Reinhold.”
“ ... We continue to adhere to the rule of law established in Investors REIT One. A cause of action for professional negligence accrues when the act is committed. Just as accountants do, appraisers perform services that for four years may subject them to negligence suits for the consequences of their professional acts. In this case, accepting any suggestion that the statute of limitations be reset for each purchase of a mortgage loan because the purchaser’s damages may be delayed until some point in the future could lead to an unending statute of limitations. Given the volatile nature of the housing market in recent years, we believe that that position is inconsistent with the purposes of statutes of limitations: ‘(1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences engendered by delay − specifically, the difficulties of proof present in older cases.’”
“ ... Any alleged negligence by Reinhold in his property appraisals would have caused the loans to be less secure immediately. As acknowledged during oral argument, but for the appraisal, the loan would not have been made on the same terms that it was. Any cause of action for negligence accrued on the date of the appraisal, and the four-year statute of limitations began to run then. Because Flagstar’s complaint was not filed within four years of the completed appraisals, its claims were barred by the statute of limitations in R.C. 2305.09.”
Contacts
Scott A. King, 937.443.6560, for Flagstar Bank.
Robert J. Gehring, 513.784.1525, for John Reinhold.
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Monday, April 25, 2011
Contractor Liability for Negligent Construction
I recently entered a summary judgment in favor of a contractor who had followed the directions of the Medina County Agricultural Society in constructing a obstacle course for an event at the Medina County Fair. The issue in the motion for summary judgment was whether this Court had to follow a decision by the Court of Appeals for the Ninth Appellate District that was entered in January of 2002 or whether, since the decision was issued before May of 2002, it is persuasive authority but not binding authority.
The decision involved is Staley v. Bogner Construction Company, 2002 Ohio 317, (Wayne Cty. Ct. of Appeals). That decision held that when a contractor or a subcontractor follows the plans of the owner in doing work on the owner's premises there is no duty owed to any person who uses the premises. The duty, if any exists, is owed by the owner of the premises, not the contractor.
Since the plaintiff could not cite to any decisions from the Court of Appeals for the Ninth District that were contrary to this holding, I found that the opinion of the Wayne County Court of Appeals was persuasive. Therefore, I followed the reasoning of the appellate court and granted summary judgment.
You can read the opinion by clicking here. Please remember that this decision is subject to an appeal.
The decision involved is Staley v. Bogner Construction Company, 2002 Ohio 317, (Wayne Cty. Ct. of Appeals). That decision held that when a contractor or a subcontractor follows the plans of the owner in doing work on the owner's premises there is no duty owed to any person who uses the premises. The duty, if any exists, is owed by the owner of the premises, not the contractor.
Since the plaintiff could not cite to any decisions from the Court of Appeals for the Ninth District that were contrary to this holding, I found that the opinion of the Wayne County Court of Appeals was persuasive. Therefore, I followed the reasoning of the appellate court and granted summary judgment.
You can read the opinion by clicking here. Please remember that this decision is subject to an appeal.
Use of Public Records in Motions for Summary Judgment
I recently had a case where a plaintiff filed a motion for summary judgment against both a defendant on two counterclaims and a third party plaintiff on two claim. The claims were for negligent entrustment of a motor vehicle and negligent supervision of a minor. The counterclaims and the third party claims arose out of the following facts:
A minor is riding with her father in her mom's vehicle. The father is driving and the daughter is a passenger, and also a minor. The parents are divorced with the daughter living in the same house as her mother. On the day of the accident, the mother alleges that her vehicle was struck from behind by the defendant's vehicle and that her daughter was injured in the accident.
The mother brings a lawsuit against the defendant as next friend and guardian of the daughter. The defendant files an answer and a counterclaim as well as a third party complaint. The defendant's wife joins in the third party complaint.
The defendant alleges that he was not negligent and that the accident was actually caused by the father of the child. He also claims that the mother negligently entrusted her vehicle to her husband who was an incompetent driver. He claims that the negligence of the father caused the accident and that therefore he is not only not liable for the accident, but that both the mother and father of the child are liable to him. The father because he negligently caused the accident and the mother because she negligently entrusted the vehicle to her ex-husband.
The defendant's wife joined in the third party complaint claiming loss of services. She also alleged negligence against the father and negligent entrustment against the mother of the child.
Both the defendant and his wife also sued the mother for negligent supervision. Their argument was that the mother negligently supervised her daughter by allowing the daughter to ride with her ex-husband.
When the defendant and his wife filed responses to the mother's motion for summary judgment on the claims of negligent entrustment and negligent supervision, they attached purported copies of various court documents from Cuyahoga County courts. While there was an affidavit attached from the attorney representing the defendant and his wife, the documents were not certified. The issue then became whether I could consider such documents.
With regard to the motion for summary judgment on the issue of negligent supervision, the issue became whether a cause of action for negligent supervision can exist in a situation where a child is not the tortfeasor who caused the injury.
You can see my answer to the questions posed above and my analysis by clicking here. Please keep in mind that this decision is subject to appeal.
A minor is riding with her father in her mom's vehicle. The father is driving and the daughter is a passenger, and also a minor. The parents are divorced with the daughter living in the same house as her mother. On the day of the accident, the mother alleges that her vehicle was struck from behind by the defendant's vehicle and that her daughter was injured in the accident.
The mother brings a lawsuit against the defendant as next friend and guardian of the daughter. The defendant files an answer and a counterclaim as well as a third party complaint. The defendant's wife joins in the third party complaint.
The defendant alleges that he was not negligent and that the accident was actually caused by the father of the child. He also claims that the mother negligently entrusted her vehicle to her husband who was an incompetent driver. He claims that the negligence of the father caused the accident and that therefore he is not only not liable for the accident, but that both the mother and father of the child are liable to him. The father because he negligently caused the accident and the mother because she negligently entrusted the vehicle to her ex-husband.
The defendant's wife joined in the third party complaint claiming loss of services. She also alleged negligence against the father and negligent entrustment against the mother of the child.
Both the defendant and his wife also sued the mother for negligent supervision. Their argument was that the mother negligently supervised her daughter by allowing the daughter to ride with her ex-husband.
When the defendant and his wife filed responses to the mother's motion for summary judgment on the claims of negligent entrustment and negligent supervision, they attached purported copies of various court documents from Cuyahoga County courts. While there was an affidavit attached from the attorney representing the defendant and his wife, the documents were not certified. The issue then became whether I could consider such documents.
With regard to the motion for summary judgment on the issue of negligent supervision, the issue became whether a cause of action for negligent supervision can exist in a situation where a child is not the tortfeasor who caused the injury.
You can see my answer to the questions posed above and my analysis by clicking here. Please keep in mind that this decision is subject to appeal.
Sunday, April 24, 2011
Judge Kimbler Decision Regarding Venue in a Declaratory Judgment Action
On March 11, 2011, I ordered the transfer of a case captioned Westfield Insurance Company v. Roger Mercurio, et al., Case No. 10CIV1878. The action was a declaratory judgment action filed by Westfield Insurance to determine whether there was coverage under a homeowners' policy issued to Mr. and Mrs. Mercurio for a dog bite. Their dog, LeBron, bit a neighbor's child. Westfield claimed that there wasn't coverage under the homeowners' policy since the dog was a "vicious" animal as that term is used in the policy.
The dog bite took place in Richland County. The policy was purchased in Richland County from an insurance agent located in Richland County. The Mercurios filed a motion to transfer venue under Civ. R. 12 and Civ. R. 3. They claimed that venue was proper in Richland County, but not in Medina County.
Westfield argued that the decision to deny coverage was made at the company's headquarters in Medina County. Therefore, the activity that gave rise to the claim for relief took place in Medina County.
Although I found this argument interesting, I concluded that venue was not proper in Medina County. My reasoning was that the event that led to the denial of coverage, the dog bite by a "vicious" dog, took place in Richland County. Therefore the activity that gave rise to the claim for relief occurred in Richland County, not Medina County. Put another way, absent the dog bite in Richland County there would be no dispute between the parties and therefore no need to file a declaratory judgment action.
You can read by full opinion in pdf format on the Medina County Clerk of Courts' website by clicking here. Please note that this opinion is subject to appeal.
The dog bite took place in Richland County. The policy was purchased in Richland County from an insurance agent located in Richland County. The Mercurios filed a motion to transfer venue under Civ. R. 12 and Civ. R. 3. They claimed that venue was proper in Richland County, but not in Medina County.
Westfield argued that the decision to deny coverage was made at the company's headquarters in Medina County. Therefore, the activity that gave rise to the claim for relief took place in Medina County.
Although I found this argument interesting, I concluded that venue was not proper in Medina County. My reasoning was that the event that led to the denial of coverage, the dog bite by a "vicious" dog, took place in Richland County. Therefore the activity that gave rise to the claim for relief occurred in Richland County, not Medina County. Put another way, absent the dog bite in Richland County there would be no dispute between the parties and therefore no need to file a declaratory judgment action.
You can read by full opinion in pdf format on the Medina County Clerk of Courts' website by clicking here. Please note that this opinion is subject to appeal.
Ohio Supreme Court Decision Interprets Homeowner Insurance Policy
(April 20, 2011) The Supreme Court of Ohio ruled today that when an exclusion in a homeowners’ insurance policy bars coverage for claims “arising out of” premises that are owned by an insured person but are not identified in the policy as an insured location, the exclusion precludes coverage for premises-based liability claims such as claims that arise from the quality or condition of a non-listed premises, and also bars coverage for claims predicated upon an insured’s ownership of an unlisted premises on which an injury occurs.
The Court held further, however, that such an exclusion does not bar coverage arising from the insured’s alleged negligence if that negligence is unrelated to the quality or condition of the “other owned property” on which an injury occurred.
In a lead opinion authored by Chief Justice Maureen O’Connor, the Court held that the trial court decision under appeal did not sufficiently establish whether the claims asserted by the plaintiffs were related to the quality or condition of the premises where injury occurred, or were based on another theory of negligence. Accordingly, the Court remanded the case to the trial court to apply today’s holding to the facts and legal arguments advanced by the parties.
Michael and Marilyn Hunter owned a home in Hamilton, Ohio and also owned a farm in Indiana. The home was insured under a homeowner’s policy issued by Westfield Insurance Co. that also provided personal liability coverage for damages the Hunters might cause through negligent conduct at locations other than their Hamilton residence. The Indiana farm was not listed in the Westfield policy as a covered premises. The Hunters procured insurance for the farm through a separate policy issued by Grinnell Insurance Co.
In July 2001, the Hunters allowed two of their grandchildren who were both minors, Terrell Whicker and Ashley Arvin, to operate all-terrain vehicles (ATVs) on the Indiana farm. The vehicles collided and Terrell was injured as a result of the accident. Terrell and his parents filed suit against Ashley’s parents and the Hunters seeking damages for his injuries. The Whickers’ complaint against the Hunters alleged that they had been negligent in allowing the children to ride ATVs on their property the day of the accident without close adult supervision. The Hunters filed claims under both the Westfield and Grinnell policies seeking legal defense and indemnification for damages that might be awarded against them in the lawsuit.
Westfield filed suit in the Butler County Court of Common Pleas seeking a declaratory judgment that it owed no defense or coverage for Terrell’s injuries to the Hunters under the homeowner’s policy issued on their home in Hamilton based on an exclusion of coverage in that policy for claims “arising out of” other property owned by the Hunters but not listed in the Westfield policy as insured premises. The trial court entered summary judgment dismissing Westfield as a defendant in the case, finding that because Terrell’s injuries were incurred on the Hunter’s farm property, and that property was not identified as an insured premises in the Westfield policy, the Whickers’ claims were barred by the “other owned property” exclusion in the Westfield policy. The Whickers and Grinnell, who had opposed Westfield’s declaratory judgment action and sought to compel Westfield to help cover defense costs and damages in the case, appealed the trial court’s summary judgment order.
On review, the 12th District Court of Appeals affirmed that the Hunters were not entitled to defense or indemnification under their Westfield policy based on its exclusion of damages “arising out of other owned property.” The Whickers and Grinnell sought and were granted Supreme Court review of the 12th District’s ruling.
In today’s lead opinion, which reversed the 12th District and remanded the case to the trial court for further proceedings, Chief Justice O’Connor noted that Ohio courts of appeals considering the type of insurance policy exclusion at issue in this case have come to different conclusions.
She wrote: “The Eighth District Court of Appeals interprets the exclusion broadly. It holds that “‘[a]rising out of’ means generally ‘flowing from’ or ‘having its origin in’” and that in order for coverage to be excluded, there need only be some causal link to the property rather than a showing that the premises were the proximate cause of the injury. Nationwide Mut. Fire Ins. Co. v. Turner (1986). ... The court of appeals in this case followed the rationale of Turner. A narrower view of the exclusion was adopted by the Second District Court of Appeals in a more recent case, Am. States Ins. Co. v. Guillermin (1996), ... Guillermin holds that an injury arises out of the premises, and coverage is therefore excluded, only if there is a dangerous condition on the premises that causes or contributes to the bodily injury for which coverage is sought.
“ ... The better-reasoned interpretation of the exclusion is that adopted by the court in Guillermin and, before it, by the Kentucky Supreme Court in Eyler v. Nationwide Mut. Ins. Co. ... In Eyler, the court faced an exclusion similar, but not identical, to the one at issue here. It recognized that the phrase ‘arising out of’ is one that ‘suggests the necessity for a causal connection between the premises and the injury. Ordinarily, “arising out of” does not mean merely occurring on or slightly connected with but connotes the need for a direct consequence or responsible condition. As we view it, to satisfy the “arising out of” exclusion in the policy, it would be necessary to show that the premises, apart from the insured’s conduct thereon, was causally related to the occurrence.’ ... We agree, as do other courts that have considered the issue.”
“ ... We therefore hold that an exclusion in a homeowner’s insurance policy for claims ‘arising out of’ premises owned by the insured other than the insured location excludes coverage for premises-based liability claims, such as those that arise from the quality or condition of the premises. Moreover, although the exclusion does not bar coverage of claims that arise from the insured’s alleged negligence if that negligence is unrelated to the quality or condition of the premises, it does exclude coverage for claims based upon the insured’s ownership of the property upon which the injury occurred.”
“The Whickers’ claims in this case appear to be grounded on the theory that the Hunters failed to exercise control over Ashley’s use of an ATV on the property. The complaint is devoid of any mention of the quality or condition of the land upon which the accident took place. ... The simple fact that Ashley’s misconduct took place on land is a matter of the law of gravity, not the law of insurance. ... On remand, the trial court should determine whether the Whickers’ theory of liability is that the Hunters breached a personal duty that the Hunters assumed for the care and control of Terrell and Ashley, in which case the exclusion would not apply, or whether the Whickers’ claims are based only on the fact that the Hunters owned the property where the injuries occurred, in which case the exclusion does apply.”
Chief Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer and Yvette McGee Brown. Justice Robert R. Cupp entered an opinion concurring in the Court’s judgment and syllabus holding, but setting forth a different legal analysis. Justices Terrence O’Donnell and Judith Ann Lanzinger entered separate dissenting opinions. Justice Evelyn Lundberg Stratton joined both dissents.
Justice Cupp wrote that in his view the lower courts in this case erred by relying on the 8th District’s decision in Turner, because that decision interpreted insurance policy language describing claims that were covered by the insurer, while the “arising out of” language in the Hunters’ policy set forth an exclusion of coverage. Because the “arising out of” policy language at issue in Turner must be read broadly because it is a coverage provision, whereas similar language at issue in this case must be read narrowly because it is an exclusion from coverage, Justice Cupp observed, Turner is inapposite to this case and should not have been relied upon as precedent.
Justice Cupp also wrote that, like all homeowner policies, the Hunters’ Westfield policy provided not one but two separate types of insurance: premises-liability insurance that covers injuries or property damage arising from hazards or conditions on defined parcels of property identified in the policy as insured locations; and separate personal liability insurance that covers the policyholder’s potential exposure to damages for negligent acts or omissions and is not geographically limited to the insured’s home or other identified properties but extends to any location where he or she might cause harm to others. Because it was not clear from the trial court record which type of insurance was being invoked by the Whickers’ claims, Justice Cupp wrote, he agreed that it was necessary to remand the case for further proceedings.
In his dissent, Justice O’Donnell stated that in his view, the 12th District properly interpreted the disputed “arising out of” policy language. He agreed that: “‘As the policy reads, the exclusion applies to bodily injury “arising out of a premises,” not arising out of a condition on a premises.’” (Emphasis sic.) He emphasized that “these words are not part of the policy and not part of the contract.” Thus, Justice O’Donnell concluded that for purposes of the exclusion, an injury need only be causally connected to the premises.
Justice Lanzinger wrote: “I would answer the certified question by holding that when construing an insurance policy exclusion, an injury arises out of premises if the injury originates in or has a causal connection with the premises. Here, the injury giving rise to the suit occurred at the Indiana farm, premises that the Hunters owned but did not insure with Westfield. The only basis for suit against them is their ownership and control of the farm. Any personal liability therefore arises out of the premises that are owned by the insureds and are not an insured location and are accordingly excluded from coverage under its policy. I would affirm the Twelfth District Court of Appeals and hold that Grinnell alone is obligated to defend and indemnify in this case.”
Contacts
James J. Englert, 513.381.9200, for Grinnell Mutual Reinsurance Co.
James H. Ledman, 614.221.2121, for Westfield Insurance Co.
The Court held further, however, that such an exclusion does not bar coverage arising from the insured’s alleged negligence if that negligence is unrelated to the quality or condition of the “other owned property” on which an injury occurred.
In a lead opinion authored by Chief Justice Maureen O’Connor, the Court held that the trial court decision under appeal did not sufficiently establish whether the claims asserted by the plaintiffs were related to the quality or condition of the premises where injury occurred, or were based on another theory of negligence. Accordingly, the Court remanded the case to the trial court to apply today’s holding to the facts and legal arguments advanced by the parties.
Michael and Marilyn Hunter owned a home in Hamilton, Ohio and also owned a farm in Indiana. The home was insured under a homeowner’s policy issued by Westfield Insurance Co. that also provided personal liability coverage for damages the Hunters might cause through negligent conduct at locations other than their Hamilton residence. The Indiana farm was not listed in the Westfield policy as a covered premises. The Hunters procured insurance for the farm through a separate policy issued by Grinnell Insurance Co.
In July 2001, the Hunters allowed two of their grandchildren who were both minors, Terrell Whicker and Ashley Arvin, to operate all-terrain vehicles (ATVs) on the Indiana farm. The vehicles collided and Terrell was injured as a result of the accident. Terrell and his parents filed suit against Ashley’s parents and the Hunters seeking damages for his injuries. The Whickers’ complaint against the Hunters alleged that they had been negligent in allowing the children to ride ATVs on their property the day of the accident without close adult supervision. The Hunters filed claims under both the Westfield and Grinnell policies seeking legal defense and indemnification for damages that might be awarded against them in the lawsuit.
Westfield filed suit in the Butler County Court of Common Pleas seeking a declaratory judgment that it owed no defense or coverage for Terrell’s injuries to the Hunters under the homeowner’s policy issued on their home in Hamilton based on an exclusion of coverage in that policy for claims “arising out of” other property owned by the Hunters but not listed in the Westfield policy as insured premises. The trial court entered summary judgment dismissing Westfield as a defendant in the case, finding that because Terrell’s injuries were incurred on the Hunter’s farm property, and that property was not identified as an insured premises in the Westfield policy, the Whickers’ claims were barred by the “other owned property” exclusion in the Westfield policy. The Whickers and Grinnell, who had opposed Westfield’s declaratory judgment action and sought to compel Westfield to help cover defense costs and damages in the case, appealed the trial court’s summary judgment order.
On review, the 12th District Court of Appeals affirmed that the Hunters were not entitled to defense or indemnification under their Westfield policy based on its exclusion of damages “arising out of other owned property.” The Whickers and Grinnell sought and were granted Supreme Court review of the 12th District’s ruling.
In today’s lead opinion, which reversed the 12th District and remanded the case to the trial court for further proceedings, Chief Justice O’Connor noted that Ohio courts of appeals considering the type of insurance policy exclusion at issue in this case have come to different conclusions.
She wrote: “The Eighth District Court of Appeals interprets the exclusion broadly. It holds that “‘[a]rising out of’ means generally ‘flowing from’ or ‘having its origin in’” and that in order for coverage to be excluded, there need only be some causal link to the property rather than a showing that the premises were the proximate cause of the injury. Nationwide Mut. Fire Ins. Co. v. Turner (1986). ... The court of appeals in this case followed the rationale of Turner. A narrower view of the exclusion was adopted by the Second District Court of Appeals in a more recent case, Am. States Ins. Co. v. Guillermin (1996), ... Guillermin holds that an injury arises out of the premises, and coverage is therefore excluded, only if there is a dangerous condition on the premises that causes or contributes to the bodily injury for which coverage is sought.
“ ... The better-reasoned interpretation of the exclusion is that adopted by the court in Guillermin and, before it, by the Kentucky Supreme Court in Eyler v. Nationwide Mut. Ins. Co. ... In Eyler, the court faced an exclusion similar, but not identical, to the one at issue here. It recognized that the phrase ‘arising out of’ is one that ‘suggests the necessity for a causal connection between the premises and the injury. Ordinarily, “arising out of” does not mean merely occurring on or slightly connected with but connotes the need for a direct consequence or responsible condition. As we view it, to satisfy the “arising out of” exclusion in the policy, it would be necessary to show that the premises, apart from the insured’s conduct thereon, was causally related to the occurrence.’ ... We agree, as do other courts that have considered the issue.”
“ ... We therefore hold that an exclusion in a homeowner’s insurance policy for claims ‘arising out of’ premises owned by the insured other than the insured location excludes coverage for premises-based liability claims, such as those that arise from the quality or condition of the premises. Moreover, although the exclusion does not bar coverage of claims that arise from the insured’s alleged negligence if that negligence is unrelated to the quality or condition of the premises, it does exclude coverage for claims based upon the insured’s ownership of the property upon which the injury occurred.”
“The Whickers’ claims in this case appear to be grounded on the theory that the Hunters failed to exercise control over Ashley’s use of an ATV on the property. The complaint is devoid of any mention of the quality or condition of the land upon which the accident took place. ... The simple fact that Ashley’s misconduct took place on land is a matter of the law of gravity, not the law of insurance. ... On remand, the trial court should determine whether the Whickers’ theory of liability is that the Hunters breached a personal duty that the Hunters assumed for the care and control of Terrell and Ashley, in which case the exclusion would not apply, or whether the Whickers’ claims are based only on the fact that the Hunters owned the property where the injuries occurred, in which case the exclusion does apply.”
Chief Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer and Yvette McGee Brown. Justice Robert R. Cupp entered an opinion concurring in the Court’s judgment and syllabus holding, but setting forth a different legal analysis. Justices Terrence O’Donnell and Judith Ann Lanzinger entered separate dissenting opinions. Justice Evelyn Lundberg Stratton joined both dissents.
Justice Cupp wrote that in his view the lower courts in this case erred by relying on the 8th District’s decision in Turner, because that decision interpreted insurance policy language describing claims that were covered by the insurer, while the “arising out of” language in the Hunters’ policy set forth an exclusion of coverage. Because the “arising out of” policy language at issue in Turner must be read broadly because it is a coverage provision, whereas similar language at issue in this case must be read narrowly because it is an exclusion from coverage, Justice Cupp observed, Turner is inapposite to this case and should not have been relied upon as precedent.
Justice Cupp also wrote that, like all homeowner policies, the Hunters’ Westfield policy provided not one but two separate types of insurance: premises-liability insurance that covers injuries or property damage arising from hazards or conditions on defined parcels of property identified in the policy as insured locations; and separate personal liability insurance that covers the policyholder’s potential exposure to damages for negligent acts or omissions and is not geographically limited to the insured’s home or other identified properties but extends to any location where he or she might cause harm to others. Because it was not clear from the trial court record which type of insurance was being invoked by the Whickers’ claims, Justice Cupp wrote, he agreed that it was necessary to remand the case for further proceedings.
In his dissent, Justice O’Donnell stated that in his view, the 12th District properly interpreted the disputed “arising out of” policy language. He agreed that: “‘As the policy reads, the exclusion applies to bodily injury “arising out of a premises,” not arising out of a condition on a premises.’” (Emphasis sic.) He emphasized that “these words are not part of the policy and not part of the contract.” Thus, Justice O’Donnell concluded that for purposes of the exclusion, an injury need only be causally connected to the premises.
Justice Lanzinger wrote: “I would answer the certified question by holding that when construing an insurance policy exclusion, an injury arises out of premises if the injury originates in or has a causal connection with the premises. Here, the injury giving rise to the suit occurred at the Indiana farm, premises that the Hunters owned but did not insure with Westfield. The only basis for suit against them is their ownership and control of the farm. Any personal liability therefore arises out of the premises that are owned by the insureds and are not an insured location and are accordingly excluded from coverage under its policy. I would affirm the Twelfth District Court of Appeals and hold that Grinnell alone is obligated to defend and indemnify in this case.”
Contacts
James J. Englert, 513.381.9200, for Grinnell Mutual Reinsurance Co.
James H. Ledman, 614.221.2121, for Westfield Insurance Co.
Wednesday, April 20, 2011
Emotional Distress Claim Based on Faulty Diagnosis That Allowed Cancer to Spread Is Part of Malpractice Action
Affirms Appellate Holding That Spread of Cancer is “Physical Injury”
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."
Loudin v. Radiology & Imaging Servs., Inc., Slip Opinion No. 2011-Ohio-1817.
Summit App. No. 24783, 185 Ohio App.3d 438, 2009-Ohio-6947. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
O'Donnell, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1817.pdf
(April 20, 2011) The Supreme Court of Ohio held today that a damage claim for emotional distress asserted by a patient based on a faulty diagnosis that allowed her undetected cancer to spread and increase in severity is a claim based on a physical injury that may be pursued as part of a traditional medical malpractice lawsuit, and is not the basis for an independent cause of action for intentional infliction of emotional distress.
The Court’s lead opinion, which affirmed a judgment of the 9th District Court of Appeals, was authored by Justice Yvette McGee Brown.
Lonna Loudin underwent screening mammograms at a facility operated by Radiology & Imaging Services on a yearly basis from 1997 through 2004. The results of a mammogram she underwent in March 2003 were analyzed by Dr. Richard Patterson, whose report indicated that the test results were normal.
In May 2004, Loudin manually detected a lump in her left breast. Her gynecologist referred her for a diagnostic mammogram, which found a mass of approximately two centimeters in size that was “highly suggestive of cancer.” A biopsy confirmed that the mass was cancerous. With no additional factors present, a two-centimeter cancerous mass constitutes Stage 1 cancer. Loudin’s oncologists recommended the dissection of nearby lymph nodes in order to determine whether her cancer had spread to other areas. They informed Loudin that her treatment plan would probably entail lymph-node dissection, a lumpectomy, radiation therapy, and hormone therapy, but would most likely not include chemotherapy if the lymph nodes tested negative for cancer.
The pathology report from the lymph node dissection indicated that Loudin’s cancer had metastasized to two lymph nodes. This additional factor advanced Loudin’s diagnosis to Stage IIA cancer. Loudin underwent a lumpectomy, eight rounds of chemotherapy, six weeks of radiation therapy, and began hormone therapy.
Loudin filed suit in the Summit County Court of Common Pleas against Radiology & Imaging Services and Dr. Patterson seeking damages for medical malpractice, negligent supervision, and emotional distress. During pretrial proceedings, Loudin submitted deposition testimony of a radiology expert stating that her 2003 mammogram showed a visible one-centimeter mass where the two-centimeter mass had been detected a year later, and that the failure of Dr. Patterson to detect that mass during his analysis of the 2003 mammogram results was a deviation from the applicable standard of care. A second expert witness testified that to a reasonable degree of medical certainty, if Loudin had been properly diagnosed and her cancer treated in 2003, the cancer found in her lymph nodes in 2004 would not have spread to those organs, and she would not have been required to undergo chemotherapy.
The defendants moved for summary judgment dismissing Loudin’s claims on the basis that she had not stated a claim for which relief could be granted. The trial court granted summary judgment in favor of the clinic and Dr. Patterson. In its decision, the court found that the growth or metastasis of an existing cancer had not been recognized in Ohio as a compensable “physical injury” that would support a medical negligence claim, and also held that without first establishing a physical injury caused by the defendants’ negligent acts or omissions, Loudin could not pursue a separate claim for negligent infliction of emotional distress.
Loudin appealed. On review, the 9th District Court of Appeals reversed the trial court’s summary judgment and remanded the case to the trial court for further proceedings on Loudin’s claims. The appellate panel held that the growth and metastasis of cancer is a compensable physical injury, and that Loudin’s medical-negligence claim therefore should have survived summary judgment. The court of appeals held further that a plaintiff asserting a negligence claim that involves a physical injury may seek recovery for emotional distress as part of his or her damages, and that Loudin’s fear of recurrence of her cancer was a type of emotional injury for which she could seek recovery in a malpractice action.
Radiology & Imaging Services and Dr. Patterson sought and were granted Supreme Court review of the 9th District’s rulings.
In today’s 7-0 decision affirming the 9th District, Justice McGee Brown wrote: “The appellants concede that Loudin adequately established duty and breach for purposes of summary judgment by presenting expert testimony that the appellants’ failure to detect her cancer in 2003 was a deviation from the applicable standard of care. They focus their argument on the element of damages, and contend that Loudin provided no evidence that the appellants’ failure to timely diagnose her cancer proximately caused her any physical injury. They agree with the trial court’s conclusion that ‘growth and metastasis of cancer are not compensable physical injuries in Ohio,’ and they point out that Loudin was not cognizant of the growth of her tumor from 2003 to 2004 and assert that the course of treatment for her cancer would have been no less intensive had it been detected in 2003. These arguments are not well taken.”
“First, the appellants’ contention that a plaintiff must physically perceive the cancer’s progression in order for it to be a compensable injury is unfounded. The law recognizes that injuries in medical-malpractice cases may go undetected for a long time, as evidenced by the tolling of the statute of limitations for medical-negligence claims until the plaintiff is or should be aware of the injury. R.C. 2305.113(D). There is no requirement in Ohio that a physical injury in a traditional negligence case cause pain or otherwise manifest itself so that the plaintiff is aware of its presence and deleterious effect at all times.”
“Second, Loudin presented expert testimony that she would not have undergone an identical course of treatment had the cancer been detected in 2003. Loudin presented expert testimony stating that chemotherapy is not administered when the lymph nodes test negative for cancer. Loudin presented further expert testimony that her lymph nodes would have been negative for cancer in 2003. Thus, according to her experts, she would not have had to undergo eight rounds of chemotherapy but for the appellants’ failure to timely diagnose her cancer.”
“Third, the growth and metastasis of cancer is a cognizable physical injury. Loudin presented expert testimony that cancer is a progressive disease and that the longer it is able to progress, the more it is able to compromise additional areas of the body and increase the number of cancer cells in the body. Whether the cancer is left undiagnosed to advance to the point of necessitating the removal of an organ, a limb, a breast, or a larger lump, the destruction of additional healthy cells and increased number of cancer cells are physical injuries, not mere physical changes. Although tumor enlargement and involvement of the lymph nodes might not require radically different treatment, a plaintiff need only show some slight injury for the question of damages to go to the jury.”
“When the evidence is viewed in a light most favorable to Loudin, she has raised a genuine issue of material fact as to whether she would have sustained physical injuries greater than those that existed in 2003 but for the appellants’ negligence. Specifically, but for the failure to timely diagnose Loudin’s cancer, would her tumor have grown from one to two centimeters, would her cancer have spread to her lymph nodes and advanced from Stage I to Stage IIA, and would she have had to undergo chemotherapy? The Ninth District correctly reversed the trial court’s summary-judgment decision on Loudin’s medical-negligence claim.”
Justice McGee Brown provided additional clarity, finding that to the extent the trial court and court of appeals analyzed Loudin’s emotional distress damage claims under the criteria for an independent action for negligent infliction of emotional distress, the lower courts had no need to engage in such analysis. She wrote: “We hold that the inclusion of damages for emotional distress in a complaint alleging negligence does not automatically transform the claim into one alleging the negligent infliction of emotional distress, nor does it automatically create a cause of action separate and distinct from the negligence claim. ... Thus, there was no negligent-infliction-of-emotional-distress claim for either the trial court or the appellate court to accept or reject and their discussions of such a claim were unnecessary.”
Justice McGee Brown’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the Court’s judgment and syllabus holding, but wrote separately to emphasize that in his view today’s decision does not depart from the existing body of case law regarding the recovery of damages for emotional distress.
Citing prior Supreme Court of Ohio court decisions including Schultz v. Barberton Glass Co. (1983), Paugh v. Hanks (1983), and Binns v. Fredendall (1987), Justice O’Donnell wrote: “(O)ur case law already establishes that a plaintiff who suffers a physical injury may recover for emotional distress, regardless of whether the emotional injuries are severe and debilitating. ... The majority affirms the holding by the court of appeals that a delayed diagnosis of cancer can cause an attendant physical injury for which a plaintiff may seek recovery for emotional distress as an element of damages. ... I concur in the judgment affirming the court of appeals on the basis that Lonna Loudin has raised a genuine issue of fact as to whether she sustained a physical injury as a result of a delayed diagnosis of breast cancer.”
Contacts
Douglas G. Leak, 216.623.0150, for Radiology & Imaging Services Inc.
Lawrence J. Scanlon, 330.376.1440, for Lonna Loudin.
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."
Loudin v. Radiology & Imaging Servs., Inc., Slip Opinion No. 2011-Ohio-1817.
Summit App. No. 24783, 185 Ohio App.3d 438, 2009-Ohio-6947. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
O'Donnell, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1817.pdf
(April 20, 2011) The Supreme Court of Ohio held today that a damage claim for emotional distress asserted by a patient based on a faulty diagnosis that allowed her undetected cancer to spread and increase in severity is a claim based on a physical injury that may be pursued as part of a traditional medical malpractice lawsuit, and is not the basis for an independent cause of action for intentional infliction of emotional distress.
The Court’s lead opinion, which affirmed a judgment of the 9th District Court of Appeals, was authored by Justice Yvette McGee Brown.
Lonna Loudin underwent screening mammograms at a facility operated by Radiology & Imaging Services on a yearly basis from 1997 through 2004. The results of a mammogram she underwent in March 2003 were analyzed by Dr. Richard Patterson, whose report indicated that the test results were normal.
In May 2004, Loudin manually detected a lump in her left breast. Her gynecologist referred her for a diagnostic mammogram, which found a mass of approximately two centimeters in size that was “highly suggestive of cancer.” A biopsy confirmed that the mass was cancerous. With no additional factors present, a two-centimeter cancerous mass constitutes Stage 1 cancer. Loudin’s oncologists recommended the dissection of nearby lymph nodes in order to determine whether her cancer had spread to other areas. They informed Loudin that her treatment plan would probably entail lymph-node dissection, a lumpectomy, radiation therapy, and hormone therapy, but would most likely not include chemotherapy if the lymph nodes tested negative for cancer.
The pathology report from the lymph node dissection indicated that Loudin’s cancer had metastasized to two lymph nodes. This additional factor advanced Loudin’s diagnosis to Stage IIA cancer. Loudin underwent a lumpectomy, eight rounds of chemotherapy, six weeks of radiation therapy, and began hormone therapy.
Loudin filed suit in the Summit County Court of Common Pleas against Radiology & Imaging Services and Dr. Patterson seeking damages for medical malpractice, negligent supervision, and emotional distress. During pretrial proceedings, Loudin submitted deposition testimony of a radiology expert stating that her 2003 mammogram showed a visible one-centimeter mass where the two-centimeter mass had been detected a year later, and that the failure of Dr. Patterson to detect that mass during his analysis of the 2003 mammogram results was a deviation from the applicable standard of care. A second expert witness testified that to a reasonable degree of medical certainty, if Loudin had been properly diagnosed and her cancer treated in 2003, the cancer found in her lymph nodes in 2004 would not have spread to those organs, and she would not have been required to undergo chemotherapy.
The defendants moved for summary judgment dismissing Loudin’s claims on the basis that she had not stated a claim for which relief could be granted. The trial court granted summary judgment in favor of the clinic and Dr. Patterson. In its decision, the court found that the growth or metastasis of an existing cancer had not been recognized in Ohio as a compensable “physical injury” that would support a medical negligence claim, and also held that without first establishing a physical injury caused by the defendants’ negligent acts or omissions, Loudin could not pursue a separate claim for negligent infliction of emotional distress.
Loudin appealed. On review, the 9th District Court of Appeals reversed the trial court’s summary judgment and remanded the case to the trial court for further proceedings on Loudin’s claims. The appellate panel held that the growth and metastasis of cancer is a compensable physical injury, and that Loudin’s medical-negligence claim therefore should have survived summary judgment. The court of appeals held further that a plaintiff asserting a negligence claim that involves a physical injury may seek recovery for emotional distress as part of his or her damages, and that Loudin’s fear of recurrence of her cancer was a type of emotional injury for which she could seek recovery in a malpractice action.
Radiology & Imaging Services and Dr. Patterson sought and were granted Supreme Court review of the 9th District’s rulings.
In today’s 7-0 decision affirming the 9th District, Justice McGee Brown wrote: “The appellants concede that Loudin adequately established duty and breach for purposes of summary judgment by presenting expert testimony that the appellants’ failure to detect her cancer in 2003 was a deviation from the applicable standard of care. They focus their argument on the element of damages, and contend that Loudin provided no evidence that the appellants’ failure to timely diagnose her cancer proximately caused her any physical injury. They agree with the trial court’s conclusion that ‘growth and metastasis of cancer are not compensable physical injuries in Ohio,’ and they point out that Loudin was not cognizant of the growth of her tumor from 2003 to 2004 and assert that the course of treatment for her cancer would have been no less intensive had it been detected in 2003. These arguments are not well taken.”
“First, the appellants’ contention that a plaintiff must physically perceive the cancer’s progression in order for it to be a compensable injury is unfounded. The law recognizes that injuries in medical-malpractice cases may go undetected for a long time, as evidenced by the tolling of the statute of limitations for medical-negligence claims until the plaintiff is or should be aware of the injury. R.C. 2305.113(D). There is no requirement in Ohio that a physical injury in a traditional negligence case cause pain or otherwise manifest itself so that the plaintiff is aware of its presence and deleterious effect at all times.”
“Second, Loudin presented expert testimony that she would not have undergone an identical course of treatment had the cancer been detected in 2003. Loudin presented expert testimony stating that chemotherapy is not administered when the lymph nodes test negative for cancer. Loudin presented further expert testimony that her lymph nodes would have been negative for cancer in 2003. Thus, according to her experts, she would not have had to undergo eight rounds of chemotherapy but for the appellants’ failure to timely diagnose her cancer.”
“Third, the growth and metastasis of cancer is a cognizable physical injury. Loudin presented expert testimony that cancer is a progressive disease and that the longer it is able to progress, the more it is able to compromise additional areas of the body and increase the number of cancer cells in the body. Whether the cancer is left undiagnosed to advance to the point of necessitating the removal of an organ, a limb, a breast, or a larger lump, the destruction of additional healthy cells and increased number of cancer cells are physical injuries, not mere physical changes. Although tumor enlargement and involvement of the lymph nodes might not require radically different treatment, a plaintiff need only show some slight injury for the question of damages to go to the jury.”
“When the evidence is viewed in a light most favorable to Loudin, she has raised a genuine issue of material fact as to whether she would have sustained physical injuries greater than those that existed in 2003 but for the appellants’ negligence. Specifically, but for the failure to timely diagnose Loudin’s cancer, would her tumor have grown from one to two centimeters, would her cancer have spread to her lymph nodes and advanced from Stage I to Stage IIA, and would she have had to undergo chemotherapy? The Ninth District correctly reversed the trial court’s summary-judgment decision on Loudin’s medical-negligence claim.”
Justice McGee Brown provided additional clarity, finding that to the extent the trial court and court of appeals analyzed Loudin’s emotional distress damage claims under the criteria for an independent action for negligent infliction of emotional distress, the lower courts had no need to engage in such analysis. She wrote: “We hold that the inclusion of damages for emotional distress in a complaint alleging negligence does not automatically transform the claim into one alleging the negligent infliction of emotional distress, nor does it automatically create a cause of action separate and distinct from the negligence claim. ... Thus, there was no negligent-infliction-of-emotional-distress claim for either the trial court or the appellate court to accept or reject and their discussions of such a claim were unnecessary.”
Justice McGee Brown’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the Court’s judgment and syllabus holding, but wrote separately to emphasize that in his view today’s decision does not depart from the existing body of case law regarding the recovery of damages for emotional distress.
Citing prior Supreme Court of Ohio court decisions including Schultz v. Barberton Glass Co. (1983), Paugh v. Hanks (1983), and Binns v. Fredendall (1987), Justice O’Donnell wrote: “(O)ur case law already establishes that a plaintiff who suffers a physical injury may recover for emotional distress, regardless of whether the emotional injuries are severe and debilitating. ... The majority affirms the holding by the court of appeals that a delayed diagnosis of cancer can cause an attendant physical injury for which a plaintiff may seek recovery for emotional distress as an element of damages. ... I concur in the judgment affirming the court of appeals on the basis that Lonna Loudin has raised a genuine issue of fact as to whether she sustained a physical injury as a result of a delayed diagnosis of breast cancer.”
Contacts
Douglas G. Leak, 216.623.0150, for Radiology & Imaging Services Inc.
Lawrence J. Scanlon, 330.376.1440, for Lonna Loudin.
Saturday, April 16, 2011
Administrative Appeal is 'Filed' When Clerk of Courts Serves Appeal Notice on Agency Within Time Limit
In-Person Delivery by Appellant to Agency Is Not Required
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."
Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., Slip Opinion No. 2011-Ohio-1604.
Warren App. No. CA2009-07-101, 186 Ohio App.3d 56, 2010-Ohio-592. Judgment of the court of appeals reversed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1604.pdf
(April 7, 2011) The Supreme Court of Ohio held today that an appeal of an administrative agency order is “filed” and perfected if a clerk of courts serves the agency with a copy of the appellant’s notice of appeal that has been filed in common pleas court, and the administrative agency receives the notice sent by the clerk within the statutory filing deadline prescribed under R.C. 2505.07.
Applying that analysis to a Warren County case, the Court held that a development company and landowners who sought to appeal unfavorable rulings by the Warren County Regional Planning Commission (WCRPC) perfected their appeals when they had the clerk of courts send a copy of the notices of appeal by certified mail to WCRPC and the notices were received by the commission within the 30-day time limit prescribed by law.
The Court’s 7-0 decision was authored by Chief Justice Maureen O’Connor.
The case involved two applications filed by Welsh Development Co. of Harrison, Ohio with the WCRPC. The applications sought commission approval of Welsh’s plan to build a subdivision of single family homes on three parcels of land that Welsh had obtained options to purchase from the owners. The plan consisted of two phases.
On Feb. 1, 2005, Welsh submitted an application for approval of a preliminary plat for Phase I to the Warren County Regional Planning Commission (“WCRPC”). On Feb. 24, 2005, the WCRPC executive committee denied approval of the preliminary plat for Phase I. On March 1, 2005, the executive director of WCRPC informed Welsh of the planning commission’s decision. On March 25, 2005, Welsh and the property owners filed a complaint and notice of appeal in the Warren County Court of Common Pleas against WCRPC for its denial of Phase I. The notice and complaint contained a praecipe (formal request) for the clerk of courts to serve WCRPC with copies of those documents by certified mail. WCRPC received the copies sent by the clerk on March 28, 2005.
On March 1, 2005, Welsh submitted an application for approval of a preliminary plat to the WCRPC for Phase II. On March 24, 2005, the WCRPC approved the preliminary plat for Phase II subject to Welsh’s dedication of an interior collector thoroughfare. Welsh and the property owners objected to the conditional approval, arguing that Phase II should have been approved without the requirement of the interior collector street. On April 25, 2005, Welsh and the property owners filed another notice of appeal and complaint in the Warren County Court of Common Pleas for WCRPC’s conditional approval of Phase II. The notice and complaint contained a praecipe for service upon WCRPC by certified mail. Service was completed by the clerk of courts on April 27, 2005. The two appeals were subsequently consolidated into a single case.
In its answers to the complaints, WCRPC urged the common pleas court to dismiss Welsh’s appeals as not having been properly filed. The commission argued that the clerk of courts’ service of the notices of appeal on the commission did not satisfy the requirement of R.C. 2505.04 that a notice of appeal must be “filed” by the appellant with the agency whose order is being appealed. The common pleas court agreed and dismissed the appeals. Welsh appealed the trial court’s ruling. On review, the 12th District Court of Appeals affirmed the trial court’s dismissal of the appeals for failure to comply with statutory filing requirements for an administrative appeal. The 12th District certified that its holding was in conflict with decisions of the 2nd and 6th Districts in which those courts held that timely service of a notice of appeal on an administrative agency by a clerk of courts met the “filing” requirement of R.C. 2505.04. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
In today’s decision, which reversed the 12th District and remanded the case for further proceedings on Welsh’s appeals, Chief Justice O’Connor noted that courts considering the legal question at issue in the case have followed two divergent paths based on different judicial interpretations of this Court’s 1979 holding in Dudukovich v. Lorain Metro. Housing Authority.
She wrote: “In Dudukovich, we addressed whether a party had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to an agency. ... We held: ‘[T]he act of depositing the notice in the mail, in itself, does not constitute a “filing,” at least where the notice is not received until after the expiration of the prescribed time limit. Rather, ‘the term “filed” ... requires actual delivery ... ’ However, no particular method of delivery is prescribed by the statute. ... We then held that ‘there [was] evidence in the record that [the housing authority] did eventually receive the mailed copy of the notice,’ and thus the salient question was ‘whether it received the notice within the ... time limit prescribed’ by R.C. 2505.07. ... In so doing, we held that the ‘presumption of timely delivery ... should control.’ ... Because the ‘copy of the notice of appeal was sent by certified mail, to a destination within the same city, five days prior to the expiration of the statutory time limit’ and the housing authority ‘presented no evidence of late delivery,’ we concluded that ‘a presumption of timely delivery controls.’ ... Thus, we held in Dudukovich that the trial court ‘correctly assumed jurisdiction.’
“Some appellate courts have narrowly construed our holding in Dudukovich by distinguishing between the terms ‘service’ and ‘filing.’ These appellate courts hold that a clerk of courts’ service of a notice of appeal upon an administrative agency is not a filing of an appeal with the agency for purposes of perfecting an administrative appeal pursuant to R.C. 2505.04. ... Here, the Twelfth District followed the same analyses ... and interpreted Dudukovich narrowly, distinguishing between service and filing for purposes of R.C. 2505.04.”
“But other appellate courts have interpreted our decision in Dudukovich broadly. In Price v. Margaretta Twp. Bd. of Zoning Appeals ... a property owner filed his notice of appeal with the common pleas court and requested the clerk of courts to advise the board of zoning appeals of his appeal. The Sixth District held that ‘R.C. 2505.04, as interpreted by Dudukovich, imposes no prohibition of a timely copy of a notice of appeal from a clerk of courts to perfect an administrative appeal.’ ... Thus, the court of appeals in Price held that the owner had properly perfected his appeal pursuant to R.C. 2505.04.”
After carefully reviewing the two lines of judicial interpretation, Chief Justice O’Connor wrote, the Court concluded that “the broad interpretation of Dudukovich endorsed by the Second and Sixth Districts is better reasoned in light of our precedent regarding notices of appeal.”
“We have long held that the purpose of a notice of appeal is to inform the opposing party of the taking of an appeal. ... When service of a notice of an appeal by the clerk of courts informs and apprises the administrative agency of the taking of an appeal, sets forth the names of the parties, and advises those parties that an appeal of a particular claim is forthcoming, the notice of appeal has satisfied its purpose and the legislative intent in R.C. 2505.04.”
“Turning to the facts in the instant case, we hold that Welsh and the property owners ‘sufficiently complied’ with R.C. 2505.04 by filing their complaints against WCRPC and notices of appeal in the Warren County Court of Common Pleas. The complaints and notices contained a praecipe for the clerk of courts to serve WCRPC by certified mail ... It is undisputed that the clerk of courts served WCRPC and that WCRPC received a copy of the notices of appeal and the complaint within the 30-day period prescribed by R.C. 2505.07. Because WCRPC received notice of the appeal within the prescribed time to file an administrative appeal, we hold that Welsh and the property owners perfected their appeal pursuant to R.C. 2505.04.”
The Chief Justice emphasized that under today’s ruling the filing of an administrative appeal does not occur until there is actual receipt by the agency whose order is being appealed within the time prescribed by R.C. 2505.07. She also cautioned practitioners not to incorrectly infer that hereafter “filing” under R.C. 2505.04 is accomplished only if a copy of the appellant’s notice of appeal is served on an administrative agency by a clerk of courts.
On the contrary, she wrote, “(t)he administrative agency must still receive the appropriate complaint and notice within 30 days after entry of the final administrative order. The appellant may use any method reasonably certain to accomplish delivery to the agency within the required 30 days, which is filing that satisfies the jurisdictional requirement for an administrative appeal.”
Contacts
Matthew C. Blickensderfer, 513.651.6162, for Welsh Development Co.
Robert J. Surdyk, 937.222.2333, for Warren County Regional Planning Commissio
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."
Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., Slip Opinion No. 2011-Ohio-1604.
Warren App. No. CA2009-07-101, 186 Ohio App.3d 56, 2010-Ohio-592. Judgment of the court of appeals reversed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1604.pdf
(April 7, 2011) The Supreme Court of Ohio held today that an appeal of an administrative agency order is “filed” and perfected if a clerk of courts serves the agency with a copy of the appellant’s notice of appeal that has been filed in common pleas court, and the administrative agency receives the notice sent by the clerk within the statutory filing deadline prescribed under R.C. 2505.07.
Applying that analysis to a Warren County case, the Court held that a development company and landowners who sought to appeal unfavorable rulings by the Warren County Regional Planning Commission (WCRPC) perfected their appeals when they had the clerk of courts send a copy of the notices of appeal by certified mail to WCRPC and the notices were received by the commission within the 30-day time limit prescribed by law.
The Court’s 7-0 decision was authored by Chief Justice Maureen O’Connor.
The case involved two applications filed by Welsh Development Co. of Harrison, Ohio with the WCRPC. The applications sought commission approval of Welsh’s plan to build a subdivision of single family homes on three parcels of land that Welsh had obtained options to purchase from the owners. The plan consisted of two phases.
On Feb. 1, 2005, Welsh submitted an application for approval of a preliminary plat for Phase I to the Warren County Regional Planning Commission (“WCRPC”). On Feb. 24, 2005, the WCRPC executive committee denied approval of the preliminary plat for Phase I. On March 1, 2005, the executive director of WCRPC informed Welsh of the planning commission’s decision. On March 25, 2005, Welsh and the property owners filed a complaint and notice of appeal in the Warren County Court of Common Pleas against WCRPC for its denial of Phase I. The notice and complaint contained a praecipe (formal request) for the clerk of courts to serve WCRPC with copies of those documents by certified mail. WCRPC received the copies sent by the clerk on March 28, 2005.
On March 1, 2005, Welsh submitted an application for approval of a preliminary plat to the WCRPC for Phase II. On March 24, 2005, the WCRPC approved the preliminary plat for Phase II subject to Welsh’s dedication of an interior collector thoroughfare. Welsh and the property owners objected to the conditional approval, arguing that Phase II should have been approved without the requirement of the interior collector street. On April 25, 2005, Welsh and the property owners filed another notice of appeal and complaint in the Warren County Court of Common Pleas for WCRPC’s conditional approval of Phase II. The notice and complaint contained a praecipe for service upon WCRPC by certified mail. Service was completed by the clerk of courts on April 27, 2005. The two appeals were subsequently consolidated into a single case.
In its answers to the complaints, WCRPC urged the common pleas court to dismiss Welsh’s appeals as not having been properly filed. The commission argued that the clerk of courts’ service of the notices of appeal on the commission did not satisfy the requirement of R.C. 2505.04 that a notice of appeal must be “filed” by the appellant with the agency whose order is being appealed. The common pleas court agreed and dismissed the appeals. Welsh appealed the trial court’s ruling. On review, the 12th District Court of Appeals affirmed the trial court’s dismissal of the appeals for failure to comply with statutory filing requirements for an administrative appeal. The 12th District certified that its holding was in conflict with decisions of the 2nd and 6th Districts in which those courts held that timely service of a notice of appeal on an administrative agency by a clerk of courts met the “filing” requirement of R.C. 2505.04. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
In today’s decision, which reversed the 12th District and remanded the case for further proceedings on Welsh’s appeals, Chief Justice O’Connor noted that courts considering the legal question at issue in the case have followed two divergent paths based on different judicial interpretations of this Court’s 1979 holding in Dudukovich v. Lorain Metro. Housing Authority.
She wrote: “In Dudukovich, we addressed whether a party had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to an agency. ... We held: ‘[T]he act of depositing the notice in the mail, in itself, does not constitute a “filing,” at least where the notice is not received until after the expiration of the prescribed time limit. Rather, ‘the term “filed” ... requires actual delivery ... ’ However, no particular method of delivery is prescribed by the statute. ... We then held that ‘there [was] evidence in the record that [the housing authority] did eventually receive the mailed copy of the notice,’ and thus the salient question was ‘whether it received the notice within the ... time limit prescribed’ by R.C. 2505.07. ... In so doing, we held that the ‘presumption of timely delivery ... should control.’ ... Because the ‘copy of the notice of appeal was sent by certified mail, to a destination within the same city, five days prior to the expiration of the statutory time limit’ and the housing authority ‘presented no evidence of late delivery,’ we concluded that ‘a presumption of timely delivery controls.’ ... Thus, we held in Dudukovich that the trial court ‘correctly assumed jurisdiction.’
“Some appellate courts have narrowly construed our holding in Dudukovich by distinguishing between the terms ‘service’ and ‘filing.’ These appellate courts hold that a clerk of courts’ service of a notice of appeal upon an administrative agency is not a filing of an appeal with the agency for purposes of perfecting an administrative appeal pursuant to R.C. 2505.04. ... Here, the Twelfth District followed the same analyses ... and interpreted Dudukovich narrowly, distinguishing between service and filing for purposes of R.C. 2505.04.”
“But other appellate courts have interpreted our decision in Dudukovich broadly. In Price v. Margaretta Twp. Bd. of Zoning Appeals ... a property owner filed his notice of appeal with the common pleas court and requested the clerk of courts to advise the board of zoning appeals of his appeal. The Sixth District held that ‘R.C. 2505.04, as interpreted by Dudukovich, imposes no prohibition of a timely copy of a notice of appeal from a clerk of courts to perfect an administrative appeal.’ ... Thus, the court of appeals in Price held that the owner had properly perfected his appeal pursuant to R.C. 2505.04.”
After carefully reviewing the two lines of judicial interpretation, Chief Justice O’Connor wrote, the Court concluded that “the broad interpretation of Dudukovich endorsed by the Second and Sixth Districts is better reasoned in light of our precedent regarding notices of appeal.”
“We have long held that the purpose of a notice of appeal is to inform the opposing party of the taking of an appeal. ... When service of a notice of an appeal by the clerk of courts informs and apprises the administrative agency of the taking of an appeal, sets forth the names of the parties, and advises those parties that an appeal of a particular claim is forthcoming, the notice of appeal has satisfied its purpose and the legislative intent in R.C. 2505.04.”
“Turning to the facts in the instant case, we hold that Welsh and the property owners ‘sufficiently complied’ with R.C. 2505.04 by filing their complaints against WCRPC and notices of appeal in the Warren County Court of Common Pleas. The complaints and notices contained a praecipe for the clerk of courts to serve WCRPC by certified mail ... It is undisputed that the clerk of courts served WCRPC and that WCRPC received a copy of the notices of appeal and the complaint within the 30-day period prescribed by R.C. 2505.07. Because WCRPC received notice of the appeal within the prescribed time to file an administrative appeal, we hold that Welsh and the property owners perfected their appeal pursuant to R.C. 2505.04.”
The Chief Justice emphasized that under today’s ruling the filing of an administrative appeal does not occur until there is actual receipt by the agency whose order is being appealed within the time prescribed by R.C. 2505.07. She also cautioned practitioners not to incorrectly infer that hereafter “filing” under R.C. 2505.04 is accomplished only if a copy of the appellant’s notice of appeal is served on an administrative agency by a clerk of courts.
On the contrary, she wrote, “(t)he administrative agency must still receive the appropriate complaint and notice within 30 days after entry of the final administrative order. The appellant may use any method reasonably certain to accomplish delivery to the agency within the required 30 days, which is filing that satisfies the jurisdictional requirement for an administrative appeal.”
Contacts
Matthew C. Blickensderfer, 513.651.6162, for Welsh Development Co.
Robert J. Surdyk, 937.222.2333, for Warren County Regional Planning Commissio
New Judges Attend Judicial College Orientation
About 40 new Ohio judges attended the second week-long orientation session offered by the Supreme Court of Ohio Judicial College. Medina County Common Pleas Judge James L. Kimbler was an instructor on Tuesday, April 12, 2011. He taught 19 newly elected or appointed general division common pleas judges. This week’s session delved more deeply into judges’ specific jurisdictional tracks.
For example, common pleas general division judges participated in sessions on civil case matters, evidence, sentencing and sex offenders. In addition, general sessions were held for all judges on topics such as judicial ethics, working with the media and new media, access to justice and fairness in the courts and employment law.
Chief Justice Maureen O’Connor spoke on the morning of the first day and encouraged judges to be active participants in their communities.
“As judges, not only can we be engaged with the community without compromising our independence and impartiality, but we must do this,” she said. “In an increasingly interconnected world we as judges must engage with the public and find a way to do this that maintains our independence and impartiality.”
The Judicial College conducts the first orientation session annually in December, after the November election but before the beginning of the new judges’ judicial terms.
Fourteen new judges appointed since December’s orientation joined 27 other new judges who participated in the first session.
For example, common pleas general division judges participated in sessions on civil case matters, evidence, sentencing and sex offenders. In addition, general sessions were held for all judges on topics such as judicial ethics, working with the media and new media, access to justice and fairness in the courts and employment law.
Chief Justice Maureen O’Connor spoke on the morning of the first day and encouraged judges to be active participants in their communities.
“As judges, not only can we be engaged with the community without compromising our independence and impartiality, but we must do this,” she said. “In an increasingly interconnected world we as judges must engage with the public and find a way to do this that maintains our independence and impartiality.”
The Judicial College conducts the first orientation session annually in December, after the November election but before the beginning of the new judges’ judicial terms.
Fourteen new judges appointed since December’s orientation joined 27 other new judges who participated in the first session.
Two Attorneys Facing Disciplinary Action Resign Licenses
The Ohio Supreme Court announced on Thursday, April 14, 2011, that two attorneys facing disciplinary action resigned their licenses. You can read the announcements by clicking on this link: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-1786.pdf
Judge Kimbler's Criminal Docket for April 15, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on Friday, April 15, 2011 for criminal cases:
Michael Faas, 27, of Ethics Court in Barberton, was sentenced to three years of community control sanctions on one count of Receiving Stolen Property, a fifth-degree felony.
Ryan Ward, 22, of Ettle Drive in Barberton, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,932.63 in restitution.
Ryan Christensen, 24, of West Washington Street in Medina, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for June 13.
Shana Frazier, 37, of North Elmwood in Medina, pleaded not guilty to one count of Passing Bad Checks, a fifth-degree felony. A jury trial is scheduled for June 14.
Lawrence Richmond, 26, of West Ohio Avenue in Rittman, pleaded not guilty to one count of Receiving Stolen Property and one count of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for June 15.
Edwin Roldan, 20, of West Bergey Street in Wadsworth, pleaded guilty to one count of Attempted Unlawful Sexual Conduct with a Minor, a fifth-degree felony. Sentencing is scheduled for May 26.
Jason Shadd, 35, of Park Drive in Medina, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for May 25.
Matthew Stanek, 21, of Pin Oak in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fourth-degree felony. A jury trial is scheduled for June 13.
Troy Tompkins, 36, of 17th Street SW in Akron, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for June 14.
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on Friday, April 15, 2011 for criminal cases:
Michael Faas, 27, of Ethics Court in Barberton, was sentenced to three years of community control sanctions on one count of Receiving Stolen Property, a fifth-degree felony.
Ryan Ward, 22, of Ettle Drive in Barberton, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,932.63 in restitution.
Ryan Christensen, 24, of West Washington Street in Medina, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for June 13.
Shana Frazier, 37, of North Elmwood in Medina, pleaded not guilty to one count of Passing Bad Checks, a fifth-degree felony. A jury trial is scheduled for June 14.
Lawrence Richmond, 26, of West Ohio Avenue in Rittman, pleaded not guilty to one count of Receiving Stolen Property and one count of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for June 15.
Edwin Roldan, 20, of West Bergey Street in Wadsworth, pleaded guilty to one count of Attempted Unlawful Sexual Conduct with a Minor, a fifth-degree felony. Sentencing is scheduled for May 26.
Jason Shadd, 35, of Park Drive in Medina, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for May 25.
Matthew Stanek, 21, of Pin Oak in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fourth-degree felony. A jury trial is scheduled for June 13.
Troy Tompkins, 36, of 17th Street SW in Akron, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for June 14.
Judge Kimbler Probation Violations for April 15, 2011
Medina County Chief Adult Probation Officer Veronica Perry reported that six probationers had violation hearings in front of Judge Kimbler on Friday, April 15, 2011. Their names and the disposition of the hearings are set forth below:
Case No. Name Officer Date Disposition
10CR0192 O'Neill, Desiree B. Burcham 4/15/2011 PV Hearing - Admit - Complete CBCF; after released continue on ISP.
09CR0223 Homchik, Richard H. Smith 4/15/2011 PV Hearing - Admits - Given an OR Bond. Def. ordered to sign a release for medical records w/APD. Sentencing set for 4/28/11 at 8:30am
10CR0156 Griffin, Shane K. Turchek 4/15/2011 PV Hearing - PV to be dismissed and costs waived as long as def. adheres to PO's recommendations administratively
10CR0286 Walter, Ryan J. Adams 4/15/2011 PV Hearing - Admits - Sentenced to 6 months prison w/ 79 days credit, to run concurrent w/Huron Co. case. All costs waived.
07CR0623 Murrin, Terry K. Massullo 4/15/2011 PV Hearing - Def. to expire as scheduled; all costs waived.
09CR0543 Bates, Christopher M. Liebler 4/15/2011 PV Hearing - Taken off schedule for today; rescheduled for 5/20/11
Case No. Name Officer Date Disposition
10CR0192 O'Neill, Desiree B. Burcham 4/15/2011 PV Hearing - Admit - Complete CBCF; after released continue on ISP.
09CR0223 Homchik, Richard H. Smith 4/15/2011 PV Hearing - Admits - Given an OR Bond. Def. ordered to sign a release for medical records w/APD. Sentencing set for 4/28/11 at 8:30am
10CR0156 Griffin, Shane K. Turchek 4/15/2011 PV Hearing - PV to be dismissed and costs waived as long as def. adheres to PO's recommendations administratively
10CR0286 Walter, Ryan J. Adams 4/15/2011 PV Hearing - Admits - Sentenced to 6 months prison w/ 79 days credit, to run concurrent w/Huron Co. case. All costs waived.
07CR0623 Murrin, Terry K. Massullo 4/15/2011 PV Hearing - Def. to expire as scheduled; all costs waived.
09CR0543 Bates, Christopher M. Liebler 4/15/2011 PV Hearing - Taken off schedule for today; rescheduled for 5/20/11
Friday, April 15, 2011
Judge Collier's Criminal Docket for April 11, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 11, 2011 for criminal cases:
Dennis Auerswald, 60, of Dover Drive in Medina, was sentenced to life in prison on one count of Aggravated Murder and one count of Forgery, a fifth-degree felony. A jury found Auerswald guilt of the Aggravated Murder charge in February. He poisoned his wife Maureen with anti-freeze.
Joshua Mynatt, 22, of Park Fulton Oval in Cleveland, was sentenced to one year in prison on three counts of Trafficking in Crack Cocaine, two of which are third-degree felonies and one of which is a fourth-degree felony.
Daniel Albright, 25, of Water Street in Seville, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for July 20.
Sarah Cusick, 28, of North Court Street in Medina, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for July 18.
Jerome Evans, 34, of Seneca Street in Youngstown, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for July 20.
Susan Holland, 50, of 28th Street in Norton, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for May 11.
Anthony Lazar, 30, of Lafayette Road in Lodi, pleaded not guilty to three counts of Aggravated Vehicular Assault, two of which are third-degree felonies and one of which is a fourth-degree felony. A jury trial is scheduled for July 11.
Stephanie Modica, 30, of East Street in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for June 6.
LuLu Parrella, 45, of Princeton Drive in Brunswick, pleaded not guilty to two counts of Assault on a Corrections Officer, both of which are fifth-degree felonies. A jury trial is scheduled for June 8.
Scott Schilero, 31, of Longacre Drive in Chippewa Lake, pleaded not guilty to one count of Deception of Obtain a Dangerous Drug, a third-degree felony and two counts of Illegal Processing of Drug Documents, both of which are fourth-degree felonies. A jury trial is scheduled for June 27.
Selena Zak, 29, of Lodi Road in West Salem, pleaded guilty to two counts of Complicity to Commit Robbery, one of which is a second-degree felony and one of which is a third-degree felony. Sentencing is scheduled for May 16.
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 11, 2011 for criminal cases:
Dennis Auerswald, 60, of Dover Drive in Medina, was sentenced to life in prison on one count of Aggravated Murder and one count of Forgery, a fifth-degree felony. A jury found Auerswald guilt of the Aggravated Murder charge in February. He poisoned his wife Maureen with anti-freeze.
Joshua Mynatt, 22, of Park Fulton Oval in Cleveland, was sentenced to one year in prison on three counts of Trafficking in Crack Cocaine, two of which are third-degree felonies and one of which is a fourth-degree felony.
Daniel Albright, 25, of Water Street in Seville, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for July 20.
Sarah Cusick, 28, of North Court Street in Medina, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for July 18.
Jerome Evans, 34, of Seneca Street in Youngstown, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for July 20.
Susan Holland, 50, of 28th Street in Norton, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for May 11.
Anthony Lazar, 30, of Lafayette Road in Lodi, pleaded not guilty to three counts of Aggravated Vehicular Assault, two of which are third-degree felonies and one of which is a fourth-degree felony. A jury trial is scheduled for July 11.
Stephanie Modica, 30, of East Street in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for June 6.
LuLu Parrella, 45, of Princeton Drive in Brunswick, pleaded not guilty to two counts of Assault on a Corrections Officer, both of which are fifth-degree felonies. A jury trial is scheduled for June 8.
Scott Schilero, 31, of Longacre Drive in Chippewa Lake, pleaded not guilty to one count of Deception of Obtain a Dangerous Drug, a third-degree felony and two counts of Illegal Processing of Drug Documents, both of which are fourth-degree felonies. A jury trial is scheduled for June 27.
Selena Zak, 29, of Lodi Road in West Salem, pleaded guilty to two counts of Complicity to Commit Robbery, one of which is a second-degree felony and one of which is a third-degree felony. Sentencing is scheduled for May 16.
Judge Kimbler's Criminal Docket for Thursday, April 7, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Kimbler's courtroom on April 7, 2011 for criminal cases:
Lester Javey, 42, of Pasadena Avenue in Youngstown, was sentenced to two years of community control sanctions on one count of Possession of Marijuana, a fifth-degree felony.
Shawn Shea, 18, of Andrews Road in Medina, was sentenced to three years of community control sanctions, with 180 days in jail, on the following charges: one count of Tampering with Evidence, a third-degree felony; one count of Theft, a fifth-degree felony; one count of Theft and one count of Receiving Stolen Property, both of which are first-degree misdemeanors.
Dwight Simpson, 55, of Lampson Road in Medina, was sentenced to two years of community control sanctions on one count of Having Weapons While Under Disability, a third-degree felony.
Joseph Cornelius, 19, of East Reagan Parkway in Medina, pleaded not guilty to one count of Trafficking in Marijuana within the Vicinity of a Juvenile and one count of Trafficking in LSD within the Vicinity of a Juvenile, both of which are fourth-degree felonies. A jury trial is scheduled for June 6.
Daniel Ellison, 31, of Tallmadge Road in Cuyahoga Falls, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 14.
Dennis Heavilin, 61, of River Styx Road in Wadsworth, pleaded not guilty to two counts of Vandalism, both of which are fifth-degree felonies and one count of Inducing Panic, a first-degree misdemeanor. All charges carry a firearm specification. A jury trial is scheduled for June 6. Heavilin remains in Medina County Jail in one million dollars bond.
Tara McCutchan, 23, of East Tuscarawas Avenue in Barberton, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for June 14.
Brandon Williams, 22, of East 146th Street in Cleveland, pleaded not guilty to the following charges: one count of Robbery, a second-degree felony; one count of Burglary, a third-degree felony; one count of Theft of a Firearm, a third-degree felony; and one count of Theft, a fifth-degree felony. All charges carry a firearm specification. A jury trial is scheduled for June 13.
Medina County Prosecutor
The following people appeared in Judge Kimbler's courtroom on April 7, 2011 for criminal cases:
Lester Javey, 42, of Pasadena Avenue in Youngstown, was sentenced to two years of community control sanctions on one count of Possession of Marijuana, a fifth-degree felony.
Shawn Shea, 18, of Andrews Road in Medina, was sentenced to three years of community control sanctions, with 180 days in jail, on the following charges: one count of Tampering with Evidence, a third-degree felony; one count of Theft, a fifth-degree felony; one count of Theft and one count of Receiving Stolen Property, both of which are first-degree misdemeanors.
Dwight Simpson, 55, of Lampson Road in Medina, was sentenced to two years of community control sanctions on one count of Having Weapons While Under Disability, a third-degree felony.
Joseph Cornelius, 19, of East Reagan Parkway in Medina, pleaded not guilty to one count of Trafficking in Marijuana within the Vicinity of a Juvenile and one count of Trafficking in LSD within the Vicinity of a Juvenile, both of which are fourth-degree felonies. A jury trial is scheduled for June 6.
Daniel Ellison, 31, of Tallmadge Road in Cuyahoga Falls, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 14.
Dennis Heavilin, 61, of River Styx Road in Wadsworth, pleaded not guilty to two counts of Vandalism, both of which are fifth-degree felonies and one count of Inducing Panic, a first-degree misdemeanor. All charges carry a firearm specification. A jury trial is scheduled for June 6. Heavilin remains in Medina County Jail in one million dollars bond.
Tara McCutchan, 23, of East Tuscarawas Avenue in Barberton, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for June 14.
Brandon Williams, 22, of East 146th Street in Cleveland, pleaded not guilty to the following charges: one count of Robbery, a second-degree felony; one count of Burglary, a third-degree felony; one count of Theft of a Firearm, a third-degree felony; and one count of Theft, a fifth-degree felony. All charges carry a firearm specification. A jury trial is scheduled for June 13.
Wednesday, April 06, 2011
Governor Appoints New Summit County Judge
Akron attorney Tamara A. O’Brien will take the bench as a judge in the Summit County Court of Common Pleas, General Division, after her appointment today by Gov. John R. Kasich. O’Brien, who takes office on April 11, 2011, must run in November 2012 in order to serve out the remainder of the unexpired term ending Jan. 1, 2015. She replaces Judge Brenda Burnham Unruh, who retired on Feb. 28, 2011 and died about two weeks later, on March 13, 2011.
O’Brien earned her bachelor’s degree from the University of Akron and her juris doctor from the Cleveland-Marshall College of Law at Cleveland State University. She has been admitted to practice law in Ohio, the U.S. District Court Northern District of Ohio, and the Sixth Circuit Court of Appeals. Since 2000, O’Brien has been a partner at Roderick Linton Belfance, LLP in Akron. Prior to joining this firm, she was an associate attorney at the Akron firm of Scanlon & Gearinger Co., LPA, as well as a judicial clerk and staff attorney for the Ninth Appellate District Court of Appeals and an adjunct law professor at the University of Akron’s School of Law.
O’Brien is a member of the Ohio State Bar Association, the Akron Bar Association and the Ohio Women’s Bar Association, and was recognized as a “Super Lawyer/Rising Star” in Cincinnati Magazine’s 2005/2006 list of top lawyers in Ohio under 40. O’Brien is active in her community, currently serving on the Board of Trustees for the Summit County Chapter of the American Red Cross. She also is a past Board of Trustees member for H.M. Housing, Inc.’s Multi-State Low Income Housing Program.
O’Brien earned her bachelor’s degree from the University of Akron and her juris doctor from the Cleveland-Marshall College of Law at Cleveland State University. She has been admitted to practice law in Ohio, the U.S. District Court Northern District of Ohio, and the Sixth Circuit Court of Appeals. Since 2000, O’Brien has been a partner at Roderick Linton Belfance, LLP in Akron. Prior to joining this firm, she was an associate attorney at the Akron firm of Scanlon & Gearinger Co., LPA, as well as a judicial clerk and staff attorney for the Ninth Appellate District Court of Appeals and an adjunct law professor at the University of Akron’s School of Law.
O’Brien is a member of the Ohio State Bar Association, the Akron Bar Association and the Ohio Women’s Bar Association, and was recognized as a “Super Lawyer/Rising Star” in Cincinnati Magazine’s 2005/2006 list of top lawyers in Ohio under 40. O’Brien is active in her community, currently serving on the Board of Trustees for the Summit County Chapter of the American Red Cross. She also is a past Board of Trustees member for H.M. Housing, Inc.’s Multi-State Low Income Housing Program.
Open Discovery Under Ohio Rules of Criminal Procedure
Last July the Ohio Supreme Court issued a revised Rule 16 of the Ohio Rules of Criminal Procedure. The amended rule provides for what is sometimes referred to as "open file discovery." The Ohio Public Defender's office prepared a report on the amendments to Rule 16. You can read this report by clicking here.
Judge Kimbler Teaching New Judges
I will be teaching at the Ohio Judicial College's New Judges' Orientation next Tuesday. I am teaching on the Ohio Rules of Civil Procedure. I am excited about this assignment because I am going to be using a problem solving approach for this class.
I have developed 18 problems built around selected provisions of Rules 3 through 15. My plan is to have the new judges read the problems, discuss them among themselves, then I lead a discussion on the problem with the whole group.
I recently used this approach with a seminar I taught on hearsay and was very happy with this approach. The feedback I got from the 17 lawyers who attended was very positive.
I have developed 18 problems built around selected provisions of Rules 3 through 15. My plan is to have the new judges read the problems, discuss them among themselves, then I lead a discussion on the problem with the whole group.
I recently used this approach with a seminar I taught on hearsay and was very happy with this approach. The feedback I got from the 17 lawyers who attended was very positive.
Judge Collier's Criminal Docket for April 4, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 4, 2011 for criminal cases:
Kelly Covic, 35, of Terrington Drive in Brunswick, was sentenced to three years in prison for one count of Sexual Battery, a third-degree felony and one count of Contributing to the Unruliness of a Minor, a first-degree misdemeanor. She also was labeled a Tier III Sex Offender and will have to register her address with the county sheriff every 90 days for the rest of her life.
Heather Woutat, 32, of Cole Avenue in Akron, was sentenced to 180 days in jail for a probation violation on an original charge of Theft, a fifth-degree felony.
Rhonda Beard, 44, of Oak Court in Lodi, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 11.
Robert Broadsword, 33, of Avon Lake Road in Litchfield, pleaded not guilty to four counts of Non-Support of Dependents, all of which are fifth-degree felonies. A jury trial is scheduled for July 13.
Cecil Carnegie, 37, of West Liberty Street in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for June 15.
Scott Davis, 20, of Clay Court in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 11.
Eric Foster, 19, of Lodi Road in Lodi, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 13.
Sandra Goers, 58, of Stover Court in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 6.
Matthew Justice, 19, of Harding Street in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 29.
Loretta Lowery-Chrise, 39, of Lafayette Road in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 8.
Eric Merriman, 19, of Highland Drive in Lodi, pleaded not guilty to three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. A jury trial is scheduled for July 11.
Mark Meyers, 26, of Stiegler Road in Valley City, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony and one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 5.
James Scott, 61, of Main Street in Clinton, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 11.
Kristen VanHauter, 41, of High Street in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for July 6.
Stephen Woolum, 30, of Ledgestone Drive in Wadsworth, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 6.
Medina County Prosecutor
The following people appeared in Judge Collier's court on April 4, 2011 for criminal cases:
Kelly Covic, 35, of Terrington Drive in Brunswick, was sentenced to three years in prison for one count of Sexual Battery, a third-degree felony and one count of Contributing to the Unruliness of a Minor, a first-degree misdemeanor. She also was labeled a Tier III Sex Offender and will have to register her address with the county sheriff every 90 days for the rest of her life.
Heather Woutat, 32, of Cole Avenue in Akron, was sentenced to 180 days in jail for a probation violation on an original charge of Theft, a fifth-degree felony.
Rhonda Beard, 44, of Oak Court in Lodi, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 11.
Robert Broadsword, 33, of Avon Lake Road in Litchfield, pleaded not guilty to four counts of Non-Support of Dependents, all of which are fifth-degree felonies. A jury trial is scheduled for July 13.
Cecil Carnegie, 37, of West Liberty Street in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for June 15.
Scott Davis, 20, of Clay Court in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 11.
Eric Foster, 19, of Lodi Road in Lodi, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 13.
Sandra Goers, 58, of Stover Court in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 6.
Matthew Justice, 19, of Harding Street in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 29.
Loretta Lowery-Chrise, 39, of Lafayette Road in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 8.
Eric Merriman, 19, of Highland Drive in Lodi, pleaded not guilty to three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. A jury trial is scheduled for July 11.
Mark Meyers, 26, of Stiegler Road in Valley City, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony and one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 5.
James Scott, 61, of Main Street in Clinton, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 11.
Kristen VanHauter, 41, of High Street in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for July 6.
Stephen Woolum, 30, of Ledgestone Drive in Wadsworth, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for July 6.
Cleveland Attorneys Disbarred, Suspended by Ohio Supreme Court
n separate disciplinary actions announced today, the Supreme Court of Ohio permanently disbarred Lakewood attorney Bryan S. Freeman and suspended the license of Cleveland attorney Vincent Stafford.
2010-1479. Cleveland Metro. Bar Assn. v. Freeman, Slip Opinion No. 2011-Ohio-1483.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 09-070. Brian S. Freeman, Attorney Registration No. 0070637, is permanently disbarred from the practice of law in Ohio.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1483.pdf
(April 5, 2011) The Supreme Court of Ohio today permanently revoked the license of Lakewood attorney Bryan S. Freeman based on an 18-count complaint involving more than 50 violations of the Code of Professional Responsibility and Rules of Professional Conduct in his dealings with eight different clients.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that, among numerous acts of misconduct, Freeman neglected multiple legal matters entrusted to him, failed to make required court filings and appearances to the detriment of his clients, failed to return calls from clients or keep them reasonably informed about the status of their cases, failed to promptly forward funds and legal documents to which his clients were entitled, and in several cases misappropriated proceeds of personal injury lawsuit settlements that he held in trust for clients.
In setting the appropriate sanction for Freeman’s misconduct as disbarment, the Court cited the aggravating factors that he engaged in a pattern of misconduct involving multiple offenses, caused harm to vulnerable clients, failed to make restitution or acknowledge the wrongful nature of his conduct and failed to cooperate with disciplinary authorities throughout the investigation and prosecution of the ethics complaint brought against him.
Contacts
Dreama Anderson, 330.630.9900, for the Cleveland Metropolitan Bar Association.
Bryan Freeman, pro se, No current telephone contact information available.
2010-1601. Disciplinary Counsel v. Stafford, Slip Opinion No. 2011-Ohio-1484.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 08-081. Vincent Stafford, Attorney Registration No. 0059846, is suspended from the practice of law in Ohio for 18 months, with six months stayed on condition.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1484.pdf
(April 5, 2011) In a 7-0 decision announced today, the Supreme Court of Ohio suspended the law license of Cleveland attorney Vincent Stafford for 18 months, with the final 6 months stayed, for professional misconduct arising from his delay and obstruction of the discovery process in a divorce action and lack of candor while representing a different client in a legal malpractice case.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in the divorce action, Stafford’s failure to comply with repeated discovery requests from the opposing party over a period of many months and his evasive tactics and testimony regarding the information sought through discovery violated the disciplinary rules that prohibit an attorney from unlawfully obstructing another party’s access to evidence, knowingly disobeying an obligation under the rules of a tribunal, engaging in conduct that is prejudicial to the administration of justice, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
Writing for a unanimous Court, Justice Judith Ann Lanzinger agreed with the disciplinary board’s finding that Stafford’s testimony under cross-examination by opposing counsel regarding what discovery documents had been provided and when “clearly demonstrated that he was intentionally attempting to ‘obfuscate and hinder the truth-seeking process.’”
“We have repeatedly held that the practice of law is ‘a learned profession grounded on integrity, respectability, and candor ...’” wrote Justice Lanzinger. “It is clear that these attributes were missing from respondent’s conduct: How difficult can it be to show that you sent discovery responses to opposing counsel? For more than a year, respondent confounded three attorneys in their search for discovery documents. His evasive and obstreperous conduct alone is clear and convincing evidence that he violated the rules of professional conduct. Discovery is a critical part of the litigation process, and it often takes up a majority of the time that lawyers spend in litigating a case. ... Respondent’s lack of diligence in responding to requests for discovery is the equivalent of obstructing discovery. Therefore, as determined by the board, there is clear and convincing evidence that respondent engaged in evasive conduct that was prejudicial to the administration of justice.”
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
George S. Coakley, 216.687.1311, for Vincent Stafford.
2010-1479. Cleveland Metro. Bar Assn. v. Freeman, Slip Opinion No. 2011-Ohio-1483.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 09-070. Brian S. Freeman, Attorney Registration No. 0070637, is permanently disbarred from the practice of law in Ohio.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1483.pdf
(April 5, 2011) The Supreme Court of Ohio today permanently revoked the license of Lakewood attorney Bryan S. Freeman based on an 18-count complaint involving more than 50 violations of the Code of Professional Responsibility and Rules of Professional Conduct in his dealings with eight different clients.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that, among numerous acts of misconduct, Freeman neglected multiple legal matters entrusted to him, failed to make required court filings and appearances to the detriment of his clients, failed to return calls from clients or keep them reasonably informed about the status of their cases, failed to promptly forward funds and legal documents to which his clients were entitled, and in several cases misappropriated proceeds of personal injury lawsuit settlements that he held in trust for clients.
In setting the appropriate sanction for Freeman’s misconduct as disbarment, the Court cited the aggravating factors that he engaged in a pattern of misconduct involving multiple offenses, caused harm to vulnerable clients, failed to make restitution or acknowledge the wrongful nature of his conduct and failed to cooperate with disciplinary authorities throughout the investigation and prosecution of the ethics complaint brought against him.
Contacts
Dreama Anderson, 330.630.9900, for the Cleveland Metropolitan Bar Association.
Bryan Freeman, pro se, No current telephone contact information available.
2010-1601. Disciplinary Counsel v. Stafford, Slip Opinion No. 2011-Ohio-1484.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 08-081. Vincent Stafford, Attorney Registration No. 0059846, is suspended from the practice of law in Ohio for 18 months, with six months stayed on condition.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1484.pdf
(April 5, 2011) In a 7-0 decision announced today, the Supreme Court of Ohio suspended the law license of Cleveland attorney Vincent Stafford for 18 months, with the final 6 months stayed, for professional misconduct arising from his delay and obstruction of the discovery process in a divorce action and lack of candor while representing a different client in a legal malpractice case.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in the divorce action, Stafford’s failure to comply with repeated discovery requests from the opposing party over a period of many months and his evasive tactics and testimony regarding the information sought through discovery violated the disciplinary rules that prohibit an attorney from unlawfully obstructing another party’s access to evidence, knowingly disobeying an obligation under the rules of a tribunal, engaging in conduct that is prejudicial to the administration of justice, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
Writing for a unanimous Court, Justice Judith Ann Lanzinger agreed with the disciplinary board’s finding that Stafford’s testimony under cross-examination by opposing counsel regarding what discovery documents had been provided and when “clearly demonstrated that he was intentionally attempting to ‘obfuscate and hinder the truth-seeking process.’”
“We have repeatedly held that the practice of law is ‘a learned profession grounded on integrity, respectability, and candor ...’” wrote Justice Lanzinger. “It is clear that these attributes were missing from respondent’s conduct: How difficult can it be to show that you sent discovery responses to opposing counsel? For more than a year, respondent confounded three attorneys in their search for discovery documents. His evasive and obstreperous conduct alone is clear and convincing evidence that he violated the rules of professional conduct. Discovery is a critical part of the litigation process, and it often takes up a majority of the time that lawyers spend in litigating a case. ... Respondent’s lack of diligence in responding to requests for discovery is the equivalent of obstructing discovery. Therefore, as determined by the board, there is clear and convincing evidence that respondent engaged in evasive conduct that was prejudicial to the administration of justice.”
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
George S. Coakley, 216.687.1311, for Vincent Stafford.
Court Vacates Conviction of Megan's Law Registrant for Failing to Comply with Adam Walsh Act Requirements
Pre-2008 Classification of Sex Offender Not Subject to Legislative Changes
State v. Gingell, Slip Opinion No. 2011-Ohio-1481.
Hamilton App. No. C-081167. Judgment of the court of appeals reversed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1481.pdf
(April 5, 2011) The Supreme Court of Ohio ruled today that, pursuant to its earlier decision in State v. Bodyke, a person who was judicially classified as a sexually oriented offender and ordered to register with law enforcement once a year under the pre-2008 version of Ohio’s sex offender law (Megan’s Law) is not subject to prosecution under a more restrictive registration requirement imposed by the Ohio Adam Walsh Act (AWA) effective Jan 1, 2008.
Applying that analysis to a Hamilton County case, the Court vacated the conviction and eight-year prison sentence of Ronald Gingell for failure to comply with an every-90-days registration requirement improperly applied to him under the AWA. The Court’s 7-0 decision was authored by Justice Paul E. Pfeifer.
In this case, Gingell was convicted on three counts of rape in 1981. While he was serving his prison term for those offenses, he was classified by a judge as a sexually oriented (low-level) offender under Megan’s Law. The judge advised Gingell that, pursuant to his Megan’s Law offender classification, he would be required to register with law enforcement in his county of residence once a year for ten years following his release from prison, and if he violated that requirement he would be subject to prosecution for a fifth-degree felony. After Gingell was released from prison, the General Assembly enacted the AWA, which repealed or amended many provisions of Megan’s Law effective Jan. 1, 2008.
In late 2007 Gingell received a letter from the state attorney general advising him that he had been reclassified under the AWA as a Tier III (most dangerous) sex offender and that, effective Jan. 1, 2008, he would be required to register and update his current address with law enforcement every 90 days for the rest of his life. He was also advised that, under the AWA, failure of a Tier III offender to comply with the quarterly registration requirement was punishable as a first-degree felony.
In July 2008, Gingell was indicted by a Hamilton County grand jury on two first-degree felony counts of failing to comply with his every-90-days registration requirement under the AWA. One count was later dismissed. He was found guilty on the remaining count and sentenced to a prison term of eight years plus five years of post-release control.
Gingell appealed, arguing that because failure to comply with his sex offender registration requirement was punishable as a fifth-degree felony at the time of his original classification, the trial court should have charged and sentenced him for a fifth-degree felony under the Megan’s Law version of the statute. The 1st District Court of Appeals affirmed the trial court’s judgment and sentence, holding that because Gingell’s registration violation took place after Jan. 1, 2008, charging him under the AWA version of the statute was not a retroactive application of that law. Gingell sought and was granted Supreme Court review of the 1st District’s ruling.
While Gingell’s appeal was pending, the Supreme Court of Ohio issued its decision in Bodyke. In that decision, announced June 3, 2010, the Court voided as unconstitutional the provisions of the AWA that: 1) authorized the state attorney general to reclassify sex offenders who had previously been classified by a judge under Megan’s Law; and 2) imposed on some prior offenders AWA registration requirements that were more restrictive than the Megan’s Law registration requirements that had been imposed on them by a judge. Bodyke did not address the retroactivity question upon which the 1st District decided Gingell’s appeal, but instead found the challenged provisions of the AWA were unconstitutional because they violated the separation of powers between the legislative and judicial branches of government.
Writing for a unanimous Court in today’s decision, Justice Pfeifer noted that “(i)n Bodyke this Court held that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, were unconstitutional and severed them from the AWA. This court specifically addressed what that severance meant for offenders like Gingell, who had originally been classified under Megan’s Law and were then reclassified under the AWA: ‘R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan’s Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated.’”
“Thus, pursuant to Bodyke, Gingell’s original classification under Megan’s Law and the associated community-notification and registration order were reinstated. Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders to register every 90 days, does not apply to Gingell.”
Because it was clear from the record that Gingell’s failure-to-register conviction was based on an AWA registration requirement that was not applicable to him, Justice Pfeifer wrote: “(W)e reverse the judgment of the court of appeals and vacate Gingell’s conviction for a violation of the 90-day address-verification requirement of R.C. 2509.06. Gingell remained accountable for the yearly reporting requirement under Megan’s Law; whether he met that requirement is not a part of this case.”
Contacts
Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.
Marguerite Slagle, 513.421.1108, for Ronald Gingell.
State v. Gingell, Slip Opinion No. 2011-Ohio-1481.
Hamilton App. No. C-081167. Judgment of the court of appeals reversed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1481.pdf
(April 5, 2011) The Supreme Court of Ohio ruled today that, pursuant to its earlier decision in State v. Bodyke, a person who was judicially classified as a sexually oriented offender and ordered to register with law enforcement once a year under the pre-2008 version of Ohio’s sex offender law (Megan’s Law) is not subject to prosecution under a more restrictive registration requirement imposed by the Ohio Adam Walsh Act (AWA) effective Jan 1, 2008.
Applying that analysis to a Hamilton County case, the Court vacated the conviction and eight-year prison sentence of Ronald Gingell for failure to comply with an every-90-days registration requirement improperly applied to him under the AWA. The Court’s 7-0 decision was authored by Justice Paul E. Pfeifer.
In this case, Gingell was convicted on three counts of rape in 1981. While he was serving his prison term for those offenses, he was classified by a judge as a sexually oriented (low-level) offender under Megan’s Law. The judge advised Gingell that, pursuant to his Megan’s Law offender classification, he would be required to register with law enforcement in his county of residence once a year for ten years following his release from prison, and if he violated that requirement he would be subject to prosecution for a fifth-degree felony. After Gingell was released from prison, the General Assembly enacted the AWA, which repealed or amended many provisions of Megan’s Law effective Jan. 1, 2008.
In late 2007 Gingell received a letter from the state attorney general advising him that he had been reclassified under the AWA as a Tier III (most dangerous) sex offender and that, effective Jan. 1, 2008, he would be required to register and update his current address with law enforcement every 90 days for the rest of his life. He was also advised that, under the AWA, failure of a Tier III offender to comply with the quarterly registration requirement was punishable as a first-degree felony.
In July 2008, Gingell was indicted by a Hamilton County grand jury on two first-degree felony counts of failing to comply with his every-90-days registration requirement under the AWA. One count was later dismissed. He was found guilty on the remaining count and sentenced to a prison term of eight years plus five years of post-release control.
Gingell appealed, arguing that because failure to comply with his sex offender registration requirement was punishable as a fifth-degree felony at the time of his original classification, the trial court should have charged and sentenced him for a fifth-degree felony under the Megan’s Law version of the statute. The 1st District Court of Appeals affirmed the trial court’s judgment and sentence, holding that because Gingell’s registration violation took place after Jan. 1, 2008, charging him under the AWA version of the statute was not a retroactive application of that law. Gingell sought and was granted Supreme Court review of the 1st District’s ruling.
While Gingell’s appeal was pending, the Supreme Court of Ohio issued its decision in Bodyke. In that decision, announced June 3, 2010, the Court voided as unconstitutional the provisions of the AWA that: 1) authorized the state attorney general to reclassify sex offenders who had previously been classified by a judge under Megan’s Law; and 2) imposed on some prior offenders AWA registration requirements that were more restrictive than the Megan’s Law registration requirements that had been imposed on them by a judge. Bodyke did not address the retroactivity question upon which the 1st District decided Gingell’s appeal, but instead found the challenged provisions of the AWA were unconstitutional because they violated the separation of powers between the legislative and judicial branches of government.
Writing for a unanimous Court in today’s decision, Justice Pfeifer noted that “(i)n Bodyke this Court held that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, were unconstitutional and severed them from the AWA. This court specifically addressed what that severance meant for offenders like Gingell, who had originally been classified under Megan’s Law and were then reclassified under the AWA: ‘R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan’s Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated.’”
“Thus, pursuant to Bodyke, Gingell’s original classification under Megan’s Law and the associated community-notification and registration order were reinstated. Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders to register every 90 days, does not apply to Gingell.”
Because it was clear from the record that Gingell’s failure-to-register conviction was based on an AWA registration requirement that was not applicable to him, Justice Pfeifer wrote: “(W)e reverse the judgment of the court of appeals and vacate Gingell’s conviction for a violation of the 90-day address-verification requirement of R.C. 2509.06. Gingell remained accountable for the yearly reporting requirement under Megan’s Law; whether he met that requirement is not a part of this case.”
Contacts
Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.
Marguerite Slagle, 513.421.1108, for Ronald Gingell.
Tuesday, April 05, 2011
Judge Kimbler Changes Jury Selection Process
I have started using the "struck" method of handling peremptory challenges in both civil and criminal jury trials. Under this method, the attorneys question the whole panel of potential jurors for cause and then when exercising their peremptory challenges, they "strike" jurors from the panel. This contrasts with the "strike and replace" method where after a juror is excused because of a peremptory challenge, the attorney gets to question the juror who is called up to take the excused juror's place.
Although this method had been used by Ohio trial judges with the consent of parties for some time, I had not used it until the Ohio Rules of Civil and Criminal Procedure had been changed to expressly authorize its use. Although the the change in the Rules took place in July of 2009, I only started using it in 2011.
While I was out this fall following surgery, Judge Marvin Shapiro, who is a retired judge from Summit County was appointed by the Ohio Supreme Court Chief Justice to hear some of my cases. He uses the "struck" method for peremptory challenges. My court reporter remarked to me that it seemed to her that examination of jurors took less time under this method than under the "strike and replace" method.
So far I have used it in both criminal and civil jury trials. I find that while the initial examination of the panel takes longer, the whole jury selection process takes less time with this method. Another advantage is that the jurors don't know which side has exercised a peremptory challenge against which juror. This is because I have the attorneys either exercise the peremptory challenges in my chambers or at sidebar, where the jury cannot hear the challenges.
I am having the attorneys examine around 20 jurors for civil cases and around 25 jurors for criminal cases. During a recent civil trial, I got the attorneys to agree to impanel nine jurors and then I excused one of the jurors at the end of the trial as the alternate. That way none of the jurors or the attorneys knew which juror was going to be the alternate juror.
Although this method had been used by Ohio trial judges with the consent of parties for some time, I had not used it until the Ohio Rules of Civil and Criminal Procedure had been changed to expressly authorize its use. Although the the change in the Rules took place in July of 2009, I only started using it in 2011.
While I was out this fall following surgery, Judge Marvin Shapiro, who is a retired judge from Summit County was appointed by the Ohio Supreme Court Chief Justice to hear some of my cases. He uses the "struck" method for peremptory challenges. My court reporter remarked to me that it seemed to her that examination of jurors took less time under this method than under the "strike and replace" method.
So far I have used it in both criminal and civil jury trials. I find that while the initial examination of the panel takes longer, the whole jury selection process takes less time with this method. Another advantage is that the jurors don't know which side has exercised a peremptory challenge against which juror. This is because I have the attorneys either exercise the peremptory challenges in my chambers or at sidebar, where the jury cannot hear the challenges.
I am having the attorneys examine around 20 jurors for civil cases and around 25 jurors for criminal cases. During a recent civil trial, I got the attorneys to agree to impanel nine jurors and then I excused one of the jurors at the end of the trial as the alternate. That way none of the jurors or the attorneys knew which juror was going to be the alternate juror.
Wooster Man Sentenced to Two Years in Prison for Felony DUI
Timmy R. Holcomb, 43, of Wooster, Ohio, appeared in Judge Kimbler's court on Wednesday, March 30, 2011, and entered a plea of no contest to two counts of driving while under the influence of alcohol. Both charges were third degree felonies and are allied offenses of similar import. This means that while the state can issue two charges, the defendant can only be sentenced on one of the charges.
Following Mr. Holcomb's change of plea, the State and Mr. Holcomb, through their respective attorneys, recommended that Judge Kimbler impose a two year prison sentence, with credit for time served. Judge Kimbler accepted the attorneys' recommendations and ordered a two year prison sentence with credit for time served in the Medina County Jail pending the change of plea.
Following Mr. Holcomb's change of plea, the State and Mr. Holcomb, through their respective attorneys, recommended that Judge Kimbler impose a two year prison sentence, with credit for time served. Judge Kimbler accepted the attorneys' recommendations and ordered a two year prison sentence with credit for time served in the Medina County Jail pending the change of plea.
Brunswick Man Found Guilty of Drug Trafficking, Drug Possession
Carl J. Curry, 39, of Brunswick, Ohio, was found guilty by a jury of two drug related charged in Judge Kimbler's courtroom after a two day jury trial. The State of Ohio had charged Mr. Curry with both drug trafficking and drug possession based on an alleged sale of cocaine to a confidential informant at a bar in Brunswick on March 24, 2010.
The charges, which are both fifth degree felonies, are considered to be allied offenses of similar import. This means that while Mr. Curry can be charged with both offenses and convicted of both offenses, he can only be sentenced on one of the charges.
After the jury had been discharged, the State of Ohio moved for a revocation of Mr. Curry's bond. Judge Kimbler denied the motion for a bond revocation, noting that Mr. Curry had always appeared for court hearings. Judge Kimbler ordered a pre-sentence investigation and set May 12, 2011 as the date for Mr. Curry's sentencing.
The charges, which are both fifth degree felonies, are considered to be allied offenses of similar import. This means that while Mr. Curry can be charged with both offenses and convicted of both offenses, he can only be sentenced on one of the charges.
After the jury had been discharged, the State of Ohio moved for a revocation of Mr. Curry's bond. Judge Kimbler denied the motion for a bond revocation, noting that Mr. Curry had always appeared for court hearings. Judge Kimbler ordered a pre-sentence investigation and set May 12, 2011 as the date for Mr. Curry's sentencing.
Monday, April 04, 2011
Judge Kimbler's Criminal Docket for Thursday, March 31, 2011
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on March 31, 2011 for criminal cases:
Jason Casey, 26, of Greeley Street in West Salem, was sentenced to seven years in prison on one count of Aggravated Vehicular Homicide, a second-degree felony. His driver’s license was suspended for life.
Bradley Shelly, 35, of Chestnut Street in Wadsworth, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana and one count of Trafficking in Drugs, both of which are fifth-degree felonies.
Jacob Bayless, 26, of Ivy Hill Lane in Medina, pleaded no contest to two counts of Trafficking in Marijuana and one count of Possession of Drugs, all of which are fifth-degree felonies. Sentencing is scheduled for May 12.
James Carney, 35, of Birch Hill Drive in Medina, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for June 6.
Thomas Doughty, 28, of South Huntington Street, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for May 12.
Paul Jugov, 45, of High Point Drive in Medina, pleaded not guilty to two counts of Trafficking in Drugs, one of which is a third-degree felony and one of which is a fourth-degree felony. A jury trial is scheduled for May 31.
Allison Keiner, 34, of Pittsburgh Avenue in Wooster, pleaded no contest to one count of Theft, a fourth-degree felony. Sentencing is scheduled for May 20.
Jackie Powell, 39, of South East Street in Medina, pleaded not guilty to one count of Complicity to Commit Trafficking in Crack Cocaine, a fourth-degree felony and one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for May 31.
Cassandra Pype, 20, of West North Street in Medina, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony and one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 31.
Steven Seamon, 39, of Oak Street in Medina, pleaded not guilty to one count of Breaking and Entering, a fifth-degree felony. A jury trial is scheduled for June 1.
Edward Sizemore, 39, of Sunset Drive in Lodi, pleaded guilty to one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. Sentencing is scheduled for May 12.
Trisha Summers, 24, of Cole Avenue in Akron, pleaded no contest to one count of Trafficking in Heroin, a fourth-degree felony. Sentencing is scheduled for May 20.
Medina County Prosecutor
The following people appeared in Judge Kimbler's court on March 31, 2011 for criminal cases:
Jason Casey, 26, of Greeley Street in West Salem, was sentenced to seven years in prison on one count of Aggravated Vehicular Homicide, a second-degree felony. His driver’s license was suspended for life.
Bradley Shelly, 35, of Chestnut Street in Wadsworth, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana and one count of Trafficking in Drugs, both of which are fifth-degree felonies.
Jacob Bayless, 26, of Ivy Hill Lane in Medina, pleaded no contest to two counts of Trafficking in Marijuana and one count of Possession of Drugs, all of which are fifth-degree felonies. Sentencing is scheduled for May 12.
James Carney, 35, of Birch Hill Drive in Medina, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for June 6.
Thomas Doughty, 28, of South Huntington Street, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for May 12.
Paul Jugov, 45, of High Point Drive in Medina, pleaded not guilty to two counts of Trafficking in Drugs, one of which is a third-degree felony and one of which is a fourth-degree felony. A jury trial is scheduled for May 31.
Allison Keiner, 34, of Pittsburgh Avenue in Wooster, pleaded no contest to one count of Theft, a fourth-degree felony. Sentencing is scheduled for May 20.
Jackie Powell, 39, of South East Street in Medina, pleaded not guilty to one count of Complicity to Commit Trafficking in Crack Cocaine, a fourth-degree felony and one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for May 31.
Cassandra Pype, 20, of West North Street in Medina, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony and one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 31.
Steven Seamon, 39, of Oak Street in Medina, pleaded not guilty to one count of Breaking and Entering, a fifth-degree felony. A jury trial is scheduled for June 1.
Edward Sizemore, 39, of Sunset Drive in Lodi, pleaded guilty to one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. Sentencing is scheduled for May 12.
Trisha Summers, 24, of Cole Avenue in Akron, pleaded no contest to one count of Trafficking in Heroin, a fourth-degree felony. Sentencing is scheduled for May 20.
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