26 OHNULR 371 Page 1 26 Ohio N.U. L. Rev. 371 Ohio Northern

26 OHNULR 371 Page 126 Ohio N.U. L. Rev. 371

Ohio Northern University Law Review 2000

Survey of Ohio Law

*371 OHIO SUPREME COURT DECISIONS

Copyright (c) 2000 Ohio Northern University Law Review

I. BANKRUPTCY A. Debtor Protection Page v. Riley 85 Ohio St. 3d 621, 710 N.E.2d 690 Decided June 16, 1999 Robert Page, Appellant, filed a civil suit against Denny and Patricia Strong in 1995. Before the that case could proceed to trial, Appellant filed bankruptcy in federal court. In response, the presiding judge, Judge Riley, dismissed without prejudice the pending civil suit as the bankruptcy action would indefinitely stay the civil proceedings. In June, 1998, the stay was lifted and the appellant filed a new complaint that mirrored the initial complaint. The court of appeals, however, reactivated initial proceedings and dismissed the second complaint as superfluous. The appel-lant appealed the dismissal and filed a writ of prohibition to stop Judge Riley from reactivating the initial case. The court of appeals denied the writ and subsequently dismissed appellant's appeal of the second complaint for lack of a final appealable order. HELD: In order to be granted a writ of prohibition the a party must prove that the judge is about to exercise judicial power, the power is unauthorized by law, and there is no other remedy for the party. The Court found that the Judge Riley was about to exercise judicial power, the Court's jurisdiction was not patently and unambiguously lacking jurisdiction to reactivate the initial case, and that the appellant had an adequate remedy of appeal upon final disposition of the reactivated case. Consequently, the supreme court affirmed the judgement of the court of appeals. *372 II. BUSINESS ORGANIZATIONS A. Partnerships Lakeside Ave. L.P. v. Cuyahoga County Bd. of Revision 85 Ohio St. 3d 125, 707 N.E.2d 472 Decided March 31, 1999

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A real property valuation complaint was filed on behalf of Lakeside Avenue Limited Partnership (Lakeside), the appellant, with the Cuyahoga County Board of Revision (BOR) seeking a decrease in valuation for the tax year of 1994. The complaint was signed by Steven Kimmelman as a partner of Lakeside and legal title to the property in controversy was in the name of Lakeside. While Kimmelman did have a two-percent interest in the partnership from his status as a limited partner in Lakeside, the sole general partner of Lakeside was Lakeside Avenue, Inc., an Ohio corporation. Also, Kimmelman was neither an officer, director, or shareholder of Lakeside Avenue, Inc., nor was he a lawyer. The Cleveland Board of Education filed a counter-complaint. After considering the evidence and testi-mony presented, the BOR declined to lower the valuation of the partnership property. Subsequently, Lakeside filed an appeal with the Board of Tax Appeals (BTA) and in response, the BTA found that Kimmelman was not an owner or party affected. As a result, the BOR did not have jurisdiction to hear the merits of the complaint so the BTA re-manded the cause to the BOR to dismiss the complaint. This case came before the court upon an appeal as of right. HELD: Neither the contractual provisions of the limited partnership agreement nor Ohio Revised Code section 1782.24(A) grants Kimmelman the requisite interest to establish him as an owner of the partnership land. The lim-ited partnership agreement specifically stated that the power to sign for or bind the Partnership was vested in the General Partner and no Limited Partner had that right. Similarly, section 1782.24(A) only grants a general partner the rights, powers and liabilities in the partnership, but no analogous rights are supplied to limited partners. Because he did not own an interest in the property and he was not an attorney, the Court lacked jurisdiction to proceed, so the case was remanded to the BOR for dismissal. Accordingly, the decision of the BTA was affirmed. *373 III. CIVIL RIGHTS A. Equal Protection Ritchey Produce Co., Inc. v. Ohio Dep't of Admin. Serv. 85 Ohio St. 3d 194, 707 N.E.2d 871 Decided April 7, 1999 NadimF. Ritchey owns Ritchey Produce Company, Inc., and is from Lebanese descent. Ritchey filed an appli-cation with the Ohio Department of Administrative Services (ODAS) seeking a minority business enterprise (MBE) certification which would allow his business to be set aside in a group of minority businesses in which certain gov-ernment contracts would be reserved for bidding by these enterprises only. Thus, attempting to curtail discrimination of minority businesses. The MBE certification is limited to African-Americans, American Indians, Hispanics and Orientals. When Ritchey applied he indicated that he was Oriental, but on the second page of the application he stated that his national origin was Lebanese. In August, 1991, Ritchey received MBE certification, but when Ritchey applied for recertification in 1995 the ODAS was informed that he was Lebanese and therefore may not have been properly certified as an MBE. Accordingly, the ODAS, after investigation, notified Ritchey that he was not a mem-ber of any qualifying racial groups, and his certification was denied. Subsequently, Ritchey filed in the Court of Common Pleas for Franklin County to appeal the agency's order which was referred to a magistrate. The magistrate held the order violated the equal protection guarantees of the Fifth and Fourteenth Amendments to the United States Constitution, and the common pleas court adopted that decision. The court of appeals affirmed the judgment of the trial court, and held that the MBE program was unconstitutionally applied to Ritchey. The cause went to the Ohio Supreme Court pursuant to a discretionary appeal. HELD: The primary issue the court decided was whether Ohio's MBE Program, as applied and written, violated the equal protection guarantees of the Fourteenth Amendment. The Supreme Court found that the standard of review for all governmental classifications based on race is the strict scrutiny. In order to survive strict scrutiny the program must be justified by a compelling governmental interest, and the means to effectuate its purposes must be narrowly


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tailored. There was an abundance of evidence to support a compelling government interest. Statistical data revealed that very few minority businesses obtained projects awarded by the state. Furthermore, a task force was made to evaluate this sort of discrimination, and it concluded that minority businesses were receiving less than one-fourteenth of their *374 proportionate share of state contracts. Additionally, there was sufficient evidence that the circumstances surrounding its enactment had the purpose to halt and redress past practices in which the state was involved in discrimination against minority businesses. Because there was a determination that the legislation sup-ported a compelling government interest, the court next had to decide whether the means chosen to effectuate its interests were sufficiently narrowly tailored. The goal of the program was not to aid every disadvantaged group, but to aid every group listed because they are the groups that had been documented as being discriminated against. To hold any other way would abandon the state's original compelling interest. The final consideration of the court was whether “Oriental” pertained to people of Lebanese descent. After referring to numerous dictionaries the court agreed with the ODAS, that the common, ordinary meaning of “Oriental,” as used and understood today, simply does not refer to people of Lebanon. For these reasons the court held that the MBE program supported a sufficient government interest and was sufficiently narrowly tailored, thus did not infringe upon any Constitutional provisions. However, Ritchey was not permitted to receive the program's benefit because he did not fall within any of the desig-nated ethnic groups. Accordingly, the court reversed the judgment of the court of appeals, vacated the judgment of the trial court, and reinstated the order of ODAS denying the application for MBE recertification. IV. COMMERCIAL LAW A. Contracts Fred Siegel Co. v. Arter & Hadden 85 Ohio St. 3d 171, 707 N.E.2d 853 Decided April 7, 1999 Fred Siegel Company (Appellee), a law firm, employed Karen Bauernschmidt (Appellant) for ten years during which time she had access to the appellee's client list as well as frequent contact with many of these clients. Appel-lant resigned from the firm to join the firm of Arter & Hadden (A&H). During her last weeks of employment with the appellee, Appellant contacted and informed various clients of the appellee that she was leaving the firm and that other attorneys for Appellee would be taking over her cases. She was given a letter written by Appellee's principal informing her not to solicit any of the appellee's clients or to take any type of firm list with her when she left. When the appellant left the firm, she took her Rolodex with her which contained the names of various client's of the appel-lee firm. Appellant did write letters to some of Appellee's clients indicating her new place of employment with A&H and her desire to continue her professional *375 relationship with these clients. Appellee sent letters to these clients to counteract the letters from the appellant. Letters of solicitation were also sent to these clients by A&H de-tailing the type of legal work in which the firm specialized. A number of Appellee's clients took their business to A&H and requested the appellee to send their files to Appellant. Appellee brought a complaint against the appel-lants, Bauernschmidt and A&H, alleging tortious interference with contracts, willfully retaining confidential infor-mation and trade secrets, tortious misappropriation of the confidential information and trade secrets, and, finally, breach of fiduciary duty of loyalty owed to the appellee by Appellant Bauernschmidt. The trial court granted sum-mary judgment in favorof the appellants, without opinion. The appellee appealed this decision to the court of ap-peals, which reversed and remanded all claims except the breach of fiduciary duty of loyalty which was affirmed. The Supreme Court of Ohio allowed a discretionary appeal by Bauernschmidt and A&H. HELD: Tortious interference with a contract requires the existence of a contract, the tortfeasor's knowledge of the contract, the intentional procurement of the contract's breach, the lack of justification for such for such conduct, and resulting damages. The court found that the element of lack of justification must have proof that the alleged tort-




feasor's interference was improper. Appellant Bauernschmidt, the court determined, went beyond the Code of Pro-fessional Responsibility's (Code) authorization to notify clients of a change of employment. The court found that she not only notified clients that she was transferring to a different firm, she actively solicited their business, hence, en-couraging them to terminate representation with the appellee. Furthermore, the appellant admitted that the clients were not “hers” but rather, were clients of the firm, and she had never entered into a contractual relationship with these clients. The court held that a violation of the Code was not enough to constitute a tort and so it adopted the Restatement (Second) of Torts Section 767's guidelines to determine improper interference with a contract as well as section 768. Thus, the court determined that genuine issues of material facts remained regarding whether the appel-lants employed wrongful means in competing with the appellee. The court went on to address the issue of misappro-priation of trade secrets. The court determined that a possessor of possible trade secrets must take action to keep such knowledge secret such as allowing only authorized personnel access to the secrets and only for a permitted use. In accordance with this determination, the court found that genuine issues of material fact existed as to whether the appellee had taken reasonable measures to ensure the confidentiality of the client list. In support of this finding, there was evidence in the record that showed that the client list was kept on a password protected computer, hard copies of which were contained in a locked cabinet at times, *376 and that the principal of the firm had “probably” told employees that such information was confidential. Based on the foregoing, the supreme court affirmed the deci-sion of the court of appeals and remanded the cause. V. CRIMINAL JUSTICE A. Appeals State v. Gillard 85 Ohio St. 3d 363, 708 N.E.2d 708 Decided April 28, 1999 Appellant, John Grant Gillard (Gillard) was convicted of aggravated murder and sentenced to death. The Court of Appeals for Stark County reversed his conviction and sentence in 1987. By leave of the Supreme Court of Ohio, the State appealed and Gillard cross-appealed on two assignments of error. The Court overruled Gillard's two as-signments of error, reversed the judgment of the court of appeals, and remanded an independent review of the death sentence to the court of appeals. The court of appeals affirmed the death sentence on remand. Gillard appealed to the Supreme Court of Ohio adding new claims (one involving a conflict of interest on the part of his trial counsel). The Court remanded to the Court of Common Pleas of Stark County to determine whether or not this conflict existed. The trial court found no conflict and returned the cause to the supreme court. The Court conducted its own inde-pendent review and affirmed the death sentence. In the supreme court's own independent review, Gillard tried to raise new issues, but the Court declined to consider them because they were beyond the scope of remand, and be-cause Gillard failed to raise them in his 1998 cross-appeal to the supreme court. Gillard filed an application to re-open his direct appeal in the court of appeals on July 7, 1997. Gillard alleged ineffective counsel representation be-cause of their failure to raise certain issues during Gillard's 1987 appeal to the court of appeals. The state failed to respond, so therefore, the court of appeals granted Gillard's application. On the reinstated appeal, the court of ap-peals reaffirmed the common pleas court's judgment. Gillard then appealed to the Supreme Court of Ohio as a mat-ter of right. HELD: The defendent waived his claim of ineffective assistance of counsel by failing to raise it in his initial cross-appeal. The Supreme Court of Ohio found that Gillard did not have ineffective counsel representation on his first appeal as of right (the 1987 direct appeal to the court of appeals). Gillard's counsel won this appeal for him and the Court determined that this was effective representation. Irrespective of this, the Court found that Gillard should have raised his ineffective counsel claim in his 1998 cross-appeal to *377 the supreme court. The Court noted that





Gillard was represented by different counsel on this appeal, and therefore, nothing prevented him from raising this complaint. B. Arguments and Opening Statement State v. Baston 85 Ohio St. 3d 418, 709 N.E.2d 128 Decided May 12, 1999 On March 21, 1994, Chong Mah was found shot to death in his Toledo store, Wigs N' Things. The cash register was empty and items from the store were missing. After an extensive investigation, Johnny Baston, appellant, was arrested. Baston admitted participating in the robbery of the store, but denied any intention to kill anyone, and claimed that his friend actually shot Chong Mah without Baston's prior knowledge. Baston was charged with aggra-vated robbery and the capital aggravated murder of Chong Mah. Baston waived his right to be tried by a jury, and the case proceeded before a three-judge panel. The panel found Baston guilty of all charges and, after a penalty hear-ing, sentenced him to death. The court of appeals affirmed. The cause was brought before the supreme court upon an appeal as of right. HELD: The Court found none of Baston's propositions of law meritorious. First, Baston argued that his jury waiver was not made knowingly, intelligently, and voluntarily. The Court found that there was no requirement for the trial court to interrogate a defendant in order to determine whether he was fully apprised of his right to a jury trial. This waiver was satisfied by a written waiver. Also, the Court found that Baston's contention that he was mis-informed by the presiding judge was without merit. Second, Baston argued that evidentiary rulings by the trial court deprived him of his constitutional rights. The Court held that the testimony of the expert witness was admissible and the trial court's determination of her expert status would not be overturned. Futhermore, the Court noted that defense counsel never objected or challenged her qualifications, thus waiving all but plain error. The state's failure to qual-ify the expert witness in more detail did not arise to the level of plain error. The Court also held that the prosecu-tion's questioning of a witness about the witness's tape-recorded statement that was not admissible was not in error. The Court noted that the defense counsel did not object to any of these evidentiary rulings during the trial, thus wav-ing all but plain error, which was not present in the proceedings. Third, Baston contended that the appellate court did not properly reweigh the evidence because the trial court had a clear and evident bias against Baston. Baston cited excerpts from the opinion as demonstrative of the appellate court's bias. However, the Court *378 held that the panel expressly stated that it engaged in a “dispassionate review” and would not presume that the appellate court acted with bias. Finally, Baston argued that his death sentence was not appropriate and was disproportionate to sentences imposed in similar cases. The Court weighed any mitigating evidence, but held that, although Baston's mitigation evidence was entitled to some weight, it was insufficient to overcome the single aggravating circumstance, murder during the course of an aggravated robbery, proven beyond a reasonable doubt. The judgment of the court of appeals was affirmed. C. Confessions State v. Bey 85 Ohio St. 3d 487, 709 N.E.2d 484 Decided May 19, 1999 Dale Pinkelman's body was found near the back of his store with single stab wound to the chest. His assailant





had removed his pants and placed his shoes next to him. This went unsolved until the body of Peter Mihas, also a small business owner, was found stabbed to death near his restaurant. Like the Pinkelman murder the assailant had removed his trousers and placed his shoes beside the body. Furthermore, both businesses were robbed as a result of the attack. Police interviewed Gregory L. Bey, Appellant, in regards to the Mihas murder and attained his admission to that murder. After getting Appellant's finger and palm prints, police matched them with latent prints from the Pinkelman murder. The grand jury indicted Appellant on two counts of aggravated murder, with death penalty speci-fication, and two counts of aggravated robbery. The cases were severed, and Appellant was convicted for the Mihas murder and robbery in which he received a life sentence. Appellant was also convicted by the trial and appeals court for the murder and robbery of Pinkelman, and his punishment was the death penalty. Appellant appealed to the Ohio Supreme Court as an appeal of right. HELD: Appellant maintained that evidence was improperly admitted against him. First, he alleged that the pre-trial judgment denying him the exclusion of evidence relating to his prior convictions failed to include a weighing of whether the prejudicial impact outweighed its probative value; however, the evidence relating to the Mihas murder proved identity through a certain modus operandi, thus admissible. Appellant further asserted that his counsel was ineffective and the prosecution misconducted themselves. He was collaterally estopped from claiming ineffective counsel for their failure to raise suppression arguments about evidence in the Mihas trial because the issue was al-ready litigated in the appeals court for that case. Appellant also *379 contended that his counsel was ineffective because they requested a jury instruction during voir dire relating to Appellant's prior criminal acts. However, the court determined that this was a reasonable decision because the defense knew the prosecution would introduce that evidence, and therefore chose to take the punch out by disclosing it early. Appellant also claimed that his counsel failed to make proper objections, but without citing specific examples he was unable to show a deficient perform-ance or prejudice which are both necessary to prove ineffective counsel. Appellant had several claims of prosecuto-rial misconduct regarding remarks made during guilt-phase closing arguments. For the arguments which Appellant objected the court had to determine whether the prosecutor's remarks were improper, and if so, whether the remarks were prejudicial to Appellant's substantial rights. Because prosecutors have broad discretion as to what inferences may be drawn from evidence, the court concluded that the fairness of the trial is the importance to the analysis, not the prosecutor's culpability. The other allegations of prosecutorial misconduct during sentencing was not objected to, so Appellant waived all but plain error. Because proper jury instructions cured any prosecutorial misstatements and general victim impact statements are not outcome determinative, no prosecutorial misconduct was found. In Ohio, courts of appeals are not required to conduct an inquiry with the defendant about whether they are going to testify. Therefore, Appellant was not deprived of due process when the trial court failed to hold an inquiry. Furthermore, simply because Ohio has not carried out a death sentence in over thirty years only proved that the state has a high standard of certainty, not that the death penalty was cruel and unusual. Also, the fact the Appellant only received a life sentence for the Mihas conviction did not preclude its use in the Pinkelman trial, and the judge's order that Ap-pellant should be sentenced to death by electrocution did not preclude Appellant's statutory right to choose lethal injection instead. For the aforementioned reasons, Appellant's claims were rejected and the Supreme Court upheld the lower courts convictions and death sentence. Thus, the judgement was affirmed. D. Death Penalty State v. Ashworth 85 Ohio St. 3d 56, 706 N.E.2d 1231 Decided March 24, 1999 Appellant, Herman Dale Ashworth, pled guilty to two counts of aggravated murder and one count of aggravated robbery. Ashworth waived the presentation of mitigating evidence at his sentencing hearing. A three-judge panel found Ashworth guilty on all three counts and sentenced him to death. The case came before the Supreme Court of Ohio on an appeal as of *380 right. On appeal, Ashworth argued that the Eighth Amendment prohibits a capital de-




fendant from waiving his right to present mitigating evidence. HELD: The Court upheld Ashworth's conviction and sentencing, finding that his waiver of his right to present mitigating evidence did not violate the Eighth Amendment. The Court pointed out that the trial court still examined the evidence to determine whether the elements of death penalty specifications were proved beyond a reasonable doubt. Furthermore, his waiver did not preclude him from his right to have his case reviewed on appeal. The Court set forth standards for the trial court to follow in order to determine whether a defendant should be allowed to waive his right to present mitigating evidence. The Court held that in a capital case where a defendant wishes to waive the presentation of mitigating evidence, the trial court must conduct an inquiry on the record as to whether the waiver is made voluntarily and knowingly and whether the defendant understands his rights in the plea and sentencing pro-ceedings. The Court held that in the process of the inquiry, the trial court must inform the defendant of his right to present mitigating evidence, explain its purpose and importance, and make a determination on the record as to whether the defendant comprehends the importance of mitigating evidence and the effect of failing to present it. Finally, the trial court must inquire into whether the defendant wishes to waive his right to present mitigating evi-dence and present findings of fact as to the defendant's understanding of waiver. The supreme court declined to hold that a competency hearing will always be required where a defendant wishes to waive his right to present mitigating evidence. Rather, it charged the trail court to be aware of behavior on the part of the defendant that would call his or her competency into question. Apart from the recognition of a need for a hearing on the part of the court or a request by counsel, a competency hearing was held not to be required. The Court affirmed the ruling of the lower court. State v. Coleman 85 Ohio St. 3d 129, 707 N.E.2d 476 Decided March 31, 1999 On January 2, 1996, Melinda Stevens, a confidential informant for the Springfield police, was found shot to death behind a restaurant, Riddle's Ribs, in Springfield, Ohio. Prior to her death she made controlled purchases of drugs from possible dealers, three of which involved crack cocaine and were from Appellant, Timothy Coleman. These deals were observed and recorded by police which led directly to Appellant's arrest for drug trafficking. While in jail awaiting trial Appellant made comments to his cell mate about wanting to killing Stevens for testifying against him. Furthermore, he was seen the *381 night of the murder at Riddle's Ribs, and after her death he made comments to numerous people eluding to the fact that he killed her. Moreover, testimony revealed that he acted out to a friend how Stevens looked when she was shot in the back of the head. Appellant told another cell mate that he used a Davis P-380 to commit the murder which matches the type of bullets found at the scene, and he indicated that he put the clothes he was wearing in a doghouse in a friend's backyard. The clothing was recovered from a dog-house, but in a different yard. Appellant was indicted in March 1996 for the aggravated murder of Melinda Stevens with prior calculation and design. The indictment had a death penalty specification because he had killed an infor-mant in order to avoid her testimony at his trial. Furthermore, he was indicted for possession of a firearm while un-der a disability. The trial court found Appellant guilty on all charges, and sentenced him to death. The cause went to the Supreme Court as an appeal of right. HELD: For a reversal on grounds of ineffective counsel Appellant must have shown that counsel performed insufficiently and that he was deprived of a fair trial as a result. Appellant asserted that his counsel did not make use of the lack of physical evidence against him, however physical evidence was not necessary because Coleman repeat-edly told eyewitnesses that he intended to and did kill Stevens. The court noted that defense counsel have discretion during voir dire, and all alleged mischaracterizations were cured by the trial court's jury instructions. There was also an allegation that Appellant's counsel failed to request severance of the firearm possession charge, however the court found this was the proper joinder of offenses for judicial efficiency. Also, the gruesome photos were admissible be-cause the probative value outweighed any prejudice because they directly corroborated testimony of Appellant's description to friends about the murder. At the penalty phase evidence from trial was admitted without objection, but




the court stated that this did not constitute ineffective counsel because almost all the trial evidence was ultimately admissible in the sentencing phase because it related to either aggravating or mitigating factors. Appellant also ar-gued that certain evidentiary issues precluded his chance at a fair trial; however, the evidence of his prior drug charge and the situation arising therefrom was properly admitted because it tended to show motive; and the evidence was enough to support a guilty verdict in reasonable minds beyond a reasonable doubt. Because the prosecution had a race-neutral reason for excusing jurors no discrimination was found, thus the prosecutions voir dire was valid. Be-cause of a lack of mitigating evidence, the aggravating factors were not outweighed and the death penalty was sus-tained. Therefore, the Supreme Court affirmed the lower courts convictions and sentence of death. *382 State v. Stojetz 84 Ohio St. 3d 452, 705 N.E.2d 329 Decided February 17, 1999 John C. Stojetz, Jr., Appellant, and five other adult inmates of Madison Correctional Institution ran across their prison yard to the juvenile detention center within the same grounds. Upon entering the building wielding handmade knives, the men ordered the stationed corrections officer to give his keys to Appellant who had his knife at the offi-cer's throat. After receipt of the keys the officer was allowed to flee, and the armed men proceeded to Damico Wat-kin's cell, an African-American's inmate. Using the newly acquired keys, Appellant opened the cell door, and all six men began attacking Watkins. At one point Watkins broke loose and ran down the cell corridor, however he was chased and continually stabbed. Despite Watkins several escapes from his attackers, he was eventually cornered by Appellant and repeatedly stabbed to death. Subsequently, the inmates were ordered to surrender. Evidence at trial indicated that the killing was either racially motivated, or that Appellant was attempting to cause trouble in order to be transferred to another facility. Appellant was convicted of aggravated murder with a death penalty specification by the Madison County Grand Jury and made a direct appeal to the Ohio Supreme Court pursuant to Section 2(B)(2)(c), Article IV of the Ohio Constitution. HELD: By not objecting to jury selection, Appellant waived all review except plain error which provides, but for the error, the outcome of the trial would have been otherwise. When jurors are being selected for death penalty cases they are required to be asked about their views concerning the death penalty, however they are not required to be asked their views on life sentences. Furthermore, because Appellant waived any error for jury selection, the court reasoned the jurors were fairly chosen because none of the jurors that Appellant questioned had any evidence of being primarily for the death penalty. Because Appellant was already incarcerated when the incident occurred there did not have to be an instruction to the jury of whether Appellant was the principal offender or just an aider and abettor; thus the only instruction that had to be given was whether Appellant perpetrated the murder while incarcer-ated. Evidence was substantial that appellant committed the murder. There were no objections during trial, so the trial court's instructions do not rise to the level of reversible error. Most of Appellant's arguments surrounded im-properly admitted evidence. However, Appellant's failure to object, and the great weight of evidence against him, including a videotape of the killing, was too overwhelming to rule differently. Furthermore, nothing Appellant raised in his appeal concerning improper evidence was outcome *383 determinative. The above reasons in conjunc-tion with the decision that the mitigating testimony from Appellant's family and doctor did not outweigh the aggra-vating circumstances namely because Appellant testified to being accountable for his actions, gave the Supreme Court enough evidence to convict Appellant of aggravated murder. Therefore, the trial court's findings were af-firmed, and the death penalty remained intact. State v. White 85 Ohio St. 3d 433, 709 N.E.2d 140



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Decided May 12, 1999 Appellant, Clifton White, while going through a break-up with his girlfriend, Heather, shot and killed Heather's mother, Julie Shrey. Additionally, Appellant injured Heather's new boyfriend and killed his mother, Deborah Thorpe. After the shooting spree, Appellant turned himself in to police. Appellant was convicted of the murder of Heather's mother, aggravated murder of her new boyfriend's mother, and attempted murder of Heather's boyfriend. A death sentence was imposed for the aggravated murder conviction as well as prison sentences for the other of-fences. Appellant appealed to this Court as a matter of right on several grounds including: the admissibility of vic-tim impact statements, the peremptory strike of a black juror, and prosecutorial misconduct. HELD: First, the admission of victim-impact statements to a sentencing jury in the non-capital offenses violated Ohio Revised Code section 2930, was error but harmless as there was ample evidence to support the jury's determi-nation. Second, the prosecution's peremptory strike of a black juror was appropriate as there was a race-neutral ex-planation for the strike, an opposition to the death penalty. Third, the crying of a prosecutor during Appellant's trial was not reason for a mistrial as there was no evidence that the display of emotion affected the jury, and the trial court was best situated to make that determination. Finally, the court reevaluated whether the evidence supported the jury's finding of aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and de-cided that they did. Accordingly, the supreme court affirmed the decision of the trial court. *384 E. Double Jeopardy State v. Rance 85 Ohio St. 3d 632, 710 N.E.2d 699 Decided June 16, 1999 Giano Rance, Appellee, pleaded guilty to one count of involuntary manslaughter and one count of aggravated robbery in violation of Ohio Revised Code section 2903.04(A) and 2911.01(A)(3). Rance was sentenced to succes-sive terms of imprisonment for both counts, which resulted in an aggregate sentence of sixteen to fifty years. Assert-ing that involuntary manslaughter and aggravated robbery are allied offenses, Rance moved to correct his sentence. Before the trial court could rule on the motion, Rance appealed asserting that section 2941.25(A) and the Double Jeopardy Clause of the United States and Ohio Constitutions precluded the trial court from imposing separate, con-secutive sentences for two allied offenses of similar import. The court of appeals disagreed and found that sentenc-ing Rance for both crimes violated section 2941.25(A) and the constitutional guarantees against double jeopardy because involuntary manslaughter necessarily encompasses all of the elements of aggravated robbery. Due to the disagreement over the issue between several other Ohio appellate courts, the Sixth District Court of Appeals certi-fied a conflict in the case. The case came before the Court upon an allowance of a discretionary appeal. HELD: The Court held that it was unnecessary to apply the Blockburger test (whether each offense requires proof of an element that the other does not) in deciding whether cumulative punishments charged in a single trial for more than one offense violated the federal and state constitutional provisions against double jeopardy. Alternatively, courts should apply the two-step test found in section 2941.25 when deciding the constitutional and state statutory inquiries. Courts should ask whether the statutory elements of the crimes correspond to such a degree that the com-mission of one crime will result in the commission of the other when aligning the elements of each crime in the ab-stract. If the elements correspond, the defendant cannot be convicted of both crimes unless the trial court found that the defendant executed the crimes independently or with separate animus. From this decision, cases like Newark v. Vazirani, 48 Ohio St. 3d 81, 549 N.E.2d 520 (1990), are overruled. In application to the case, the Court held that involuntary manslaughter and aggravated robbery are not allied offenses of similar import under section 2941.25(A). Therefore, the Court reversed the judgment of the court of appeals and reinstated the original sentences imposed by


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the trial court. *385 F. Grand Jury Special Grand Jury Investigation Concerning Organic Technologies 84 Ohio St. 3d 304, 703 N.E.2d 790 Decided January 13, 1999 Organic Technologies (Organic) was investigated by a special grand jury regarding an explosion at one of their plants. There was no indictment, however, the president of Organic entered into plea agreement for which a presen-tencing report was filed by the state with the court containing confidential grand jury information. Subsequently, Organic filed a motion alleging that the state disclosed confidential grand jury information violating Criminal Rule 6(E). This court determined that presentence investigative reports are not public record and remanded for an eviden-tiary hearing. Organic and its counsel were excluded from the hearing and the court ultimately ruled that the state did not violate Criminal Rule 6(E). The court of appeals later affirmed. This case is now before this court on discre-tionary appeal. HELD: The trial court abused its discretion when it prohibited Organic and its counsel from participating in the hearing. Accordingly, the court held that the dangers of potential witness identification were outweighed by the benefit to Organic and the grand jury process. Consequently, the judgment was reversed and remanded to the trial court. G. Habeas Corpus Douglas v. Money 85 Ohio St. 3d 348, 708 N.E.2d 697 Decided April 28, 1999 In 1985, James Douglas (Douglas) was sentenced to fifteen years to life for murder and a firearm offense. In 1998, Douglas filed a writ of habeas corpus in the court of appeals. Douglas claimed he was entitled to be immedi-ately released from prison for several reasons, including: the ex post facto application of new prison rules, prison overcrowding, placement in solitary confinement, a conspiracy to deny him parole, an invalid guilty plea and an invalid indictment. The court of appeals dismissed the writ. Douglas appealed to the Supreme Court of Ohio as a matter of right. HELD: The application of new prison rules on a prisoner is not an ex post fact imposition of punishment. Doug-las had a statutory remedy under United States Code title 42, section 1983, which allows state prisoners to *386 challenge the conditions of their incarceration. Because Douglas had a statutory remedy, the Court would not con-sider the conditions of his confinement. Douglas had no valid basis for a writ of habeas corpus. Writs of habeas cor-pus do not apply to claims of conspiracy and bias, so these claims would not be heard by the court. Writs of habeas corpus in criminal cases are available only when the petitioner is eligible for immediate release from prison, and Douglas was not eligible for immediate release. Also, a writ of habeas corpus could not be used to hear a claim of an invalid guilty plea and invalid indictment. These claims could have been heard by filing a motion to withdraw the plea, direct appeal, or post-conviction proceedings. Thus, the supreme court held that Douglas had no valid basis for a writ of habeas corpus. The Court affirmed the judgment of the court of appeals, and dismissed the petition.



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Fryerson v. Tate 84 Ohio St. 3d 481, 705 N.E.2d 353 Decided February 17, 1999 Appellant, Lafette Fryerson, was sixteen years old when he was taken into custody after Cleveland police caught him driving a stolen car. It was later alleged that he was also a party in the robbery and shooting of Lawrence Robinson in the same night. Shortly thereafter, a police officer filed a complaint in juvenile court alleging Appel-lant's activities would have been considered criminal offenses if he were an adult. The officer also added in his com-plaint that Appellant committed kidnaping, aggravated robbery, felonious assault and receiving stolen property. Fol-lowing a bindover hearing, the Cuyahoga County Common Pleas Court, Juvenile Division, ordered a mandatory bindover of Appellant to the common pleas court pursuant to Ohio Revised Code section 2151.26(B) to be tried as an adult on the kidnapping and aggravated battery charges pertaining to Robinson rather than Jones. A grand jury indicted Appellant, for the first time, for aggravated robbery of Jones, kidnapping, and felonious assault of Robin-son. The indictment was dismissed by the court of common pleas. A second indictment from the grand jury con-sisted of the robbery of Jones and grand theft of his automobile. Appellant was convicted and sentenced to a prison term of eight to ten years. He then filed a petition for a writ of habeas corpus for improper bindover and sought re-lease from the correctional facility. The court of appeals denied the writ and an appeal to the supreme court was taken as a matter of right. HELD: The supreme court found that Appellant challenged the legitimacy of events that occurred after a correct bindover, since he was bound over on charges pertaining to Robinson and was convicted on charges *387 concern-ing Jones. That did not have anything to do with the validity of the bindover. Habeas corpus relief is unavailable when there is an adequate remedy at law. Appellant could have taken a direct appeal for his indictment and convic-tion. The supreme court denied the writ affirming the judgment of the court of appeals. Hogan v. Ghee 85 Ohio St. 3d 150, 707 N.E.2d 494 Decided March 31, 1999 Appellant Robert Hogan filed a complaint for a writ of mandamus against appellee Margarette Ghee, Chairper-son of the Ohio Adult Parole Authority (APA), in the Court of Appeals for Franklin County. At the time he filed the complaint, Hogan had served approximately seven years of a three to fifteen year sentence for burglary, theft and drug abuse. Hogan asserted that the APA mentioned that he had a pending lawsuit against two correctional officers and his prison warden at a 1996 parole hearing in which his parole was denied. The writ of mandamus was issued to compel Ghee to either release Hogan from prison or permit him to have a new parole hearing. Hogan moved for a declaratory judgment and argued that Ghee and the APA's discrimination against him by denying parole was action-able under Title 42 Section 1983, United States Code. Ghee filed a motion to dismiss. The court of appeals dis-missed Hogan's mandamus action, denied his motion for declaratory relief and granted Ghee's motion for dismissal. Hogan appealed to the supreme court as a matter of right. HELD: The court identified four problems with Hogan's complaint. First, the proper action Hogan should have taken for a release from prison was habeas corpus rather than mandamus. Second, Hogan had no constitutional right to be released from prison before the completion of his sentence. Third, Hogan's adequate remedy would have been to file a Section 1983 action on his claim that Ghee and the APA discriminated against him by denying his parole. Finally, the court of appeals did not have jurisdiction over Hogan's declaratory judgment motion. The supreme court








affirmed the judgment of the court of appeals. Johnson v. Mitchell 85 Ohio St. 3d 123, 707 N.E.2d 471 Decided March 31, 1999 John A. Johnson (Johnson) was convicted of aggravated murder with specifications, kidnapping, and rape in the Cuyahoga County Common Pleas *388 Court in 1976. Johnson was sentenced to death for the aggravated murder with specifications and was further sentenced to consecutive seven-to-twenty-five-year prison terms for his kidnap-ping and rape convictions. The court of appeals affirmed the lower court's decision. The Supreme Court of Ohio reversed Johnson's death sentence to life imprisonment based on Lockett v. Ohio, 438 U.S. 586 (1978). Johnson, in September 1998, filed a petition in the Court of Appeals for Richland County for a writ of habeas corpus to compel his release from prison. Claiming that he was never returned to the lower court for resentencing pursuant to Criminal Rules 32 and 43 after his death sentence was vacated, Johnson claimed extraordinary relief in habeas corpus. John-son failed to attach a copy of his sentencing entries to his petition, and the court of appeals dismissed his petition. The cause went before the supreme court upon an appeal as of right. HELD: The Court held that Criminal Rules 32 and 43 do not apply to cases on appeal. Further, Johnson's aggre-gate prison sentence for high non-capital crimes precluded the writ. Finally, the Court found that Johnson did not comply with the required provision of the Ohio Revised Code section 2725.04(D) requirement to attach the sentenc-ing entries to his petition for habeas corpus. The supreme court affirmed the judgment of the court of appeals. State ex rel. White v. Goldsberry 85 Ohio St. 3d 153, 707 N.E.2d 496 Decided March 31, 1999 Michael White (White) was convicted in 1984 for aggravated burglary, aggravated robbery, felonious assault, and firearm violations. In 1998, White filed a writ of mandamus in the Court of Appeals for Athens County. White filed the writ to compel Alan Goldsberry (Goldsberry), a judge, and William Biddlestone (Biddlestone), a prosecu-tor, to provide records from 1960 to 1999 of the number African-American foremen of grand juries. White also re-quested records showing the number of peremptory strikes used to exclude African-Americans as foremen. White demanded to be released from prison, and have his indictment overturned if no African-American had ever served as foreman of an Athens County Grand Jury. The court of appeals dismissed White's complaint. White then appealed to the Supreme Court of Ohio as a matter of right. HELD: White did not have a valid claim for a writ of mandamus. First, the records requested by White do not exist, and even if they did, Goldsberry and Biddlestone had no duty under Ohio Revised Code section 149.43 to *389 provide copies to him. Second, White had an opportunity to dispute the fairness of the compensation of his grand jury by filing a motion to dismiss the indictment, or by a direct appeal of his conviction. Also, a writ of habeas corpus should have been filed instead of a writ of mandamus, because White was seeking immediate release from prison. Finally, White did not comply with Ohio Revised Code section 2969.25(A), which requires an affidavit list-ing all civil actions or appeals of civil actions in the last five years. Because the Court found that White had no valid claim for a writ of mandamus, the supreme court affirmed the judgment of the court of appeals. State v. Sheppard














84 Ohio St. 3d 230, 703 N.E.2d 286 Decided December 30, 1998 The appellant Bobby T. Sheppard robbed, at gun point, a C & D Drive-thru in Cincinnati in August, 1994. As he was leaving the store, Sheppard shot the owner in the back of the head. The police arrived on the scene shortly after the murder, with a tracking dog that picked up the appellant's scent. They followed the scent to a nearby house where the appellant was arrested. After the house was secured a search warrant was obtained and the police searched the residence and found $114.00 dollars in a plastic bag in the kitchen. The police then located more of the money ($390.00) and the murder weapon, a .22 caliber pistol. The defendant, after he was arrested and mirandized, but be-fore the police told him the reason for the arrest, denied his involvement in a robbery. Then, the defendant said that he shot the owner in self defense, but later admitted to what actually occurred. There was testimony of Sheppard's plan to rob the store, and to kill the man if necessary, he had three conversations with a 15 year-old friend that testi-fied against him. The jury found Sheppard guilty of aggravated robbery and aggravated murder, there were also pre-vious charges that were considered and the jury recommended that Sheppard be put to death. The trial court sen-tenced Sheppard to death, and the court of appeals affirmed. The case was brought before the Ohio Supreme Court as an appeal as of right. HELD: Several issues were argued before the Supreme Court of Ohio. The first issue was of juror misconduct since a juror contacted an outside psychologist for a definition of paranoid schizophrenia. The Court decided that it was harmless, because it only reinforced the defendant's expert witness' testimony. The misconduct could not have prejudiced the defendant. The Court then dismissed an argument that during the jury selection process, the state dismissed jurors on account of their race. The Court did not accept this argument because the state had race-neutral reasons for exercising the *390 peremptory challenges, and one African-American individual replaced a white that was excused by the state. The Court also upheld the search of the defendant's residence since the police had a valid search warrant. The Court also found that the warrant was supported adequately with probable cause. The Court also found that the trial court properly denied a request for involuntary manslaughter instructions, since the conduct itself was enough to establish the intent to kill. Mitigation evidence, a chapter from a book written by a psychologist, was properly excluded since it was not in regard to a highly relevant or critical issue. The Court also examined other issues but found no error, and affirmed the convictions and sentence of death. H. Homicide State v. Chinn 85 Ohio St. 3d 548, 709 N.E.2d 1166 Decided June 2, 1999 Appellant, Davel “Tony” Chinn (Chinn), showed Marvin Washington a .22 caliber revolver and suggested that they rob someone. Gary Welborn and Brian Jones pulled into a parking lot and conversed from their respective cars. Chinn and Washington decided to rob them. Chinn pointed his revolver at Welborn and demanded money. Welborn was unable to see Chinn's face. Welborn and Jones each handed their wallets to Washington and Chinn respectively. As Chinn was walking to the back of Welborn's car, Welborn escaped and went to the police station. After this, Chinn got into the back of Jones's car and held the gun to Jones's neck while Washington drove the car. Chinn in-structed Washington to pull the car over to the side of the road. Chinn then got Jones out of the car and shot him. Chinn and Washington then fled from the scene. Stacy Ann Dyer (Dyer) witnessed the shooting but did not see Chinn's face. After the shot was fired, the victim ran to Dyer's yard and was unconscious. The victim was later pro-nounced dead. Dr. David Smith performed the autopsy and found that the bullet entered through Jones's arm and





proceeded directly to Jones's chest perforating the main pulmonary artery. Evidence revealed that the gun had been in direct contact with Jones's sweatshirt at the time the shot was fired. Washington told Christopher Ward that Chinn shot somebody. On February 5, 1989, Washington was arrested based on Ward's information. Washington confessed the crime to the police and named Tony as the killer. Washing-ton helped the police prepare a sketch of Chinn that was later publicized. Shirley Ann Cox was a receptionist in her husband's law office. Chinn walked into the law office, identified himself as Tony Chinn, and requested to see Cox's husband. Cox informed Chinn that her husband was unavailable. That night, Cox saw the composite sketch in the newspaper and *391 identified it as Tony Chinn. She later informed the police. Later, Ward and Washington identi-fied Chinn from a police photograph and stated that he was the killer. During a police lineup, Ward, Washington, and Cox were able to positively identify Chinn. However, Welborn and Dyer could not. Chinn was indicted by a Montgomery County Grand Jury for the aggravated murder of Jones. Count one charged Chinn with purposely causing the death of Jones and it also carried three death penalty specifications: (1) that the offense was committed for the purpose of escaping trial and punishment (Ohio Revised Code section 2929.04 (A)(3)); (2) that the offense was committed during an aggravated robbery (section 2929.04 (A)(7)); (3) that the offense was committed during kidnaping (section 2929.04 (A)(7)). In August 1989, the case proceeded to a trial by jury. During the guilt phase of the trial, Chinn tried to establish alibis. However, the jury returned a verdict of guilty. Following the mitigation hearing, the jury recommended that Chinn be sentenced to death and the trial court ac-cepted this. Chinn appealed and the court of appeals affirmed the judgment in part and reversed it in part remanding the matter to the trial court for the resentencing of Chinn based upon the jury's recommendation. The court of ap-peals found that the trial judge committed several errors: (1) the judge failed to state his findings specifically (re-quired by section 2929.03(F)); (2) the judge failed to consider relevant mitigating factors: (3) the judge failed to merge aggravating circumstances; and (4) the judge weighed both culpability factors of section 2929.04 (A)(7) (principal offender and prior calculation and design). On remand, the defense counsel filed a motion to present addi-tional mitigating evidence, a motion for the imposition of a life sentence, and a motion requesting that Chinn be pre-sent at any resentencing hearing. The trial court denied the motions and resentenced Chinn to death. On appeal, the court of appeals vacated Chinn's death sentence finding that the trial court had denied Chinn the right to be present at the resentencing hearing. The court of appeals again remanded. The trial court on remand again imposed the death sentence at a hearing in which Chinn was present. The court of appeals affirmed the trial court's judgment and up-held Chinn's death sentence. Chinn then appealed to the supreme Court of Ohio as a matter of right. HELD: (1) There was no plain error in the jury instructions in the penalty phase; (2) defendant was eligible for the death penalty on remand from earlier decision of court of appeals; (3) any error in the trial court's denial of de-fendant's request for a bill of particulars did not prejudice defendant; and (4) instruction on the law of accomplice liability was not unwarranted. Chinn argued that the judge's instructions to the jury in the penalty phase failed to adequately define mitigating factors and aggravating circumstances and also failed to instruct the jury on how to weigh these factors in reaching *392 a sentence. The Court found that Chinn failed to object to these instructions and therefore had waived all but plain error. The Court found no plain error. It conceded that the instructions may have been confusing, but not to the level of plain error. The judge did refer a number of aggravating circumstances in which Chinn was not guilty of, but it was a stretch to argue that the jury believed that there was eight instead of three aggravating circumstances. The court reasoned that the only aggravating circumstances given to the jury on the verdict forms were the ones that the jury had previously found Chinn guilty of committing. Chinn also argued that the section 2929.04(A)(3) and (A)(7) aggravating circumstances should have been merged into one aggravating circumstance prior to the penalty phase since they were duplicative. The court of appeals decided that the aggravating circumstances should have been merged and that the trial court erred. However, the court of appeals stated that this failure to merge did not amount to plain error. The Supreme Court of Ohio agreed because the trial court, on remand from the court of appeals' 1991










decision, did merge the aggravating circumstances into one (the robbery specification) and found that the single ag-gravating circumstance outweighed the mitigation evidence beyond a reasonable doubt. The Court also stated that because of the dearth of the mitigation evidence, the outcome would not have been any different had the three ag-gravating circumstances been merged into one before the penalty phase of the trial. Additionally, the supreme court could have corrected any error during its independent review of sentencing. The Court considered only one aggra-vating circumstance during its independent review and reached the same outcome. Chinn also claimed that the trial court erred by instructing the jury of both the principle offender and the prior calculation and design aspects of section 2929.04(A)(7). The Court noted that the judge may instruct the jury on both of these disjunctively in the same aggravating circumstance specification. Moreover, it was clear that the jury believed Chinn to be the principle offender in the murder. No evidence existed at trial to show that anyone other than Chinn was the actual killer if Chinn was with Washington on the night in question. Therefore, either Chinn was the actual killer, or if not the ac-tual killer, committed no offense at all. Chinn also argued that he was ineligible for the death penalty on remand to the trial court from the 1991 deci-sion of the court of appeals vacating Chinn's death sentence. The supreme court stated that the court of appeals did not vacate the jury's verdict recommending the death penalty. The errors that the court of appeals found related to the judge's independent evaluation of the death penalty. Theses errors occurred after the jury had returned its verdict. The trial court was to proceed on remand from the point at which the errors had occurred (after the jury verdict). Therefore, Chinn was still eligible for the death penalty. Chinn also asserted that the trial court erred by denying his request for a bill of particulars. In denying Chinn's request for a bill of particulars, the *393 trial court emphasized that Chinn's motion had been untimely filed and even if it had been timely filed, a bill of particulars was not necessary to assist Chinn in preparation of trial. The supreme court agreed with the trial court. It noted that the denial of a bill of particulars in no way inhibited Chinn from effectively presenting his defense. The indictment plainly indicated that Chinn was charged with the aggra-vated murder and kidnaping of Brian Jones, the abduction of Gary Wellborn, and three aggravated robbery offenses all occurring on January 30, 1989. Therefore, Chinn did not lack specific information of the offenses that he was charged with. The denial of a timely request for a bill of particulars should not occur. However, assuming Chinn's request was timely, Chinn suffered no prejudice as a result of the trial court's denial of his request. Accordingly, the supreme court affirmed the judgment of the court of appeals. State v. Goodwin 84 Ohio St. 3d 331, 703 N.E.2d 1251 Decided January 20, 1999 Michael Goodwin, Appellant, was charged and convicted of aggravated murder with prior calculation and de-sign, aggravated felony murder, aggravated robbery, and possession of a firearm while under disability when he and two others entered a store to complete a planned robbery during which a store clerk was fatally shot by Appellant. After entering the market armed, Appellant confronted one of the clerks, who had his arms raised and showed no signs of resistence; then, Appellant shot him point blank in the forehead. Next, he pointed his gun at another clerk, and forced him to open the safe and extract the money which was handed over to Appellant. Notably, the surviving store clerk never actually witnessed the shooting. Appellant was convicted in the Court of Common Pleas, Cuya-hoga County, on all counts and was sentenced to death for aggravated murder. Additionally, Appellant received varying sentences for the other counts totaling fifteen to twenty-five years imprisonment. The court of appeals af-firmed, and the Supreme Court of Ohio granted review as an appeal of right. HELD: In order to prevail on a claim of ineffective counsel, their must be evidence of a deficient performance, and in turn such performance must prejudice the defense. Defense counsel was not determined ineffective during





any phase of the trial. During voir dire the defense's failure to inquire about the jurors beliefs on mitigating factors did not correlate with ineffective counsel, moreover those decisions are up to the discretion of the attorney. Other mitigating factors were not presented as part of trial strategy, thus not prejudicial. Also, all questionable evidence was cured by proper jury *394 instructions. There was a clear resolution of the majority that the great weight of evi-dence against Appellant made any defense difficult, and because of Appellant's failure to object, no prosecutorial misconduct was found since the standard of review was only plain error. Appellant also contended that evidence was admitted prejudicially. When reviewing a criminal conviction the inquiry is whether, after viewing the evidence in a manner most favorable to the prosecution, any reasonable person would reach a different conclusion beyond a rea-sonable doubt. The great weight against Appellant proved beyond a reasonable doubt that he calculated his actions, especially when the court determined the robbery was planned because the shooting enabled the robbery to occur. Appellant further asserted that the jury received improper instructions for evaluating his case. The only time a lessor included offense must be presented to the jury is when the evidence presented at trial reasonably supports an acquit-tal on the crime charged and a conviction on the lesser included offense. Therefore, because of the significant evi-dence against Appellant an instruction on murder, as a lesser charge of aggravated murder, did not need to be given. For the aforementioned reasons the Supreme Court of Ohio held that defense counsel was not ineffective, the prose-cution did not misconduct themselves, none of the evidence overly prejudiced the outcome of the case, and the jury instructions were justified. Therefore, the court affirmed the decisions of the lower courts. I. Indictment and Information State v. Whiting 84 Ohio St. 3d 215, 702 N.E.2d 1199 Decided December 30, 1998 Appellant, Terry Lee Whiting, was indicted for the murder of his live-in girlfriend fourteen years after her body was discovered in a cemetery. Whiting moved to dismiss the indictment on the grounds that the fourteen year delay was unjustified and prejudiced his defense. He argued that over the fourteen years, potential witnesses had died, suffered mental illnesses, or were unable to be located. Whiting continued to say that the State had no reason for the delay. The State argued, in a posthearing memoranda, that Whiting had the burden of showing that the delay was unjustifiable. The trial court overruled Whiting's motion to dismiss and, after the jury could not return a verdict, the court reconsidered the motion to dismiss. The trial court found that Whiting had shown actual prejudice and that the State had the burden of establishing a justifiable reason for the delay. The court then granted Whiting's motion to dismiss. The State appealed arguing that the burden rested with Whiting to establish an unjustifiable reason for the delay. The Miami County Court of Appeals reversed the trial court's decision and *395 remanded to the trial court, holding that the State had the burden of showing reason for the delay, but that Whiting had the burden of showing thedelay was unreasonable. Whiting appealed to the Supreme Court of Ohio upon the allowance of a discretionary appeal. HELD: Precedent shows that the appellant has to first show actual prejudice from the delay, then the State bears the burden of showing a justifiable reason for the delay. The State argued, against precedent, that Whiting had the latter burden. At that point, the trial court should have dismissed the claim. The State argued in favor of reversal of the trial court's decision because the court first said Whiting had the burden of showing bad faith on the part of the State, then changed its decision after the trial. Whiting established prejudice as a result of the delay, but the State failed to show a justifiable reason for the delay. Thus, the supreme court reversed the judgment of the court of ap-peals and restored the trial court's dismissal of Whiting's indictment. J. Jury




State v. Nagel 84 Ohio St. 3d 280, 703 N.E.2d 773 Decided January 6, 1999 David Edward Nagel, Appellee, was indicted on four counts. Count One was for aggravated burglary, Counts Two and Three were for felonious assault, and Count Four was for carrying a concealed weapon. Count Four was elevated to a felony of the third degree because Nagel had previously been convicted of an offense of violence, ag-gravated burglary. The present matter went to a jury trial. After the jury was chosen and sworn, but before the pres-entation of evidence, defense counsel made an oral request for a jury waiver. In the presence of the prosecution, de-fense counsel asked that the specification of a crime of violence attached to each count be tried before the court rather than the jury. The defense's second motion was to have the prior offense of violence omitted. The Judge al-lowed the State to present evidence of the prior conviction only as it related to the offense of violence in the fourth count of the indictment. No written jury waiver form was required of defense counsel. The defense's motion to ac-quit on Count Three was granted. On Counts One, Two and Four, but not on the specifications, the jury found Nagel guilty of the lesser offense of attempted aggravated burglary, guilty of aggravated assault, and guilty of carrying a concealed weapon, respectively. The trial judge found Nagel guilty of the prior-conviction specifications to Counts One, Two, and Four, and sentenced him to a total of fifteen to thirty years. The court of appeals reversed the trial court's judgment in part holding *396 that the court lacked jurisdiction to try the specifications because Nagel's jury waiver did not comport with statutory provisions. Pursuant to Ohio Revised Code section 2945.05, a jury waiver must be made in open court, in writing signed by the defendant, and made part of the record. The court of appeals remanded the cause to be retried on the matters of specification and re-sentencing. As the court of appeals' decision conflicted with the Eighth Appellate District's, an order for certification was entered. The matter came before the Supreme Court of Ohio upon a determination that a conflict did exist and by the allowance of a discretionary appeal. HELD: The issue presented to the supreme court was whether the requirements of Ohio Revised Code section 2945.05 were applicable to the specification waiver. Relying on Ohio Revised Code sections 2941.142 and 2941.143, the supreme court held that the defendant need only make a request that the trial judge, not the jury, de-termine the specifications of the indictment. Section 2945.05 applies to pending criminal cases, but the provision is silent as to prior-conviction specifications. The court held that the term criminal cases apply to the charge or charges in the criminal action, but not to the specifications that attach to the charges. The specifications are completely de-pendent upon the charges; therefore, where a case has been tried by a jury on its merits, section 2945.05 does not apply to a jury waiver for specifications. Where the statute is inapplicable, strict compliance is not necessary for the court to assert jurisdiction over the matter at hand. Accordingly, the supreme court reversed the judgment of the court of appeals and reinstated the judgment of the trial court. K. Parole Moore v. Leonard 85 Ohio St. 3d 189, 707 N.E.2d 867 Decided April 7, 1999 In 1996, the appellant, Ronald Moore (Moore), was released from prison on parole. Moore was arrested in 1997 and charged with possession of criminal tools, possession of drugs, carrying a concealed weapon, and having a weapon while under a disability. In a parole revocation hearing in May 1997, the Ohio Adult Parole Authority (OAPA) revoked Moore's parole. The OAPA found that Moore had violated his parole. In November of 1997, the court of Common Pleas of Cuyahoga County dismissed the 1997 charges against Moore. However, the OAPA re-












fused, upon Moore's request, to reinstate Moore on parole because the charges against him leading to his parole revocation had been dismissed. Moore filed a petition for a writ of habeas corpus in 1998 to compel Appellee, the prison warden, to reparole him. *397 The court of appeals dismissed Moore's petition sua sponte in November, 1998. The court of appeals found that all of the factual support for the revocation of Moore's parole was not re-moved because of the dismissal of his 1997 charges. The court of appeals noted that Moore's parole was revoked because he failed to act as a law-abiding citizen and was arrested for possession of drugs. Moore then appealed to the Supreme Court of Ohio. HELD: The parolee failed to show that dismissal of his charges removed all factual support for parole revoca-tion. Parole can be revoked even though criminal charges based upon the same facts are dismissed, unless the peti-tioner can show that all factual support for the parole revocation has been removed as a result of such dismissal. A petitioner must plead specific facts to show that dismissal of criminal charges removed all factual support for parole revocation in order to avoid dismissal of his claim. Moore did not do so because the attachments to his petition did not establish that all factual support for the parole revocation had been removed as a result of the dismissal of his criminal charges. Accordingly, the supreme court affirmed the judgment of the court of appeals. State ex rel. Vaughn v. Ohio Adult Parole Auth. 85 Ohio St. 3d 379, 708 N.E.2d 720 Decided April 28, 1999 George E. Vaughn, Appellant, was convicted of rape and assault with the intent to commit rape, and was sen-tenced to prison. After his parole, he moved to Georgia where he was again convicted of assault with the intent to commit rape. After serving four years in Georgia, he was returned to Ohio, where hisparole was revoked. In 1998, the Ohio Adult Parole Authority (Appellee) set his next parole meeting in 2005. Appellant filed a writ of mandamus to compel Appellee to grant a new parole hearing or release him on parole. Appellee filed a motion to dismiss for failure to state a claim upon relief can be granted. The court of appeals granted the motion and dismissed the man-damus claim. The cause was before the Supreme Court as a matter of right. HELD: Since Vaughn has no constitutional or statutory right to parole, he has no right to earlier parole. Fur-thermore, the Court held that writ of habeas corpus, not a mandamus writ, is proper in compelling release from prison. Judgement affirmed. *398 L. Postconviction Relief Gause v. Zaleski 85 Ohio St. 3d 614, 710 N.E.2d 684 Decide June 16, 1999 The appellant, Vernon A. Gause, was convicted of abduction and aggravated trafficking in drugs in 1992 and sentenced to prison. The court of appeals affirmed his conviction. His motion for leave to file a delayed appeal was denied. The appellant filed two petitions for postconviction relief in Lorain County Court of Common Pleas. Judge Zaleski denied the petitions based on res judicata because the issues were or could have been raised on direct appeal. A third petition for reconsideration was also denied by Judge Zaleski upon which the appellant filed a complaint in the Court of Appeals for Lorain County for a writ of mandamus to compel Judge Zaleski to file findings of fact and conclusions of law relating to his denials of the appellant's postconviction relief petitions. The judge filed a 12 (B)(6) motion to dismiss. The court of appeals granted the motion as it related to the judge's denial of the first and





second petition because those judgments contained sufficient findings of fact and conclusions of law. The court con-verted the motion for dismissal regarding the third petition into a motion for summary judgment. Upon presentation of additional evidence, the court of appeals granted the motion for summary judgment and denied the writ. The cause came before the Supreme Court of Ohio upon appeal as of right. HELD: In a per curiam opinion, the court affirmed the judgment of the court of appeals. The court of appeals did not err in dismissing part of the appellant's mandamus action and denying the remainder. First, the court rea-soned the appellant had an adequate remedy at law by appeal to raise his claim that his sentencing court erred in not conducting evidentiary hearings before dismissing his postconviction relief petitions. Second, the court reasoned that the judgments denying the appellant's first and second petitions for postconviction relief already satisfied the re-quirement for findings of fact and conclusions of law. The final reason given by the court is that the appellant was not entitled to findings of fact and conclusions of law on Judge Zaleski's judgment denying his second and third postconviction relief actions because the judge was not required to file findings of fact and conclusions of law on successive postconviction relief petitions. The court affirmed the judgment of the court of appeals. *399 State ex rel. Sharif v. Cuyahoga County Court of Common Pleas 85 Ohio St. 3d 375, 708 N.E.2d 718 Decided April 28, 1999 Appellant, Abdul K. Sharif (Sharif), was convicted of murder and a firearm specification. The court of appeals upheld Sharif's conviction. Subsequently, Sharif filed a postconviction “motion for exoneration and dismissal of charges and discharge” and a Civil Rule 56 motion for summary judgement with Appellee, the Cuyahoga County Court of Common Pleas. The court of common pleas dismissed both motions. Sharif petitioned the Court of Appeals for Cuyahoga County to issue a writ of mandamus to compel the court of common pleas to rule on his motions, to enter default judgement on his behalf, and to issue findings of facts and conclusions of law. Upon motion by the appellee, the court of appeals dismissed Sharif's petition for mandamus. The case came before the Ohio State Su-preme Court on an appeal as of right. HELD: The supreme court found that the court of appeals properly granted the court of common pleas' motion to dismiss. The Court relied in part on State ex rel. Eads v. Callahan and State ex rel. Jerninghan v. Cuyahoga County Court of Common Pleas, both of which held that a writ of mandamus may not issue to compel acts that have already been performed. Therefore, the Court stated that Sharif was not entitled to a writ of mandamus to compel the court of common pleas to rule because they had already ruled on both of his motions at the time he filed his com-plaint for mandamus. The Court held that the court of appeals could not be required to issue findings of fact and conclusions of law because a Civil Rule 56 does not require either. M. Selective Enforcement Cleveland v. Trzebuckowski 85 Ohio St. 3d 524, 709 N.E.2d 1148 Decided June 2, 1999 Stanley Trzebuckowski (Trzebuckowski), the owner of a billiard room, was cited with five violations of Cleve-land Codified Ordinance 688.13. This ordinance prohibited persons under the age of fourteen frombeing present in any billiard room. Trzebuckowski filed a motion to dismiss in the Cleveland Municipal Court, contending that the ordinance was unconstitutional. He claimed the ordinance was overbroad, and violated his right to equal protection.



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The trial court granted the motion, and declared the statute unconstitutional. Cleveland filed an appeal with the Cuyahoga County Court *400 of Appeals. Trzebuckowski filed a motion to dismiss the appeal, contending that Cleveland's appeal was not timely because the decision of the trial court was not journalized by the clerk of the court until eighty-two days after the judgment, which was after Cleveland had filed its appeal. The court of appeals found jurisdiction and reversed the trial court, finding the statute constitutional. The Supreme Court of Ohio heard this case as a discretionary appeal. HELD: The Court stated that the doctrine of overbreadth only applies to First Amendment issues, or the banning constitutionally protected conduct. The conduct being regulated by the ordinance was the right of minors to enter billiard rooms. Because the conduct being regulated by the ordinance is not covered by the First Amendment or constitutionally protected, the ordinance was not unconstitutionally overbroad. However, the ordinance was found to violate Trzebuckowski's right to equal protection, because of the selective prosecution by the city. The city only enforced the ordinance against privately owned billiard rooms, not city owned recreation centers with billiard tables. The ordinance was justified by the city to keep minors out of adult oriented billiard rooms, not to keep minors out of privately owned billiard rooms. However, the statute was enforced against all privately owned billiard rooms, not just those oriented to adults. Therefore, the ordinance was being enforced selectively, and violated Trzebuckowski's right to equal protection. The Court also held that a notice of appeal filed before journalization is to be treated as if it was filed immediately after journalization. Therefore, the court of appeals had jurisdiction to hear Cleveland's ap-peal. The supreme court reversed the court of appeals on the constitutionality issue, and affirmed the court of ap-peals on the jurisdictional issue. N. Sentencing State ex rel. Jones v. O'Connor 84 Ohio St. 3d 426, 704 N.E.2d 1223 Decided February 10, 1999 In May of 1998, Appellant Dennis R. Jones filed a complaint in the Hamilton County Court of Appeals request-ing a writ of mandamus. The substance of the writ alleged that Appellee, Judge John O'Connor of the Hamilton County Common Pleas Court, had not ruled on a motion for jail time credit. Judge O'Connor filed motions to dis-miss showing hehad denied Jones' jail time credit motion in a subsequent June 1998 entry. Thus, Jones' claim should be ruled moot. The court of appeals granted Judge O'Connor's motions and dismissed Jones' mandamus com-plaint. The cause was before the Ohio Supreme Court as a matter of right. *401 HELD: The Supreme Court of Ohio held that mandamus cannot lie to compel an act that has already been performed. Since the jail time credit was subsequently denied by Judge O'Connor, the mandamus claim was moot. The Court found any sentencing error Judge O'Connor could have made is reviewable by appropriate appeal. Fur-thermore, the Court found the grant of pretrial confinement time credit rests with the Adult Parole Authority, not with the common pleas court; the judgement of the Hamilton County Court of Appeals was affirmed. O. Statute of Limitations State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co. 85 Ohio St. 3d 582, 709 N.E.2d 1192 Decided June 2, 1999





On February 1, 1996, the Franklin County Prosecutor filed charges against Appellant, Climaco, Climaco, Semi-nator, Lefkowitz & Garofoli Company (Climaco), for two counts of falsification in violation of Ohio State Revised Code section 2921.13. The charges were brought as the result of an ongoing investigation that began with the county prosecutor and was eventually turned over to a grand jury. The matter centered around the activities of five lobbying groups and their possible failure to comply with the requirements of Ohio Revised Code sections 101.72 and 101.73, which require legislative agents and their employers to register with the Joint Legislative Ethics Committee and to file an updated registration statement and expenditure report three times per year. The charges against Climaco arose in connection with revised registration statements that it filed in June and October 1993. Climaco filed several mo-tions to dismiss, raising, among other issues, the statute of limitations. All motions were denied and Climaco plead no contest to the charges against it and was convicted. The court of appeals affirmed the conviction. The cause came before the Supreme Court of Ohio on a discretionary appeal. HELD: The Court held that the February, 1996 indictment was barred by the statute of limitations set forth in Ohio Revised Code section 2901.13(A)(2). In doing so, the Court rejected the State's argument that the tolling sec-tion of the statute should have applied to prevent the statute from running until the acts were discovered. The State based its argument on the supreme court's decision in State v. Hensley. The Court determined that to follow the State's recommendation would thwart the purpose of the statute of limitations to ensure the fair, impartial, and speedy determination of justice and to prevent defendants from having to defend themselves against prosecution for acts in the distant past. The Court pointed out that the delay *402 in discovering alleged criminal activity on the part of Climaco was largely the fault of the prosecution's delay in investigating. Finally, the Court refused to apply the reasoning of Hensley, noting that it was meant to be a narrow exception to the statute of limitations for child abuse cases. The Court reversed the judgement of the court of appeals. VI. EDUCATION A. Labor and Employment East Canton Educ. Ass'n v. McIntosh 85 Ohio St. 3d 465, 709 N.E.2d 468 Decided May 19, 1999 John R. McIntosh, Appellee, was hired by the Marlington Local School Board of Education (Marlington) to teach seventh grade. After several years of employment, Marlington voted to grant McIntosh a continuing contract of employment; however, McIntosh did not enter into a written contract for the continuing employment. Thereafter, McIntosh was hired by the Osnaburg Local School Board of Education (Osnaburg), Appellant, to serve as assistant principal and he eventually accepted the high school principal position. In February 1995, Osnaburg informed McIntosh that they would not be renew his contract, but told McIntosh that he could become an employee of the Stark County Department of Education. McIntosh, refusing to resign, asserted that he was entitled to reemployment within the district since he was a tenured teacher. After several meetings, Osnaburg decided that McIntosh did not have the right to employment as a teacher within the school district. On March 17, 1995, McIntosh filed suit against Osnaburg, the individual members of the board, and McGuire, the school superintendent, seeking a declaratory judgment, a writ of mandamus, an injunction and monetary damages. McIntosh alleged that he was a tenured teacher so he should be entitled to continuing service status as a teacher with Osnaburg. Also in his complaint, McIntosh alleged defamation resulting from certain letters and statements given by Osnaburg. On December 22, 1995, the East Canton Education Association (ECEA) filed a declaratory judgment action seeking a finding that McIntosh had not attained continuing service status with Marlington. The trial court granted summary judgment for Osnaburg and the other defendants regarding all of the claims brought by McIntosh. The court of appeals affirmed the trial courts









holding that McIntosh was neither a public official nor a public figure, but reversed in part, finding that genuine issues of material fact existed with respect to the defamation claim. After consolidating the ECEA's declaratory judgment action with McIntosh's complaint, the trial judge decided all of the remaining claims in two judgment en-tries. The trial *403 court found that McIntosh had attained continuing service status as a teacher when working for Marlington so he was entitled to employment as a teacher at Osnaburg, but granted summary judgment against McIntosh for the defamation claim. On appeal, while the court affirmed the lower court's decision as to McIntosh's continuing service claim, it held that the lower court had erreddismissing McIntosh's defamation claim. These causes came before the Court upon the allowance of a discretionary appeal. HELD: A written contract of employment between the teacher and a board of education is not required to attain continuing service status for an eligible teacher. Pursuant to Ohio Revised Code sections 3319.08 and 3319(B), if after a teacher attains continuing service status, the teacher will be considered to be employed and serving under a continuing contract of employment when the board adopts a motion of resolution to employ the teacher under such a contract. With regards to the defamation claim, the Court held that a public school principal is not a public official for purposes of defamation law. Therefore, the findings of the court of appeals was affirmed and the Court remanded the causes to the Stark County Court of Common Pleas for further proceedings. Geib v. Triway Local Sch. Dist. Bd. of Educ. 84 Ohio St. 3d 447, 705 N.E.2d 326 Decided February 17, 1999 Appellant Alice Geib (Geib) was employed under a limited teaching contract for the 1995-1996 school year by Appellee Triway Local School District Board of Education (Triway). Geib had taught in the Triway district for twenty-one years. Geib was observed and evaluated by school administrators pursuant to a collective bargaining agreement on five occasions between October 1995 and February 1996 while teaching at the junior high and senior high school. The administrators criticized several of Geib's teaching techniques, classroom management, and control of students in each of the five reports. After year-end appraisals were completed by the principals of the junior and senior high in March 1996, Geib's contract was not renewed. Geib was notified of the decision and she demanded that she receive a written statement describing the reasons for the lack of renewal of her contract. The board re-sponded with a written statement that merely stated that Geib's contract was not being renewed due to “deficiencies” contained in prior evaluations. Geib requested and was granted a hearing before the board, where the board affirmed its decision not to renew Geib's contract. Geib appealed the board's decision to the Wayne County Court of Common Pleas. The trial court found for Geib, and ordered the board to award Geib backpay *404 until she received an ade-quate statement from the board citing the reasons for the nonrenewal. The trial court found that pursuant to Ohio Revised Code section 3319.11 (G)(2) the board's statement describing the reasons that led to her nonrenewal were inadequate. The court of appeals reversed the trial court's decision, and the case went before the supreme court upon the allowance of a discretionary appeal. HELD: The supreme court held that section 3319.11 (G)(2) requires a board of education to expressly state the reasons for nonrenewal and that reference to deficiencies cited in past reports is insufficient. The board did not com-ply with this section, and the court held that Geib was entitled to backpay until the board provided her with a clear and substantive basis for its decision not to renew her contract. The Court reversed the decision of the court of ap-peals and reinstated the decision of the trial court. B. Property and Contracts Case W. Res. Univ. v. Tracy








84 Ohio St. 3d 316, 703 N.E.2d 1240 Decided January 20, 1999 Case Western Reserve University (CWRU), cross-appellant, leased space in a four-story office building and an attached parking garage to various corporations, two of which were nonprofit corporations. The primary purpose of the nonprofit corporations was to encourage the growth of emerging technologies and businesses. CWRU petitioned for a property tax exemption for the university office building and the parking garage. While the Board of Tax Ap-peals (BTA) held that the both the building and the land under it were exempted from taxation, the BTA held that neither the garage nor the land under the garage was exempt from taxation. The Cleveland Board of Education (BOE) appealed as a matter of right challenging the exemption bestowed to the CWRU for the space rented to both the nonprofit corporations and vacant space unoccupied by any party. The BOE primarily asserted that neither of the “nonprofit” organizations were charitable or educational institutions so CWRU should not be able to get the tax ex-emption. CWRU cross-appealed as of right claiming that the BTA's decision finding that the garage and the land under the garage are not exempt from taxation. HELD: While the corporations used the leased space for charitable purposes as required in Ohio Revised Code sections 5709.12 and 5709.121, only the space used by the nonprofit corporations for administrative purposes would receive the exemption. The space sublet to for-profit corporations, who participated in the nonprofit corporation's program, would not be exempt *405 because, even though they may be struggling financially, they were for-profit corporations. With regards to the garage and land associated therewith, the Court held that CWRU had not shown that the parking garage was an essential and integral part of the nonprofit activities of CWRU. Therefore, the Court found that the BTA's decision denying the exemption for the garage and underlying land was reasonable and lawful so the Court affirmed. While the BTA's judgment as to the partial exemption for the nonprofit corporations was af-firmed, the BTA's granting exemption to the space sublet to the for-profit corporations was reversed. C. Scholarships and Loans Simmons-Harris v. Goff 86 Ohio St. 3d 1, 711 N.E.2d 203 Decided May 27, 1999 On June 28, 1995, the General Assembly of Ohio enacted the Pilot Project Scholarship Program, or the School Voucher Program. This program requires the State Superintendent to offer scholarships to students residing within the Cleveland City School District. Students may use the scholarships to attend alternative schools. The amount of the scholarship is commiserated with the student's family income. In January, 1996, several parties, including Doris Simmons-Harris, Appellee, sued Ohio and the state superintendent, John M. Goff, Appellants, claiming that the School Voucher Program violated several provisions of both the United States and the Ohio Constitutions. The State moved for summary judgment, and the motion was granted. Simmons-Harris and the Ohio Federation of Teachers appealed. The court of appeals found the School Voucher Program to be unconstitutional holding that it violated the Establishment Clause of the First Amendment of the United States Constitution, the School Funds Clause of Section 2, Article VI of the Ohio Constitution, the Establishment Clause of Section 7, Article I of the Ohio Constitution, and the Uniformity Clause of Section 26, Article II of the Ohio Constitution. The court of appeals also held that the School Voucher Program was not in violation of the Thorough and Efficient Clause of Section 2, Article VI of the Ohio Constitution, or the single-subject rule of Section 15(D), Article II of the Ohio Constitution. The matter came before the Supreme Court of Ohio pursuant to the allowance of discretionary appeals and a cross-appeal. HELD: The supreme court held that the School Voucher Program does not violate the Establishment Clause of







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the First Amendment because the program was enacted for a secular legislative purpose. There was nothing in the record to suggest otherwise. The supreme court further found that this *406 program was not put in place to further or impede religion. The program did not create any sort of link between government and religion. The benefits of the program are offered to any student within the specified area. The only link that may be established between the gov-ernment and religion by the program is a result of the individual choices of parents to send their children to religious schools. There is no direct payment by the government to religious schools. The primary beneficiaries are the stu-dents, not the schools. Also, the program does not involve the state in religious activities, and recipients of its bene-fits are not defined or targeted with reference to their religions. The supreme court also severed part of the statute describing the School Voucher Program. The section allowed private schools to give admission priority to children who had parents who were members of an affiliated organization. The court found this provision potentially uncon-stitutional because the organization with which the parent may be affiliated could be a religious one. Section 26, Article II of the Ohio Constitution, the Uniformity Clause, provides that all laws must have a uniform operation throughout the State. The supreme court held that although the School Voucher Program is limited to one particular area, the language of the statute does not prohibit other similar school districts from enacting a similar program. The program's operation are not completely restricted. The program could operate throughout the state, so it does not violate the Uniformity Clause. Section 15(D), Article II of the Ohio Constitution states that no bill should be passed that contains more than one subject. In order to violate this rule, there must be a finding that the various topics lack a common purpose or relationship. There is little similarity between the School Voucher Program and the other provi-sions of Ohio Revised Code section 3.15. This disunity between provisions led the court to determine that the School Voucher Program was just a rider attached to an appropriations bill. This is a violation of the one-subject rule, and the School Voucher Program should be stricken from the bill. The supreme court affirmed part of the court of appeals' decision and reversed part. D. Torts Perkins v. Norwood City Sch. 85 Ohio St. 3d 191, 707 N.E.2d 868 Decided April 7, 1999 Appellants, Donna and Tim Perkins (Perkins), brought suit individually and as the parents and natural guardians of Mark C. Perkins (Mark) against Appellee, Norwood City Schools (Schools), to recover damages for injuries Mark sustained when he slipped and fell in the hallway of Norwood Middle School. Mark fell on a puddle in the school hallway that was created by a *407 leaking drinking fountain. The school principal knew about the leak and had attempted to use the school's janitorial service to repair it. After Mark's fall, a commercial plumbing company was hired to fix the leak. The suit alleged that Mark's injuries were the result of the school's negligent failure to repair the leaking drinking fountain. The trial court granted the school's motion for summary judgement, holding that the city schools are entitled to immunity under Ohio Revised Code section 2744.03(A)(5). The court of appeals upheld the trial court's ruling. The case came before the Supreme Court of Ohio on discretionary appeal. The Perkins argued that the school was liable under Ohio Revised Code section 2744.02(B)(4), which creates an exception to immunity for a political subdivision where an injury is, “caused by the negligence of [the subdivision's] employees and ... oc-curs within the grounds of buildings that are used in connection with the performance of a government function.” The school argued that it was immune pursuant to Ohio Revised Code section 2744.03(A)(5), which provides im-munity where the injury in question resulted from the subdivision's exercise of discretion in determining how to use personnel and resources. HELD: The Court held that the decision of whom to employ to repair a leaking drinking fountain is not the type of exercise of discretion contemplated by the statute but rather a routine maintenance decision that requires little judgement or discretion. The court based its decision on Franks v. Lopez wherein it drew a distinction between the types of decisions that are discretionary within the scope of Ohio Revised Code section 2744.03(A)(5) and those that












are not. In that case, it was determined that the elimination of certain types of hazards were not within the scope of the statute. The court paralleled the drinking hazard created by the drinking fountain to the ones noted in Franks. Hence, the decision of the court of appeals was reversed and remanded. VII. ENERGY AND UTILITIES A. Oil and Gas Tongren v. Public Util. Comm'n of Ohio 85 Ohio St. 3d 87, 706 N.E.2d 1255 Decided March 24, 1999 This is a consolidation of two appeals. The first is brought by the Ohio Consumers' Counsel (OCC) regarding the approval of a merger between West Ohio Gas Company (West) and East Ohio Gas Company (East) by the Pub-lic Utilities Commission of Ohio (Commission). OCC argues that the approval for the merger and consolidation of East and West's gas cost recovery (GCR) *408 rates were unsupported by the record. The second appeal is brought by OCC in regards to the commission's approval of East's GCR rate prior to the merger. OCC argues that the com-mission's decision was based upon the unsupported record and decision in the first appeal. HELD: The court notes that Ohio Revised Code section 4903.09 requires the commission to compile a complete record of all findings of fact and to file a written opinion setting forth the reasons and facts prompting its decision. The purpose of such a rule is to enable the court to review the commission's decision and determine if it is supported by the facts. In regards to the merger, no hearing was held and no testimony was recorded. Also, the record indicated the commission's reliance on findings of its staff, but no mention what facts the staff relied on. In regards to the commission's decision as to the GCR rates, the court stated that the reliance upon staff findings that are unsupported by any mention of what facts the staff based its decisions on. Applying Ohio Revised Code section 4903.13, which allows a court to reverse, vacate, or modify the commission's order the record is found to be unlawful or unreason-able, the court reversed the commission's order and remanded both cases for development of a record. B. Telecommunications Campanelli v. AT&T Wireless Serv., Inc. 85 Ohio St. 3d 103, 706 N.E.2d 1267 Decided March 24, 1999 Appellee, AT&T Wireless Services (AT&T) is a telecommunications company who sought to erect a communi-cations tower on a parcel of land in Plain Township, Stark County. This parcel of land was zoned B-2 General Business. The Plain Township Zoning Director, Nicholas R. Campanelli, filed an action in Stark County Court of Common Pleas seeking a permanent injunction ordering AT&T to cease and desist the construction of the tower because it was in violation of the Plain Township Zoning Resolution. The court issued the injunction because it found that AT&T was not a public utility, and thus, is subject to the provisions of the Plain Township Zoning Reso-lution. AT&T appealed to the Fifth District Court of Appeals. The court of appeals reversed and remanded, finding that AT&T is a public utility for the purposes of Ohio Revised Code section 519.211 and as such is not subject to the township's zoning provisions. The court of appeals entered an order certifying that its judgment conflicts with the decision of the Ninth Appellate District. This cause came before the Supreme Court of Ohio upon the court's deter-








mination that a conflict exists and pursuant to the allowance of a discretionary appeal. *409 HELD: AT&T and other wireless telecommunications providers are public utilities for the purpose of section 519.211; therefore, the judgment of the court of appeals was affirmed. Although a definition of “public util-ity” is absent from the relevant chapter of the Ohio Revised Code, the court looked to relevant case law for a deter-mination of whether wireless communication providers are public utilities. In Marano v. Gibbs, 45 Ohio St. 3d 310, 544 N.E.2d 635 (1989) this court held that an entity may be a public utility if the nature of its operation is a matter of public concern, and membership is indiscriminately and reasonably made available to the general public. The court weighed several factors in its determination of whether the nature of AT&T's operation is a matter of public concern, including lack of competition in the local marketplace, the good or service provided, and the existence of regulation by government authority. Because AT&T provides a telephone service and wireless telecommunications providers must obtain a license from the Federal Communications Commission, the appellees do operate their busi-nesses in such a manner as to be a matter of public concern. The court also found that AT&T provides its services to the public in a reasonable and indiscriminate manner. The principles established in Marano govern the holding in the case at bar; thus, AT&T and wireless telecommunications providers are public utilities within the scope of section 519.211 and the judgment of the court of appeals was affirmed. VIII. FAMILY LAW A. Child Protection In re Davis 84 Ohio St. 3d 520, 705 N.E.2d 1219 Decided February 14, 1999 Seventeen months after the conclusion of permanent custody hearings, the Paulding County Juvenile Court granted permanent custody of five children to the Department of Human Services (DHS). The children's parents, Howard and Tammy Davis, appealed. The Third District Court of Appeals affirmed, but finding part of its decision in conflict with the Eleventh Appellate District, entered an order certifying the conflict. The issue certified to the court was whether the seven day limit within in which a juvenile court must enter its disposition under Ohio Revised Code section 2151.35 also applies to section 2151.414, prior to the 1996 amendment. HELD: The court held that a statutory time provision will be construed as directory, rather than mandatory, where the time is fixed simply for *410 procedural convenience, unless the nature of the act to be performed is such that the designation of time must be considered a limitation upon the power of the office. The court found that al-though the seven day requirement in Ohio Revised Code section 2151.35 applied to sectuion 2151.414, it was direc-tory because there was no expression in the section to deprive jurisdiction and because finding the requirement to be mandatory would return a child to a potentially dangerous environment because of a missed deadline. The provi-sion's purpose is to define what is “timely” and therefore serve as justification for a writ of procedendo. Given the availability of a writ of procedendo, a party is estopped from claiming a violation of due process rights for inordi-nate delay. The supreme court affirmed the judgement of the court of appeals. B. Names In re Willhite 85 Ohio St. 3d 28, 706 N.E.2d 778













Decided March 17, 1999 Appellant, Janet Williams, and Appellee, Guy Willhite, were married and had one child, a girl. They subse-quently got divorced and Appellant sought to add her last name to her daughter's surname making it Williams-Willhite. Appellee objected to the name addition and Appellant applied for the addition to the magistrate for the Hamilton County Probate Court who denied the application. Appellant filed objections and as hearing was held. The trial court adopted the magistrate's decision to deny the application. The Court of Appeals for Hamilton County af-firmed. The cause went to the supreme court through discretionary appeal. HELD: According to Ohio Revised Code section 2717.01(A), in order to permit a name change, there must be reasonable and proper cause. The court of appeals decided it was not in her best interest to have her name modified. The court used a test determining that Appellee has sufficiently financially supported their daughter and he partici-pated in visitation regularly. That test overlooked Appellant's combined support of their child. The supreme court decided to look to the best interest of the child in determining whether to modify the name and determined that the name modification would help to relieve some confusion for the child growing up in a household where her mother has a different name. The modification would also help the child avoid confusion within her community. The su-preme court reversed the decision of the court of appeals and remanded the cause to the probate court for disposition consistent with its opinion. *411 C. Paternity Cuyahoga Support Enforcement Agency v. Guthrie 84 Ohio St. 3d 437, 705 N.E.2d 318 Decided February 17, 1999 In June 1994, the appellant, Cuyahoga Support Enforcement Agency (CSEA), initiated paternity proceedings against the appellee, Denver R. Gutherie, in order to receive payment for the birth of his alleged son, to reimburse the agency for public assistance, and to pay child support. The appellee did not answer the complaint and failed to appear at the pretrial hearing and the trial. The magistrate determined that Appellee was the father and recom-mended that he be ordered to pay $40 per week plus a two percent fee as interim child support. The juvenile court adopted the magistrates findings, and Appellee was informed that he owed $960 in unpaid support and could chal-lenge the arrearage. Appellee subsequently submitted to genetic testing and was found not to be the father of his alleged son. The juvenile court vacated and set aside the judgment. The court of appeals affirmed the trial court's judgment but upon noted a conflict and certified the case to the Ohio Supreme Court. HELD: The juvenile court's findings of paternity could not be vacated upon a Civil Rule 60(B)(2) or (4) motion. Under Civil Rule 60(B)(2) a judgment can be vacated upon the discovery of newly discovered evidence, but in this case genetic testing existed and could have been done before the paternity determination was made had the appellee cooperated with CSEA. Under Civil Rule 60(B)(4) a judgment can be vacated under the existence of circumstances that could not be foreseen or controlled. Appellee could have reasonably prevented the findings as stated above. The supreme court did, however, vacate the paternity determination according to Ohio Revised Code section 3111.16 which states that the juvenile court retains jurisdiction over all judgments and orders. Additionally, the supreme court ordered the appellee to pay the any arrearages accumulated up until the court's final entry. Furthermore, the Court affirmed in part and reversed in part with the cause to be remanded to Court of Appeals of Cuyahoga County. *412 D. Visitation









Braatz v. Braatz 85 Ohio St. 3d 40, 706 N.E.2d 1218 Decided March 24, 1999 Roy Braatz, Appellee, was granted visitation rights, pursuant to a divorce decree, with his infant son on Wednesday evenings for two hours and on Saturday mornings for three hours, both occurring at the home of his ex-wife, Marsha Braatz (Appellant). Two months later, Appellant moved for a modification of visitation in accordance with the court's standard order of companionship. The magistrate held a hearing on the motion and filed his report, making findings of fact and recommending that the appellee's visitation be extended to alternate weekends from 9:00 A.M. until 5:00 P.M. on Saturday and Sunday. The magistrate noted as part of his findings that the child was now over one-year old and physically strong. Appellant filed objections to the magistrate's report, however, the trial court adopted the magistrate's findings and recommendations. Subsequently, the appellant filed a motion for relief from judgment, and the trial court ordered that the matter be reheard by the magistrate. Pursuant to this order, the magistrate recommended that Appellee's visitation be modified to alternate weekends from 9:00 A.M. until 3:00 P.M. on both Saturday and Sunday, such visitation to occur at the home of the paternal grandparents, noting that the appellant had testified that Appellee had a gambling problem. Both parties filed objections to the magistrate's rec-ommendation, and the trial court reinstated the visitation rights of the original divorce decree. The appellee appealed to the court of appeals which reversed and remanded the cause stating that the trial court must use the factors of Ohio Revised Code section 3109.051(D) to determine a visitation modification. The court of appeals also entered an order certifying a conflict between it and the Ninth Appellate District. The Supreme Court of Ohio allowed a discre-tionary appeal upon determining that a conflict existed. HELD: The terms “custody” and “visitation” are distinct legal concepts. Custody involves the legal ability to make fundamental decisions about a child's welfare, whereas, visitation pertains to the right of parent to see and visit with his or her child. The supreme court found that section 3109.051 governs modifications of visitation rights. Thus, the court held that the trial court must consider the factors set forth in subsection (D) of that statute, when making visitation determinations in the best interests of the child. The court further determined that the trial court should file findings of fact and conclusions of law, upon request by a party, when it modifies or refuses to modify visitation rights. Therefore, the supreme court affirmed the decision of the court of appeals and remanded the cause to the trial court with *413 instructions to set forth findings of fact and conclusions of law, giving proper weight to the statutory factors. The court also held that, in the alternative, the trial court could vacate its previous order and order a new hearing for visitation modification. XI. GOVERNMENT A. Elections State ex rel. Bona v. Orange 85 Ohio St. 3d 18, 706 N.E.2d 771 Decided March 17, 1999 Pursuant to a request to revise a development plan in the village of Orange, Ohio, the village of Orange Council enacted an ordinance that approved an altered development plan, which would decrease the number of residential units. On May 19, 1998, appellants, Frank and Rosa Bona, who were abutting landowners, sued the appellees, vil-lage of Orange, Clerk of Council Bonk, Mayor Kathy Mulcahy, Village Council President Herbert L. Braverman, and the Cuyahoga County Board of Elections, seeking a writ of mandamus to direct the submission of an ordinance







to the village electors for their approval or rejection at the general election. On July 28, 1998, the Cuyahoga Court of Appeals denied the writ and the appellant landowners subsequently filed for a notice of appeal thirty-five days later. On November 3, 1998, forty-five days after the record was transmitted and on the date of the general election, the appellants filed their merit brief. This case was before the court upon the appeal as a matter of right. HELD: Laches and mootness require dismissal of this appeal. The Court stated that extreme diligence and promptness are needed in election-related cases and laches may bar the action if a party seeks abnormal relief in such a matter, but fails to act with the requisite diligence and promptness. Since the election passed before the Court could decide on the issue, the appeal is also moot. A key factor in the Court's decision is that the appellants never requested an expedited treatment of this appeal. Therefore, the appeal is dismiss due to both laches and mootness. *414 B. Municipalities Linndale v. State 85 Ohio St. 3d 52, 706 N.E.2d 1227 Decided March 24, 1999 Ohio Revised Code section 4549.17 prohibits local law enforcement officers from issuing speeding and excess weight citations on interstate freeways when all of the following exist: the locality has less than eight hundred eighty yards of interstate highway within its jurisdiction; the local law enforcement officers must travel out of their juris-diction to enter the interstate highway; the primary purpose of the law enforcement officer's entrance onto the free-way is to issue citations for speed and weight violations. The Village of Linndale (Linndale) claimed that section 4549.17 was unconstitutional because it was violative of either Section 26, Article II of the Ohio Constitution (the Uniformity Clause) or Section 3 of Article XVIII of the Ohio Constitution (the Home-Rule Amendment), or both. Linndale filed claims against the state of Ohio and the City of Blue Ash (Blue Ash). Blue Ash filed a cross-claim against the state of Ohio. The trial court found that section 4549.17 did not violate the Uniformity Clause, but found that it did violate the Home-Rule Amendment, thereby delaring that section 4549.17 was unconstitutional. The state of Ohio appealed. Linndale filed for a cross-appeal arguing that section 4549.17 also violated the Uniformity Clause. The Court of Appeals for Franklin County affirmed the trial court's judgment and did not take up Linndale's cross-appeal because the court of appeals determined that section 4549.17 violated the Home-Rule Amendment. The state of Ohio then appealed to the Supreme Court of Ohio upon allowance of a discretionary appeal. HELD: Section 4549.17 was not a general law, and thus impermissibly infringed on the right of affected mu-nicipalities to enact and enforce traffic regulations, in violation of the Home-Rule Amendment to the state constitu-tion. The case turned on the question of whether section 4549.17 was a general or specific law. If it was a general law, it prevails over local traffic laws because a municipality's police regulation must yield to the state's police regu-lation when there is a conflict. If it was a specific law (not applying to citizens generally) in which it was an attempt to limit the municipal power to adopt or to enforce police regulations, then it was unconstitutional. The Home-Rule Amendment grants to all municipalities of Ohio the power to perform all powers inherent in local self-government and to sanction and administer such local police and sanitary regulations that are not in conflict with general laws. The state of Ohio argued that section 4549.17 was a general law and that it was a part of a statewide regulatory scheme to assure *415 the traveling public that local law enforcement on the interstate highways was not occurring merely as a revenue-raising plot. Linndale argued that it was a specific law limiting municipal power. The Court stated that general laws are enacted by the General Assembly to safeguard the peace, health, morals, and safety and to protect people's property. The Supreme Court of Ohio previously defined general laws as those which operate uniformly throughout the state, prescribing a ruleof conduct on citizens generally. Once something has become a matter of general interest that it is necessary subject it to statewide control so as to require uniform







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statewide regulation, the local government can no longer act in the field so as to conflict with the state. Given this, the Court found that section 4549.17 was not a general law. The Court agreed with the trial court that section 4549.17 simply limits a local government's legislative powers to sanction and administer specified police regula-tions. Section 4549.17 was not part of a uniform system of statewide regulation on traffic law enforcement. The statute specifically stated that certain cities can not enforce local regulations. Also the statute did not prescribe a rule of conduct upon citizens as required by the Supreme court of Ohio. The Court found that because section 4549.17 was not a general law, it was unconstitutional in impinging on the home-rule powers of municipalities. Accordingly, the supreme court affirmed the judgment of the court of appeals and also found it unnecessary to discuss whether the statute violated the Uniformity Clause. C. Public Bodies Desenco, Inc. v. Akron 84 Ohio St. 3d 535, 706 N.E.2d 323 Decided March 10, 1999 Desenco, Inc. and other appellants filed a complaint against the appellees, including the City of Akron, in the Summit County Court of Common Pleas, alleging the statutes that allow for the establishment of joint economic development districts (JEDDs) and for an income tax within the JEDDs are unconstitutional on four grounds—improper delegation of the power to levy taxes, violation of the Uniformity clause in the Ohio Constitution, violation of equal protection, and violation of Due Process—and thus cannot be enforced against them. Appellants are for-profit corporations conducting business within different townships in Summit County. The trial court found the leg-islation establishing the JEDDs, Ohio Revised Code sections 715.70 and 715.71, to be constitutional and thus granted appellees' motion to dismiss. The Court of Appeals for Summit County affirmed. This cause came before the Supreme Court of Ohio upon the allowance of a discretionary appeal. *416 HELD: The court held that the statutes allowing for the creation of JEDDs do not improperly delegate the General Assembly's power to levy taxes and do not violate the Uniformity Clause of the Ohio Constitution or deny equal protection and due process as guaranteed by the United States and Ohio Constitutions. Therefore, the court held that the statutes are constitutional. First, the court has repeatedly held that the Ohio Constitution has fully au-thorized the General Assembly to create districts, as separate political subdivisions, and to create boards to exercise the governmental activities of the districts, and to impose and collect taxes to meet the financial needs of the district. JEDDs are special taxing districts, independent of the individual governmental entities that contracted to form the JEDD, and the board of the JEDD derives its authority to tax directly from the General Assembly. Second, the legis-lation does not violate the Uniformity clause of the Ohio Constitution because it is law of a general nature. That is, the statutes provide for the creation of JEDDs, special economic districts which are formed by a contract between various governmental entities for the purposes of facilitating economic development, creating or preserving jobs and employment opportunities, and improving the economic welfare of the people in the state. The court held that these are necessarily subjects of a general nature. Furthermore, the court held that the statutes operate uniformly through-out the state because municipalities and townships in any county may create a JEDD. Third, the JEDD statutes do not violate equal protection because it rationally furthers the legitimate state interest of economic development. The appellants also argued that the JEDD jeopardized their exercise of the fundamental right because they had no oppor-tunity to vote on the tax. Although the right to vote is a fundamental right, the court held that the appellants' right to vote is not affected because, as corporations, they have no right to vote in the first place. The final argument that appellants make is that the JEDD statutes violate due process. In response the court held that the legislative purpose of the JEDD statutes is legitimate and the imposition of an income tax upon the businesses located in and the em-ployees who work in the JEDD is a reasonable method of funding such services. This legislative purpose bears a definite and substantial relationship to the general welfare of the state and because those paying the income tax benefit from the services provided, the tax imposed is not arbitrary or unreasonable. The court concluded that the tax











does not violate due process. The court held that the statutes are constitutional and, thus, affirmed the judgment of the court of appeals. *417 D. Records State ex rel. Cleveland Police Patrolmen's Ass'n v. Cleveland 84 Ohio St. 3d 310, 703 N.E.2d 796 Decided January 13, 1999 Cleveland Police Officer Michelle Pettry (Pettry) committed an assault in October 1996. Records were prepared by The Professional Conduct Internal Review Unit (PCIR) of the Cleveland Police Department in anticipation of and in connection with the criminal prosecution of Pettry. Pettry was convicted of assualt by the Cleveland Munici-pal Court and Pettry appealed. The appeal was later withdrawn by Pettry. Then, Cleveland Police Patrolmen's Asso-ciation (Appellees) requested that Cleveland and its police chief (Appellant) provide the appellees with a copy of the entire file on Pettry's assault. The appellant refused to comply and the appellees filed a complaint in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel the appellees to provide access to the records, pur-suant to Ohio Revised Code section 149.43. The court of appeals granted a limited writ which compelled the appel-lant to provide certain records in Pettry's file that did not contain information that pertained to Pettry's criminal pro-ceeding. The court denied the writ for the remainder of the file as work product. The case then went before the su-preme court upon an appeal as of right. HELD: The Court held that, pursuant to sections 149.43 (A)(1)(g) and (A)(2)(c), once records are determined to be exempt as trial-preparation records or work products, the records continue to be exempt until all criminal pro-ceedings are closed. The records in this case did not fall under the exemption, as Pettry had agreed not to pursue an appeal. Therefore, the court granted the writ of mandamus which compelled Appellees to provide access to the re-quested records to Appellant upon the submission by Pettry of an affidavit which stated that she would not pursue an appeal, postconviction relief, or any other proceeding that could result in a retrial. State ex rel. Keller v. Cox 85 Ohio St. 3d 279, 707 N.E.2d 931 Decided April 7, 1999 Steven R. Keller, Appellant, was appointed to represent Carl J. Faehl on a drug charge pending in the United States District Court. Believing Detective Paul Reece would be called as a witness against Faehl, Keller requested, pursuant to Ohio's Public Records Act, that the Miami County Sheriff's Department of Records allow him to copy and inspect all personnel and *418 internal affairs records relating to Reece. The United States filed a motion to cease and desist all efforts to obtain this information. The United States contended that access to such records would entitle Keller and Faehl to information otherwise undiscoverable under Federal Rule of Criminal Procedure 16, and thus violate Reece's constitutional right to privacy. Appellees', Sheriff Charles A. Cox and Records Custodian Wilma Mahan, refusal to provide Keller access to the files caused Keller to file a complaint in the Court of Appeals for Miami County to compel Appellees to grant him access. Appellees filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Attached to the memorandum in support of the motion was an affidavit of Detective Reece claiming Faehl had threatened both Reece and his family. Keller moved to strike the affidavit and all unsworn factual allegations in the memorandum. The court of appeals granted Appellees' motion and dismissed Keller's complaint without explicitly ruling on his motion to strike. The court of appeals held that although police officers' personnel and internal investigative records are public records under Ohio's Public Records






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Act, the statute was not meant to be a tool of discovery for criminal defendants. Criminal defendants may only use Criminal Rule 16 for such purposes. The matter came before the Supreme Court of Ohio upon an appeal as of right. HELD: The court of appeals' failure to rule on Keller's motion to strike Reece's affidavit and all unsworn facts was essential in overruling of the motion. This was an error on the part of the court of appeals because parties should not be allowed to rely upon evidence extrinsic to the complaint in support of a motion. However, overruling his mo-tion did not prejudice Keller. The factual allegations were not the court of appeals' primary reliance in making its decision. The holding of the court of appeals was correct because the records sought by Keller would not have been included in ordinary discovery, as they had nothing to do with the crime or the criminal case. Personal information regarding a police officer and his family is not only constitutionally protected, but it should also be protected by a good sense rule. Personal information regarding a police officer should not be discoverable by a criminal defendant who may use the information for ill purposes. However, records regarding the officer's discipline or the means by which he does his job may be obtained by a defendant through internal affairs files in accordance with the court's rules. Accordingly, the supreme court affirmed the judgment of the court of appeals. *419 State ex rel. Porter v. Cleveland Dept. of Pub. Safety 84 Ohio St. 3d 258, 703 N.E.2d 308 Decided December 30, 1998 Paul Porter, Appellant, and a prisoner at the Marion Correctional Institution, requested from the Cleveland De-partment of Public Safety copies of certain records pursuant to Public Records Law. Porter, filed a complaint in the Court of Appeals for Cuyahoga County seeking a writ of mandamus to compel compliance with the request. Cleve-land Department of Public Safety, Appellee, asserted that Ohio Revised Code section 149.43 imposes no duty and Porter's complaint lacked merit. The Appeals Court dismissed his complaint. The cause was before the Ohio Su-preme Court upon appeal as of right. HELD: There is no clear duty imposed by Ohio Revised Code section 149.43 to transmit copies of the requested records to Porter. While the records could be considered “public,” Appellee does not have to mail, or transmit such records. Furthermore, Porter raised another issue contending that Appellee violated his rights under the Americans with Disabilities Act. However, since Porter did not allege this violation in his complaint, reviewing courts do not consider questions not presented to the court whose judgement is sought to be reversed. The court upheld the deci-sion of the Appeals Court. X. INSURANCE A. Automobile Delli Bovi v. Pacific Indem. Co. 85 Ohio St. 3d 343, 708 N.E.2d 693 Decided April 28, 1999 Kirk Delli Bovi was killed in a helicopter crash near Salem, Ohio. He held three insurance policies providing accidental death, uninsured/ underinsured motorist (UIM) and umbrella coverages. Appellees, Pacific Indemnity Company and Auto Owners Insurance Company carried two of the policies. Once the insurer of the helicopter de-nied coverage, Delli Bovi's widow filed declaratory judgment action against Pacific and Auto Owners to acknowl-








edge that the policies provide UIM coverage for the losses sustained in the accident. Respondents maintained that their policies did not cover helicopters because they were not considered motor vehicles for purposes of UIM cover-age. They also argued that the offered coverage applies only to “motorized land vehicles”. The United States District Court for the Northern *420 District of Ohio, Eastern Division, certified two questions of law, thereby taking the cause to the supreme court. HELD: The first question was whether a helicopter was a “motor vehicle” under Ohio Revised Code section 4501.01. The next was whether the word “land” in the Auto Owners policy modified the words “motorized vehicle” eliminating the UIM coverage ordered by Ohio Revised Code section 3937.18. The court had to look to the legisla-tive intent of the statute for answers to those questions and found that “motor vehicle” meant something that could travel on land, thereby concluding that a helicopter was not a motor vehicle by the terms of the statute. The court also decided that a helicopter was not covered under a “motor vehicle liability policy” because it requires the defini-tion of the word “vehicle” to be confined to “device[s] by which any person or property may be transported upon a highway”. Since a helicopter can not travel upon a highway, it can not be classified as a motor vehicle for purposes of Ohio's required UIM coverage. The court determined that the insurance providers can limit the UIM coverage to motorized land vehicles. Scott-Pontzer v. Liberty Mut. Fire Ins. Co. 85 Ohio St. 3d 660, 710 N.E.2d 1116 Decided June 23, 1999 Christopher Pontzer, decedent, was killed in a car accident while driving an automobile owned by his wife, Kathryn Scott-Pontzer, the appellant. The accident was due to the negligence of the other driver. The tortfeasor's insurance policy provided $100,000 per person. At the time of the accident, the decedent was employed by Superior Dairy, Inc (Superior Dairy). Superior Dairy had a commercial automobile liability policy withthe appellee, Liberty Mutual Fire Insurance Co. (Liberty Fire). This policy provided for underinsured motorist coverage. Superior Dairy also had an “umbrella/ excess” insurance policy with Liberty Mutual Insurance Co. (Liberty Mutual). Appellant brought suit against Liberty Fire and Liberty Mutual in the Court of Common Pleas of Stark County alleging that she was entitled to the underinsured benefits under Superior Dairy's policy with Liberty Fire as well as benefits un-der the umbrella policy with Liberty Mutual. The trial court granted summary judgment in favor of the insurers. The court of appeals affirmed the judgment of the trial court based upon different reasons from those of the common pleas court. The Supreme Court of Ohio allowed a discretionary appeal. HELD: When provisions of an insurance contract may be interpreted in more than one way, the contract is to be construed against the insurer. The *421 court determined that the terms of the Liberty Fire contract were susceptible to more than one interpretation. The court relied upon its previous notations that the intent of uninsured motorist coverage was to provide for the protection of person. In so doing, it found that the use of the term “you” in Superior Dairy's policy with Liberty Fire included employees of Superior Dairy because solely applying the term to the busi-ness would be meaningless unless the coverage included some actual person needing protection. Thus, the court held that the term was ambiguous and construed the term against Liberty Fire to conclude that the decedent was an in-sured under the policy. The court also held that the decedent was an insured under the policy with Liberty Mutual because Liberty Mutual failed to offer uninsured/ underinsured motorist coverage that defined insureds. Therefore, the supreme court found that such coverage arose as a matter of law and included the decedent as an insured. The court also concluded that the decedent did not have to be acting within the scope of his employment with Superior Dairy in order to be covered under the policy with Liberty Fire because the terms of the policy did not make this a requirement. Despite the scope of employment requirement in the Liberty Mutual policy regarding excess liability coverage, the court found that the requirement was not applicable to underinsured motorist coverage because the insurer had never provided such coverage to the insured so it could not very well limit something it had not offered. Therefore, the Supreme Court reversed the judgment of the court of appeals and remanded the case to the trial court







with instructions to enter judgment in favor of appellant as to both policies. Selander v. Erie Ins. Group 85 Ohio St. 3d 541, 709 N.E.2d 1161 Decided June 2, 1999 Eugene Selander was killed, and his brother, Glenn, was seriously injured in an automobile accident caused by the negligence of another driver who collided with the Selander's pickup truck. The accident occurred in the course and scope of the men's employment as electricians with a partnership doing business as Twin Electric. Glenn Se-lander, his wife, and the wife of Eugene Selander, Betty Selander (collectively “Selanders”), settled all claims against the negligent driver with his insurance carrier for $103,500. The Selander's pickup truck was insured at the time of the accident and the insurer settled with the Selanders for an aggregate amount of $300,000. Glenn and his wife also collected $100,000 from a separate insurance policy which provided uninsured/underinsured coverage. The Selanders then filed a claim for underinsured motorist benefits from Erie Insurance Exhange, Appellant, arising from a general business liability policy it had issued to Twin Electric. *422 Appellant refused to pay because it claimed that the policy did not provide any form of automobile liability. The Selanders filed a declaratory action against the appellant, made a motion for summary judgment, and the trial court granted the motion. The court of appeals affirmed and entered an order certifying conflict with the Tenth District Court of Appeals. The supreme court allowed a discretionary appeal upon determination that a conflict existed. HELD: The Ohio Revised Code section 3937.18(A) requires that automobile liability insurance policies must provide for both uninsured and underinsured motorist coverage. The Supreme Court of Ohio held that this applies even when motor vehicle liability coverage is provided in only limited circumstances. The Court found that although the coverage provided by the appellant was limited to circumstances involving vicarious liability of Twin Electric for its employees arising out of the used of a hired or non-owned vehicle, the pertinent code section applied. Fur-thermore, the Court determined that the statutory section applied despite the intentions of either party or the label affixed to the policy by the insurer. Thus, the Court held that the appellant was required by statute to offer unin-sured/underinsured coverage, and because the appellant did not do so, coverage arose by operation of law in an amount equal to the liability limits. Therefore, the Court affirmed the decision of the lower court. B. Liability Cincinnati Indem. Co. v. Martin 85 Ohio St. 3d 604, 710 N.E.2d 677 Decided June 16, 1999 In 1995, six year old Michael Martin (Michael) and his eight year old brother Ricky Martin (Ricky) were play-ing when Ricky accidently shot Michael with a rifle. Their father, David Martin (David), as executor of Michael's estate, sued their mother Stephanie Martin (Stephanie) for wrongful death alleging negligence in failing to supervise the children and properly store the rifle. Cincinnati Indemnity Company (CIC), the provider of Stephanie's home-owner's insurance, sought a declaratory judgement determining whether CIC was required to defend and indemnify Stephanie against the claim. The trial court granted CIC's motion for summery judgment finding that under the plain language of the policy, CIC was not required to defend or indemnify Stephanie against David's claim. The court of appeals affirmed the decision, but certified a conflict between its decision and the Stark County Court of Appeals. The supreme court determined that a conflict existed and allowed appeal.






*423 HELD: The court began by noting that a liability insurer's obligation only arises if the facts of the case bring it within the scope of the policy. The court found that under the plain language of an exclusion in the policy, CIC was not obligated to defend against a claim brought by an insured against an insured for bodily injury. David, who was not an insured, also argued that he personally suffered injuries from Michael's death and that CIC should be obligated to defend and indemnify Stephanie against his claim. The court held that an insurer has no duty to de-fend or indemnify an insured in a wrongful death suit brought by a non-insured based on the death of an insured where the policy excludes liability coverage for claims based on bodily injury. The court affirmed the judgement of the court of appeals. XI. JUDICIAL ADMINISTRATION A. Discipline Office of Disciplinary Counsel v. Ferreri 85 Ohio St. 3d 649, 710 N.E.2d 1107 Decided June 9, 1999 The Office of Disciplinary Counsel (Office), filed a complaint against Robert Ferreri (Ferreri). The complaint was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio (Board). Ferreri was a judge in the Cuyahoga County Court of Common Pleas, Juvenile Division. The Office charged Ferreri with making three statements to the media, in violation of the Code of Judicial Conduct and Disci-plinary Rules. The first alleged violation occurred when Ferreri made statements to a television reporter after the Eighth District Court of Appeals reversed one of his decisions. Ferreri told the reporter that the decision of the court was “purely political” and accused the judges of being unduly influenced. These statements were never broadcast on television, and Ferreri stated that he believed he was speaking off the record to the reporter. The second alleged vio-lation occurred when Ferreri conducted an investigation of an alleged beating of an inmate in a juvenile detention facility. After concluding his investigation, Ferreri gave an interview to the Call and Post newspaper in Cleveland. He told the reporter that the staff at the juvenile detention facility routinely beat inmates, and these beatings were routinely covered up. He also told the reporter that the problems at the facility were due to a lack of leadership by the Administrative Judge of the Juvenile Court and the director of the detention center. The panel found that there was no cover-up, and no effort was made by Ferreri to confirm his statements about the judge and the director of the detention center. The third alleged violation resulted from Ferreri's comments published in the Cleveland Free Times *424 newspaper. In the newspaper, Ferreri called a judge and the Court's Director of Community Services and Pro-bation incompetent and also accused them of lying to the federal government. The panel found these statements were false. The panel recommended to the Board that Ferreri be suspended from practicing law for eighteen months, with an eighteen-month stay of suspension. The Board adopted the panel's findings. The Supreme Court of Ohio heard the case on certified report by the Board. HELD: The Court followed the conclusions of the Board. It did not matter whether the statements were to the television reporter were made on or off the record. Also, the fact that Ferreri made his comments to the Cleveland Free Times out of concern for the inmates did not excuse the violation. All three statements to the media violated the Code of Judicial Conduct. Because Ferreri was also a lawyer, his statements violated a rule requiring a respectful attitude towards the court. Ferreri's comments to the media broke the disciplinary rules and Code of Judicial Con-duct and therefore warranted suspension from the practice of law. A judge suspended from the practice of law must also be immediately suspended from his duties as a judge. Therefore, the Court suspended Ferreri from practicing law for eighteen months and suspended him from his judicial duties for six months.. B. Judges




Ohio State Bar Ass'n v. Reid 85 Ohio St. 3d 327, 708 N.E.2d 193 Decided April 7, 1999 On August 11, 1997, the relator, the Ohio State Bar Association, filed suit against the respondent, Judge M. David Reid, a.k.a. Marlin David Reid, a judge of the Greene County Court of Common Pleas. In the complaint, the relator alleged that the respondent had violated Ohio Revised Code section 102.02 and Canons 2(A) and 5(C) of the Code of Judicial Conduct. The questionable activity occurred when the respondent appeared at Beavercreek Plan-ning Commission meetings to speak on behalf of Terra Developers, a real estate partnerships in which the respon-dent had an interest. The relator asserted that the respondent had appeared at the meetings to advance the stature of his office to benefit the interests of both himself and his partners. The matter was heard by a panel of the Board of Commissioners of Grievances and Discipline of the Supreme Court (Board) and the panel found that respondent had violated Canons 2(A) and 5(C). The relator asserted that Canon 2(A) was violated because the respondent's testi-mony was not required at the zoning meetings and Canon 5(C) was violated because the matter in which he testified later came before his court and he subsequently purchased *425 the property. Thereafter, the panel recommended a public reprimand and the Board adopted the panels findings, conclusions and recommendations. HELD: Since the respondent's testimony was not required at the zoning commission meetings, the Supreme Court of Ohio agreed with the Board's findings that his testimony was designed to lend the prestige of his office to advance the interests of himself and his partners. The Court also found that when the dispute about which the re-spondent testified came before his court, he needed to request services of a visiting judge from another county to hear the action. Therefore, the Court held that respondent had violated Canons 2(A) and 5(C) and a public reprimand was imposed upon the respondent. Ohio State Bar Ass'n v. Shattuck 85 Ohio St. 3d 334, 708 N.E.2d 199 Decided April 7, 1999 Ohio State Bar Association (Relator), filed a complaint charging Judson L. Shattuck, Jr., of Xenia, Ohio, judge of the Greene County Court of Common Pleas, Domestic Relations Division (Respondent) for violating several Cannons of the Code of Judicial conduct. Specifically, the panel found that in 1994, a grand jury indicted a Lloyd Dale Perry on a drug charge. After entering a not guilty plea, he subsequently entered a guilty plea to a lesser charge. Counsel for Perry filed a motion with Judge Reid to suspend his sentence in accordance with the new plea. Judge Reid did not rule on the motion. Later, Perry's council submitted an entry to Judge Reid, which he re-fused to sign. However, Judge Reid did tell Perry that he could get another judge to handle the case. Thus, the case was transferred to Respondent. He then signed the entry in the transfer-case, ordering that the guilty plea be vacated, the cause be nolled, and Perry be released from incarceration. The panel found that in the absence of an order signed either by the presiding judge of the common pleas court or by the Chief Justice of the Ohio Supreme Court, Respon-dent lacked legal authority to dispose of the Perry case. The panel recommended a public reprimand. HELD: Investigating the procedural atmosphere of Greene County, Ohio reveals a custom on the part of the circuit to make transfers in this manner. Since Respondent exercised authority over the Perry case on the basis of what he thought was a legitimate longstanding informal transfer process, the Supreme Court ordered that no disci-plinary action was warranted.




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*426 XII. LABOR & EMPLOYMENT A. Discrimination Genaro v. Central Transport, Inc. 84 Ohio St. 3d 293, 703 N.E.2d 782 Decided January 13, 1999 Three separate actions were filed by Appellants who claimed that they had been the victims of employment dis-crimination. The claims were originally filed in State court, but the appellees removed the suits to federal court based on diversity jurisdiction. The appellants, however, objected to federal diversity jurisdiction because the appel-lants named supervisors and managers, who were residents of Ohio, as defendants in their individual capacity. The appellees sought to exclude the individual defendants, alleging that the individual defendants were fraudulently joined becauseOhio Revised Code Section 4112, like Title VII of the Civil Rights Act of 1964, does not permit indi-vidual supervisor liability. The appellants filed motions to remand the cases to state court, but the district court de-nied these motions, holding that section 4112 does not provide for claims against supervisors and managers in their individual capacities, and therefore Appellants had no basis for recovery against their respective supervisors in their individual capacities. The district court held that the supervisor defendants were fraudulently joined and therefore removal of these actions to federal district court based on diversity citizenship was proper. The question was certi-fied to the Supreme Court of Ohio on the issue of supervisor individual capacity under section 4112. HELD: The very definition of “employer” in the statute clearly indicates that the term was meant to encompass individual supervisors and managers whose conduct violated the provisions of the statute. Moreover, statutory and case law reflect Ohio's strong public policy against workplace discrimination. The public policy goals of the statute are furthered by holding managers and supervisors individually liable for their discriminatory practices. Further-more, three decisions from the courts of appeals of Ohio have held that liability may be imposed against supervisors and managers in their individual capacity for conduct in violation of the statute. The defendants' comparison of Ohio's statute with Title VII of the Civil Rights Act of 1964 was misplaced. The language employed by the General Assembly with regard to section 4112 was much broader in scope than that employed by the analogous Title VII provision. The Court held that supervisors and managers may be held personally liable for unlawful discriminatory acts committed by such persons in violation of section 4112. *427 Rice v. CertainTeed Corp. 84 Ohio St. 3d 417, 704 N.E.2d 1217 Decided February10, 1999 Plaintiff Rice, a terminated employee of defendant, CertainTeed Corporation (CertainTeed), filed an action in the United States District Court for the Northern Division of Ohio, Western Division, alleging that he was termi-nated from employment with the defendant because of racial discrimination. Rice further claimed that he suffered retaliatory acts for opposing unlawful discriminatory practices by CertainTeed in violation of Ohio Revised Code sections 4112.02 and 4112.99. CertainTeed moved to dismiss Rice's state law claims, claiming that these causes raised unsettled questions as to the availability of punitive damages under section 4112.99. The district court certi-fied the question of whether punitive damages are allowable in an employment discrimination case arising under Ohio law to the Supreme Court of Ohio. HELD: The Court determined that the legislative intent behind a statute is the court's main priority when inter-









preting the statute. First, the Court had to look at the language of the statute and give the words their usual, normal, or customary meanings without adding other words. The pertinent Ohio statute allowed for an award of “damages.” There was not a limiting word in front of the word “damages” such as “compensatory” or “punitive.” Despite the CertainTeed's contention that the word “damages” pertained solely to compensatory damages, the court disagreed. The court concluded that because the General Assembly did not interject a restrictive term to the word “damages,” the word was all encompassing. Thus, the court held that the word “damages” included damages of a punitive na-ture. Furthermore, the Court determined that the Ohio statutory anti-discrimination scheme confirmed an inclusion of punitive damages for discrimination based employment termination such as placing a floor on punitives in certain provisions which meant a presumption that punitive damages were generally available. The court concluded that limiting the word “damages” in discrimination based actions to those of a compensatory nature was inconsistent with the definition of the word and the purpose and intent of the General Assembly. Therefore, the supreme court held that the section 4112.99 permitted an award of punitive damages in civil actions based upon employment dis-crimination. *428 State ex rel. World Stamping and Manufacturing Co. v. Industrial Comm'n of Ohio 84 Ohio St. 3d 433, 704 N.E.2d 1230 Decided February 10, 1999 In 1993, Appellant John Suech (Suech), an employee of relator World Stamping and Manufacturing Company (World), was injured while operating one of World's Bliss punch presses. This press was activated by a foot pedal. While Suech was attempting to dislodge a part in the press, his foot slipped, the press cycled, and his had was se-verely injured. Suech stated that the pedal enclosure had no front cover. Suech received workers' compensation, but later sought additional compensation, alleging that World had violated the Ohio Administrative Code which required pedal mechanisms to have a protective covering in order to prevent injury. A commission staff hearing officer granted Suech's application, finding that the evidence, consisting of photographs, testimony, and an affidavit from a professional engineer, supported Suech's claim that the foot pedal in question did not have a front door guard to pre-vent it from being accidentally activated. According to the officer, this failure to have a front door cover was in vio-lation of the Ohio Administrative Code. Rehearing on the issue was denied. This cause was brought before the su-preme court as an original action in mandamus seeking to overturn the commission's order. HELD: The commission did not abuse its discretion in finding that the lack of a front foot pedal cover consti-tuted a violation of the Ohio Administrative Code. Suech's testimony, various photographs, and an affidavit from a registered professional engineer who inspected the accident site and Suech's press, indicated that the foot pedal had no cover. The commission's determination that there was no front cover was therefore supported by “some evi-dence.” Since the commission was the ultimate fact finder, the introduction of contrary evidence was of no rele-vance. The Court would not reweigh the evidence. Accordingly, the writ of mandamus was denied. B. Public Employment State ex rel. Baker v. State Personnel Bd. of Review 85 Ohio St. 3d 640, 710 N.E.2d 706 Decided June 16, 1999 Appellants Judy Baker and Bonnie Johnson both worked for the Columbiana County Auditor, and they were discharged when a newly elected *429 auditor assumed his position. Appellants appealed their termination to the State Personnel Board of Review (“SPBR”), and the administrative law judge issued a report finding Appellants






were unclassified employees because they were fiduciaries to the auditor and only deputy county auditors. There-fore, the judge recommended that the appeal be dismissed because they were not wrongfully terminated without doing an evaluation of whether Appellants were also unclassified on the basis of having an administrative relation-ship to the auditor. Consequently, the SPBR dismissed the appeal. Appellants then filed an appeal with the Franklin County Court of Common Pleas, however it affirmed the lower decision. Upon further appeal, the court of appeals reversed, and found that the common pleas court had abused their discretion when upholding the SPBR's decision. On remand, the common pleas court sent the case back to the SPBR so the board could determine whether Appel-lants held an administrative relationship to the auditor. Shortly thereafter, Appellants filed a complaint in the appeals court for a writ of mandamus to force SPBR to reinstate them, and they also asked for a writ of prohibition to pre-vent the board from conducting any more proceedings. However, SPBR's motion to dismiss was granted, and the cause went before the Ohio Supreme Court pursuant an appeal as of right. HELD: Civil service employees are either classified or unclassified, and unclassified positions are appointed and terminated at the discretion of the appointing authority. Appellants argued that they were entitled to a writ of prohibition because the SPBR lack jurisdiction to proceed; in other words, they had already held proceedings con-cerning their termination in which the auditor could have raised the issue of an administrative exemption. However, the auditor did raise the exemption, but SPBR made a decision without reaching that issue. Hence, the auditor still had standing to appeal on that issue to the SPBR. Appellants were also not entitled to a writ of mandamus because there has been no determination of whether they were wrongfully discharged. Thus, the court of appeals decision was affirmed, however Appellants were entitled to appeals stemming from any subsequent SPBR ruling. C. Workers' Compensation Frank W. Schaefer, Inc. v. Industrial Comm'n of Ohio 84 Ohio St. 3d 248, 703 N.E.2d 301 Decided December 30, 1998 Donald G. Preston, decedent, was exposed to asbestos during his twenty-seven years of employment from 1934 through 1961, with Appellant, Frank W. Shaefer, Inc. (FWS), and the appellant's predecessor, Plibrico Sales & *430 Service. Preston was self-employed for twenty years after leaving FWS's employment. In 1989, Preston died of an asbestos-induced cancer. His wife, Appellee-claimant herein, filed a claim with the appellee Industrial Commission of Ohio (Commission), which was allowed by a district hearing officer. The order was administratively appealed by FWS, contending that the decedent's last injurious exposure to asbestos had not been in FWS's employ. FWS was informed during this time that the decedent had kept records during his self-employment period. However, FWS did not request those records, which later revealed that the decedent was exposed to asbestos once during his self-employment. The hearing officer's order was affirmed. Appellant then appealed to the Franklin County Common Pleas Court after retaining new legal counsel. FWS requested the decedent's business records at this time, received the records promptly, and discovered that the decedent had replaced one piece of asbestos siding in 1962. Subse-quently, FWS voluntarily dismissed its appeal, and three days later filed a motion with the commission requesting that the agency begin new proceedings to address the issue of the decedent's last injurious exposure. That motion was denied by the commission. FWS then re-filed its appeal with the common pleas court and filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging abuse of discretion by the Commission. The Court of appeals denied the writ. FWS then appealed to the Supreme Court of Ohio as a matter of right. HELD: An order of the Industrial Commission of Ohio may be changed or modified by the commission if there is newly discovered evidence which could not have been discovered through due diligence prior to the date of hear-ing and such evidence is relevant to the issue at bar. First, the court determined that the widow-appellee did not mis-inform FWS about what the records contained. The records were largely financial ones, as she had represented to




FWS before the administrative hearings. Second, appellant FWS could have requested the records at any time dur-ing discovery rather than accepting theappellee-widow's description of what the records contained. The court, there-fore, found that the failure of FWS to request the documents prior to the district hearing officer's decision and sub-sequent administrative appeals constituted a lack of due diligence, thereby defeating an assertion of undiscoverabil-ity. Furthermore, the court held that a single reference to asbestos exposure during the decedent's twenty years of self-employment was insufficient to determine that a substantial injustice would occur if the case not reopened. The court affirmed the judgment of the court of appeals. *431 Johnson v. BP Chemicals, Inc. 85 Ohio St. 3d 298, 707 N.E.2d 1107 Decided April 14, 1999 Appellee and cross-appellant, Norman A. Johnson, brought suit against BP Chemicals, Inc. (BP) for intention-ally tortious conduct regarding burns that he received on his lower extremities while at work. Johnson suggested that the employment intentional tort statute, Ohio Revised Code section 2745.01, is unconstitutional and alternatively plead common law intentional tort claims. Also, Johnson alleged a products liability claim against BP as the manu-facturer of the machinery. After BP filed a motion to dismiss, the trial court dismissed the case and the Third District Court of Appeals reversed in part and affirmed in part holding that the statute was unconstitutional, and that the products liability claim was properly dismissed. Subsequently, both BP and Johnson filed discretionary appeals. HELD: Ohio Revised Code section 2745.01 is unconstitutional as it produces impossible standards and a heightened burden of proof to find an employer guilty of intentionally tortious activities. Additionally, the statute has no correlation to the comfort, health, safety, and general welfare of all employees as required by Section 34, Article II of the Ohio Constitution. The court also found that Johnson did not have a product's liability claim. Con-sequently, the court affirmed both decisions of the court of appeals. Kaiser v. Ameritemps, Inc. 84 Ohio St. 3d 411, 704 N.E.2d 1212 Decided February 10, 1999 This case was certified by the court of appeals because it was in conflict with decisions from other circuits and allowed as a discretionary appeal by the Ohio Supreme Court. The certified issue was: may a worker's compensation claimant use Civil Rule 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer appealing an adverse decision by the Industrial Commission pursuant to Ohio Revised Code section 4123.512? Appellant, Paul Kaiser, was an employee of Appellee, Ameritemps, Inc. Kaiser had pain in his hands and wrist while working one day and three doctors diagnosed him as suffering from carpal tunnel syndrome. The Bureau of Workers' Compensation granted Kaiser temporary total compensation, which was affirmed at the different levels. Ameritemps then appealed to the Summit County Court of Common Pleas. During the discovery process Kaiser failed to show up for a deposition and medical examination. Then Kaiser filed a notice to voluntarily dismiss under Civil Rule 41. The court vacated the voluntary dismissal and entered an order of judgment for Ameritemps. The *432 court of appeals affirmed the decision holding that Civil Rule 41(A)(1)(a) does not apply to workers' compen-sation appeals since they are special proceedings. HELD: A workers' compensation claimant can use Civil Rule 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer appealing an adverse decision by the Industrial Commission pursuant to section 4123.512. The Court relied on its recent decision Robinson v. B.O.C. Group, Gen. Motors Corp.,

















81 Ohio St. 3d 361, 691 N.E.2d 667 (1998) which held that Civil Rule 41(A)(2) was allowed in similar circum-stances. The employer is not injured because the claimant must re-file within one year or he will loose the possibility of receiving workers compensation, and the payments made to the employee will be charged to the state Surplus fund if the employee is found not to be entitled to the funds. Since Kaiser filed the voluntary dismissal before the trial, according to Civil Rule 41(A)(1)(a), then the common pleas court was without jurisdiction to enter judgment in favor of Ameritemps. The court then reversed and remanded the case to the Summit County Court of Common Pleas for further consideration. Laidlaw Waste Sys., Inc. v. Consolidated Rail Corp. 85 Ohio St. 3d 413, 709 N.E.2d 124 Decided May 12, 1999 Ohio Revised Code section 4123.93 grants a right of subrogation to a self-insuring employer for the amount of compensation and benefits paid to or on behalf of his employee for an injury or occupational disease that is com-pensable under the Ohio Workers' Compensation Act against a third-party tortfeasor if the employee is a party to an action involving the third-party tortfeasor. Plaintiff Laidlaw Wastes Systems, Inc. asserted a subrogation claim against defendant Consolidated Rail Corporation. The plaintiff is a self-insuring employer that paid benefits to or on behalf of its employees who were injured in the scope and course of their employment by the defendant on May 6, 1994. The employees successfully prosecuted actions against the defendant. The defendant has moved to dismiss the plaintiff's claim on the ground that section 4123.93 was not in effect at the time of the accident. The defendant ar-gued that the effective date of the statute as enacted by Am.Sub.H.B. No. 107 - October 20, 1993 - was changed to July 7, 1994 as a result of the decision of the Supreme Court of Ohio in State ex rel. Ohio AFL-CIO v. Voinovich, 69 Ohio St. 3d 225, 631 N.E.2d 582 (1994), as further explained in State ex rel. Ohio AFL-CIO v. Voinovich, 69 Ohio St. 3d 1208, 632 N.E.2d 907 (1994). This matter is before the Supreme Court of Ohio as *433 a certified ques-tion of state law from the United State District Court, Southern District, Eastern Division. HELD: The effective date of section 4123.93, as enacted by Am.Sub.H.B. No. 107, following the April 8, 1994 order issued in Voinivich I, and the April 29, 1994 order issued in Voinovich II, is October 20, 1993. Am.Sub.H.B. No. 107 enacted section 4123.93 to provide that the Administrator of the Bureau of Workers' Compensation and eligible employers are subrogated to the rights of injured employees against a third-party tortfeasor. It was signed into law on July 21, 1993, but the Ohio Constitution provides that the effective date of non-appropriation laws and provisions of laws be stayed for the prescribed ninety days. Therefore, the effective date of section 4123.93 is Octo-ber 20, 1993. On October 15, 1993, however, the Ohio AFL-CIO filed an action in this court challenging the consti-tutionality of Am.Sub.H.B. No. 107. The court in Voinovich I stayed the effective date of the non-appropriation provisions of Am.Sub.H.B. No. 107 for an additional ninety days for an opportunity for referendum. The stay was issued on April 8, 1994 and expired July 7, 1994. The court explained the effect of this additional stay in Voinovich II: it required the Ohio Bureau of Workers' Compensation and the Industrial Commission of Ohio to continue opera-tions under the status quo as it existed on April 8, 1994, staying only the programs authorized, but not yet imple-mented, under Am.Sub.H.B. No. 107. The court reasoned that all of the changes already implemented would con-tinue to operate. Because the bureau began pursuing subrogation claims from the time the law went into effect on October 20, 1993, the stay issued on April 28, 1994 did not delay the subrogation subsections of section 4123.93. The court held that the effective date of section 4123.93 is October 20, 1993, the original effective date of the non-appropriation provisions of Am.Sub.H.B. No. 107. Ross v. Industrial Comm'n of Ohio 84 Ohio St. 3d 364, 703 N.E.2d 1276



















Decided January 20, 1999 Appellant, Gertrude Ross, filed a claim for workers' compensation death benefits with appellee Industrial Commission of Ohio after her husband died from leukemia. The disease was allegedly induced or accelerated by exposure to asphalt through his employment. Though the decedent worked with Pioneer Contracting Corporation for the majority of his employment, he worked with Inland Refuse Transfer at the time of his death. A commission dis-trict hearing officer (DHO) heard Ross's claim and denied it based on the findings of Dr. Berman, who claimed that medical proof supported a finding that the *434 decedent's leukemia had no relation to his exposure to asphalt. An appeal was filed to the regional board and Ross amended the complaint to say that the decedent's death was as a re-sult of his employment with M.J. Construction Company. Her amendment was based on the misconception that Pio-neer's successor was M.J. Construction. The DHO found that Pioneer changed its name to M.J. Construction and allowed the death claim by Ross against the company. M.J. Construction was not provided notice ofthe hearing, but the DHO allowed the death claim anyway. There was no appeal. The Bureau of Workers' Compensation commenced paying death benefits to Ross. Once the payment began, M.J.Construction became aware of the death claim asserted against it. The commission granted M.J. Construction's petition for relief based on Ohio Revised Code section 4123.522, authorizing a belated appeal by a party who did not receive notice of a hearing of which it was entitled. In the appeal, M.J. Construction clarified that it was not a successor to Pioneer, but that the owners of the two compa-nies were the same. When Pioneer went out of business, Inland bought its real estate and asphalt plants. Following this finding, the staff hearing officer vacated the order of the DHO and found that the decedent was never an em-ployee of M.J. Construction and the application for death benefits was denied. The Court of Appeals for Franklin County granted M.J. Construction's motion for dismissal. Initially, the supreme court affirmed the decision of the court of appeals, but the matter went before the supreme court upon a motion for reconsideration. HELD: The issue on appeal was whether Ross had a right to participate in the fund. The supreme court decided that, since there was no question that the decedent's disease was caused or accelerated by his employment at Pioneer, the issue should have been whether M.J. Construction was the successor to Pioneer. The proceeding made it clear that Pioneer caused the decedent's exposure to the elements that caused his disease. It was undisputed that Pioneer and M.J. Construction were two separate companies rather than one having grown out of the other. For that reason, the court determined that M.J. Construction never had anything to with Ross's claim. The court decided that since the proper issue was whether M.J. Construction was the successor to Pioneer, mandamus was the proper remedy. The supreme court reversed the judgment of the court of appeals. The court ordered the commission to dismiss its order and restore its prior allowance with regard to the former employer Pioneer Contracting Corporation. *435 Specht v. BP Am., Inc. 86 Ohio St. 3d 29, 711 N.E.2d 225 Decided June 30, 1999 Appellant Marie Ann Specht injured her back in 1985 while working for a predecessor of Appellee, BP Amer-ica, Inc. Her workers' compensation claim was recognized for “low back” and, subsequently, for an additional back condition. In 1989, Specht moved for recognition of a residual psychological condition. This motion was denied by appellee Industrial Commission of Ohio because it was not filed within two years as required by Ohio Revised Code section 4123.84. Specht appealed to the Cuyahoga County Court of Common Pleas, seeking a judgment that she was entitled to participate in the workers' compensation system for her residual condition. The court refused her relief and granted summary judgment for BP on the ground that Specht had not provided timely notice of her residual claim. The Court of Appeals for Cuyahoga County affirmed. The cause came before the Supreme Court of Ohio pursuant to the allowance of a discretionary appeal. HELD: The two-year notice requirement in section 4123.84 does not apply to claims for residual conditions,









and these claims must be considered within the commission's continuing jurisdiction under Ohio Revised Code sec-tion 4123.52. The commission's continuing jurisdiction under section 4123.52 to allow or reject residual claims was settled since 1967-the commission considered new evidence of a disability unencumbered by the two-year notice requirement in section 4123.84. However, in Clementi v. Wean United, Inc., 39 Ohio St. 3d 342, 530 N.E.2d 909 (1988), the court held that a residual condition claim was untimely under section 4123.84 unless written notice of the specific part or parts of the body claimed to have been injured is given within two years of the time the claimant knew or should have known of the residual condition. The court in the case at bar overruled its decision in Clementi and stated that any amendments made to the relevant sections have not affected the continuing jurisdiction of the commission to consider residual claims. These residual claims are excepted from the two-year notice requirement. The court reversed the judgment of the court of appeals and remanded the case to the trial court for further proceed-ings. State ex rel. Dibble v. Presrite Corp. 85 Ohio St. 3d 275, 707 N.E.2d 928 Decided April 7, 1999 Gary G. Dibble (Dibble), a maintenance electrician for Presrite Corporation (Presrite), was severely electrocuted while repairing coolant *436 hoses on one of Presrite's transformers. After allowance of his workers' compensation claim, Dibble sought additional compensation alleging that Presrite knew of and condoned the practice of propping open the doors to the transformer cabinet while the power was on which bypassed a safety device designed to ensure the power was off before the cabinet was opened. Dibble also alleged that the spring on the safety lock was broken, had been broken for some time, and that Presrite was aware of this. After hearing testimony, the Industrial Commis-sion of Ohio concluded that Dibble had not been required to work near energized lines because evidence in the file indicated that he should have first cut off the power to the transformer. Dibble filed a complaint in mandamus the Court of Appeals for Franklin County alleging the commission abused its discretion which the court denied. The case came before the supreme court as an appeal of right. HELD: The supreme court found that the factual conclusion by the commission that Dibble could have de-energized the transformer but choose not to do so because he believed the hoses could only be checked with the transformers on was unsupported. Dibble had testified that the hoses were on a separate circuit and could have been checked when the transformer was off. The court also found that the commission's analysis of the reality of the situation was incomplete because they failed to addressed Dribble's allegation of a broken interlock knife switch which prevented him from checking the hoses contemporaneously after turning off the power to the transformer. The court reversed the judgement of the appellate court and returned the case to the commission for further consid-eration. State ex rel. Druggan v. Industrial Comm'n of Ohio 85 Ohio St. 3d 683, 710 N.E.2d 1133 and 85 Ohio St. 3d 680, 710 N.E.2d 1131 Decided June 23, 1999 In 1986, Harold W. Druggan (Druggan) injured his low back while in the course of employment for Harsco Corporation (Harsco). In 1992, Harsco authorized transcutaneous electrical nerve stimulation (TENS) treatment. Two years later, based on an article in the New England Journal of Medicine and non-responsive answers from Druggan's physician, Harsco questioned the efficacy of continued TENS treatment. The Industrial Commission of Ohio (ICO) ruled that Harsco had the right to examine Druggan on the issue of continued TENS treatment. Harsco scheduled an appointment which Druggan refused to attend. Subsequently, Harsco discontinued payments for the













treatment. Druggan filed a motion to compel Harsco to pay the outstanding bills. Harsco filed a motion to suspend payment until Druggan attended the *437 examination. The commission hearing only addressed Druggan's motion and ordered Harsco to continue payments. Both Harsco and Druggan appealed. The district officer affirmed the commissioner's order, adding only that Harsco had a right to examine Druggan. Both appealed. While under review, Harsco scheduled another examination appointment which Druggan failed to attend. Harsco then filed a second mo-tion with the commission to suspend payments which was granted. Druggan filed an original writ of mandamus with supreme court seeking to vacate the commission's order. At the same time, Druggan appealed the right to an exami-nation and Harsco appealed the limitation of the examination. The appellate court denied both complaints and he parties appealed to the supreme court as of right. HELD: The court found that the commission did not abuse its discretion in allowing an examination of Druggan because authorization of a treatment does not foreclose later review of its efficacy and that permanent total disability does not preclude further examination, only further examination in regards to the issue of permanent disability. In response to Harsco's objection to the limitation of the search, the court noted that Harsco agreed to such a limitation during the commission's hearing. In regard to Druggan's writ to vacate the suspension of TENS payments, the Court denied the writ holding that under Ohio Revised Code section 4123.651(C) the commission had the authority to sus-pend payments for Druggan's failure to attend the examinations without good cause. The court denied Druggan's writ of mandamus. State ex rel. Hampe v. MTD Products, Inc. 84 Ohio St. 3d 422, 704 N.E.2d 1221 Decided February 10, 1999 On January 11, 1190 Appellant-claimant, David J. Hampe (Hampe) was injured in the course of his employ-ment with Appelle, MTD Products, Inc. (MTD). Hampe was allowed a workers' compensation claim and began re-ceiving temporary total disability compensation (TTD). Dr. John Cunningham examined Hampe on MTD's behalf and on May 10, 1990, Cunningham indicated that Hampe had reached maximum medical improvement (MMI). MTD asked Appellee, Industrial Commission of Ohio (Commission), to also examine Hampe and Dr. Anthony D. Vamvas, Jr. determined that MMI had not been reached. On December 7, 1990, a districthearing officer allowed continuance of TTD. Staff hearing officers and a regional board of review affirmed the district hearing officer's order. On July 6, 1992, MTD requested reconsideration of the staff hearing officer's order. Rehearing was granted and occurred on August 8, 1994 and the Commission *438 terminated TTD on December 7, 1990 based on Dr. Cunningham's report of May 1990. Hampe filed a complaint in mandamus in the Court of Appeals for Franklin County, in which he alleged that the Commission abused its discretion in terminating TTD. The court of appeals denied the writ. Hampe then appealed to the Supreme Court of Ohio as a matter of right. HELD: The mere possibility of an unspecified error could not sustain an invocation of continuing jurisdiction of the Commission to reexamine the district hearing officer's earlier decision to allow continuance of TTD; the Com-mission could not set a date retroactively for the termination of TTD. The possibility of unspecified error cannot sustain the exercise of continuing jurisdiction under Ohio Revised Code section 4123.52. Nicholls v. Industrial Comm'n, 81 Ohio St. 3d 454, 692 N.E.2d 188 (1998). The date on which to terminate disputed TTD on the basis of having reached MMI is the date of the termination hearing. State ex rel. Russell v. Industrial Comm'n, 82 Ohio St. 3d 516, 696 N.E.2d 1069 (1998). The supreme court found that both of these cases supported Hampe's arguments. Therefore, the Commission abused its discretion. Accordingly, the supreme court reversed the judgment of the court of appeals and ordered the Commission to reinstate its earlier award of TTD. State ex rel. Hinds v. Industrial Comm'n of Ohio










84 Ohio St. 3d 424, 704 N.E.2d 1222 Decided February 10, 1999 Appellant, Carl L. Hinds, applied to Appellee, Industrial Commission of Ohio (Commission), for payment of medical bills related to an industrial injury sustained in 1974. The Commission denied payment, finding that Hinds' workers' compensation claim had expired under the ten-year statute of limitations stipulated in Ohio Revised Code section 4123.52. Hinds filed a complaint in mandamus with the Franklin County Court of Appeals that alleged that the Commission had abused its discretion in denying his claim. The court of appeals declined to issue a writ of man-damus, holding that Hinds should appeal to the common pleas court. The case came before the Supreme Court of Ohio on an appeal as of right. HELD: The Court held as it had previously in Afrates v. Lorain that a claimant's right to participate or to con-tinue to participate in the worker's compensation system must be appealed to a common pleas court. The Court rea-soned that the Commission's decision that Hinds' claim was barred by the statute of limitations fell within the rule of Afrates. Based on this reasoning, the Court affirmed the ruling of the court of appeals. *439 State ex rel. Hoskins v. Industrial Comm'n of Ohio 85 Ohio St. 3d 670, 710 N.E.2d 1123 Decided June 23, 1999 Apellant-claimant, John Hoskins (Hoskins), was employed by Appellee, Boyas Excavating (Boyas). In July 1989, Hoskins and a co-worker were removing beams from a steel plant that was being demolished. The beams were imbedded into the plant's concrete floor vertically. Hoskins was using a three-foot cutting torch to cut the beams. During the cutting, one beam twisted the wrong way and began to fall towards Hoskins. As a result, Hoskins jumped from the cutting platform and injured himself on the fall. Hoskins was allowed a workers' compensation claim. Ad-ditionally, Hoskins sought further compensation, alleging that Boyas was in violation of a safety requirement (Ohio Administrative Code section 4121:1-3-19(H)(2)). An Industrial Commission of Ohio (Commission) staff hearing officer denied Hoskins's complaint for failure to cite a specific safety regulation. Section 4121:1-3-19(H)(2) states that employees are not to be compelled to drop structural steel except into a specifically barricaded (fully protected) area. The staff hearing officer found that Hoskins was not injured by the beam, but was injured by the jump and fall from the cutting platform. The staff hearing officer also stated that the operation that Hoskins was performing was the cutting, rather than the dropping, of steel. The officer further noted that even if the operation was the dropping of steel, the proximate cause of Hoskins's injury was his jumping from the platform and not the alleged violation. Hoskins filed a complaint in mandamus in the Court of Appeals for franklin County alleging abuse of discretion by the Commission. The court of appeals denied the writ. Hoskins then appealed to the Supreme Court of Ohio as a matter of right. HELD: Hoskins's cutting of the beams did not involve “dropping structural steel” within the meaning of the section 4121:1-3-19(H)(2) safety regulation. The supreme court found no abuse of discretion on the part of the Commission. The Court listed two controlling tenents. First, when a term is not defined by the safety code, the Commission is to exclusively interpret it. Second, specific safety requirements must be construed strictly, and all doubts concerning interpretation are to be construed against applicability to the employer. The Court noted that the commission found that the cutting of steel was not the dropping of steel. Based on the Court's aforementioned tenets, it found the Commission's interpretation reasonable. Accordingly, the supreme court affirmed the judgment of the court of appeals. *440 State ex rel. Jones v. Kaiser Found. Hosp. Cleveland






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84 Ohio St. 3d 405, 704 N.E.2d 570 Decided February 3, 1999 Pamela Jones (Jones) was forced to leave her employment as a medical technician at Kaiser Foundation Hospi-tals Cleveland (Kaiser). She remained unemployed until accepting a delivery job with USA Today. This job paid less than her prior job at Kaiser. Jones applied for wage-loss compensation under Ohio Revised Code section 4123.56(B), requesting compensation for the time she was unemployed. She also requested wage-differential com-pensation because of her lower wages at USA Today. Jones presented no evidence to the Industrial Commission of Ohio (Commission) to support her claim that she was looking for employment while unemployed. The Commission denied her request, stating that she did not meet the burden of proof required to prove a good-faith job search. Jones filed a complaint in mandamus in the Court of Appeals for Franklin County, claiming abuse of discretion by the Commission in denying her claim. The court of appeals denied her writ. Jones appealed to the Supreme Court of Ohio as a matter of right. HELD: When a claimant applies for wage compensation after taking a part-time job there is greater scrutiny in proving a good-faith job search. Jones did not meet the burden of proof in showing an adequate good-faith job search because she presented no evidence. The fact that Jones eventually got a job is not sufficient proof of a good-faith job search. Therefore, she has not met her burden of proof and is not entitled to benefits. The supreme court affirmed the judgment of the court of appeals.. State ex rel. Ochs v. Industrial Comm'n of Ohio 85 Ohio St. 3d 674, 710 N.E.2d 1126 Decided June 23, 1999 In 1993, Rodney Ochs, claimant, sustained a minor injury to his index finger while employed as a machinist for Briardale Corporation. He filed a workers compensation claim, which was allowed. Appellant, Industrial Commis-sion of Ohio-Bureau of Workers' Compensation (Bureau), disapproved the settlement claim after the State Insurance Fund and his employer approved the minor payment. Appellant found there was no settlement value. Claimant filed a complaint in mandamus in the Franklin County Court of Appeals claiming the bureau abused its discretion in the disapproval. The appeals court found that the appellant did not adequately explain the reason for the denial. Appel-lant claimed that there was no *441 statutory duty to explain its decision; and that a distinction needs to be made between the Industrial Commission of Ohio and the Bureau of Workers' Compensation, as to the duty to explain. The cause was before the Court as a matter of right. HELD: While the Bureau's statutory observations are true, the Court held that it has a duty to explain its deci-sions furthering the policy to inform the parties and potentially a reviewing court of the basis for the commission's decisions. However, while the duty is now imposed as a matter of law, the Court held that the explanation given was adequate, and self-explanatory. State ex rel. Ooten v. Siegel Interior Specialists Co. 84 Ohio St. 3d 255, 703 N.E.2d 306 Decided December 30, 1998








Appellant, Michael D. Ooten (Ooten), submitted a wage-loss compensation motion to Appellee, the Industrial Commission of Ohio (Commission), claiming loss of wages based on injuries sustained while working for Appellee, Siegel Interior Specialists Company (SIS). Ooten injured his back while working for SIS but subsequently returned to his job with his doctor's permission. However, SIS eventually terminated his employment because he could not perform the heavy work required of him. Although Ooten found similar work with another company, he left after only a brief period upon his doctor's recommendation. Ultimately, Ooten began his own business. Shortly thereafter, he submitted his petition to the Commission, which denied his claim, stating that Ooten failed to prove any actual financial loss that was the direct result of his injuries. The only wage information that Ooten submitted were W-2 forms for the year in which his claim was filed and the previous year. These forms were deemed insufficient to show any loss of wages from his new employment. On appeal, a hearing officer upheld the finding, basing his ruling in part on Ooten's decision to become self-employed instead of performing a job search. Ooten then petitioned the Franklin County Court of Appeals for a writ of madamus. The court of appeals denied the writ. The case came be-fore the Supreme Court of Ohio on an appeal as of right. HELD: The Court held that the commission did not abuse its discretion in denying compensation to Ooten based on the fact that he forwent a job search in favor of self-employment. The Court premised its decision on the policy expressed by the court of appeals that the commission should not be used to subsidize private business ven-tures of workers. Furthermore, the Court found that the denial of Ooten's claim was based on the fact that his deci-sion to become self-employed precluded him from being in the job market *442 long enough to prove a causal link between his injury and his loss in pay. Although Ooten could have proved this link in other ways, through proof of medical limitation or disabilities, he presented no such evidence. The decision of the court of appeals was affirmed. State ex rel. Parks v. Industrial Comm'n of Ohio 85 Ohio St. 3d 22, 706 N.E.2d 774 Decided March 17, 1999 Appellant, Joseph Parks, was injured while trimming a tree for the City of Toledo near a power line, and he re-ceived an electrical shock. Workers' compensation covered the electrical shock injury, paresthesia involving right upper extremity. However, Appellant asked for additional compensation for alleged violations of specific safety requirements (“VSSR”s”) that the city had failed to comply with. The rules require the employers of electric and tree trimming industries to be provided with special gloves and other protection when working near power lines. Appel-lant's claim was rejected by the Industrial Commission of Ohio because the injury did not comply with Ohio Admin-istrative Code section 4121:1-5-01(A) since it did not occur within defined and substantial boundaries, namely fac-tories or workshops. Therefore, since the injury did not fall within section A, the injury did not apply to Appellant's section 4121:1-5-23(E) claim. Then, a complaint in mandamus was filed ordering the commission vacate its decision and grant the application for VSSR. The court of appeals denied the writ, and the cause was taken to the supreme court as an appeal of right. HELD: The issue before the court was whether the protections afforded by Ohio Administrative Code section 4121:1-5 also extends to outdoor industrial injury. First, trimming trees near power lines never occurs inside, there-fore imposing the limitation that the injury must occur within factories or workshops would negate any application of the provision. Because the commission's rules for safety have the effect of legal enactments they are subject to general rules of statutory construction. When general provisions are irreconcilable with special provisions, the spe-cial provisions prevail as an exception to the general provision, except when the general provision is adopted later and the intent of the drafters was to have it prevail. Section 4121:1-5-23 is more specialized by making precautions for specific vocational acts, whereas the application of section 4121:1-5-01 is general and reveals no intent to prevail over the former. Furthermore, the drafters could have narrowed the rule by inserting that “only” workers in factories or workshops were subject to the Workers' Compensation Act. Hence, the outdoor work is an exception to the “fac-tory and workshops” rule. Therefore, when the *443 activity cannot be performed indoors the employer cannot be







exempt which correlates with prior case law that held activities that can be performed either inside or outside are limited by the “factory and workshops” rule. Thus, the Supreme Court found the Commission's reasoning insuffi-cient, and reversed the court of appeals' judgment. The court also vacated the commission's denial of the VSSR ap-plication, and the cause was returned to the commission for further review consistent with their decision. State ex rel. Petronio v. Industrial Comm'n of Ohio 84 Ohio St. 3d 427, 704 N.E.2d 1225 Decided February 10, 1999 In 1991, Thomas Petronio (Petronio) injured his low back while on the job and qualified for temporary total disability (TTD) payments contingent upon supplemental medical evidence. Petronio's physician, Robert C. Muehrcke (Muehrcke), submitted conflicting reports to the commission regarding whether the injury was temporary or permanent. Muehrcke later tendered an explanation of the conflicting reports. The Ohio Bureau of Workers' Compensation (BWC) cut off Petronio's payments and assessed an overpayment. The court of appeals denied Petronio's request for a writ of mandamus to reinstate his payments and vacate the overcharge assessment. The ap-peals court denied the writ holding that the commission was free to reject Muehrcke's explanations for the conflict-ing reports. Petronio appealed to the supreme court claiming that under State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St. 3d 649 (1994), the commission is required to credit his physician's explanation. The Eberhardt rule states that when a physician renders an ambiguous opinion, and thereafter clarifies the ambiguity, the Industrial Commis-sion may not use the ambiguity as a basis for rejecting the physician's opinion. HELD: The Eberhardt rule is controlling and prevents the commission from using the ambiguity in Muehrcke's reports as a basis for stopping Petronio's payments and assessing an overcharge. Because no evidence other than Muehrcke's report was presented to establish that Petronio's condition had become permanent, the commission abused its discretion. The supreme court reversed the judgment of the appeals court and granted the writ of manda-mus to vacate the commission's order. *444 State ex rel. Pressware Int'l, Inc. v. Industrial Comm'n of Ohio 85 Ohio St. 3d 284, 707 N.E.2d 935 Decided April 7, 1999 Appellee-claimant Marjorie A. Sheerin was severely injured when her press unexpectedly cycled as she cleared a paper jam; the shutdown device had failed. Sheerin's press had malfunctioned earlier that day prior to her arrival; however, the machine continually shut down when it was supposed to be running. After her workers' compensation claim was allowed, she sought additional compensation because her employer, Appellant Pressware International, had violated two specific safety requirements (VSSRs). A staff hearing officer found a violation of Ohio Adminis-trative Code section 4121:1-5-10(D)(2)(d)(i) because the employer failed to have a properly operating interlock press barrier guard. The hearing officer also found that Pressware violated Ohio Administrative Code section 4121:1-5-10 (E)(1-2) which requires an employer to provide and require the use of hand tools for removing stuck work from dies to prevent employees' need to reach into the dies. Pressware did not provide Sheerin with the proper tools for unjamming the paper and, thus, was in violation of the code provision. A rehearing was denied. Pressware filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in assessing VSSRs against it. The court of appeals found some evidence in support of the commission's order and denied the writ. This case came before the Supreme Court of Ohio upon an appeal as of right. HELD: The judgment of the court of appeals was reversed in part and affirmed in part. That portion of the











judgment upholding the violation of section 4121:1-5-10 (E)(1-2) was affirmed. Evidence existed that Pressware did not provide Sheerin with the proper tools for unjamming the paper and, thus, was in violation of the code provision. That portion of the judgment upholding the violation of section 4121:1-5-10(D)(2)(d)(i) was reversed. Pressware argued that it was immunized from culpability under State ex rel. M.T.D. Products, Inc. v. Stebbins, 43 Ohio St. 2d 114, 330 N.E.2d 904 (1975) because the malfunction constituted a first-time failure. Sheerin disagreed because the earlier malfunction put Pressware on notice. The court recognized that the earlier press problem was that the ma-chine continually shut down when it was supposed to be running. The malfunction that injured Sheerin involved the press continually running when it was supposed to shut down. Therefore, the court reasoned that because there was no evidence that Sheerin's press's shutdown devices had ever failed before, Pressware's argument must be sustained, and is, thus, immune from liability under M.T.D. The judgment of the court of appeals was reversed in part and af-firmed in part. *445 State ex rel. Quality Stamping Prod. v. Ohio Bur. of Workers' Comp. 84 Ohio St. 3d 259, 703 N.E.2d 309 Decided December 30, 1998 In December, 1987, Kajetan J. Koziol (Koziol), age sixteen, severely injured his left hand while operating a power press for Quality Stamping Products (Quality). The Industrial Commission of Ohio (Commission) granted Koziol's application for additional compensation based on Quality's violation of a specific safety requirement (VSSR). The appellate court upheld the commission's decision. Quality appealed to the supreme court seeking a writ of mandamus to vacate the commission's order granting Koziol's application for additional compensation because Quality was not adequately notified of the charges against them and because the commission failed to prove Quality acted recklessly in employing Koziol. HELD: The court found that Koziol's VSSR application, which indicated that his injury was caused by a power press and referred generally to Ohio Revised Code section 4109 and Employment of Minors, was sufficiently spe-cific because (1) it described his injury, (2) section 4109 only contains fourteen provisions, all of which prohibit or restrict the employment of minors, and (3) the order vacated by stipulation indicated that the commission was in-clined to find Quality in violation. While Ohio Revised Code section 4199.02 does not define a degree of culpabil-ity, it also does not define a criminal offense because although it contains a positive duty, there is no criminal pen-alty. Both a positive duty and a criminal penalty are required under Ohio Revised Code section 2901.03(B) to con-stitute a criminaloffense. The implementation of safety devices by an employer, and the subsequent failure of a mi-nor to use those devices, is not relevant because the code does not make exceptions for such devices, and because youthful folly is what these laws were designed to prevent. The supreme court affirmed the judgement of the court of appeals. State ex rel. S&Z Tool & Die Co. v. Industrial Comm'n of Ohio 84 Ohio St. 3d 288, 703 N.E.2d 779 Decided January 6, 1999 The appellee-claimant, Ioan Peicu, was a die clean and saw operator for his employer, Appellant S&Z Tool & Die Co. (S&Z). On the date of his injury the claimant was instructed to remove the smaller of two clean dies from a platform with the use of a crane. As he removed the smaller die, the larger die shifted and toppled onto the claim-ant's foot. The claimant was not wearing safety shoes or other foot protection at the time. Claimant sought *446 ad-ditional compensation after his workers' compensation claim was allowed due to his employer's violation of a spe-cific safety requirement (VSSR). Ohio Administrative Code section 4121:1-5-17(E) requires employers to provide











foot protection to its employees where an employee is exposed to machinery or equipment, or is handling material, that presents a foot hazard. A commission staff hearing officer granted claimant's application because the officer found, based on an investigative report, that the employer did not provide foot protection to the employee despite the employee's exposure to a foot hazard, i.e., the heavy die could fall from the crane. A motion for rehearing was de-nied. S&Z filed a complaint in mandamus in the Court of Appeals for Franklin County. The court of appeals denied the writ. This cause came before the Supreme Court of Ohio upon an appeal as of right. HELD: The judgment of the court of appeals was affirmed. The court held that the commission did not abuse its discretion in finding that a lack of foot protection constituted a VSSR against S&Z because the commission focused on the heavy equipment that claimant was required to be around and the nature of his duties therewith. The court disagreed with S&Z's argument that the claimant must establish that the lack of foot protection was the proximate cause of his injury. The court stated the claimant is not required to prove the extent to which foot protection would have reduced or eliminated his injuries. The court also found there were no evidentiary infirmities in the commis-sion's order. The judgement of the court of appeals denying the writ of mandamus was affirmed. State ex rel. Shotts v. Austin Powder Co. 84 Ohio St. 3d 429, 704 N.E.2d 1226 Decided February 10, 1999 In 1981, David L. Shotts, Appellant, sustained a lumbar strain/sprain in the course of and arising from his em-ployment with Austin Powder Company, Appellee. At the time of the injury, Shotts was thirty-nine years old. He has not worked since the injury. His income has come from social security benefits. In 1993, Shotts applied for per-manent partial disability compensation. The Industrial Commission of Ohio assessed Shotts's permanent partial dis-ability to be at twenty-seven percent. Shotts asked that his compensation be in the form of impaired earning capac-ity (IEC), offering the difference between his pre-injury and post-injury earnings as proof of IEC. A district hearing officer denied this request stating that Shotts was unable to prove his pre and post-injury earning potential and pro-vide evidence of his present earning capacity. In a denial of Shotts's request for appeal, it was noted that Shotts was only fifty-three years old and could be retrained for labor *447 conducive to his physical limitations. Additionally, the appeal was denied because there was not sufficient evidence to show that Shotts's lack of earnings was con-nected with the 1981 injury, for which he no longer sought treatment. He only sought treatment for a psychiatric ailment. Shotts filed a complaint in mandamus in the Court of Appeals for Franklin County. The court denied the writ because Shotts had not sufficiently established impaired earning capacity. The matter came before the Supreme Court of Ohio as an appeal as of right. HELD: Mere decrease in wages is not sufficient to establish an impaired earning capacity. IEC is meant to be the potential earnings of the party, not what the party actually earned. Reports by physicians suggested that Shotts had the capacity to be rehabilitated and again employed, thus diminishing any argument that his failure to work was connected to the 1981 injury. Due to the fact that Shotts only sought treatment for a psychiatric ailment, IEC com-pensation should be denied because compensation for such a condition is not allowed. Furthermore, Shotts did not dispute the Commission's finding that he did not have a desire to work because he could collect Social Security benefits. For the foregoing reasons, the supreme court affirmed the judgment of the court of appeals. State ex rel. Stafford v. Industrial Comm'n of Ohio 84 Ohio St. 3d 225, 702 N.E.2d 1205 Decided December 30, 1998





Anita Stafford (Stafford) contracted an occupational disease on September 2, 1992, while in the course of her employment with Evenflo Juvenile Furniture Company (Evenflo). Stafford received workers' compensation benefit until October 12, 1992, when she was released to work. Stafford was released with a medical restriction preventing her from returning to her previous job. After her release, Evenflo offered Stafford a job that was within her medical restriction. Stafford refused this job and requested a layoff from Evenflo. Her activities for the next year were un-known, until she requested employment from Evenflo. Evenflo refused her request because company policy required termination of employees absent for longer than a year. On February 7, 1994 Stafford began work at Ecofab, Inc. (Ecofab). She left Ecofab on April 23, 1994, and remained unemployed until July 2, 1994, when she was hired by The Sidney Leader. Stafford then applied to the Industrial Commission of Ohio (Commission) for wage-loss com-pensation for her period of unemployment, and wage-differential compensation for the time she was working for less money than at Evenflo. A district hearing officer denied Stafford's claim, saying her request for a voluntary lay-off constituted an *448 abandonment of employment. A staff hearing officer adopted the district hearing officer's findings, and added that Stafford had not conducted a good-faith job search. The officer also stated that her inability to find employment was not related to her medical restriction. Stafford filed a complaint in mandamus in the Court of Appeals for Franklin County, claiming that the Commission abused its discretion in denying her claim. The court of appeals ordered the Commission to reconsider Stafford's request for wage compensation, and for the Commission to vacate the finding that Stafford's request for a layoff constituted a voluntary abandonment of employment. The court also ordered the Commission to issue a new order either granting or denying benefits. The Commission ap-pealed to the Supreme Court of Ohio as a matter of right. HELD: Stafford's request for a voluntary layoff did not prevent her from receiving benefits, and did not consti-tute a voluntary abandonment of employment. An employee does not have to return to the same company where the injury occurred to receive workers' compensation. Also, Stafford produced evidence showing a good-faith job search by showing contact with hundreds of employers. The Commission provided no explanation why it found that Staf-ford did not conduct a good-faith job search. Therefore, the court agreed with the court of appeals that Stafford's claims deserved reconsideration. The supreme court affirmed the judgment of the court of appeals, and remanded the cause to the Commission. State ex rel. Thompson v. Ohio Edison Co. 85 Ohio St. 3d 290, 707 N.E.2d 940 Decided April 7, 1999 Decedent Charles Thompson (Decedent) retired in 1991 from appellee Ohio Edison Company (Ohio Edison). Decedent's retirement was unrelated to any healthconditions. At the time he retired, decedent was earning $47,000 annually. Afterwards, decedent did not engage in other employment. In 1993, decedent was diagnosed with meso-thelioma, which may have been caused by heavy smoking or his exposure to asbestos while working at Ohio Edison. Upon decedent's death, his wife, Appellant Jo Ann M. Thompson applied to appellee Industrial Commission of Ohio (Commission) for death benefits. The Commission granted the application and set the death benefits at $230 per week. Several months later, Appellant asked the Commission to reconsider the rate of death benefits. The amount of benefits was raised to $900.71 per week. This amount was reached by dividing decedent's wages for his last year of employment by fifty-two. A staff hearing officer vacated this order and again set the amount at $230 - the state minimum rate for decedent's 1993 date *449 of death. The staff hearing officer ruled that the controlling date for determining the rate of benefits was the date of disability onset, not the date of voluntary retirement. Because dece-dent had no earning in the fifty-two weeks prior to disability onset, his average weekly wage (AWW) was also zero, justifying no more than the minimum award. Appellant filed a complaint in mandamus alleging that the Commission abused its discretion in setting the death benefits at the minimum statewide AWW. The court of appeals disagreed and denied the writ. The case was brought before the Supreme Court of Ohio as an appeal as of right. HELD: Death benefits are set at sixty-six and two-thirds percent of the decedent's AWW, subject to a statewide




maximum and minimum. In the case of an occupational disease, the AWW is based on earnings for the year prior to the disability onset. If there are special circumstances surrounding the situation and the traditional formula will not do “substantial justice,” an alternative method may be used. In this case, the traditional formula produced a zero AWW, which translated into an award at the minimum statewide AWW level. Claimant contends that special cir-cumstances exist because of the long latency period of mesothelioma. The Court agreed that special circumstances existed, but found that the AWW set by the commission was substantially just. The AWW was designed to find a fair basis for award for the loss of future compensation. Here, the decedent had no future compensation to lose be-cause he was retired. Therefore, the Court held that the rate of death benefits are not so substantially unjust as to depart from the standard AWW formula. The judgment of the court of appeals was affirmed. State ex. rel. World Stamping & Mfg. Co. v. Industrial Comm'n of Ohio 84 Ohio St. 3d 433, 704 N.E.2d 1230 Decided February 10, 1999 The respondent-claimant, John Seuch, was injured while operating a Bliss punch press for his employer, relator World Stamping and Manufacturing Company. On the date of his injury, claimant's press was accidentally activated when his foot slipped on the foot pedal which operated the mechanical power press. Although most of the foot ped-als had a spring-operated cover on the front to prevent accidental activation, the claimant's foot pedal was only en-closed on the top, back and sides. Claimant sought additional compensation after his workers' compensation claim was allowed due to his employer's violation of a specific safety requirement (VSSR). Ohio Administrative Code section 4121:1-5-10(C)(3)(a) requires a pedal mechanism to be protected from unintended operation. A commission staff hearing officer, based on the totality of the evidence presented, granted claimant's *450 application because the foot pedal in question did not have a front door guard at the time of the accident. A motion for rehearing was denied. The cause came before the Supreme Court of Ohio as an original action in mandamus seeking to overturn the com-mission's order. HELD: In a per curiam opinion, the court denied the writ. The court found there was some evidence supporting the commission's determination that the front of the foot pedal was not protected, and thus, the commission did not abuse its discretion in finding that the lack of a front foot pedal cover constituted a VSSR. The court denied the writ of mandamus. XIII. LANDLORD AND TENANT A. Forcible Entry and Detainer State ex rel. Weiss v. Hoover 84 Ohio St. 3d 530, 705 N.E.2d 1227 Decided March 3, 1999 Mark R. Weiss, Petitioner, leased property to Busch Entertainment Corporation, d.b.a. Sea World of Ohio (Busch). Busch allegedly defaulted on the lease, and Weiss asked Busch to leave. Subsequently, Busch filed a com-plaint in the Portage County Court of Common Pleas declaring its right to continued use of the property. Before be-ing served with a copy of Busch's complaint, Weiss filed a complaint in the Cuyahoga Falls Municipal Court against Busch for forcible entry and detainer and breach of contract. Cuyahoga Falls Municipal Court Judge Kim Hoover, Respondent, granted Busch's motion to stay Weiss's action, pending the outcome of Busch's declaratory judgment action. Weiss's action was transferred to the common pleas court to be consolidated with Busch's action. Weiss filed







the present action for a writ of procedendo compelling Judge Hoover and the municipal court to proceed on his ac-tion for forcible entry and detainer. No timely response was filed by respondent. The matter came before the Su-preme Court of Ohio for determination of whether dismissal, an alternative writ, or a peremptory writ was appropri-ate. HELD: A writ of procedendo is appropriate if a party can show a right to require respondents to proceed, a legal duty for the respondents to proceed, and no other adequate remedy in the general course of law. A writ of proce-dendo is appropriate if there has been an unnecessary delay in coming to judgment. The municipal court erred in staying Weiss's forcible entry and detainer action. To allow such a delay impedes the intention behind such statutes, which is immediate possession. Furthermore, Weiss's action should *451 not have been stayed pending the outcome of Busch's because the two did not concern the same cause of action. A forcible entry and detainer action relates to possession, not title, so a pending judgment concerning title should not serve to stay a forcible entry and detainer action. Weiss had a legal right to possession and respondent had a legal duty to proceed on such action. Weiss had no other adequate remedy in law; therefore, the supreme court granted Weiss a peremptory writ of procedendo to compel respondent to proceed with the forcible entry and detainer action. XIV. LEGAL SERVICES A. Discipline Cinncinati Bar Ass'n v. Telford 85 Ohio St. 3d 111, 707 N.E.2d 462 Decided March 17, 1999 In 1997, relator, Cinncinati Bar Association (Relator) filed a complaint with the Board of Commissioner on the Unauthorized Practice of Law of the Supreme Court (Board), charging that respondent, Stephen Mark Telford, had engaged in the unauthorized practice of law. Based on the pleadings, testimony, and exhibits, the board found the following: Respondent was not licensed to practice law in Ohio. In 1996, respondent began a business in which he searched the county court index for recent filings of foreclosure proceedings and debt collection lawsuits. He then mailed letters to the defendants in these lawsuits requesting that they hire him to settle their cases. The letter con-tained a statement that the respondent's business did not include attorneys and that the business could not represent the debtors or advise them in legal proceedings. Once a defendant contacted the respondent, the defendant would sign a power of attorney form and a work agreement authorizing respondent's business to negotiate a settlement in exchange for compensation. Respondent would then send a letter to the attorney representing the plaintiff in the suit against the defendant. Respondent did this for a number of different defendants. The Board concluded that the re-spondent gave legal advice and counsel to these defendants. In so doing, respondent's actions constituted the unau-thorized practice of law in Ohio. The Board recommended that respondent be prohibited from engaging in such practices in the future. HELD: The unauthorized practice of law consists of rendering legal services for another by a person not admit-ted to practice law in Ohio. This unauthorized practice is not limited to appearances in court; legal advice and coun-sel is encompassed in this definition. The Court adopted the findings and *452 conclusions of the Board. Because respondent gave legal advice to defendants in pending lawsuits in an attempt to settle those cases, he engaged in the unauthorized practice of law, regardless of any language contained in letters to the defendants and regardless of any powers of attorney executed by the defendants. The Court followed the recommendation of the Board and enjoined the respondent from the further practice of law in Ohio. Cleveland Bar Ass'n v. Witt




85 Ohio St. 3d 9, 706 N.E.2d 763 Decided March 3, 1999 Audrey D. Tyus (Tyus) contacted C. David Witt (Witt), an attorney from Cleveland, in November 1993 to pur-sue a matter against the Cleveland Metropolitan Housing Authority. Witt failed to take any action or to return Tyus' documents. Then, in 1996, when the Cleveland Bar Association (Relator), made repeated unsuccessful attempts to contact Witt, respondent, to notify him of a grievance filed against him, Relator filed a complaint against Witt for violations of DR 6-101 (A)(3) (neglecting an entrusted legal matter), 7-101 (A)(2) (failing to carry out a contract of employment, Gov. Bar R. V(4)(G) (failing to cooperate in a disciplinary investigation), and Gov. Bar R. V (11)(C) (refusal to obey a subpoena). When Witt failed to reply, Relator filed a motion for default judgment. The Board of Commissioners on Grievances and Discipline of the Supreme Court (Board) held that Witt had violated DR 6-101 (A)(3), 7-101 (A)(2), and Gov. Bar R. V (11)(C), but had not violated Gov. Bar R. V (11)(C). HELD: The Court stated that attorneys are required to cooperate in disciplinary investigations and that every attorney has a duty to participate in the regulation of the profession. Thus, the supreme court agreed with the Board's conclusion that Witt had violated Gov. Bar. R. V(4)(G) and suspended Witt from the practice of law in Ohio for one year with the entire year of the suspension stayed. Cuyahoga County Bar Ass'n v. Williams 84 Ohio St. 3d 515, 705 N.E.2d 1216 Decided February 17, 1999 Donald Williams (respondent), an attorney, was accused by the Cuyahoga County Bar Association with four counts. The first count alleged that Cecelia Noyes (Noyes) retained the firm of Donald Williams Co., L.P.A. (firm) to represent her in a workers' compensation and personal injury matter in 1989. Thereafter, she retained the firm three more times in May of 1989, *453 October 1991, and January 1994. Gregg Austin (Austin), a member of the firm, delt with Noyes, and she considered him to be her attorney. In 1994, Austin left the firm. In March of 1994, Noyes was again injured. After rumors of the injury, respondent visited Noyes at the hospital and obtained papers indicating that she had selected him for representation. During this encounter, respondent made derogatory remarks about Austin. The panel concluded that the respondent's conduct violated DR 1-102(A)(4), (5), and (6). Count two did not have facts supporting the allegations. Count three alleged that Barbra Bookbinder (Bookbinder), hired the firm in a worker's compensation matter. Bookbinder considered Austin to be her attorney. Bookbinder received bi-monthly workers' compensation checks. In March, 1994, the firm received a one of the checks. Respondent telephoned her stating that she could appear to endorse the check and she would receive her share minus attorney's fees. Bookbinder told respondent that Austin was her attorney, and to forward the check accordingly. Respondent disagreed. The panel concluded the respon-dent's conduct violationed DR 1-102(A)(4), (5), (6), and 9-102(B)(4). The fourth count relates to respondents conduct after Austin left the firm. Specifically, Austin was to have his mail forwarded to him, and his clients made aware of the move. The firm received calls daily regarding whether any mail or files needed to be picked up. In some instances, respondent did not promptly comply thereby violating DR 1-102(A)(5)(6). The panel recommended respondent suspended from the practice of law for six months. HELD: The Supreme Court held that the findings and conclusions of the panel were valid but imposed lesser sanctions of a public reprimand. Cost were taxed to respondent.



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Office of Disciplinary Counsel v. Kurtz 85 Ohio St. 3d 34, 706 N.E.2d 1214 Decided March 10, 1999 Philip Kurtz (Kurtz), an attorney, was suspended indefinitely from the practice of law by the Supreme Court of Ohio for the misappropriation of trust funds. After Kurtz's suspension, he continued to have contact with clients, and accepted money from several of them. One of Kurtz's clients complained to the Cleveland Bar Association. Kurtz also appeared in court at least once, and told a presiding judge that he expected to be reinstated soon. The Office brought an action for contempt against Kurtz, alleging that his actions constituted the practice of law. At a hearing, Kurtz denied practicing law after being suspended. He claimed that he was only trying to help his former clients find representation, and said that he appeared in court only to obtain *454 a continuance until another attorney could take the case. This case came before the Supreme Court of Ohio on a Motion to Appear and Show Cause. HELD: Kurtz's actions constituted the practice of law, in violation of his suspension. He also failed to comply with the suspension order by not notifying his clients, the courts, and opposing counsel of his suspension. Therefore, Kurtz was in contempt of court. The supreme court granted the Office's motion and sentenced Kurtz to thirty days incarceration, with three days of the sentence suspended upon compliance with the suspension. Office of Disciplinary Counsel v. Linick 84 Ohio St. 3d 489, 705 N.E.2d 667 Decided February 10, 1999 In 1997, the Office of Disciplinary Counsel (Office) filed a twelve-count complaint against attorney David M. Linick (Linick). Linick was charged with the violation of several disciplinary rules while employed as an attorney by the Glidden division of ICI Paints (Glidden). Linick was brought before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court (Board) to answer these charges. The panel found that Linick, while employed by Glidden, referred cases to two attorneys, neither of whom worked for Glidden. These two attor-neys, after being paid by Glidden, gave a percentage of their fees back to Linick as a gift. The panel concluded that Linick's acceptance of the gifts violated two disciplinary rules. The panel recommended to the Board that Linick be suspended from practicing law for one year, with a one-year stay of suspension. The Board adopted the panel's find-ings, except for recommending a six-month stay of suspension. The Supreme Court of Ohio heard the case on certi-fied report of the Board. HELD: The supreme court adopted the conclusion of the Board. In a similar case, the Court ordered a one-year suspension from the practice of law. The same punishment was appropriate for Linick. The Court ordered that Linick be suspended from the practice of law for one year. Office of Disciplinary Counsel v. Lowrey 85 Ohio St. 3d 2, 706 N.E.2d 758 Decided March 3, 1999 In 1997, relator, Office of the Disciplinary Counsel (Relator), filed a complaint charging that Thomas James






Lowrey (Respondent) violated several disciplinary rules while acting as a fiduciary and violated Government of the Bar Rule V, Section 4(G) by not cooperating with Relator's initial inquiries regarding his conduct. Respondent filed an answer, admitting most of the *455 factual allegations and that he violated section 4(G), but denied violating the disciplinary rules. A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court (Panel) heard the matter and found the following: Respondent was appointed as successor trustee of a trust, and in his capacity as trustee, failed to file timely accounts of the trust and caused the trust to remain delinquent in some payments. Respondent had taken some funds out of the trust because of personal financial problems and, as a result, was removed as trustee and a successor trustee was appointed. The successor trustee filed an account reporting over $20,000 in unexplained expenditures by respondent. Subsequently, respondent was ordered by the probate court to reimburse the trust. When respondent failed to pay the deficiency, an insurance company repaid the trust and the respondent executed a promissory note in favor of the insurance company. Respondent did not answer the initial inquiries by Relator concerning his handling of the trust. The Panel concluded that, by his conduct, respondent vio-lated a number of disciplinary rules. However, the Panel accorded great weight to respondent's remorse, number of years in the practice of law without any previous disciplinary action, and his behavior and cooperation following his initial failure to assist in the investigation. Furthermore, the Panel took into account the fact that respondent had suf-fered health problems and was in financial distress. As a result, the Panel recommended that the respondent be in-definitely suspended from the practice of law. The Board of Commissioners on Grievances and Discipline of the Supreme Court (Board) adopted the findings and recommendation of the Panel. HELD: The Court upheld the Board's recommendation that the respondent be indefinitely suspended from the practice of law in Ohio. The Court noted that, absent any mitigating factors, disbarment is the appropriate sanction for misappropriation of client funds. However, the Court gave the Board's recommendation of a lesser sanction great weight based on the evidence of mitigation. The Court affirmed the decision of the Panel. Office of Disciplinary Counsel v. Nentwick 84 Ohio St. 3d 491, 705 N.E.2d 668 Decided February 10, 1999 In July 1997, the Columbiana County Bar Association filed a complaint which charged John N. Nentwick, the respondent, with violations of disciplinary rules. The amended complaint alleged 19 violations of Disciplinary Rules, but some of the alleged violations were withdrawn. The panel found that most of Nentwick's violation re-volved around neglecting matters that clients entrusted him to do on their behalf. In count three, Nentwick was *456 retained as counsel for an uninsured motorist claim, against her insurance company, in December, 1993. The client had difficulty contacting Nentwick, and Nentwick in May, 1995 called the client and said that the statute of limita-tions had run. The client and Nentwick settled, but Nentwick did not pay all of the agreed settlement. In count five, Nentwick was paid $388.00 to help reinstate the client's driver's license, but Nentwick did not do anything. Nentwick said that he forgot. The other counts were similar. The panel found that Nentwick had a pattern of obtain-ing money and then neglecting his clients. The Panel concluded that Nentwick violated several disciplinary rules. The panel heard testimony of Nentwick's stress level, drug, alcohol problems, and about his frequent relapses. The panel recommended that Nentwick be disbarred and the board accepted the recommendation. HELD: The Supreme Court in this Per Curiam decision adopted the recommendations of the board, and perma-nently disbarred Nentwick in Ohio. Office of Disciplinary Counsel v. West 85 Ohio St. 3d 5, 706 N.E.2d 760





Decided March 3, 1999 A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court held a hearing on Patrick West, the respondent, an attorney who represented Michael E. Carrico in a bankruptcy proceeding. A panel for the Board found the following statements to be true. During the bankruptcy proceedings, the respondent made a request that the judge in this case, Judge Charles M. Caldwell, recuse himself. Judge Caldwell denied this motion and the respondent proceeded to file a petition for a writ of mandamus and a motion for a temporary restraining or-der to prevent the case from being heard by Judge Caldwell. For grounds, the respondent asserted that Judge Cald-well was receiving kickbacks from the bankruptcy trustee. Furthermore, the respondent had no proof of his allega-tions and later admitted that Judge Caldwell had no financial interest in the case. The respondent was charged with knowingly making a false accusation against a judge. In his defense, respondent claimed that he had been suffering from clinical depression and that this untreated depression contributed to his unfounded allegations of Judge Cald-well. In response to its finding, the panel recommended that the respondent be suspended form the practice of law in Ohio for eighteen months with twelve months suspended on the condition that the respondent receive treatment. Additionally, the panel recommended that the respondent demonstrate that his treatment enables him to effectively practice law before resuming the practice of law in the state of Ohio. The Board adopted the panel's findings. *457 HELD: The Supreme Court of Ohio adopted the Board's recommendations stating that because this con-duct undermines the integrity of the judicial system, a suspension is an appropriate penalty. Accordingly, respondent was suspended for eighteen months with twelve months stayed if the respondent receives treatment. Additionally, the Court held that the respondent must submit evidence to the Court that proves that his treatment allows him to effectively practice law. Toledo Bar Ass'n v. Candiello 85 Ohio St. 3d 36, 706 N.E.2d 1216 Decided March 10, 1999 This was an attorney disciplinary hearing in which Robert Candiello was charged with serveral violations of the disciplinary rules including three violations of DR 1-102(A)(6), and violations of DR 1-102(A)(4), DR 1-102(A)(5), DR 5-104(A), and 9-102(B)(3). In one violation, Candiello prepared a will in which he listed himself as a benefici-ary. Candiello also inappropriately used guardianship funds, and closed accounts allowing him to deposit $190,000 into his office safe. He also did not keep a journal of how the money was used, and was latter removed from being executor by the probate court. The panel after the mitigation hearing, in which there was testimony of Candiello's good character, the panel recommended that he be suspended from practicing law for two years, be monitored, and attend ten hours of CLE on law firm accounting. The board accepted the recommendations of the panel. HELD: The Court adopted the recommendations of the Board. The Court concluded that the respondent's ad-ministration of the Bonner guardianship and estate were inadequate. The Court also noted that Candiello had an un-blemished reputation for 20 years prior to this action. So the Court suspended him from the practice of law for two years, with twelve months stayed. XV. LITIGATION A. Appeals Colvin v. Abbey's Restaurant 85 Ohio St. 3d 535, 709 N.E.2d 1156










Decided March 9, 1999 In October, 1993 Kenneth Perkovich drove a vehicle left of center which caused an accident injuring Appellant, Dudley Colvin. Colvin filed suit *458 against Perkovich, Abbey's Restaurant, and Hartville Pantry, Inc. in the Summit County Court of Common Pleas. Perkovich was an employee and part owner of Abbey's Restaurant and Hartville Pantry Inc. The appellant alleged that Hartville Pantry was liable under the theory of respondeat superior since Perkovich was acting within the scope of his employment with Hartville Pantry at the time of the accident. The case was given to a jury with interrogatories to answer to help clarify the verdict forms. Most of the interrogatories was aimed at determining whether the jury thought that Perkovich was acting within the scope of employment. The jury returned a verdict awarding $2,000,000 (compensatory and punitive damages) to the appellant, and holding Hartville Pantry liable for $11,000. However, the court did not enter a judgment against Hartville Pantry because the general verdict was inconsistent with two of the interrogatories. The jury decided that Perkovich was not acting in the scope of employment, yet held Hartville Pantry liable for $11,000. Therefore, the judge ordered a new trial. Hartville Pantry appealed the order, arguing that the court abused its discretion when it ordered the new trial. On appeal the court of appeals found that Perkovich was not acting within the scope of employment as a matter of law, and that the trial court should have granted the motion for a directed verdict. Colvin argued that the trial court's deci-sion to grant to a new trial was a final appealable order and the court of appeals lacked jurisdiction to examine the other issues. A discretionary appeal was granted by the Supreme Court of Ohio. HELD: The Court in a unanimous decision held that the court of appeals exceeded its allowable appellate juris-diction in ruling on Hartville Pantry's additional issues that were not related to the order for a new trial. The only issue that was properly before the court of appeals was whether the trial court abused its discretion in ordering the new trial to be held, because it was a final appealable order. Ohio Revised Code Section 2505.02 says that an order granting a new trial is a final appealable order. But at the same time no final judgment was entered on the jury's ver-dict, so any other possible issue was not appealable at the time. The Court said that when a verdict is given that is inconsistent with interrogatories the trial court has three options of what to do, (A) grant a new trial, (B) return the jury for further consideration, or (c) enter a judgment in accordance with the interrogatories. The choice is left to the sound discretion of the trial court, which in this case selected to order a new trial. The Court found no abuse of dis-cretion and reversed the court of appeal's decision, and reinstated the order for a new trial. *459 B. Evidence State ex rel. Grove v. Nadel 84 Ohio St. 3d 252, 703 N.E.2d 304 Decided December 30, 1998 In April, 1997, Appellant, Mark E. Grove (Grove), filed a complaint in the Court of Appeals for Hamilton County for a writ of procedendo to compel Appellee, Hamilton County Court of Common Pleas Judge Norbert A. Nadel (Nadel), to: (1) issue findings of fact and conclusions of law on his January, 1997 decision denying Grove's motion for a transcript; (2) journalize his January, 1997 decision. The court of appeals granted Nadel's motion and dismissed Grove's complaint. On appeal, the Supreme Court of Ohio reversed the court of appeal's judgment dis-missing Grove's procedendo claim for journalization and remanded that portion of the cause to the court of ap-peals. The Supreme Court of Ohio affirmed the remainder of the court of appeal's judgment. After remand, Nadel moved to dismiss Grove's remaining procedendo claim based on mootness. In June, 1998, the court of appeals granted Nadel's motion and dismissed Grove's remaining procedendo action. Groves then appealed to the Supreme Court of Ohio as a matter of right.





HELD: (1) A writ of procedendo cannot compel the performance of a duty that has already been performed; (2) the court of appeals should take judicial notice that the claim for a writ of procedendo was rendered moot by the judge's journalized entry; (3) the claim that the trial judge erred in denying the motion for a copy of the trial tran-script should have been raised in an appeal from the journalized entry. First, the court of appeals was correct in dismissing Grove's remaining procedendo action on remand because Nadel had already performed the requested act (he journalized his January, 1997 decision denying Grove's motion). Procedendo will not compel the performance of an act that has already been performed. Grove's procedendo action was moot based on the journalized entry submit-ted by Nadel in his second motion to dismiss. Also, Grove's claim that Nadel erred in denying his motion for a copy of his trial transcript should have been raised in an appeal from that journalized entry rather than in procedendo. Thus, Grove failed to take advatage of an adequate legal remedy that was available to him. Accordingly, the su-preme court affirmed the judgment of the court of appeals. *460 C. Pleading Turner v. Central Local Sch. Dist. 85 Ohio St. 3d 95, 706 N.E.2d 1261 Decided March 24, 1999 Due to the absence of two children, on September 11, 1992, Gloria Volkert, a bus driver for Central Local School District, chose to modify her route. This caused nine-year-old Andrew Turner to arrive home about half an hour early. Assuming Andrew had a key, Volkert let him off the bus even though she did not see his father's car and admitted being concerned for Andrew's safety. Andrew did not have a key, and attempted to gain access to the house by crawling through his bedroom window. The window closed, pinning him between the window and the sill. Upon his arrival at the house, Edward Turner, Andrew's father, found Andrew unconscious. Andrew was taken to the hos-pital, but he never gained consciousness and he died five days later. Andrew's parents, Appellants, sued Central Local School District (Central), Appellee, under a theory of negligence for not prescribing a specific bus route, for failing to supervise its employees, and for letting a minor off the bus early. On October 3, 1994, Central moved for summary judgment claiming that Andrew's death was unforeseeable, and therefore, there was no breach of a duty. The trial court granted summary judgment. The court of appeals reversed the trial court's decision and held that there were remaining questions of fact on the issues of foreseeability and whether Central breached its duty to provide Andrew with safe transportation. The case was remanded to the trial court. Central filed a motion for leave to amend its answer, which generally denied negligence. In its amended answer, Central, for the first time, raised the defense of statutory immunity pursuant to Ohio Revised Code chapter 2744. Based upon the immunity issue, Central was again granted summary judgment. Although the court of appeals found the immunity defense eliminated several of Turner's arguments, it still found a question of fact as to whether the bus driver left Andrew in a place of safety, as required by Ohio Revised Code section 4511.75(E). The summary judgment was reversed and the case remanded. The cause came before the Supreme Court of Ohio upon the allowance of a discretionary appeal and cross-appeal. HELD: Statutory immunity is an affirmative defense which should be raised in a timely manner. If it is not, it is waived. A properly pleaded answer should incorporate all affirmative defenses that would defeat a plaintiff's negli-gence action, thus avoiding trial. If an affirmative defense is not raised in the initial answer, it is logical for the plaintiff to assume that the defense is waived. Based upon the fact that Central failed to give a sufficient rationale for its failure to assert the defense of statutory immunity in its original answer, *461 causing plaintiffs to unnecessarily expend time, money, and resources, it was held that the trial court abused its discretion in granting the motion to amend. Central waived its right to assert statutory immunity as a defense. Central also breached its duty to ensure students on the bus would reach a place of safety as described in Ohio Revised Code section 4511.75(E). Volkert freely made the decision to change her bus route, and she allowed Andrew to exit the bus even though she was con-cerned for his safety. The parents were not notified of this alteration, thus creating an inherently dangerous situation to Andrew. The supreme court found a remaining issue as to a violation of section 4511.75(E). The supreme court







affirmed the court of appeals' finding of a remaining issue of fact pertaining to Central's violation of section 4511.75(E), but reversed on the matter of statutory immunity. The case was remanded to the trial court to be tried on the merits under pertinent negligence law. XVI. PRODUCTS LIABILITY A. Trial Wagner v. Roche Lab. 85 Ohio St. 3d 457, 709 N.E.2d 162 Decided May 12, 1999 Appellant Josephine Wagner (Wagner) filed several products liability claims against Appellees Roche Laborato-ries and Hoffman-LaRoche, Inc. (Roche) based on serious physical complications she claimed were caused by her ingestion of a prescription drug manufactured by Roche for the treatment of acne. One of her claims at trial was that Roche had failed to provide adequate warnings that pertained to possible side effects that could arise in certain users. The trial court found for Wagner. On appeal, the court of appeals found the warnings to be adequate and held that the issue should not have been submitted to the jury. Therefore, the court of appeals held that the trial court erred by not entering a directed verdict in Roche's favor. The supreme court reversed the appellate court's decision and re-manded the cause to address an assignment of error by Roche, which was a motion for a new trial based on whether Roche was sufficiently prejudiced by the trial court's instruction on breach of express warranty. Roche's motion was denied. The cause then went before the supreme court for a second time upon allowance of a discretionary appeal. HELD: The Court held that the two-issue rule, set forth in Sites v. Haverstick, 23 Ohio St. 626 (1873), was im-plicated in this case. The rule pertains to prejudice, and states that an appellant must, in order to obtain a reversal of judgment, not only show error but must also show prejudice in the *462 error. The supreme court held that employ-ing the two-issue rule was appropriate. The court applied the rule and held that Roche had incurred no prejudice on the grounds statedfor its appeal and reinstated the trial court's denial of a new trial. All the rulings held by the trial court that were appealed by Roche were all upheld and reinstated by the supreme court. XVII. REAL PROPERTY A. Eminent Domain Suburban Constr. Co. v. Skok 85 Ohio St. 3d 645, 710 N.E.2d 710 Decided June 16, 1999 Appellant, Suburban Construction Co., owned land that the City of Mentor, Ohio sought to appropriate. In Sep-tember, 1997, two appropriation petitions were filed in the Lake County Court of Common Pleas by Mentor. In Feb-ruary, 1998, mentor sought a default judgment against Suburban. Suburban alleged it never received service of summons for the two appropriations cases. The service was, according to the dockets, issued in December, 1997. Albert Nozick, Suburban's attorney, said the summonses were sent to his office address and he had closed the office for a month and had all his mail forwarded to a Florida address. Nozick reported that he never received the sum-monses. Judge Fred Skok answered Mentor's motion for default judgment in the affirmative and in May, 1998, Sub-








urban filed a complaint in the Court of Appeals for Lake County for a writ of prohibition. The objective was to pre-vent Judge Skok from continuing to preside in the appropriation cases. Suburban's reasons were because it was not served with the appropriation petitions, Judge Skok was going to issue a directed verdict on the value of the property and the judge failed to give it proper notice of the trial date in the cases. As a result, Judge Skok filed a motion to dismiss which was granted. Suburban appealed to the supreme court as a matter of right. HELD: The court established a three part test in order for Suburban to be entitled to relief in prohibition. Subur-ban must show that Judge Skok was about to exercise judicial power, that the exercise of that power was legally unauthorized and that the denial of the writ would cause injury of a degree that there would not be an adequate legal remedy. Suburban showed that the judge exercised judicial power. It had an adequate legal remedy by appeal. Sub-urban alleged the judge lacked personal jurisdiction due to the lack of proper service. Again, the proper remedy in such a situation was through a motion to quash, appeal, or a motion to vacate the default judgement. The *463 court said that if Suburban prevailed on appeal, it had the right to repossess the property. The court affirmed the judgment of the court of appeals. B. Liens Galt Alloys, Inc. v. KeyBank Nat'l Ass'n 85 Ohio St. 3d 353, 708 N.E.2d 701 Decided April 28, 1999 On July 15, 1996, Galt Alloys, Inc. and Dewalt Properties, Inc., the appellants, began a foreclosure action in the Court of Common Pleas of Stark County naming the property owner, Ameritrust Company National Association (KeyBank National Association, successor in interest, “KeyBank”), the Stark County Treasurer, GE Capital Con-sumer Card Company (GE), and Household Finance Corporation (HFC). The foreclosure action was based upon judgment liens that the appellants had against the property owner. KeyBank was named as a defendant because it held a mortgage deed for the property. KeyBank was served a copy of the complaint on July 17, 1996, via certified mail but did not respond to the complaint. On August 29, 1996, Appellee KeyBank was sent a copy of an August 28, 1996, order of the trial court ordering Appellants to complete service and/or file an appropriate motion for default judgment by September 13, 1996. Appellants filed the ordered motion against the property owner and GE but did not do so against KeyBank. KeyBank received a copy of another court notice on September 17, 1996, that set a trial date of September 30, 1996, and that the other parties were to work out an appropriate foreclosure decree. Subse-quently the court issued a judgment of foreclosure directing the sheriff to sell the property, that the proceeds be used to pay the judgment lienholders subject to any interest to KeyBank if it established such interest within fourteen days after the sheriff's sale, and taking note of the fact that KeyBank had yet to file a responsive pleading. The prop-erty was sold and the proceeds divided accordingly without any responsive pleading from KeyBank. Four months after the final order, KeyBank appeared for the first time by filing a motion to vacate the order and to set aside the sheriff's sale claiming that it had not received actual noticeof the sale. The trial court denied the motion. The court of appeals reversed the decision, remanded the cause, and ordered the vacation of the final order and the sheriff's sale. The court also certified that its judgment was in conflict with the Tenth and Eleventh Appellate Districts. The case went to the Supreme Court of Ohio as a discretionary appeal upon determination that a conflict existed between the appellate districts. HELD: A fundamental requirement of due process is that reasonable notice of any pending action be given to an interested party and that the party *464 be afforded an opportunity to defend himself when his property interests are in possible jeopardy. The Court determined that KeyBank had plenty of opportunities to protect its interests because it was properly served with notice. The Court also found that KeyBank failed to file an answer, otherwise appear, or take any kind of action to protect those interests until months after title had passed toa new owner. The Court held




that the sale of the property did not jeopardize KeyBank's interest, but rather, the foreclosure action itself and the possibility that the trial court would divide the proceeds without providing for KeyBank was what put that interest in jeopardy. Despite the contention of KeyBank, the Court held that reasonable notice did not require actual notice of the date, time, and location of a sheriff's sale when a party to the proceeding has been properly served with process and is given an opportunity to protect his interests. Therefore, the decision of the court of appeals was reversed and the cause remanded. C. Zoning & Planning Sate ex rel. Spencer v. East Liverpool Planning Comm'n 85 Ohio St. 3d 678, 710 N.E.2d 1129 Decided June 23, 1999 Appellant, Alanzo Spencer (Spencer), filed a complaint in the court of appeals for a writ of mandamus to com-pel Appellee, East Liverpool Planning Commission (Commission), to compel the Commission to institute an action to strike from the records of the county recorded a plat of property conveyed by the Columbiana County Port Au-thority to Waste Technologies Industries. Spencer sought to have the conveyance stricken as illegal based on East Liverpool Codified Ordinances section 1159.01 that requires deeds to be approved prior to recording. The court of appeals denied the writ. Initially, the supreme court reversed, finding that Spencer had standing to bring the manda-mus action but remanded the action for findings of fact as to whether the deed had actually been recorded. On re-mand, the court of appeals granted the Commission's motion for summary judgement based on evidence that the deed was approved and re-recorded with the Colombiana County Recorded. The court held that the issue of whether the original plat was recorded was moot because of its subsequent approval and re-recording. The case came before the Supreme Court of Ohio on an appeal as of right. HELD: The Court affirmed the ruling of the court of appeals that the subsequent approval of the planning com-mission mooted the issue of whether the original plat was approved. Furthermore, the Court held that a writ of man-damus could not issue because, as Spencer conceded, no plat existed at *465 the time of his initial appeal and man-damuscannot issue to compel an impossible act. The decision of the court of appeals was affirmed. XVIII. TAXATION A. Business Goodyear Tire & Rubber Co. v. Tracy 85 Ohio St. 3d 615, 710 N.E.2d 686 Decided June 16, 1999 Pursuant to Ohio Revised Code section 5733.01, a tax is levied upon domestic and foreign corporations for the privilege of exercising their corporate franchise in Ohio. The formula used to determine the amount of tax owed is the net book value of the corporation's property (including intangible property) sitused in Ohio divided by the net book value of all of the corporation's property (including intangible property). Appellant, the Goodyear Tire & Rub-ber Company (Goodyear) is a multi-national corporation headquartered in Ohio. Prior to 1986, Goodyear had estab-lished and funded a trust in connection with a defined benefit pension plan benefiting certain Goodyear employees. In 1986, Goodyear determined that the pension trust was overfunded, creating a surplus. Thereafter, Goodyear at-






tempted to reduce the surplus, but did not eliminate it completely. Goodyear claimed a pro-rata amount of the sur-plus as a gain of intangible assets under the heading “other assets.” It did not, however, report the value of the pen-sion surplus as an asset that it owned in Ohio. Thus, Goodyear failed to include the value of the remaining surplus in the numerator of the property fraction. In a 1987 audit, the commissioner deemed the correct situs of the pension surplus to be Ohio and added its value to the value of Goodyear's property in Ohio. Ultimately, these calculations resulted in a portion of the deficiency assessment against Goodyear. Goodyear appealed to the Board of Tax Appeal (BTA) which affirmed the commissioner's finding. The cause came before the Supreme Court of Ohio upon an ap-peal as of right. HELD: Goodyear argued that it did not own or use the surplus because it had no legal right to use any of the funds unless and until the plan terminated. This argument was refuted by the Court, which previously recognized that, for franchise tax purposes, “book value” of property owned or used by a corporation is to be determined from the books of a corporation which are generally regarded as the accounting records of such corporation. Goodyear was required to recognize the pension gain on its balance sheet. By including the intangible asset representing the pension surplus on its books as an asset, Goodyear effectively acknowledged that, for franchise tax purposes, the *466 surplus was an asset that is “owned or used.” The general theory of the taxation of intangibles was that they are taxed at the residence of the owner. Because Goodyear was headquartered in Ohio, the situs of the intangible prop-erty was in Ohio. Because Goodyear owned the intangible representing the pension surplus, and that intangible was sitused in Ohio, it was property owned or used in this state. The pension surplus, therefore, was an intangible asset not exempt from being sitused in Ohio and was to be included in the numerator of the property fraction for franchise tax purposes. The decision of the BTA was affirmed. Harsco Corp. v. Tracy 85 Ohio St. 3d 382, 708 N.E.2d 1000 Decided May 5, 1999 In 1989, Harsco Corporation (Harsco) sold off assets of its Astro Division located in Ohio. Approximately eighty-seven percent of the assets sold were located in Ohio at the time of sale. The sale generated approximately $4.4 million in depreciation recapture income. Harsco apportioned the $4.4 million between Ohio and the other states where it filed tax returns. During an audit, the Tax Commissioner imposed an additional assessment totaling eighty seven percent of the income, the amount of property located in Ohio, on the theory of allocation. Harsco filed an application for review and was denied. Harsco then appealed to the Board of Tax Appeals (BTA) arguing that the gain should allocated to Ohio in the same proportion that the depreciation deductions apportioned to Ohio related to the total depreciation deduction. The BTA affirmed the commissioner's decision relying on Borden, Inc. v. Limbach, 49 Ohio St. 3d 240 (1990), which held that such gains be allocated based upon the situs of the property at the time of the sale. Harsco appealed to the supreme court. HELD: The supreme court agreed with the BTA that Borden was controlling and found that income from recap-tured depreciation that is attributable to Ohio represents capital gain as the term was used in that case. The court found no controlling or compelling federal definition of capital gain, but found the term analogous to the definition of gain under 26 U.S.C. 1001(a); the excess of amount realized over the adjusted basis of the property sold. The court further noted that the only method provided for allocating such gains under Ohio Revised Code section 5733.051(C) and (D) is the location of the property sold. Because the income sought to be taxed is not interstate income, but income earned in the state of Ohio, there is no violation of the Commerce or Equal Protection clauses of the United States Constitution. It is axiomatic that a state can not tax value earned outside its borders *467 and that the corollary to this is that a state can tax value earned inside its borders. The court affirmed the judgement of the BTA.





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B. Energy & Utilities United Tel. Co. of Ohio v. Tracy 84 Ohio St. 3d 506, 705 N.E.2d 679 Decided February 24, 1999 Appellee, United Telephone Company of Ohio (United), attempted to deduct the value of dead and bad wires and fibers from the value of its personal property on its annual property tax reports. The Board of Tax Appeals (BTA) held the “used in business” standard in Ohio Revised Code section 5709.01 did not apply to public utilities so that United could not deduct the value of the wires as not used in business. The Supreme Court of Ohio reversed and remanded, holding that a public utility could deduct tangible personal property not “used in business” from its prop-erty taxes. On remand, the BTA held a hearing to determine the amount and value of the dead and bad wires. At the hearing, United presented statistical estimates based on a partial reconstruction of that detail the cables and wires throughout the city, along with an expert witness in the field of statistics, to estimate the amount and value of dead and bad wires. BTA accepted United's method of determining the amount and value and determined that they were not used in business and therefore not subject to property tax. The case came before the Supreme Court of Ohio on an appeal as of right. HELD: The Court held that statistical data could not be used to determine the burden of proving the amount of dead and bad wires when documents are available that would provide an accurate count. United did not meet its burden of proof because, given the large dollar amounts involved in most public utilities cases, even a one-percent inaccuracy could mean a huge difference in tax valuation. Hence, United was required toaccurately recreate all grid maps rather than use a statistical sampling. The Court also held that the actual cost of dead and bad wires could not be determined through statistical evidence or a percentage. The Court's determination was based in part on the fact that United presented evidence to show that these costs vary depending on a number of factors. Finally, the Court held that wires that had been connected in the past but were temporarily disconnected (vacant pairs) should not be included in dead wires. This holding distinguished for tax purposes between wires that are temporarily out of service and those that have never been used. The Court determined that only wires that have never been used can be consid-ered as not used for business. The case was reversed and remanded to BTA. *468 C. Income Dupee v. Tax Comm'r 85 Ohio St. 3d 350, 708 N.E.2d 698 Decided April 28, 1999 The Appellant, David and Katherine Dupee, appeal from the Board of Tax Appeals' (BTA's) ruling which de-nied their claim for an Ohio income tax refund for 1989, 1990, and 1991. The Dupees were residents of Florida dur-ing the tax years disputed. During the same period they were shareholders in an Ohio corporation, Olsten of Cincin-nati, and they received salaries from it. Olsten was an S-corporation. The Dupees included their shares of income in filing their Federal and Ohio tax returns, then the Dupees claimed that they were entitled to a nonresident credit and a full refund. The commissioner refused the refund claims. The BTA affirmed the commissioner's decision. The BTA held that the income received from S-corporations is considered earned and part of their gross income. The Dupees appealed to the Supreme Court of Ohio upon a claim of right. HELD: The income received by David and Katherine from an Ohio S corporation is gross income subject to






Ohio income tax. The Ohio Revised Code Section 5747.02 imposes an income tax on every individual earning or receiving income from Ohio. The Dupees' arguments disregard the effects of Olsten election of being an S corpora-tion. For tax purposes the profits of an S-corporation are taxed as personal income of the shareholders. The Court relied on the Internal Revenue Code's distinction and election to be an S-corporation (Title 26 of the United States Code Section 1361). The Court held that even though the Dupees were Florida residents they could earn income and be taxed in Ohio. The S-corporation remains the same for residents and nonresidents of Ohio. The Court reasoned that the income received through the S-corporation was earned income that is taxed to them as shareholders, so the Court affirmed the decision of the BTA in denying the refund. D. Personal Property Rowe-Reilly Corp. v. Tracy 85 Ohio St. 3d 625, 710 N.E.2d 694 Decided June 16, 1999 Rough Brothers (Appellant) is a corporation in the business of selling various items to be used in the installa-tion, operation, and maintenance of greenhouses. The business consists of purchasing inventory items from third-party suppliers, and the maintenance of inventory of these items that are then *469 listed for sale in Appellant's “Greenhouse Supply Catalogue.” During the tax years 1988 through 1993 Appellant reported its entire inventory as “agricultural merchandise,” but the Tax Commission (Appellee) found that the inventory did not fall under agricul-tural merchandise. The appellee entered assessments against the appellant because the inventory was found to not be an applicable exemption from taxation as personal property. The Board of Tax Appeals (BTA), on appeal, affirmed Appellee's decision. Appellant then appealed to the supreme court as a matter of right. HELD: After considering all the evidence, the supreme court held that it had not been shown by direct evidence that Appellant's inventory items were used for any other purpose than use in the construction, operation, and main-tenance of greenhouses. Therefore, the Court held that the Board of Tax Appeals had erred in determining other-wise. The Court determined that Appellant's inventory during the specified tax period was designed and built for agricultural use and used for such purposes. The supreme court reversed the BTA's decision and remanded the case back to the BTA to determine which of Appellant's inventory items qualify as “machinery and equipment” in order for those items to be considered exempt from personal property tax pursuant to Ohio Revised Code section 5701.08 and Ohio Administrative Code section 5703-3-30. E. Real Property Board of Educ. of Worthington City Sch. Dist. v. Board of Revision Franklin County 85 Ohio St. 3d 156, 707 N.E.2d 499 Decided March 31, 1999 This is a consolidated case in which several taxpayers appealed from the Board of Tax Appeals (BTA). Ameri-tect Corporation, one of several appellants, was the owner of one share of stock in Ohio Bell Telephone Company (Ohio Bell). Under an agreement with Ohio Bell, Ameritect was to manage Ohio Bell and to do all such lawful acts on their behalf. In March, 1995 Ameritect had an attorney file a complaint with the Franklin County Board of Revi-sion. The complaint identified Treneff as the attorney for Ameritect, but he did not sign the complaint. Instead, Ameritect's property manager, Gregory Stein, signed the complaint under the direction of Treneff. The Board of Revision granted a reduction in the value of the property. On appeal the BTA reversed for lack of jurisdiction. The







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BTA found that Stein engaged in the unauthorized practice of law by signing the complaint. Ameritect appealed to the Supreme Court of Ohio, and several other cases with similar fact patterns were consolidated. The appeal is as a matter of right. *470 HELD: Gregory Stein was not engaged in the unauthorized practice of law when he signed and reviewed the complaint. The Court relied on precedent that said it was the practice of law to prepare and file a complaint which Ameritect had its attorney, Treneff, do. The Court held that preparing and filing a complaint is the practice of law. The decision of the BTA was therefore reversed. However, in one of the consolidated cases when a non-lawyer drafted, signed, and filed the complaint that was the unauthorized practice of law, so this case waw affirmed. The last case was also affirmed because a non-lawyer drafted, filed, and signed the complaint. Edbow, Inc. v. Franklin County Bd. of Revision 85 Ohio St. 3d 656, 710 N.E.2d 1112 Decided June 23, 1999 Edbow Inc., Appellee, filed a complaint with the appellant, Franklin County Board of Revision, to reduce the true value of a four-story office building from $639,200 to $399,600. The Franklin County Auditor stated that the value of the property was the $639,200. Edbow presented expert testimony that the true value of the property was $400,000, but the Board of Revision retained the value placed on the property by the Franklin County Auditor. Ed-bow appealed to the Board of Tax Appeals (BTA). The BTA concluded that the value of the property, without a hearing, was $399,600. The BTA adopted the income value approach used by Edbow and rejected the market data approach used by the Franklin County Auditor. The BTA held that Edbow proved that the true value of the property was $399,600. The Franklin County Board of Revision appealed. This case was presented to the Supreme Court of Ohio upon an appeal as of right. HELD: There was sufficient, probative evidence in the record to support the findings of the BTA and the BTA exercised sound discretion in ruling on the credibility of witnesses and the weight to be given to the evidence. The Court said that there was sufficient evidence in the record to support the BTA's findings, and that the BTA used sound discretion in judging the credibility of the witnesses, so the Court affirmed the BTA's decision. The BTA's determination of the credibility of a witness will not be reversed, unless there is an abuse of discretion. In this case the BTA could find Edbow's witness credible even though, he did not testify before them. The BTA has wide discre-tion in determining the credibility of the witnesses. The Franklin County Board of Revision also argued that they did not have a meaningful chance to cross-examine Edbow's expert witness. But the Court disregarded this argument because the Franklin County Board of Revision would have had *471 a chance to cross-examine before the BTA, had they not joined in waiving the hearing. The Court Affirmed the BTA's decision. Fawn Lake Apartments v. Cuyahoga County Bd. of Revision 85 Ohio St. 3d 609, 710 N.E.2d 681 Decided June 16, 1999, this matter concerned a two hundred eighty-eight unit apartment complex in Olmsted Falls. In 1994, the owners of this apartment complex filed a real estate valuation complaint with the Cuyahoga County Board of Revision (BOR), Appellant, requesting a reduction in the assessed value from $8,640,000 to $7,000,000. The property had been valued in 1991 and the only significant change to the property since had been an enlargement of the recreation facility. The Olmsted Falls board of Education (BOE), Appellant, filed a counter-complaint claiming the property was worth $9,159,720. The BOR found in favor of the auditor's value. Fawn Lake Apartments, Appellee, filed an appeal with the Board of Tax Appeals (BTA). At the hearing before the BTA, Fawn Lake had a real estate appraiser testify that the property was valued at $7,300,000. An appraiser for the BOE deter-





mined the property value to be $10,014,000. After reviewing the calculations of each appraiser and the methodology used in determining the value of the property, the BTA found the correct value of the property to be $7,300,000. The BOE's contention that a lower value than the 1991 value could not be found was rejected by the BTA. This matter came before the Supreme Court of Ohio upon an appeal as of right. HELD: The supreme court denied the BOE's contention that the property cannot be valued at less than the value ascribed to it in 1991 by stating that a value determination is based upon the evidence presented in a particular case, not by value assessments for previous years. Thus, the 1991 valuation was not collaterally attacked. The purpose of the hearing was to determine the value of the property for a particular date. This does not involve the values at pre-vious dates. Past values are not always absolutely correct and are not meant to serve as the basis by which all future valuations will be assessed. Doing so would change the purpose of the BTA hearing to a determination of the differ-ence between the previous value and the present. The BTA maintains the discretion to assess the credibility of wit-nesses before it and evaluate the evidence presented; therefore, deference should be shown. Without a sufficient showing of the BTA's abuse of discretion, its decisions should be upheld. There was no such showing in this matter; therefore, the supreme court found the BTA's decision to be both reasonable and lawful. The BTA's decision was affirmed. *472 F. Sales and Use Anheuser-Busch, Inc. v. Tracy 85 Ohio St. 3d 514, 709 N.E.2d 834 Decided May 26, 1999 Appellant, Anheuser-Busch, Inc., used a Videojet coding machine to print a codes on the bottles that list when and where the corporation produced the bottles of beer. Once that step was completed, glue rollers applied glue to labels which were then applied to the bottles. The Tax Commissioner imposed tax upon the Videojet coding ma-chines as well as the glue rollers bought between January 1, 1988 and June 30, 1990. Using the new Videojet coding machines during the audit period between July 1, 1990 and December 31, 1992. Anheuser-Busch statutory manufac-turing exception, tax was assessed against the Paxton blower system and the appealed to the Board of Tax Appeals (BTA) affirmed the Commissioner's orders and decided that Anheuser-Busch used those products after manufactur-ing ended. The BTA also found that those items failed to meet the packaging exception. The appeal to the supreme court was taken as a matter of right. HELD: The supreme court looked to the question of when the manufacturing activity began and ended, and whether the property was used or consumed during the manufacturing period. According to Ohio Revised Code sec-tion 5739.02(B)(15), only the items necessary to the restraining of goods to be sold are exempt from use tax under the packaging exemption. The court said that the BTA was correct in its assessment that the processing of beer ends upon the completion of the pasteurization process. Since the labeling and coding occurs after processing, and they do not alter the beer in any way, the court found that the manufacturing exception did not apply to the purchase of the glue rollers or the Videojet coding system. Since neither the codes, nor the labels, were necessary in restraining movement, the machines that prepare the bottle for labeling and coding did not qualify as packaging under the stat-ute. The supreme court affirmed the decision of the Board of Tax Appeals. D&A Rofael Enter., Inc. v. Tracy 85 Ohio St. 3d 118, 707 N.E.2d 467 Decided March 31, 1999







Appellants, D&A Rofael Enterprises, Inc., operate a fast food operation in three different malls. The food is ordered and payed for at the counter and then consumed in a common eating area referred to as the food court. *473 Between July 1989 and November 1990 the Tax Commissioner audited the three location and found a higher ratio of taxable sales to gross sales than what was reported. The appellants appealed the commissioner's final orders which were affirmed. This appeal was before the court as an appeal of right. HELD: The food court is a premises for purposes of Ohio Revised Code section 5739.01(K) which states that a premises includes any real property or portion thereof designated for, or devoted to, use in conjunction with the business engaged in by such person. Accordingly, the appellants failed to meet the criteria for the exemption in Ohio Revised Code section 5739.02(B)(2) which provides that sales for food that is eaten off the premises is not subject to sales tax. Consequently, the court affirmed the decision of the Board of Tax Appeals. Schindler Elevator Corp. v. Tracy 84 Ohio St. 3d 496, 705 N.E.2d 672 Decided February 24, 1999 Schindler Elevator Corporation, Appellant, was issued a sales and use tax assessment by the Ohio Department of Taxation, Appellee, seeking $2,287,538.18 in taxes and penalties on purchases made by appellant between April 1, 1991 through March 31, 1994. The assessment was issued on June 21, 1996, and a copy was sent by certified mail to the appellant's post office box. Appellant's mail from this box, including its certified mail, was picked up by a delivery service known as “Always Reliable Delivery Service” (ARDS) and delivered to appellant's mailroom. ARDS stamped the return receipt with the date, June 25, 1996. From the mailroom, the assessment was sent on June 26, 1996, to Pat O'Brien, Appellant's tax manager. O'Brien was not an authorized agent of the appellant. Appellant's Vice President and Treasurer, John R. Impellizzeri, was not made aware of the assessment until July 26, 1999. Im-pellizzeri sent a letter, by certified mail, to the tax commissioner that very same day to petition for reassessment. The letter was received on July 29, 1996, and the commissioner dismissed the petition because it had not been mailed within thirty days after receipt of the assessment. The commissioner based this time frame determination on Ohio Revised Code section 5739.13. Appellant appealed this decision to the Board of Tax Appeals (Board) which affirmed the dismissal based upon a determination that the assessment was properly served on June 25, 1996, and the appellant had not filed the petition within the statutory time frame requirement of thirty days despite Appellant's contention that section 5703.37 was the applicable statute. Appellant appealed this decision to the Supreme Court of Ohio. *474 HELD: When a general provision conflicts with a special provision, the two should be construed in a manner that gives effect to both. If this cannot be accomplished, the special provision supercedes the general one. The court found that the two statutes could not be reconciled because the requirements of service were separate and distinct. Therefore, the court determined that the special provision had to prevail unless the manifest intention of the later adopted general statute was that it was to control. The court then found that section 5739.13 was the special provision and that the service requirements of the general provision, section 5703.37, prevailed only if the general provision was enacted after the specific statute and the manifest intent of the General Assembly was that the general prevail over the specific. The supreme court held that section 5739.13 was enacted after the general provision and that the general statute did not represent that there was a manifest intent that it supercede any special provision. Thus, the supreme court held that the appellant was served with valid notice of assessment when ARDS delivered the notice to the appellant's mailroom. Therefore, appellant had not made its petition within the statutory thirty day requirement, and the Board's decision was affirmed. XIX. TRANSPORTATION










A. Motor Vehicles Cappara v. Schibley 85 Ohio St. 3d 403, 709 N.E.2d 117 Decided May 12, 1999 James V. Cappara, Appellant, was injured in an automobile accident with Loren Schibley, Appellee, who was operating a vehicle owned by Schibley Chemical Company. Cappara filed a complaint against Schibley for negli-gence and against Schibley Chemical Company for negligent entrustment of the vehicle. Cappara alleged that Schibley was driving under the influence of alcohol. In a deposition, Schibley testified that he was not drunk at the time of the accident. He further testified that he left the scene without stopping because he did not see the other car and assumed the other driver had left as well. The police were not notified until the following morning, thus no tests were conducted to determine Schibley's alcohol impairment. Clifford Roach, a security officer, was working a short distance from the accident. He reported seeing a driver exit the car and walk around, then drive away. Roach further testified that the driver appeared to be intoxicated from the way he was standing and moving in and out of the vehi-cle. Prior to trial, defendants moved to have evidence of Schibley's prior and subsequent convictions for driving un-der the influence (DUI) excluded, as they would be unduly *475 prejudicial and irrelevant on the issue of negligent entrustment because there was no evidence that the accident was a proximate result of Schibley's being intoxicated. The trial court ruled that evidence of the convictions could not be admitted on the claim of negligent entrustment, but it could on the issue of punitive damages, so long as it was first established that Schibley left the scene of the accident. The jury found for Cappara. The court of appeals reversed the decision and remanded the case for a new trial. The court of appeals held that it was unduly prejudicial to Schibley to admit evidence of his prior and subse-quent driving record to show state of mind at the time of the accident. There was no direct evidence to prove Schibley was intoxicated at the time of the accident in question, so admission of evidence of his prior and subse-quent driving record may have unduly influenced the jury to find Schibley was intoxicated at the time of the acci-dent. The case came before the Supreme Court of Ohio pursuant to a discretionary appeal. HELD: Schibley's DUI convictions subsequent to the accident at issue were irrelevant toward proving his state of mind at the time of the accident. There was no direct evidence to support Cappara's allegation that Schibley was intoxicated; therefore, the evidence was highly prejudicial with little probative value. The convictions in question were in no way related to the incident at issue, and were only prejudicial to Schibley on the issue of punitive dam-ages and to Schibley Chemical Company on the issue of negligent entrustment. There were no tests performed to determine whether Schibley was in fact intoxicated, so Cappara's entire case was based upon proving state of mind using Schibley's previous and subsequent driving record. The trial court erroneously admitted evidence of Schibley's subsequent driving record, thus unduly influencing the jury. The supreme court affirmed the court of appeals hold-ing that the jury did not adequately indicate the extent to which Schibley Chemical Company's negligent entrustment caused Cappara's injuries. Based upon this reasoning, the supreme court affirmed the court of appeals decision and remanded the case for a new trial. XX. WRITS State ex. rel. Russell v. Thomas 85 Ohio St. 3d 83, 706 N.E.2d 1251 Decided March 24, 1999






In August, 1997, relator Paul Russell (Relator), requested that Respondents, employees of regional wastewater authority (Employees), produce certain documents relating to a complaint filed in the Belmont County Court of Common Pleas. Respondents (Thomas and Employees) rejected the request on the basis that the request was “too broad.” Thereafter, relator made *476 similar request which were refused for broadness. Following this refusal, rela-tor filed an action for a writ of mandamus to compel Respondents to provide access to the records and to provide the copies at no more than two cents per page. Relators also requested attorney fees. Pursuant to the court's mediation program, the writ issue was settled, leaving only the issue of attorney fees. HELD: A court may award attorney fees pursuant to Ohio Revised Code section 149.43 where a person makes a proper request for public records pursuant to, or a custodian of the public records fails to comply with the person's request, or the requesting person files a mandamus action pursuant to section 149.43 to obtain copies of the records, and the person receives the requested public records only after the mandamus action is filed, rendering the claim for [the writ] moot. Employee's records met the criteria for public, notwithstanding its internal polices and procedures. Furthermore, the court found the request were not “too broad,” thus deemed proper. The mandamus action was filed, and after mediation, the records were delivered, rendering the mandamus action moot. As such, the Relators were entitled to attorney fees having established a sufficient public benefit by making Respondents provide access to the requested records. The court awarded attorney fees and ordered relators to submit a bill and documentation in sup-port. 26 Ohio N.U. L. Rev. 371 END OF DOCUMENT



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26 OHNULR 371 Page 1 26 Ohio N.U. L. Rev. 371 Ohio Northern