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Ohio Northern University Law Review
1999
*219 OHIO SUPREME COURT DECISIONS
Copyright (c) 1999 Ohio Northern University Law Review
I. CRIMINAL JUSTICE
A. Appeals
State v. Matthews
81 Ohio St. 3d 375, 691 N.E.2d 1041
Decided April 15, 1998
During October of 1989, Wayne Price (Price) was shot at the King-Kennedy housing project in Cleveland. The
shooting was witnessed by Theodore Roulette (Roulette), who was at the housing project in order to obtain syringes
for his drug habit. Roulette identified the defendant Rasheem Matthews (Matthews) as the murderer of Price, and
gave a complete statement to that affect to the Cleveland Police Department after being incarcerated in 1990. A cell
mate of the defendant, Charles Neal Paxton (Paxton), testified and stated in writing that Matthews told him he shot
and killed Price. After a mistrial and retrial, Matthews was convicted of the murder of Price. Matthews appealed his
conviction, and made a motion for a new trial. After his motion for a new trial was denied, Matthews appealed and
made another motion which was also denied. The court of appeals affirmed Matthews' conviction, and after two
more motions for a new trial, Matthews was finally granted a new trial in April of 1996. After Matthews' motion for
new trial was granted, the state filed a motion in the court of appeals for leave to appeal. The state's motion for leave
to appeal was subsequently denied by the court of appeals. The case came before the Supreme Court of Ohio on the
allowance of a discretionary appeal.
HELD: Ohio Revised Code section 2505.02 provides that an order that vacates or sets aside a judgement or
grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.
Moreover, Ohio Revised Code section 2505.03 provides that final orders may be reviewed on appeal by a court of
common pleas, a court of appeals, or the supreme court, whichever has jurisdiction. The supreme court held that
pursuant to the aforementioned sections, the granting of a new trial by a trial court will effectuate a final appealable
order. The supreme court also held that, in accordance with Ohio Revised Code section 2945.67(A), the state may
appeal from that order only by leave of the court to which the appeal is to be taken. The decision to grant or deny the
motion for leave to appeal is entirely dependent upon the discretion of the reviewing court. It *220 was not clear
whether the court of appeals denied the motion for leave to appeal because it believed that an order granting a new
trial was not an order appealable by the state, or whether the court of appeals used its discretionary power in denying
the appeal. Due to this lack of clarity, the supreme court remanded the case to the court of appeals for further proceedings in accordance with its opinion.
State v. Palmer
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80 Ohio St. 3d 543, 692 N.E.2d 137
Decided December 31, 1997
Donald L. Palmer, Jr., Appellant, was convicted of the aggravated murder of two individuals. For each of these
murders, he was convicted on two counts. The trial court accepted the jury's recommendation that Appellant be sentenced to death for each of the four counts of aggravated murder. The court of appeals affirmed the judgment of the
trial court and upheld the death sentence. The case then went before the supreme court upon an appeal as of right.
HELD: The Supreme Court of Ohio rejected all of Appellant's pro-positions of law and affirmed his convictions
and death sentence. First, the court rejected Appellant's argument that the record was inadequate for appellate review
because certain bench and chambers conferences were not recorded and made part of the trial transcript, and because
no transcript was made of a jury visit to the crime scene. The court held that reversal of convictions and sentences
on grounds of unrecorded proceedings will not occur where the defendant has failed to demonstrate that (1) a request was made at trial that the conferences be recorded or that objections were made to the failures to record, (2) an
effort was made on appeal to comply with Ohio Appellate Rule 9 and to reconstruct what occurred to establish its
importance, and (3) material prejudice resulted fromthe failure to record the pro-ceedings at issue. The court held
that Appellant failed to demonstrate that his trial counsel ever requested that the matters at issue be recorded and
Appellant failed to demonstrate any material prejudice resulting from the unrecorded matters. Next the court rejected all of Appellant's arguments on the insufficiency of the jury instructions. The court held that Appellant suffered no prejudice and may have actually benefitted from the instructions given. Finally, the court rejected all of
Appellant's arguments on the ad-missibility and sufficiency of evidence. The court found that there was no abuse of
discretion in the admission of the evidence sufficient to establish Appellant's guilt beyond a reasonable doubt. Ultimately, the supreme court affirmed the conviction on all counts and upheld the death sentence.
*221 B. Assault and Battery
State v. Mack
82 Ohio St. 3d 198, 694 N.E.2d 1328
Decided June 24, 1998
Appellee, Zavis D. Mack (Mack), went with his girlfriend, Katrina Conner (Katrina) to pick up her children at
the apartment of her estranged husband, Chris Conner (Chris), who was at the time seeking a divorce. Katrina and
Chris became involved in an argument when Katrina refused to enter Chris' apartment to discuss scheduled visitation. Chris had been carrying mace for protection against dogs running loose in the building, but to demonstrate his
intentions, he threw the mace on the ground and Katrina picked it up. According to Chris, Mack then charged him
with a knife. Chris testified that he ran into the street with Mack chasing after him. Chris also stated that he slipped
and fell and Mack stabbed him with the knife repeatedly. Two neighbors testified that Mack charged Chris.
Mack testified that Chris had threatened him on a prior occasion and had instigated the situation. Mack also
testified that Chris charged him until Chris turned to pursue Katrina. Mack then went to protect Katrina and Chris
fell, at which time Mack stated he turned to walk away but Chris pulled him and Mack pulled the knife. Mack admitted that he knew Chris had dropped the object he was holding and Katrina retrieved it. Mack was indicted and
found guilty by a jury on one count of felonious assault. On appeal, Mack argued that the trial court erred in refusing
to charge the jury on the lesser offense of aggravated assault. The court of appeals agreed and reversed the jury verdict and remanded the cause for a new trial. The cause went before the supreme court pursuant to the allowance of a
discretionary appeal.
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HELD: The supreme court ruled that the trial court acted properly in refusing to instruct the jury on the offense
of aggravated assault. The court stated that the evidence was insufficient, as a matter of law, to establish provocation
that was reasonably sufficient to incite the use of deadly force. Past incidents of verbal threats did not satisfy the test
for it to be reasonably sufficient to incite Mack into stabbing Chris. Mack also knew that Chris was unarmed and
retreating. Therefore, Mack failed to meet the objective standard in order to demonstrate reasonably sufficient
provocation.
*222 C. Confessions
State v. Tucker
81 Ohio St. 3d 431, 692 N.E.2d 171
Decided April 22, 1998
Defendant, Louis Allen Tucker (Tucker), was tried for aggravated murder. When he was apprehended by authorities, he made a statement implicating himself in the murder of the victim. At trial, the prosecution admitted testimony of Tucker's admission to the authorities. It also admitted taped testimony of Daniel Brock (Brock), Tucker's
accomplice, about the killing. The jury found Tucker guilty of all charges against him. The court of appeals held that
Tucker was subjected to the functional equivalent of custodial interrogation without being given Miranda warnings
and the trial court should have suppressed this evidence. Tucker's convictions were reversed and the case was remanded for a new trial. This cause came before the supreme court pursuant to the allowance of a discretionary appeal.
HELD: Confessions remain a proper force in law enforcement. Any statement given voluntarily without compelling influences is admissible in evidence. Tucker was not interrogated because there were no actual coercive
practices employed by the authorities. No Miranda warning was required because the authorities were not asking
about the murder. Tucker voluntarily turned the conversation to the killing. Also, the taped testimony of Brock was
harmless error because Brock's testimony was inconsistent with all other testimony and was obviously self-serving
toward Brock's attempts to exonerate himself. The court held that it was doubtful that it lacked heavy influence on
the jury. The trial court properly denied the motion to suppress Tucker's confession and Brock's testimony was
harmless error. The decision of the court of appeals was reversed and the jury's verdict was reinstated.
D. Counsel
State v. Reynolds
80 Ohio St. 3d 670, 687 N.E. 2d 1358
Decided January 14, 1998
On January 11, 1994, Lawrence Reynolds Jr. (Reynolds) broke into Loretta Foster's (Foster) apartment. Reynolds began rummage through *223 Foster's purse. When Reynolds noticed that Foster was about to reach for the
phone, he tied her up and hit her with a tent pole. He then strangled her. After killing Foster, Reynolds told some of
his friends what he had done. The friends reported this to the police who arrested Reynolds. An indictment was
handed down charging him with one count of aggravated murder during the course of a robbery and/or burglary
and/or kidnaping and/ or attempted rape. Because Reynolds was indigent, he was appointed counsel. About two
weeks prior to the beginning of trial one attorney had to be replaced. The trial court appointed Kerry O'Brien
(O'Brien) as lead counsel. The jury found Reynolds guilty and recommended the death penalty. The trial court
agreed and sentenced Reynolds to death. The court of appeals affirmed. Reynolds appealed to the supreme court as a
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matter of right.
HELD: Reynolds was provided with effective assistance of counsel. The supreme court refused to adopt any per
se rule that appointed counsel can not begin a capital trial within such a short period of time. Instead, it was necessary that Reynolds show that his counsel's performance fell below an objective standard of reasonableness and that
Reynolds was prejudiced because of this performance. The supreme court found that O'Brien's performance did not
fall below the objective standard. O'Brien filed motions. He questioned jurors during voir dire. He cross-examined
witnesses, and gave closing arguments. The supreme court affirmed the judgement of the court of appeals.
State v. Sallie
81 Ohio St. 3d 673, 693 N.E.2d 267
Decided May 13, 1998
Appellant, Shaconda M. Sallie (Sallie), was convicted of voluntary manslaughter with a firearm specification.
She had been accused of killing her boyfriend, Craig Brown (Brown), with a single gunshot to the head. Sallie testified that she and Brown had been engaging in a physical struggle when Sallie obtained a weapon and shot Brown.
Sallie repeatedly denied that the shooting had been intentional. Sallie appealed to the Lucas County Court of Appeals, which affirmed her conviction. Sallie appealed to the Supreme Court of Ohio, where she alleged that she had
been rendered ineffective assistance of counsel due to the failure of her trial counsel to present an expert witness on
battered woman syndrome. The case came before the supreme court on discretionary appeal.
HELD: The supreme court held that Sallie had not been rendered *224 ineffective assistance of counsel. To
show ineffective assistance of counsel, Sallie was required to show both that her counsel's work was objectively
deficient and that but for the errors of her counsel the case's outcome might have been different. The court noted that
the trial court was entitled to a presumption that most decisions fall within the acceptable range of counsel conduct,
and that the trial court should not be encouraged to second-guess the counsel's trial strategy.
The court also held that the outcome of Sallie's case would not have been different if the battered woman syndrome testimony had been introduced. The court decided that battered woman syndrome testimony was only appropriate to help the jury determine an actor's intent for self-defense. Since Sallie claimed that the shooting had been an
accident, not self-defense, introduction of the battered woman syndrome testimony would have been inadmissable.
Counsel had no duty to introduce inadmissable evidence, so the exclusion of the expert testimony was a sound trial
strategy. The supreme court affirmed the judgment of the court of appeals.
E. Death Penalty
State v. Moore
81 Ohio St. 3d 22, 689 N.E.2d 1
Decided February 4, 1998
Appellant, Lee Edward Moore, Jr., kidnaped, robbed, and murdered Melvin Olinger (Olinger). Appellant and an
accomplice kidnaped Olinger in his car, robbed him of all of his money, and then Appellant shot him in the head.
The accomplice and Appellant made voluntary statements to the police about the robbery and murder. Appellant
moved to suppress his statement to police, signed waiver of Miranda rights, and photographic evidence of Olinger's
dead body. The motions were denied.
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Appellant was convicted in the Hamilton County Court of Common Pleas for three counts of aggravated murder, one count of aggravated robbery, one count of kidnaping, and sentenced to death. The court of appeals affirmed
the conviction and sentence of death. The case went before the Supreme Court of Ohio upon an appeal as of right.
HELD: The Supreme Court rejected all twenty-six of Appellant's propositions of law and affirmed his convictions and death sentence. The court first rejected Appellant's argument concerning the unfair make-up of the jury.
The court ruled that a jury can be made up of jurists that do not have reservations about imposing the death sentence.
The court stated that a jurist may be excluded by the prosecution for any reason except for *225 gender or race. The
court also stated that the use of voter registration rolls for jury selection lists is constitutional. The court rejected
Appellant's argument that the trial court should have granted his motion to suppress his statement. The court reviewed the evidence and ruled that it supported the trial court's finding that the statement was voluntary. Finally, the
court rejected the argument that the photographic evidence should not have been allowed at trial. The court concluded that the photographs did not affect Appellant's rights and they were not substantially prejudicial. The supreme court found the death penalty to be an appropriate sentence for the Appellant and affirmed the conviction and
death sentence.
F. Discovery
State v. Keene
81 Ohio St. 3d 646, 649 N.E. 2d 246
Decided on May 13, 1998
Appellant, Marvallous Keene (Keene), an African American, was convicted of a multitude of offenses including
five counts of aggravated murder in the Montgomery County Court of Common Pleas. For his crimes, Keene was
sentenced to death.
The murders were committed on the 24th and 26th days of December in 1992. On the 24th, Keene, with the
help of accomplices Laura Taylor (Taylor) and Heather Mathews (Mathews), robbed and killed Joseph Wilkerson
(Wilkerson). Later that day, Keene shot, killed, and robbed Danita Gullette (Gullette). On the 26th, Keene began his
day by robbing Kathie Henderson's car at gunpoint. Later that day, while at a convenience store, Keene shot and
killed Sarah Abraham (Abraham). Still later in the day, Keene conspired with others to kill Wendy Cottill (Cottrill)
and Marvin Washington (Washington). Keene had informed Cottrill and Washington of his killing spree but then
became uncomfortable with the possibility that Cottrill and Washington might inform the police of Keene's crimes.
Shortly thereafter, both Cottrill and Washington were dead.
After his arrest, Keene waived his Miranda rights and issued a full confession of his crimes to the police. Keene
was thereafter convicted of five counts of aggravated murder by a three judge panel, which subsequently sentenced
him to death. On his first appeal, Keene's convictions and death sentence were each affirmed.
Keene argued that the trial court improperly denied his right to discovery concerning information material to the
prosecutor's decision to seek the death penalty, and therefore committed reversible error. Keene's position was premised on Ohio Criminal Rule 16(B)(1)(f), which required *226 the prosecution to provide the defense with all information favorable to the defendant, or material to guilt or punishment. Keene submitted that the prosecutor was motivated by racial hostility towards African Americans. Accordingly, Keene asserted that (1) evidence of the prosecutor's racism would be favorable to him and material to his punishment, and (2) due to the prosecutor's racism, Keene
had a constitutional right to receive the requested information. This case was before the supreme court as a matter of
right.
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HELD: The supreme court held that prosecutors carry a presumption that they have not committed prosecutorial
misconduct by discriminating against defendants on the basis of race. Therefore, all defendants attempting to overcome this presumption must present evidence that clearly illustrates that racial discrimination occurred. Keene did
not overcome this presumption. Accordingly, the supreme court affirmed each of Keene's convictions in addition to
his death sentence.
G. Experts
State v Nemeth
82 Ohio St. 3d 202, 694 N.E.2d 1332
Decided June 24, 1998
Brian Nemeth, Appellee, was tried for aggravated murder and convicted of the lesser included offense of murder in the death of his mother, Suzanne Nemeth. Prior to the trial, Appellee was diagnosed as suffering from battered
child syndrome by Dr. James R Eisenberg, Ph.D. (Eisenberg). The state filed a motion in limine to prevent the introduction of any psychological testimony of battered child syndrome. Defense counsel filed a memorandum in opposition and a motion for an appointment of an expert. The request for an expert was denied and the defense was barred
from using evidence of battered child syndrome in support of a claim of self-defense. At the close of its case, the
defense proffered the testimony of Eisenberg to explain the psychological effects of long-term child abuse in support
of a theory of self-defense and evidence that a charge on a lesser included offense would be justified. The testimony
was not admitted into evidence and Appellee was found guilty of murder. The court of appeals reversed the conviction and remanded for a new trial. It held that there was sufficient evidence to admit the expert testimony and failure
to do so was prejudicial. The case then went before the supreme court upon allowance of a discretionary appeal.
*227 HELD: The supreme court held that expert testimony on battered child syndrome is admissible in Ohio
courts when it is relevant and meets the requirements of Ohio Rules of Evidence 702. The court held that the testimony proffered by the defense was relevant for four purposes, including the determination of whether Appellee (1)
had acted with prior calculation and design, (2) had acted with purpose as required for the lesser included offense of
murder, (3) had created the confrontation or initiated the aggression, and (4) had an honest belief that he was in an
imminent danger. Relying on State v. Stowers, 81 Ohio St. 3d 260, 690 N.E.2d 881 (1998), the court held that information on battered child syndrome would tend to show that Appellee's behavior was consistent with that of an
abused child and this testimony was admissible to support the truth of the facts testified to by the child. The court
held that the trial court erred in granting the motion prohibiting the testimony and, because the preclusion of the testimony was prejudicial to Appellee, the court affirmed the holding of the court of appeals vacating Appellee's conviction and remanding for a new trial.
H. Fines
State v. Gipson
80 Ohio St. 3d 626, 687 N.E.2d 750
Decided January 7, 1998
In October 1994, Appellee, Nathaniel Gipson (Gipson), was arrested for possession of two “rocks” of crack
cocaine. Gipson was indicted by the grand jury for possession of cocaine in violation of former Ohio Revised Code
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section 2925.11. At his arraignment, Gipson pled not guilty, was found to be indigent, and was assigned a public
defender. In March 1995, the jury returned it's verdict finding Gipson guilty as charged. At the July 10 sentencing
hearing, the trial court sentenced Gipson to a term of imprisonment and imposed the $1,500 mandatory fine required
by former Ohio Revised Code section R.C. 2925.11(E)(1). The trial court suspended the sentence and placed Gipson
on probation for four years and required that he satisfy the mandatory fine through either cash payments or community service. Gipson's attorney informed the court that an affidavit of indigence had been prepared for purposes of
avoiding payment of the fine.
The trial court instructed defense counsel that they could file the affidavit but it would not affect the sentence
imposed by the court. On July 26, Gipson filed a motion to abate the mandatory fine imposed by the trial court.
While the motion was pending, Gipson appealed his conviction and sentence to the court of appeals. On appeal, the
court of appeals reversed *228 the portion of the trial court's judgment which imposed the mandatory fine be satisfied as terms of Gipson's probation. The court of appeals affirmed the decision in all other respects. The cause went
before the supreme court pursuant to an allowance of discretionary appeal.
HELD: The trial court did not abuse its discretion or commit an error of law by imposing the mandatory fine
and requiring Gipson to satisfy that fine over the course of his probation. The supreme court looked to section
2925.11 which clearly required that a sentencing court shall impose a mandatory fine unless: (1) the offenders affidavit is filed prior to sentencing, and (2) the trial court nable to pay the mandatory fines. The supreme court found as
to part one that Gipson did not formally file with the clerk of courts until the trial court's journal entry had been
filed. As to part two, the supreme court held that the trial court's findings that Gipson was actively seeking employment, he managed to retain and pay for an attorney, and that he was an able bodied young man with some employment potential was not an abuse of discretion for ordering him to pay the fine or perform community service. Such a
determination of whether an offender is indigent can and should encompass future payments. For the foregoing reasons, the supreme court reversed the judgment of the court of appeals and reinstated the judgment of the trial court.
I. Homicide
State v. Green
81 Ohio St. 3d 100, 689 N.E.2d 556
Decided February 18, 1998
Defendant, Kenneth Green (Green), plead guilty toaggravated murder of two people. He waived his right to a
jury, electing to be tried by a three-judge panel in the Cuyahoga County Court of Common Pleas. During his hearing, the prosecution recited a statement of facts in order to formulate a factual basis for Green's expected guilty plea.
No witnesses were called and no testimony was taken. The court asked Green whether he killed the victims purposely and with prior calculation and design without defining or explaining the legal significance of these terms.
Green admitted that he had done so and pled guilty to both killings. Although the court accepted the plea, there was
no indication on the record that the judges examined witnesses, made a unanimous determination that Green was
guilty of aggravated murder, or considered the possibility that he may be guilty of a lesser offense. Additionally, the
court never made a finding that the killings were done with prior calculation and design, the essential element that
*229 separates aggravated murder from murder and renders defendant eligible for the death penalty. The trial court
sentenced Green to death on each count and the cause came before the supreme court upon an appeal as of right.
HELD: Trial courts must follow more stringent procedures in the acceptance of a guilty plea for aggravated
murder than they do for other felony charges. A three-judge panel is required to hear evidence to decide whether the
accused is guilty of aggravated murder beyond a reasonable doubt. The statement of facts by the prosecutor was not
evidence because the parties did not agree that this statement would be the sole evidence of aggravating circum-
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stances before the court. Also, the prosecutor's statement included material misrepresentations and gross inaccuracies. The supreme court held that because the judges accepted Green's guilty plea without taking any evidence,
without any recorded deliberation or determination by the panel as to appropriateness of the charge, and without any
finding on the record that aggravated murder had been proven beyond a reasonable doubt, there was no valid conviction and Green's sentence was therefore void. The sentence was reversed and the case was remanded to the Cuyahoga County Court of Common Pleas for new trial.
State v. Keenan
81 Ohio St. 3d 133, 689 N.E.2d 929
Decided February 25, 1998
Appellant, Thomas Michael Keenan (Keenan) was convicted of the aggravated murder of Anthony Klann
(Klann) and sentenced to death. The supreme court reversed Keenan's convictions because of prosecutorial misconduct. On remand to the common pleas court, Keenan was retried, found guilty and sentenced to death. That decision
was affirmed by the court of appeals. The case came before the supreme court on an appeal as of right.
HELD: In light of a weighing of the sentence against mitigating factors and sentences imposed in similar cases,
the convictions and sentence were appropriate. Keenan's first argument was that he was denied his constitutional
right to counsel of his choice, when the trial judge replaced his counsel with court appointed counsel. The trial
judge made the replacement on conflict-of-interest grounds. Given that Keenan's chosen counsel had represented a
co-defendant in previous litigation stemming from the same set of facts, there was a potential conflict of interest. A
trial judge has wide latitude in deciding if an actual or potential conflict exists, and either is sufficient to warrant a
change in counsel. Thus, the trial court judge did not *230 abuse his broad discretion in this matter. Keenan also
argued that he was deprived his constitutional right to represent himself. The trial court granted his motion to be
allowed to act as co-counsel; however Keenan argued that the court's denial of his request to argue to the jury meant
that his constitutional right was denied. In making his motion to be co-counsel, Keenan affirmatively stated that he
did not want permission to argue to the jury. This affirmative statement acted as a waiver of that right. Additionally,
he requested specifically that he be co-counsel and there is no right to hybrid representation of the sort suggested by
Keenan. Keenan further argued that the trial court should have included a murder instruction. However, divergent
stories were presented during the trial, and therefore a murder instruction could not properly have been given. To do
so would have incorrectly invited the jury to reach a compromise verdict not sustainable on the facts given. Further
arguments by Keenan were rejected by the supreme court, and in its independent review, the court concluded that
the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt. Therefore, the
supreme court held that the conviction was correct and the sentence of death appropriate. The court affirmed the
decision of the court of appeals.
State v. Spivey
81 Ohio St. 3d 405, 692 N.E.2d 151
Decided April 22, 1998
Defendant, Warren Spivey, was accused of breaking into the victim's house, stabbing and beating her to death,
then robbing her and fleeing the scene in her automobile. Defendant waived his right to trial by jury and elected to
be tried by a three-judge panel. Defendant first pled not guilty by reason of insanity. Later, Defendant pled no contest to the convictions of aggravated murder, aggravated robbery and aggravated burglary. During the penalty phase,
Defendant tried to withdraw his plea of no contest in light of newly discovered evidence that DNA testing had
proven that the blood on his clothes was not the victim's blood. The three-judge panel unanimously found him guilty
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of all three counts and sentenced him to death. The court of appeals affirmed the trial court's decision. This cause
came before the supreme court on an appeal as of right.
HELD: The trial court did not err in accepting Defendant's waiver of jury in that it specifically found that Defendant's waiver was voluntarily made with full knowledge of the consequences thereof. The trial court did not err in
finding Defendant competent to stand trial in that the dialogue between Defendant and the panel was adequate to
ensure that he knew the *231 consequences of his pleas and that they were knowingly, intelligently and voluntarily
made. The trial court did not err in denying Defendant's request to withdraw his plea of no contest because a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing and the decision to accept or deny
is within the sound discretion of the trial court. Here, the newly discovered evidence was not the sole identifying
piece of evidence linking the Defendant to the crime. The Defendant was not deprived of effective assistance of
counsel at trial because the decision to plea no contest was a tactical decision that was both reasonable and practical
in light of the evidence. The supreme court held that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and affirmed the judgment of the court of appeals.
J. Indigents
State of Ohio v. Mason
82 Ohio St. 3d 144; 694 N.E.2d 932
Decided June 17, 1998
Appellant, Maurice Mason, (Mason), was convicted of aggravated felony murder, rape, and having a weapon
while under disability in connection with the murder of Robin Dennis (Dennis). The evidence against Mason was
overwhelming. The evidence included a DNA match between Mason and material on the victim's panties, a DNA
match with material taken from the victim's vagina, Mason's keys were found in the victim's abandoned vehicle,
eyewitness testimony which linked Mason to the crime scene, the weapon used to commit the crime was similar to a
weapon which Mason had gained possession of the day of the crime, and traces of the victim's blood were found on
Mason's shoes. Mason was found guilty of the death-penalty specification of committing murder in the course of
rape. The jury returned a recommendation that he be sentenced to death, and this recommendation was accepted by
the trial court. The court of appeals affirmed the trial court's sentence and this case was before the supreme court as
an appeal of right.
HELD: The court held that due process, as guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution and article I, section 16 of the Ohio Constitution required that an indigent criminal be afforded
expert assistance at the expense of the state only when the defendant can make a showing of a reasonable probability
that the requested expert would aid in his defense and that denial of the request would result in an unfair trial. Mason's requests for a number of different types of *232 experts failed because he was unable to make a particularized
showing of need. Next, the court held that a court, in determining whether a pre-trail statement is involuntary must
consider the totality of the circumstances, which included age, mental state, and prior criminal experience of the
defendant; the duration and intensity of the interrogation; evidence of physical mistreatment of the accused during
the interrogation; and existence of threat or inducement. Mason's statements which were used at trial were volunteered by him in an interrogations which in no way operated to deprive him of any rights; therefore, under the totality of circumstances test Mason failed to carry the burden of proving that his statements were involuntary. All other
appeals raised by Mason failed because they were not preserved by objections at trial. The supreme court affirmed
the judgment of the court of appeals on all issues.
K. Mandamus
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State ex rel. Thomas v. Ghee
81 Ohio St. 3d 191, 690 N.E.2d 6
Decided March 4, 1998
While on parole, Charles Thomas (Thomas), Appellant, was arrested and a detainer was filed. His parole was
revoked following a hearing. Appellee filed a motion for a writ of mandamus in the Court of Appeals for Franklin
County. He sought to compel Appellees, Margarette T. Ghee (Ghee), the Ohio Parole Board Chair, and the Adult
Parole Authority (Authority),to cancel, terminate, expunge, and remove the detainer. After Appellees answered and
filed a motion for judgment on the pleadings, the court of appeals ordered both parties to file briefs and evidentiary
statements by May 1997. Prior to the deadline, Appellees moved to stay the court order of May 1997 until the court
decided their motion for judgment on the pleadings. The motion for the stay was granted. After the deadline passed,
Appellant moved for a default judgment because of the Appellee's failure to comply by May 1997. The court of appeals granted Appellee's motion for judgment on the pleadings in August 1997, and denied the Appellant's motion
for default judgment and the writ. Subsequently, Appellant made a motion to amend his pleadings, which the court
of appeals denied. The case is before the court upon an appeal of right.
HELD: The court held that the court of appeals correctly found that Thomas was not entitled to a writ of mandamus to compel the removal of the detainer. The removal of the detainer would be meaningless. The court found
that detainers could be issued on the basis of hearsay. The court held *233 that the court of appeals did not base its
decision on the in forma pauperis filing requirements for an inmate filing a civil action as set forth in the Ohio Revised Code sections 2969.21 to 2969.27. Therefore, the court did not need to decide the applicability of the sections.
The court held that Appellant was not entitled to a default judgment because Appellees were granted a stay. The
court of appeals did not abuse its discretion in denying his motion to amend his pleading. The cod a petition for a
writ of man-damus and not a motion. The court of appeal's judgement was affirmed.
L. Pleas
State v. Bird
81 Ohio St. 3d 582, N.E.2d 1013
Decided May 6, 1998
On October 12, 1993, Appellant, Jimmy L. Bird (Bird), was indicted for one count of felonious assault with a
deadly weapon. Bird, who was infected with human immune deficiency (HIV) spat on a police officer's face. Bird
entered a plea of no contest on January 7, 1994. The trial court imposed the minimum term of incarceration of three
to fifteen years, but granted a motion for super shock probation. Bird subsequently violated his probation and such
probation was therefore revoked. After his probation was revoked, Bird filed a delayed appeal challenging the trial
courts acceptance of his no contest plea and the effectiveness of his attorney. In December 1996, the court of appeals
affirmed Bird's conviction.
HELD: The supreme court held that by pleading no contest to the indictment, Bird was foreclosed from challenging the factual merits of the underlying charge. According to Ohio Criminal Rule 11(B)(2) a no contest plea is
not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment. Therefore, where the indictment contained sufficient allegations to state the felony offense and Bird pleaded no contest,
the trial court was correct in finding Bird guilty of the charged offense.
To prove that his counsel was ineffective, Bird had to show that his counsel's performance was deficient and
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that there was a reasonable probability that, but for his counsel's errors, he would not have entered the plea. The supreme court stated that due to the inherent difficulties in making the first determination, they had to presume that the
challenged action might be considered sound trial strategy. The supreme court held that Bird's defense counsel was
taking affirmative steps to develop a defense and it was possible that a plea bargain was the best trial tactic in the
case. *234 Therefore, Bird was not denied the effective assistance of counsel in the case. Accordingly, the supreme
court affirmed the judgment of the court of appeals.
M. Prisons
State v. Zucal
82 Ohio St. 3d 215, 694 N.E.2d 1341
Decided June 24, 1998
Appellant, Diane L. Zuchal, was convicted on March 14, 1990, for driving under the influence of alcohol. Appellant was sentenced to jail for ten consecutive days under former Ohio Revised Code section 4511.99(A)(2).
Zuchal reported to the jail but was temporarily released because the Stark County Jail was overcrowded. The appellant continued to appear at the jail every time she was ordered, however, each time she was released. Appellant filed
a motion to vacate her sentence on May 6, 1996, due to the long delay in serving her incarceration. The municipal
court modified Appellant's original sentence to five days of incarceration and eighteen days of house arrest. The
municipal court denied Appellant's motion to vacate sentence and the court of appeals affirmed. The cause went
before the supreme court for a discretionary appeal.
HELD: The supreme court agreed with the Appellant that Ohio Revised Code section 2951.07 which limits the
length of time for probation should also apply to any long delays in the commencement of a jail sentence. A delay
longer than five years was found to be unreasonable. The court held that a conviction sentence that is not executed
within five years due to jail overcrowding is to be vacated. The supreme court reversed the court of appeals and vacated the sentence.
N. Rape
State v Stowers
81 Ohio St. 3d 260, 6910 N.E.2d 881
Decided March 18, 1998
Appellant, James Stowers, was convicted of four counts of rape. The alleged victims were his own children who
testified at his trial. Some of the children changed their stories between initial questioning and trial. A clinical psychologist, Dr. Robin Tener, was allowed to testify that the behavior of the children in changing their stories was
consistent with the *235 behavior of sexually abused children. The court of appeals affirmed the conviction, but
certified a conflict with the decision of Court of Appeals for the Twelfth District in State v. Givens, No CA92-02015, (Warren App. 1992) (unreported), and State v. Yarber, 102 Ohio App. 3d 185, 656 N.E.2d 1322 on the issue of
whether a trial court erred in permitting an expert witness to testify the behavior of an alleged child-victim of sexual
abuse is consistent with the behavior of children who have been sexually abused, because this impermissibly conveys to the jury the expert's belief the child was actually abused. The case then went before the supreme court on the
determination that a conflict existed.
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HELD: The testimony that the alleged child victim's behavior was consistent with the behavior observed in
sexually abused children is admissible under the Ohio Rules of Evidence and the trial court did abuse its discretion
in admitting it. The court held that it is permissible under Ohio Rules of Evidence 704 for an expert to convey this
type of belief to the jury. The court relied on State v. Boston, 46 Ohio St. 3d 108, 545 N.E.2d 1220 (1989) to support
the rule that expert testimony was admissible when it provided additional support for the truth of the facts testified to
by the child, or which assisted the trier of fact in assessing the child's veracity. The judgment of the court of appeals
was affirmed.
O. Sentencing
State v. Mitts
81 Ohio St. 3d 223, 690 N.E.2d 522
Decided March 11, 1998
Harry D. Mitts (Mitts) shot and killed Sergeant Dennis Glivar and John Bryant and injured Lieutenant Thomas
Kaiser and Officer John Mackey in a standoff outside of his apartment. The trial court sentenced Mitts to death for
the aggravated murders and to terms of imprisonment for the attempted murders, despite Mitts's attestation that he
was too intoxicated to form the required intent to kill. Mitts advanced eleven propositions of law on appeal. The
court of appeals affirmed the conviction and sentences. The case came before the supreme court upon an appeal as
of right.
HELD: The supreme court held that the trial court erred by not sepa-rately weighing the aggravating circumstances in each count of aggravated murder and by incorrectly stating that no mitigating factors existed when in fact
they did exist. The court held reversal was not required despite the errors because the court of appeals had properly
noted the defects and had *236 determined after correct analysis that the death penalty was appropriate. The court
independently weighed the aggravating circumstances against the mitigating factors as outlined in the Ohio Revised
Code section 2929.05. The court held the aggravating circumstances did in fact outweigh any mitigating factors in
each murder and that the death penalty was appropriate and proportionate when compared to similar capital cases
involving the murder of a peace officer. Subsequently, the supreme court affirmed the convictions and the issuance
of the death penalty.
P. Speedy Trial
State v. Selvage
81 Ohio St. 3d 465, 687 N.E.2d 433
Decided Dec. 31, 1997
In March of 1994, Appellee Tina R. Selvage (Selvage) allegedly made two sales of marijuana to undercover
police officers. Police filed a criminal complaint against Selvage on June 7, 1994. Ten months later, Selvage was
indicted on felony charges stemming from the alleged March 1994 sale of marijuana. On July 6, 1995 Selvage filed
a motion to dismiss the charges claiming the ten month delay was a violation of her Sixth Amendment right to a
speedy trial. Appellants argued that because Selvage was indicted within the statutory period of limitations for
commencing a criminal pro-secution there was no violation of her right to a speedy trial. The trial court granted Selvage's motion citing the excessive delay and a finding of pre-judice as controlling. The court of appeals affirmed and
the case came before the supreme court pursuant to the allowance of a discretionary appeal.
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HELD: The statutory periods of limitation are not relevant to a determination whether an individual's constitutional right to a speedy trial has been violated by an unjustified delay in prosecution. The court held the six year
statute of limitations to bring a claim is not a minimum amount of time which must run before prejudicial delay occurs. The court followed the reasoning set out in Doggett v. United States, 505 U.S. 647 (1992), which stated that
courts have generally found post-accusation delay presumptively prejudicial as it approaches one year. The court
held that Selvage was prejudiced by her own forgetfulness of the events, and the State's lack of reasonable diligence
in pursuing prosecution. The trial court did not abuse its discretion in determining Selvage was deprived of her Sixth
Amendment right to a speedy trial. Accordingly, the decision of the court of appeals was affirmed.
*237 Q. Transcripts
State ex rel. Grove v. Nadel
81 Ohio St. 3d 325, 691 N.E.2d 275
Decided April 1, 1998
In 1985, Appellant, Mark Earl Grove, (Grove), was properly convicted of aggravated murder and sentenced
accordingly. Grove appealed the judgment and the court of appeals affirmed his conviction. In September 1996,
Grove's petition for postconviction relief in the common pleas court was denied. After Grove appealed this denial,
he requested a complete transcript of his criminal trial at state expense. This request was denied on January 16, 1997
by Appellee, Hamilton County Court of Common Pleas Judge Norbert A. Nadel (Nadel). Grove moved for findings
of fact, conclusions of law, and journalization of Nadel's order. This motion was again refused by Nadel. In April
1997, Grove filed a complaint in the court of appeals for a writ of procedendo to compel Nadel to issue findings of
fact and conclusions of law and to journalize his January 1997 decision. The court of appeals granted Nadel's motion
and dismissed Grove's complaint. This case was before the court upon an appeal as of right.
HELD: The court held that the court of appeals properly dismissed Grove's first claim for a writ of procedendo
to compel Judge Nadel to issue findings of fact and conclusions of law on the denial of his motion for transcript.
Grove was not entitled to such findings and upon that finding Judge Nadel was relieved of any further actions. The
supreme court held, however, that the court of appeals erred in denying Grove's claim concerning journalization of
the January 1997 decision. According to rules of the court, such an entry must be journalized within thirty days following the decision. If the court failed to make such journalization, then either party had the right to request the
court to enter its judgment. Since this request was refused, Grove had the right to compel the court through a writ of
procedendo. The supreme court reversed the judgment of the court of appeals dismissing Grove's procedendo claim
for journalization and remanded that portion to the coremainder of the judgment of the court of appeals.
*238 State of Ohio v. White
82 Ohio St. 3d 16, 693 N.E.2d 772
Decided May 20, 1998
Appellant, Maxwell D. White, Jr. (White) was convicted of aggravated murder with death penalty specifications
under Ohio Revised Code section 2929.04(A)(6) (killing a peace officer) and Ohio Revised Code section
2929.04(A)(3) (offense committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense). On the night of January 18, 1996, White, in a fit of rage tied his mother and sister to a pole in his
condominium, shot and wounded his mother, and then fled the scene. While heading north on I-71 White was pulled
over by the victim, Trooper Gross (Gross). As Gross approached White's vehicle White fired a shot at him. Gross
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attempted to flea, but White leaned out of his vehicle and shot Gross in the back, killing him. This was witnessed by
several commuters on the highway. At trial, White confessed to his crimes, and the jury returned the verdict discussed above. White was recommended for and sentenced to the death penalty. White filed an appeal with the court
of appeals which was dismissed for want of jurisdiction. He also filed an appeal directly to the supreme court. The
two appeals were consolidated and were before the court upon an appeal as of right and a claimed appeal as of right.
HELD: Fifteen issues of law were before the court, but only a few were addressed as the others were not properly reserved for appeal at trial. First, the court held that, in cases of widespread publicity, the fact that a prospective
juror had been exposed to such publicity did not, in and of itself, demonstrate prejudice. Statements by said juror
that she would obey the law and the court's instructions were enough to defeat an inference of prejudice. Next, the
court held that even though the trial was videotaped, a written transcript of the trial was all that was required to be
given to White under the Ohio Constitution, article I, section 16. Also, the court held that the decision to instruct the
jury on intoxication rested within the sound discretion of the trial judge. The supreme court affirmed the decision of
the trial court and affirmed the court of appeal's dismissal of appeal.
*239 II. CIVIL RIGHTS
A. Prisons
State ex rel. Iacavone v. Kaminski
81 Ohio St. 3d 189, 690 N.E.2d 4
Decided March 4, 1998
Appellant, Orsino Iacovone (Iacovone), filed a complaint for a writ of mandamus in the court of appeals seeking
to compel Geuga County Clerk of Courts, Denise M. Kaminski (Kaminski) to mail or otherwise forward to him copies of the indictment, docket statement, journal entry, and trial manuscript of his criminal case. Iacavone alleged the
records were necessary for him to pursue post-appeal remedies and that he was unable to personally appear to pick
up the records due to his incarceration. The court of appeals granted Kaminski's Ohio Civil Rule 12(b)(6) motion
and dismissed Iacavone's complaint. The case came before the supreme court upon an appeal as of right.
HELD: Kaminski did not have a clear legal duty to transmit by mail copies of the requested records to Iacavone
in prison. Iacavone did not allege in his complaint that he was denied access to a free copy of his records, just that he
could not pick them up due to his incarceration, nor did he allege that he was unable to have a designee inspect and
copy the records for him. The court held Iacavone failed to specify facts supporting his claim of an unconstitutional
denial of access. The decision of the court of appeals was affirmed.
III. EDUCATION
A. Administrators
State ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn.
81 Ohio St. 3d 283, 690 N.E. 2d 1273
Decided March 25, 1998
Michael McGinty (McGinty) was employed by the Cleveland City School District Board of Education (Board).
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McGinty was the manager in charge of technical support which was classified him as an Ohio Revised Code section
3319.02 as “other administrator.” McGinty held this position from 1982 until 1993. During the school years starting
in 1987 to 1991, there was no written employmentcontract between McGinty and the Board. *240 In March of 1992,
the Board sent McGinty a letter which said they would treat him as though he had a contract that expired at the end
of the current school year. In October of 1992, the Board executed a one year written contract for the 1992-1993
school year. In March 1993, the Board told McGinty that they would not be renewing his contract for the upcoming
school year. McGinty filed a complaint in the Court of Appeals for Cuyahoga County seeking a writ of mandamus
to make the Board execute contracts for the 1992-1994 school years and the 1994-1996 school years. The court of
appeals denied the writ. McGinty appealed to the supreme court as a matter of right.
HELD: The court held that McGinty has no legal right to employment by the Board. Section 3319.02, effective
in 1987, mandates that the Board provide certain employees, such as McGinty, with written employment contracts.
The minimum length of the contract for someone who has been employed for more than three years is two years.
Since the Board never provided McGinty with a written contract, he was employed pursuant to an implied employment contract. The court found that the first implied contract occurred in 1987-1989, followed by contracts in 19891991 and 1991-1993. Therefore their notice of non-renewal was properly given because it was at the end of the contract as required by section 3319.02. The supreme court affirmed the judgement of the court of appeals.
B. Finance
State v. Franklin County Ct. of Common Pleas
81 Ohio St. 3d 480, 692 N.E.2d 560
Decided April 3, 1998
On February 17, 1998, the General Assembly enacted Am.Sub.H.B. No. 697, which would impose sales, storage, use, consumption and service taxes, with half of the tax proceeds to go to school use. The legislation was
passed subject to the approval of the majority of the state's electors, who would vote on May 5, 1998. On February
19, 1998, Respondent David P. Zanotti (Zanotti), filed a complaint against Secretary of State Bob Taft (Taft) in the
Franklin County Common Pleas Court. Zanotti requested that the common pleas court find Am.Sub.H.B. No. 697
unconstitutional and enjoin Taft from submitting the proposal to the electorate. Zanotti claimed that the legislation
violated article II of the Ohio Constitution by conditioning effectiveness on electoral approval. The case came before
the supreme court when it granted Taft's request that the case be transferred from the common pleas court.
*241 HELD: There is a strong presumption of constitutionality of the legislation, and because Zanotti did not
meet his burden of overcoming that presumption, the legislation was constitutional. The supreme court based it decision on the premise that where possible, provisions claimed to be unconstitutional are to be liberally construed to
overcome problems. Article II, section 26 states that only the General Assembly has authority to approve legislation,
but the section also makes an exception for public schools. Because the legislation in question addressed funding for
public schools, the legislation therefore fit into the exception of section 26. Zanotti argued that the exception for
public schools should only apply when the alternative authority for the General Assembly was localin nature and not
statewide. The supreme court rejected that argument because it was improper for the court to go beyond the plain
language of the text, or to insert words omitted by the drafters. Zanotti further argued that article II, section 1d says
that laws providing for tax levies must take immediate effect, and thus the proposed election violated that provision.
The supreme court found that the legislation here was only related to tax levies, and therefore section 1d did not
apply. Therefore, because Zanotti did not overcome the presumption of constitutionality, the supreme court found
Am.Sub.H.B. No. 697 constitutional, and entered judgment accordingly.
C. Labor and Employment
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Fort Frye Teachers Ass'n v. State Employment Relations Board
81 Ohio St. 3d 392, 692 N.E.2d 140
Decided April 22, 1998
Appellee, Michael Rauch, (Rauch), was a teacher with Appellant Fort Frye Local School District Board of Education (School Board), and a member of Appellee Fort Frye Teachers Association (Union). In October 1987, Rauch
joined a labor strike by the Union as co-captain of the picket line. During the strike, many teachers crossed the
picket line and continued teaching. The strike ended and all teachers returned to work. The striking teachers bore a
resentment towards the non-striking teachers which was advanced by an unwritten policy among the striking teachers to ostracize the non-striking teachers. Several complaints were issued with the School Board concerning Rauch's
conduct towards other teachers and students. Rauch's contract was up for renewal, and was denied. The Union filed
an unfair labor practice (ULP) charge against the School Board with Appellant State Employment Relations Board
(SERB) on Rauch's behalf. SERB found in favor of the School Board. This decision was appealed to the common
pleas court, and a subsequent claim was filed by Rauch in federal *242 court alleging violation of his constitutional
right of freedom of association. The federal court returned a verdict in Rauch's favor, and the School Board's appeal
was dismissed. The state action proceeded and the court of common pleas upheld SERB's decision. An appeal was
filed and the court of appeals reversed and remanded to SERB for it to consider the case under the recent decision in
State Employment Relations Bd. v. Adena Local School District Bd. of Educ., 66 Ohio St. 3d 485 (1993), SERB
held that there was still no ULP, the court of common pleas affirmed, and the court of appeals reversed and remanded because the School Board was collaterally estopped by the federal verdict to contest issues of motivation.
This case went before the supreme court pursuant to the allowance of discretionary appeals and a cross appeal.
HELD: The court held that the School Board was estopped from raising the issue of motivation because the
federal jury had found that the decision was based on illegal motivations. There was privity of parties to the suits
because the real parties, the School Board and Rauch, remained the same. Furthermore, the same evidence was used
to prove the underlying facts in both cases and the doctrine of collateral estoppel, therefore, was applicable. The
Appellants claimed that collateral estopped did not apply to administrative agencies,but this claim was rejected as
being without merit. The supreme court affirmed the judgment of the court of appeals of whether a ULP did in fact
occur.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Educ.
82 Ohio St. 3d 222, 694 N.E.2d 1346
Decided June 24, 1998
From September 1, 1990 through August 31, 1993, Appellants, former bus drivers and mechanics for Springfield Local School District Board of Education (Board), were subject to a collective bargainingagreement between
their local union and the Board. At the expiration of the collective bargaining agreement, no new agreement had
been reached and neither party asked for an extension of the expiration date of the agreement. On September 13,
1993, the Board authorized the superintendent of the school district to enter into a transportation contract with a private bus service. Appellants then initiated this action alleging statutory violations in connection with termination of
their contracts, and seeking mandamus relief in the form of reinstatement, back pay and benefits, and recognition of
their contracts. The court of appeals granted summary judgment in favor of Respondent and denied Appellants a
writ of mandamus. The case came before the supreme court on appeal as of right.
*243 HELD: State statute provides that after three years of full-time employment, a non-teaching school em-
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ployee is deemed to be employed pursuant to a continuing contract. This statute gave job security to Appellants by
providing for termination of employment contracts only for the express enumerated reasons set forth in the statute,
or for any other acts of misfeasance, malfeasance or nonfeasance. The statute did not authorize layoffs. The supreme
court held that Appellants had a clear legal right to continued employment pursuant to state statute. The judgment
was reversed and remanded to the Court of Appeals for Summit County.
D. Standards and Competency
State v. Ohio Dep't of Educ.
81 Ohio St. 3d 527, 692 N.E.2d 596
Decided April 29, 1998
In 1995, Plaintiff Hollie Rea (Rea) took the Twelfth Grade Ohio Proficiency Test(OPT) and the Ohio Vocational Competency Assessment (OVCA), developed by the respondents Ohio Department of Education (ODE) and
the Ohio State University (OSU). Rea and her father requested permission to view portions of both examinations,
but were denied permission until they agreed to sign a nondisclosure agreement. Plaintiffs refused and brought an
action for mandamus in the Ohio Supreme Court.
HELD: The court held that the OPT and OVCA were subject to the public disclosure requirements of Ohio Revised Code section 149.43. The court began its analysis by noting that the examinations were owned, developed and
maintained by the ODE and OSU, and thus were public records subject to release unless they fit within one of the
exceptions to the release rule. The court noted that the Work Keys portion of the OVCA, which was developed and
owned by ACT, was not a public record.
The court rejected a number of exception arguments advanced by Respondents. First, the court determined that
disclosure did not violate Ohio Revised Code section 3319.151, which prohibits assisting a student in cheating on a
proficiency test. The court held that this exception was ineffective, since no two proficiency tests were the same.
The court also rejected the argument that the tests were a protected trade secret, noting that it doubted whether a
public office could even protect trade secrets. The court held that the tests were released into the public domain
when they were created to evaluate students in accordance with state and federal requirements.
Further, the court held that the tests fell within the fair use exception *244 of the federal copyright laws. The
court also rejected the argument asserting that public universities were entitled to the products of their research and
an argument stating that the tests were protected by an intellectual property exception to the Public Records Act.
The cocitizens, the examinations should be exposed to public scrutiny. The court granted the writ of mandamus
in part and ordered disclosure of the requested examinations.
E. School Funding
State ex rel. Taft v. Franklin County Court of Common Pleas
81 Ohio St. 3d 1244, 691 N.E.2d 677
Decided March 12, 1998
In DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997), the supreme court found the existing system of
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funding Ohio schools to be unconstitutional, ordered the state to establish and implement a new school funding system, and remanded the cause to the trial court with directions to take such action as might be necessary to ensure
conformity with the court's opinion. The majority opinion noted that the trial court was authorized to petition the
supreme court for guidance as needed. Shortly after the decision was rendered, the court was asked to reconsider its
remand of the cause to the trial court. The question asked was, “Should [the supreme court] retain exclusive jurisdiction of the case to review all remedial legislation enacted in response to the court's decision?” The majority answered this question in the negative. It stated that remand to the trial court would provide proper venue for the presentation of evidence concerning the final remedy. It also mandated that any appeal from a trial court decision would
proceed directly to the supreme court rather than by way of intermediate review by the court of appeals.
The supreme court did not relinquish its total jurisdiction of the cause, but rather established a jurisdictional
partnership in which the trial court would act in accordance with a trial court's traditional role. The supreme court
would be available to provide guidance on legal, rather than factual, issues. The supreme court recognized itself to
be the ultimate arbiter of constitutional challenges that might arise.
The state argued for an issuance of a writ of prohibition in this cause to preclude the Franklin County Court of
Common Pleas (Respondents) from proceeding in the case of Zanotti v. Taft and a writ of mandamus to order consolidation of that case with DeRolph.
HELD: The request for expedited review and the motions for leave to *245 intervene were granted. The challenge brought by Zanotti are intertwined with the court's decision in DeRolph, and the Zanotti claim involves the
same issues as in DeRolph. The motion to dismiss was denied. Respondents shall not proceed further in the case
Zanotti v. Taft. The supreme court reasserted its continuing jurisdiction over DeRolph v. State and resolved any
election related challenge to the May 5, 1998 election that may affect its decision in DeRolph v. State. Time is of the
essence in this cause, and no legal remedy exists other than prompt resolution by the court of the issues raised. A
writ of mandamus directing the respondents to transfer the case Zanotti v. Taft to the supreme court was granted.
The court also issued a briefing schedule for presentation of evidence and filing of briefs. The court denied oral argument.
IV. ESTATE PLANNING AND PROBATE
A. Claims
In re Estate of Baughman
81 Ohio St. 3d 302, 691 N.E. 2d 257
Decided April 1, 1998
The Provident Bank (Provident) loaned Riverport Enterprises, Inc. (Riverport) $7,200,000. One condition of the
loan was the execution of a promissory note by the deceased Micheal E. Baughman (Baughman). Baughman's liability on the note was $1,800,000. When Baughman died Albert D. Cash (Cash) was appointed executor of
Baughman's estate. In November of 1992, Cash, along with the other investors in the Riverport loan executed an
addendum to the original promissory note which reduced the Baughman estate's liability to $1,650,000. On March
10, 1994, Provident sent a letter to Cash stating that the loan was in default and that if payments weren't made
promptly by the borrower the letter would constitute a demand for full payment of the loan. On March 21, 1994,
Provident sent another letter stating that since payments hadn't been made they were demanding the full $1,650,000.
A couple of months later, Provident sent another letter demanding payment in full. Cash did not respond to any of
these letters. Provident filed a petition for payment in the Probate Division of the Warren County Court of Common
Pleas. The probate court dismissed Provident's petition because it did not have subject matter jurisdiction due to the
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fact that Provident's claim had been rejected by silence. Provident appealed to the court of appeals, which held that
Cash had not effectively rejected the claim by silence and thus reversed. Cash appealed to the supreme court pursuant to the allowance of a discretionary appeal.
*246 HELD: Cash did not reject Provident's claim by silence. Normally a rejection of a claim must be in writing. Ohio Revised Code section 2117.11 provides for an exception. Section 2117.11 allows a creditor to make a
claim in writing, and if that claim is not responded to in five days the creditor may bring suit in the court of common
pleas. The supreme court held, however, that the creditor must at least refer to section 2117.11 and the five day period in hovident did not mention section 2117.11 in its letters, there was no rejection by silence and they must make
their claim in probate court. The supreme court affirmed the judgement of the court of appeals.
V. FAMILY LAW
A. Juvenile Justice
In re Washington
81 Ohio St. 3d 337, 691 N.E. 2d 285
Decided April 1, 1998
Patrick Washington (Washington), with a group of other youths, planned and rehearsed a robbery of a taxicab
that would occur later that day. The plan was to get in the cab and scare the driver with a gun and then search the
cab for money. The youths called a cab and when the cab arrived the group got in and proceeded to their destination. When they arrived, Watkins, one of the group, displayed the gun and demanded the cab drivers money. When
the driver saw the gun, he tried to put the cab in gear, at which point Watkins shot him. Washington was adjudicated
delinquent as an aider and abettor,, to aggravated murder, and aggravated robbery. The court of appeals reversed the
adjudication of delinquency for aggravated murder finding that there was not sufficient evidence to infer that Washington had the requisite intent for aggravated murder. The State appealed to the supreme court pursuant to the allowance of a discretionary appeal.
HELD: There was sufficient evidence to find Washington delinquent for aggravated murder. The supreme court
said that Ohio Revised Code section 2903.01 allows for intent to be proven by inference. The fact finder may even
base its determination of intent solely on inference. The fact finder must, however, consider all the evidence going
towards intent. Since Washington engaged in a common scheme to commit a felony, the supreme court found there
was sufficient evidence to uphold a finding of intent. The supreme court reversed the judgement of the court of appeals and reinstated the determination of the trial court.
*247 State v. Golphin
81 Ohio St. 3d 543, 692 N.E.2d 608
Decided April 29, 1998
In October 1994, Appellant Tommie Golphin (Golphin), then aged seventeen, was charged with juvenile delinquency. The charge followed the shooting of Clinton Butler. The juvenile court found probable cause and conducted
a full investigation. On January 18, 1995, the juvenile court held an amenability hearing pursuant to Ohio Revised
Code section 2151.26 and Juvenile Procedure Rule 30. The state gave evidence of Golphin's mental condition, but
did not conduct a physical examination, to which Golphin's counsel specifically objected. On January 25, 1995, the
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juvenile court entered an order to transfer jurisdiction to the general division of the court of common pleas. Golphin
was tried as an adult, found guilty and sentenced to eighteen years to life in an adult prison. Effective January 1,
1996, the statutes in question were amended to eliminate all reference to the need for a physical examination. The
court of appeals found that the lack of physical examination meant that jurisdiction had not been properly transferred
by the juvenile court, and it therefore reversed and remanded. The case came before the supreme court pursuant to
the allowance of a discretionary appeal.
HELD: By failing to carry out an express act required by statute, the juvenile court did not successfully relinquish jurisdiction. Section 2151.26 requires that a physical and mental examination be conducted so that the court
can determine properly if the defendant is not amenable to rehabilitation in a facility for delinquent children. Rule
30(f) states that a court shall consider age, mental and physical condition before deciding if a defendant should not
be tried in the juvenile system. The supreme court found that shall indicates a mandatory obligation unless there is
language to the contrary. Therefore, the conduction of a physical examination was a mandatory obligation. Although
the juvenile court possessed some discretion when relinquishing jurisdiction, this did not give it the abilts. Despite
the fact that the amended statutes represented legislative intent to dispense with the need for a physical examination,
those statutes were not in effect at the time of Golphin's hearing, and should not be applied retroactively. Thus, the
supreme court held that the juvenile court did not successfully relinquish jurisdiction, and affirmed the decision of
the appellate court.
*248 B. Parent and Child
State of Ohio v. Flontek
82 Ohio St. 3d, 693 N.E.2d 767
Decided May 20, 1998
Appellee, Lenore F. Flontek, lived with her mother, Rosella Flontek. Appellee used her own money to pay all of
the household expenses, including the purchase of food for Rosella. Rosella died on March 26, 1995. Appellee testified that she had urged her mother on numerous occasions to see a doctor due to her failing health, but Rosella refused to go. Appellee testified that her mother had never complained of being in any type of discomfort or pain. She
also testified that Rosella had been feeling poorly for several days before her death. On the morning of Rosella's
death, Appellee helped her out of bed and into the bathroom. When Appellee returned to the bathroom, she found
her mother sitting on the toilet with her head back and eyes open. Appellee summoned a neighbor for help and
called 911.
The autopsy showed that Rosella had severe medical problems. The coroner noted bruises and decubitis ulcers
on Rosella's body, gangrenous tissue on her buttocks and perineum region. Rosella's death was a result of “pneumonia...due to gangrenous necrosis of skin...due to gross neglect.”
Appellee was indicted by a Lorain County Grand Jury on one count of involuntary manslaughter and one count
of nonsupport of a dependent. The trial court found Appellee guilty on both counts and sentenced her to a prison
term of two to ten years for the manslaughter conviction and six months for the nonsupport. Appellee was ordered to
pay a fine of $500 for her nonsupport conviction.
Appellee appealed to the Court of Appeals for Lorain County. The appeals court reversed her convictions, finding that Appellee had been improperly prosecuted under Ohio Revised Code section 2919.21(A)(3). The court determined that this section required only that an adult child provide adequate financial support for his or her dependent parent and that evidence of lack of medical attention or care for the parent is not enough, by itself, to sustain a
conviction under the statute. The court of appeals also reversed the manslaughter charge. The court found its judg-
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ment to be in conflict with the judgment of the Twelfth Appellate District in State v. Holden, 72 Ohio App. 3d 374,
594 N.E.2d 981 (1991), and entered an order certifying a conflict. This case was before the Supreme Court of Ohio
because it determined that a conflict existed.
*249 HELD: The term “support” as used in section 2917.21(A)(3) applies only to financial support for a dependent parent. The evidence showed that Appellee provided adequate financial support for Rosella. The legislative
history of section 2919.21(A)(3) states that the section “deals only with nonsupport and contains no elements of neglect or abuse.” Elements of neglect and abuse are dealt with in Ohio Revised Code section 2919.22. The supreme
court affirmed the judgment of the court of appeals and ordered that the charges against Appellee be dismissed.
C. Settlements
In re Whitman
81 Ohio St. 3d 239, 690 N.E.2d 535
Decided March 11, 1998
On December 9, 1993, Appellant, Jacquelyn S. Whitman, and Appellee, Jeffrey J. Whitman, signed a separation
agreement that was filed with a peti-tion for dissolution of marriage. Article 17 of the separation agreement stated as
follows, “This Agreement shall not be altered, modified, or amend-ed unless it is done so in writing, signed by both
parties, or by court order.” On March 17, 1994 the parties signed an addendum to the separation agreement. The
court issued the final decree of dissolution on March 16, 1994, approving and incorporating the separation agreement and addendum.
Appellant filed a motion for relief from judgment on August 15, 1994. She initially requested that the judgment
entry be set aside in part, then amended her motion to request that the dissolution be vacated entirely. During this
time, Appellee remarried. The request was granted by the court which concluded that the separation agreement
failed to address ownership of substantial material assets and that Appellant had entered into the agreement based on
a material mistake of fact.
The appellate court reversed and held that Ohio Civil Rule 60(B) was not available for relief from a decree of
dissolution when the party against whom the motion was made had legally remarried. In such a case, the aggrieved
party was limited to a common law cause of action for damages. The case came before the supreme court upon an
allowance of a discretionary appeal.
HELD: Where the parties to a dissolution have expressly agreed in a separation that the agreement may be
modified by court order, and the agreement has been incorporated into the decree, the trial court may, pursuant to its
continuing jurisdiction to enforce the decree, grant relief from judgment under Rule 60(B)(1), (2), or (3) as to the
property division in the *250 separation agreement, without vacating the decree of dissolution. Dissolution is based
on the parties' mutual consent. If consent or mutuality did not exist at the or misrepresentation, there was no agreement on which the dissolution could have been based. Nothing within Rule 60(B) precludes its application to dissolution decrees. The supreme court also held that when a party has petitioned pursuant to Rule 60(B)(1), (2), or (3)
for relief from a decree of dissolution, remarriage of the opposing party is not a complete ban to relief, but may be
considered by the trial court in determining whether such relief is equitable. The supreme court reversed the judgment of the court of appeals and remanded the cause to the trial court for reconsideration.
VI. GOVERNMENT
A. Annexation
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Smith v. Granville Township Board of Trustees
81 Ohio St. 3d 608, 693 N.E.2d 219
Decided May 13, 1998
On October 31, 1994, Gebhard W. Keny (Keny) filed a petition to annex his property to the city of Newark pursuant to Ohio Revised Code section 709.02. The Licking County Board of Commissioners (Commissioners) set the
annexation petition for hearing on January 9, 1995. On November 2, 1994, the village of Granville (Village) filed a
petition pursuant to Ohio Revised Code section 709.13 with the Commissioners requesting annexation ofall the
township property, including Keny's, to the Village. The Commissioners set an annexation hearing for January 17,
1995. On November 7, 1994, certain electors from the Village and the adjacent township filed a petition seeking the
election of a merger commission to consider the merger of the Village and the township property. On December 13,
1994, the Village filed a motion for a permanent injunction barring the Commissioners from hearing Keny's petition.
A permanent injunction was issued by the court of common pleas on March 3, 1995. The injunction prevented any
further consideration of Keny's annexation and the Village's municipal petition until a vote on the merger petition
had occurred. Keny appealed the injunction.
On August 16, 1995, Keny filed a complaint for a writ of mandamus with the Supreme Court of Ohio seeking to
dissolve the injunction. The supreme court issued a peremptory writ on November 22, 1995. The writ dissolved the
injunction and ordered the Commissioners to proceed on the annexation petitions filed by Keny and the Village. The
Commissioners reset the hearing on the annexation of Keny's property for January 22, 1996. *251 The Commissioners denied Keny's petition on February 1 on the grounds that the area would not be best served by the annexation
and proposed development.
Keny appealed the Commissioners' decision to the court of common pleas of Licking County. The common
pleas court affirmed the Commissioners' denial of Keny's petition on the basis that the Commissioners' denial ous.
Keny appealed the decision to the court of appeals. The court of appeals found that the Commissioners and the court
of common pleas applied the wrong test in deciding Keny's petition. The appellate court indicated that the proper
test is not which jurisdiction can provide the best service by what is for the good of the territory to be annexed.
However, the appeals court concluded that the evidence indicated that the annexation of Keny's property would
cause overcrowding of the Granville schools and determined that it would not be for the good of Keny's property to
be annexed to Newark.
Keny moved the Supreme Court of Ohio to impound the ballots of the November 5, 1996 election pertaining to
the vote on the Conditions of Merger by the Village and Grandville Township pending the decision of the supreme
court whether to accept jurisdiction of the denial of the annexation of Keny's property to Newark. The supreme court
ordered the ballots impounded and not counted. The supreme court accepted jurisdiction on January 15, 1997.
HELD: The court of common pleas erred as a matter of law in considering income tax as a factor with regard to
the proposed annexation. The appeals court's analysis of tax issues and “good of the territory” test were within the
province of the appellate court's powers of review. The Board of Commissioners was required to grant the property
owner's petition. The Commissioners could not consider the impact of potential overcrowding of municipal schools
in deciding whether annexation was for the general good of the territory sought to be annexed. Consideration and
resolution of issues that might require a transfer of school district properties to an adjacent district to balance an inequity that arises due to annexation of property are reserved solely for the State Board of Education under Ohio Revised Code section 3311.06. School issues cannot be considered a factor in determining whether an annexation petition shouldter filed petitions for merger and for election. Ohio Revised Code section 709.48 precludes a filing of an
annexation petition on or after the date a merger petition is filed until the merger petition is resolved. However, the
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annexation petition was filed before the merger petition. Therefore, the first in time rule must prevail. Keny's petition was filed first, and he had a right to have a ruling on his annexation petition before the merger petition could
proceed. The *252 judgment of the court of appeals was reversed and Keny's petition to annex his property to Newark was ordered granted.
B. Liquor
AL Post 763 v. Ohio Liquor Control Comm.
82 Ohio St. 3d 108, 694 N.E. 2d 905
Decided June 17, 1998
The Department of Liquor Control (Department) had received complaints that gambling was occurring at certain American Legion and VFW posts (posts). These posts held D-4 liquor permits. These permits allow the posts to
sell beer and other intoxicating liquors to its members. The posts are not allowed to have gambling on their premises
as a condition of having their permits. The posts keep their doors locked so that only members may gain entrance.
Agents of the Department entered the post through deceptive methods and did not identify themselves. Once the
agents were inside they conducted warrantless administrative searches pursuant to Ohio Administrative Code section
4301:1-1-79. The Liquor Control Commission (Commission) fined the posts for gambling activity based on the
agents' observations. The posts appealed to the court of common pleas, stating that the evidence that the agents obtained should be suppressed because the search was unreasonable since the agents obtained entry through deception.
The court of common pleas suppressed the evidence and reversed the order of the Commission. The court of appeals
affirmed. The Commission appealed to the supreme court pursuant to an allowance of a discretionary appeal.
HELD: The agents may conduct a constitutionally valid warrantless adminstrative search even though entry was
obtained through deception. There is no need for the agents to announce their presence. Administrative searches do
not require a warrant. Liquor permit holders, regardless of classification, have a lower expectation of privacy because of the heavy regulation that they are subject to. Unannounced inspections are essential to enforcement against
highly regulated persons, such as liquor permit holders. Since the posts kept there doors locked it would be impossible to have unannounced inspections if agents could not obtain entry through some type of deception. The supreme
court reversed the judgement of the court of appeals.
*253 C. Municipalities
State ex rel. Comm. for the Charter Amendment Petition v. City of Avon
81 Ohio St. 3d 590, 693 N.E.2d 205
Decided April 14, 1998
On March 3, 1998, Committee for the Charter Amendment Petition (Committee) filed seventeen part-petitions
with the Avon Clerk of Council (Clerk). The petition requested that the charter amendment initiative be placed on
the ballot. The Clerk accepted the petition, but neither collected the required filing fee or informed the Committee of
the fee. On that date, the Committee requested that the Avon City Council (Council) submit the charter amendment
to the Lorain County Board of Elections (Board) for placement on the May 5 election ballot. The Committee was
informed by the Avon Law Director (Director) that it might have missed the filing deadline for the May 5 ballot. On
March 6, the Clerk certified the sufficiency of the petition to the Council. The Clerk placed the ordinance on the
Council's agenda for its next regularly scheduled meeting on March 9. After its regular meeting and two special
meetings, the Council approved the ordinance and submitted it to the Board for approval by the voters on March 12.
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The Board advised the Council that it need to select a special election date. The Council eventually selected June 9
and the Director intended to submit a competing amendment for the same special election. The Committee demanded that the Director bring a writ of mandamus to compel the Board to place the amendment on the May 5 election ballot. After he refused, the Committee filed a writ of mandamus to compel the respondents to place the
amendment on the May 5 election ballot. The case is before the court for consideration on the merits.
HELD: The Committee claimed that the Council had a duty under the Ohio Constitution to enact the enabling
ordinance by March 6, 1998 and have it placed on the May 5 ballot. The court found that the Council's mandatory
duty under the constitution must be balanced against the Council's limited authority to review the petition's sufficiency. The Council must act forthwith in this process, which according to the court means immediately. The court
held that the Council abused its discretion by waiting until its next regularly schednd that its conclusion is not
changed by the Committee's failure to pay the filing fee. The court held that the award of attorney fees is within its
discretion and requires a benefitto the public. The court found sufficient benefit to the public to award reasonable
attorney fees. The court granted the writ of mandamus and the Committee's request for attorney fees.
*254 Buckeye Community Hope Found. v. City of Cuyahoga Falls
81 Ohio St. 3d 559, 692 N.E.2d 997
Decided May 6, 1998
Appellant Buckeye Community Hope Foundation (Buckeye Hope), a nonprofit corporation which develops
low-income housing, was affiliated with Appellants Cuyahoga Housing Partners, Inc. (Housing Partners) and Buckeye Community Three, L.P. (Buckeye Three). During June 1995, Buckeye Three acquired a parcel of land within
Appellee City of Cuyahoga Falls (Cuyahoga Falls). Buckeye Three intended to construct a multi-unit apartment
complex on the multifamily zoned property. The development plan was submitted to and approved by the Cuyahoga
Falls Planning Commission (Planning Commission). Subsequent to the Planning Commission's approval and in accordance with Appellee's charter, the development plan was submitted to the Cuyahoga Falls City Council (Council). Appellee Council accepted the recommendation of the planning commission, and approved the plan. Referendum petitions were subsequently filed with Appellee Cuyahoga Falls Clerk of Council (Clerk of Council), and then
advanced to Appellee Summit County Board of Elections (Board of Elections). The Appellants filed a complaint in
the Court of Common Pleas of Summit County to keep the referendum off the November 1996 ballot. Appellants
also requested a judicial determination that since the passage of the ordinance approving the development plan
amounted to administrative action and not legislative action, the ordinance was not subordinate to a challenge by
referendum. This assertion was based on the Appellants' claim that section 1f, article II of the Ohio Constitution
prohibits a referendum on administrative action taken by a municipal legislative body. The trial court denied the
Appellants' request for a preliminary or permanent injunction. The Court of Appeals for Summit County affirmed
the decision of the trial court. The Appellants appealed, and the case came before the Supreme Court of Ohio on the
allowance of a discretionary appeal.
HELD: Under article XVIII, sections 3 and 7 of the Ohio Constitution, the people of the municipalities of Ohio
are given the power to design the machinery of their local government, and to operate the machinery independently.
Also, a charter city may exercise all powers of self-government so long as these powers are not taken or limited by
the Ohio Constitution. Because the people of Cuyahoga Falls chose to enact a charter to govern their community
functions, they preserved for themselves the power to use the referendum process to challenge any action taken by
Council. The action of Council was administrative in nature, but this did not preclude the citizens of Cuyahoga Falls
from dealing with the action by *255 referendum. The Ohio Constitution neither prescribes the manner in which a
municipality may integrate a referendum provision nor limits the nature of such. Municipalities are given the power
to insure that the views of its citizens are adequately represented by utilizing the referendum process. article II, section 1f is not a self-executing statute which will stand alone without the support of another enactment. Minus ancillary legislation, article II, section 1f does not set forth rules of law, but merely offers guiding principles. Sections 3
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and 7 under article XVIII of the Ohio Constitution, give municipalities the capacity to employ every power of selfgovernance. This includes the authority to reserve for themselves, by way of charter, the ability to adopt or repudiate
any action by city council, without regard to whether the nature of the action is administrative or legislative. The
language of the charter of Cuyahoga Falls was evident, clear, and plain in its grant of authority to accept or veto any
action of Council regardless of its nature. The supreme court affirmed the decision of the court of appeals.
D. Records
TBC Westlake, Inc. v Hamilton County Bd. of Revision
81 Ohio St. 3d 58, 689 N.E.2d 32
Decided February 11, 1998
TBC Westlake, Inc. (Westlake), Appellee, filed a complaint with the Hamilton County Board of Revision
(BOR), Appellant, seeking to reduce the true value of its real property, two adjacent office buildings, for the tax year
1993. Sycamore Community Board of Education (Sycamore), Appellant, filed a counter complaint seeking to retain
the value determined by Appellant Dusty Rhodes, Hamilton County Auditor. The BOR determined the true value to
be $41,000,000, a decrease from the auditor's valuation of $46,388,200. Nevertheless, Westlake appealed the decision to the Board of Tax Appeals (BTA). At the BTA, Westlake presented the testimony and report of Don T. Carrelli (Carelli), a real estate appraisal expert. Carelli demonstrated three standard approaches to valuation, and recommended the adoption of the income approach, which determined the value of the property to be $34,800,000 as of
January 1, 1993. Rhodes and Sycamore did not present any valuation testimony, but presented the Summary Appraisal Report of Thomas O. Willingham and Bradley W. Plummer, real estate appraisers. The BTA reviewed and
rejected this report because the report did not contain the information relied upon to determine the value, and the
appraisers did not testify before the BTA so their method could not be questioned. The BTA found that Carelli's
report satisfied *256 Westlake's burden of proof and found the true value of the property to be $34,800,000. In the
course of the proceedings, the BTA had refused auditor Rhodes's request that it distribute to the parties the attorneyexaminer's report. According to the BTA, its practice is to receive a proposed opinion drafted by the attorneyexaminer assigned to hear and recommend a resolution to the case. Appellants contended that Ohio Revised Code
section 121.22, the Sunshine Law, and Ohio Revised Code section 149.43 applied to this case. The BTA held, however, that Ohio Revised Code section 5717.01 authorizing the BTA to hear appeals of valuation complaints does not
require it to release these opinions to the parties. It also found that it is not an agency governed by Ohio Revised
Code Chapter 119, the Administrative Procedure Act, which requires an administrative agency to serve examiner
recommendations on the parties to an adjudication. The case then went before the supreme court upon an appeal as a
matter of right.
HELD: The supreme court considered five propositions of law brought forth by Appellant. First, the supreme
court held that the BTA was correct in its decision that it was not required to release the attorney-examiner reports.
The court relied on Westerville v. Hahn, 52 Ohio App. 3d 8, 556 N.E.2d 200 (1988) to distinguish between meetings
under the Sunshine Law and hearings which do not fall under the Sunshine Law and are not required to be public.
The court then cited Sangerle v. Evatt, 139 Ohio St. 563, 41 N.E.2d 369 (1942) where the court held that the BTA
was a quasi-judicial body when performing its adjudication duties. The court concluded that the hearings of the BTA
are not governed by the Sunshine Law and are not required to be public. The court also held that the attorneyexaminer report was not a public record under Ohio Revised Code section 149.43(A)(1). After reviewing the decisions of the court of appeals as to how this privilege applied to administrative decision-makers, the court held that
the privilege did extend to an administrative officer sitting in a quasi-judicial capacity. Therefore, the report that was
prepared to aid the officer in making his decision was protected from disclosure by the judicial mental process privilege. Next, because the appraisal report did not contain specific mention of the valuation of a separate bank building,
the court held that the evidence did not support the BTA's finding that the bank building was included in the income
approach. Finally, the court held that there was sufficient evidence to support the BTA's findings and it did not
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abuse its discretion. The supreme court reversed the BTA's decision as to the valuation of the bank building and
remanded to the BTA for it to determine the value of the building. The remainder of the decision was affirmed.
*257 State ex rel. v. Cleveland
81 Ohio St. 3d 50, 689 N.E. 2d 25
Decided on February 11, 1998
The Ohio Public Records Act (Act) requires municipalities to release public information in a prompt manner.
The term prompt, however, was not defined by statute. Petitioner, Dean Wadd (Wadd), brought this action against
the city of Cleveland seeking a writ of mandamus to compel Cleveland's compliance with the Act concerning the
prompt release of auto accident reports. The supreme court issued an alternative writ to decide the issue on the merits.
Wadd owned and operated County Information Systems (Systems), a business that obtained auto accident reports from municipalities and furnished them to various lawyers and doctors in exchange for payment. On November 12, 1996, Wadd submitted a request to inspect the accident reports of all auto accidents which occurred on November 11, 1996 in Cleveland, Ohio. Cleveland required twenty-three days of processing time before allowing access of these reports to Wadd.
The facts indicated that prior to 1996, Cleveland made unnumbered accident reports available for inspection and
copying on the day after the accident. The facts further indicated that the cities of Columbus and Cincinnati were
able to complete their respective processing and provide the information to the public within seven days after the
accident. Moreover, Cleveland officials testified that Cleveland was capable of releasing the reports within seven
days after the accident.
Cleveland, however, argued that the term prompt was not defined by statute and was therefore not subject a
uniform rule of interpretation. Cleveland submitted that because of the large volume of accidents occurring in Cleveland, it could not be held to the same timely standard as smaller cities throughout the state. Wadd argued that when
compared to cities of comparable size, Cleveland's delayed response time was a clear and unreasonable violation of
the Act's prompt requirement. This case is before the supreme court for a decision on the merits.
HELD: The supreme court held that since the term prompt was undefined by statute, it must be accorded its
“usual, normal, or customary meaning.” Thus, the supreme court held the term prompt to mean without delay and
with reasonable speed in accordance with the facts of each case. The supreme court, persuaded by the facts presented by Wadd determined that Cleveland's twenty three delay in releasing public information was unreasonable,
and therefore a violation of the Public Records Act. Moreover, the supreme court determined, in this instance, the
term prompt *258 required Cleveland to make accident reports public within eight days from the date of the accident. A writ of mandamus was therefore issued to compel Cleveland's compliance with the Public Records Act, as
embodied in the newly formed eight day time limit.
State ex rel. Wilson-Simmons v. Lake County Sheriff's Dep't
82 Ohio St. 3d 37, N.E.2d 789
Decided May 20, 1998
Trudy Wilson-Simmons (Wilson-Simmons) was employed as a correc-tions officer at Lake County Sheriff's
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Department since March 1990. In February 1995, Wilson-Simmons complained to her superior that other corrections officers had been using the jails electronic mail (e-mail) system to make racial slurs against her. She had been
told this by an unnamed corrections officer. Wilson-Simmons superior failed to investigate the allegations for lack
of information supplied by Wilson-Simmons. Wilson-Simmons filed a more detailed report to see the e-mail of five
corrections officers. Shortly thereafter, Chief Deputy William Crosier informed her that although the e-mail was a
public record and she had a right to see it, she would have to pay $2,521.40 plus the cost of any copies because it
would take the sheriff's departments computer specialist one hundred forty hours to reconstruct the requested e-mail.
The e-mail records were not readily available because the sheriff's department installed a new e-mail system.
Any pertinent e-mail to Wilson-Simmons request no longer existed because of the change in the e-mail system. Wilson-Simmons filed a suit in federal district court alleging that the sheriff's department engaged in unlawful discrimination against her and subsequently retaliated against her for complaining about the racist e-mail. More than two
years after the sheriff's department's refusal to give her the e-mail, Wilson-Simmons filed an action with the Supreme Court of Ohio for a writ of mandamus to compel the sheriff's department to provide access to the requested
material and to provide copies at cost rather than charging reconstruction expenses. The sheriff's department filed
motions to strike Wilson-Simmons evidence and her motions for partial summary judgment, as well as her motion to
leave to file an amended complaint. The sheriff's department also filed a motion to dismiss for lack of subject matter
jurisdiction, which Wilson-Simmons moved to strike on the basis that it should have been filed before it filed an
answer.
HELD: The supreme court held that even though mandamus was the appropriate remedy to compel compliance
with Ohio's Public Records Act, the requested e-mail did not constitute records for purposes of *259Ohio Revised
Code sections 149.011(G) and 149.43, because it was never used to conduct business in the public office. If it did
issue mandamus, the court stated that it could not order a public agency to provide copies of items that did not exist.
The supreme court also overruled Wilson-Simmons motion to strike, stating that the issue of subject matter jurisdiction can be raised any time during the proceedings. The supreme court denied the writ and the request for attorney's
fees.
VII. GOVERNMENT CONTRACTS
A. Performance and Breach
State ex rel. The V Co. v. Marshall
81 Ohio St. 3d 467, 692 N.E.2d 198
Decided April 22, 1998
The V Companies (V Group) entered into a contract with Jefferson County. The Jefferson County Board of
Commissions (Board) approved and executed the contract. The V Group submitted invoices for services rendered
by it under the contract. Despite the Board's authorization, Jefferson County Auditor John Patrick Marshall (Marshall) refused to issue warrants to the Jefferson County Treasurer to pay the invoices. In December 1996, the V
Group filed a complaint in the Court of Appeals for Jefferson County, requesting a writ of mandamus to compel
Marshall to issue a warrant to the county treasurer for the funds owed. The court of appeals issued the writ and converted Marshall's previously entered Ohio Civil Rule 12(b)(6) motion to dismiss intoa Rule 56 motion for summary
judgement and summarily denied the motion. The case came before the supreme court upon Marshall's appeal as of
right.
HELD: The court held that under the invited-error doctrine, a party cannot take advantage of an error he induced the court to make. The court of appeals conversion of Marshall's Rule 12(b)(6) motion into a Rule 56 motion
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without notification was harmless error because Marshall invited the V Group to submit information outside the
pleadings. Marshall had ample time to respond to the dispositive motion for summary judgement entered by the V
Group, but did not respond. By not responding, Marshall invited the court to convert his motion. The granting of the
writ of mandamus was based upon Marshall's duty under Ohio Revised Code section 319.16 as a county auditor to
issue warrants to the county treasurer for payments of claims against the county. The court held a breach of contract
action was not a plain and adequate remedy and the county auditor was under a clear legal duty to perform. The
judgement of the court of appeals was affirmed.
*260 VIII. INSURANCE
A. Arbitration and Appraisal
Branham v. CIGNA HealthCare of Ohio, Inc.
81 Ohio St. 3d 388, 692 N.E.2d 137
Decided April 22, 1998
Patty Branham (Mrs Branham), now deceased, had health insurance with Cigna HealthCare of Ohio, Inc.
(CIGNA), Appellant and Cross-Appellee, pursuant to the CIGNA HealthCare of Ohio, Inc. Columbus Group Service Agreement (agreement). Mrs. Branham was denied coverage fora procedure for destruction of cancerous tumors in her liver. She appealed the decision to the CIGNA Grievance Committee in accordance with the grievance
procedures set forth in the agreement. In March 1995, the appeal was denied. In May 1995, Mrs. Branham filed a
complaint against CIGNA for breach of the agreement. She also asserted claims for intentional infliction of emotional distress, negligent and intentional acts causing physical harm, and bad faith. Craig Branham (Mr Branham),
her husband, filed a claim of loss of consortium. CIGNA moved to dismiss the action or stay it pending arbitration
as was required by the arbitration clause included in the agreement. While this motion was pending, Mrs. Branham
died. In October 1995, the trial court stayed the action pending arbitration of all claims of both Mr. and Mrs. Branham. The court of appeals granted Mr. Branham's motion for a substitution of parties and he substituted himself as
plaintiff on behalf of Mrs. Branham. On appeal, the court of appeals reversed the stay as to Mr. Branham's loss of
consortium claim and affirmed the stay as to all claims on behalf of Mrs. Branham. CIGNA appealed and Mr. Branham cross-appealed. The case then went before the supreme court pursuant to an allowance of the discretionary
appeal and cross-appeal.
HELD: The arbitration clause was not binding on Mr. Branham and he was not required to arbitrate either the
claims brought on behalf on Mrs. Branham or his own claim. First, as to Mrs. Branham's claims, the court held that
the arbitration agreement was ambiguous in its statement that [any] controversy between GROUP, a Subscriber, or
Dependent shall be submitted to arbitration. The lack of a second object of the preposition between made it impossible to determine which parties were to be in contention in the arbitration. The court cited to King v. Nationwide Ins.
Co., 35 Ohio St. 3d 208, 519 N.E.2d 1380 (1988), to state the general rule that where provisions of insurance contracts are susceptible to more than one interpretation, they will be construed strictly against the insurer and liberally
against the insured. *261 This was applied to the arbitration clause and resolved in Mr. Branham's favor. Secondly,
as to Mr. Branham's claims, Mr. Branham had not expressly or impliedly agreed to the agreement and because arbitration is a contractual matter, he could not be required to submit to arbitration a dispute which he did not agree to
submit. The supreme court reversed the judgment of the court of appeals as to Mrs. Branham's claims and upheld the
judgment of the court of appeals as to Mr. Branham's claim. The case was remanded to the trial court for further
proceedings.
B. Automobile
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United States Fidelity & Guar. Co. v. Lightning Rod Mut. Ins. Co.
80 Ohio St. 3d 584, 687 N.E.2d 717
Decided December 31, 1997
Ina M. Spurlock (Spurlock), an employee of Domino's Pizza (Domino's), struck a motorcycle driven by Robert
Shaw (Shaw), who was injured in the accident. Spurlock was insured by Lightning Rod Mutual Insurance Company
(Lightning Rod). The company denied coverage and contended that the claim was excluded under the policy. United
States Fidelity & Guaranty Company (USF&G), the carrier of Domino's business automobile policy, defended
Spurlock under a reservation of rights. USF&G requested a judgment that Lightning Rod's policy covered Spurlock
for the accident. The trial court found the language of the policy's exclusion was ambiguous and granted USF&G
motion for summary judgment. The court of appeals found the exclusion unambiguous and reversed the trial courts
decision. The court of appeals then certified its decision. The case was before the court because a conflict existed.
HELD: The court found that the exclusion provision could be read in two ways. The first was that the provision
excluded from coverage the use of Spurlock's vehicle to transport property when there was any kind of payment to
her. The second was that the provision excluded from coverage when a fee was paid specifically for the act of transporting property. The court held where provisions of an insurance contract can be reasonably interpreted in more
than one way, the provisions will be construed strictly against the insurer. Further, the court held that exclusions
from liability must be clear and exact. The court found no genuine issue of material fact and USF&G was entitled to
summary judgment. The judgment of the court of appeals was reversed and the case remanded for a determination of
attorney fees.
*262 C. Subrogation
Weiker v. Motorists Mut. Ins. Co.
82 Ohio St. 3d 182, 694 N.E.2d 345
Decided June 17, 1998
James N. Pettit (Pettit) was killed in an automobile accident on August 14, 1993 as a result of another motorist's
negligent driving. Pettit's daughter, April S. Pettit, was appointed as administrator of Pettit's estate. In her role as
administrator and representative of the beneficiaries, April Pettit entered into a settlement with the negligent motorist for the $250,000 liability limit of the tortfeasor's insurance policy. The settlement was subsequently approved by
the Probate Court of Fulton County. The children and mother of the decedent consented to the settlement and distribution of the proceeds. Appellant Joyce Ann Weiker (Weiker) was the sister of Pettit, and was not notified by the
probate court that probate proceedings regarding her brother's estate had initiated. Weiker had conversations with
her mother and April Pettit which made her aware of the probate proceedings, but she understood these proceedings
to be for the advantage of her mother and Pettit's children only. Weiker also had no knowledge of the probate court's
approval of the settlement between April Pettit and the tortfeasor.
After consulting an attorney, Weiker realized that she could proffer a claim for her brother's wrongful death, and
filed a motion in the probate court to abdicate the release of her and her brother Donald Pettit. The probate court
disallowed Weiker's motion. Weiker thereafter filed a claim with her own insurance company, Appellee Motorists
Mutual Insurance Company (Motorists), to collect under insured motorists benefits. Motorists failed to recognize the
coverage, and Weiker filed a complaint against her insurance company for compensation for loss of companionship
and the intense emotional anguish she suffered as a result of her brother's wrongful death. After both Motorists and
Weiker filed motions for summary judgment, the trial court granted Motorists motion. The trial court held that
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Weiker relinquished her rights through the wrongful derights of Motorists by neglecting to notify the insurance
company directly after theapproval of the settlement agreement by the probate court. The court of appeals affirmed
the trial court. Weiker appealed the ruling of the court of appeals, and the case came before the Supreme Court of
Ohio upon the allowance of a discretionary appeal.
HELD: Weiker's insurance policy required notification of a tentative settlement between the insured, Weiker,
and the insurer of the tortfeasor's vehicle. The court held that because Weiker was not an insured who *263 entered
into the settlement agreement with the tortfeasor, she had not violated the express language of her insurance contract
with Motorists. Weiker had knowledge of the probate proceedings, but was not aware that April Pettit was acting on
Weiker's behalf or of the proposed settlement until it had already been approved by the probate court. The court held
that Weiker was entitled to maintain a claim under her own policy with Motorists for under insured motorists coverage. The supreme court reversed the court of appeals, and remanded the case to the trial court for proceedings consistent with its opinion.
IX. LABOR AND EMPLOYMENT
A. Collective Bargaining
J.A. Croson Co. v. J.A. Guy, Inc.
81 Ohio St. 3d 346, 691 N.E.2d 655
Decided April 8, 1998 J.A. Guy, Inc. (Guy) placed a successful bid for plumbing for a new jail. Prior to submission of its bid, Guy requested that Local 189 target the jail project. To accomplish this, Guy requested that Local 189
allow any successful bidder that was also a signatory to a collective bargaining agreement with Local 189 to participate in the Local 189 Industry Advancement Program. Local 189 agreed and informed union contractors involved in
the bidding process that, under its Industry Advancement Program, it would pay the successful bidder a $9 grant per
man-hour worked by Local 189 members on the project. Guy submitted the lowest bid for the jail project. After
completion of the jail project, the jail needed a water softening system installed. Guy successfully bid on the water
softening project. Local 189 did not target the water softening project and did not pay Guy any funds under its Industry Advancement Program for that project. J.A. Croson Company (Croson), an unsuccessful bidder on both projects, filed a claim in common pleas court, pursuant to Ohio Revised Code section 4115.16(B). Croson alleged that
Guy violated Ohio's prevailing wage law. The claim specifically alleged that Guy made a special assessment prohibited by Ohio Administrative Code section 4101:9-4-07(B)(6). Guy named Local 189 as a third-party defendant. All
three parties moved for summary judgement on their claims and defenses. The common pleas court entered a judgment for Guy and Local 189 based upon its finding that federal law preempted Croson's state claims. The court of
appeals reversed the common pleas court decision and held that federal preemption was inapplicable. The court of
appeals certified to the Supreme Court of Ohio a conflict between its judgement and judgements of other courts of
appeals. The court accepted the certified conflict and discretionary *264 appeals for determination.
HELD: The court considered whether federal labor law preempted the claim. The court found that if there is a
conflict between local regulations and federal law, the latter would control. Specifically under the National Labor
Relations Act (NLRA), there are two preemption principles that the supreme court has expounded. The first is state
and local regulation of activities are forbidden when the activities are protected by section 7 of the NLRA. The second is that where Congress has left areas to be controlled by economic forces, state and local regulation is denied.
The court found that the National Labor Relations Board (NLRB) had determined that job targeting program, such
as the one at issue in this case, were protected by section 7. Therefore, the state was unable to regulate the conduct. The court found that none of the exceptions to federal preemption applied in this case. The court reversed the
court of appeals judgment.
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B. Hours and Wages
Pipe Fitters Union Local No. 392 v. Kokosing Constr. Co.
81 Ohio St. 3d 214, 690 N.E.2d 515
Decided March 11, 1998
Appellee, Pipe Fitters Union Local No. 392 (Pipe Fitters), was a labor union representing employees who performed work on pipe fitting systems for Kokosing Construction Company (Kokosing). Pipe Fitters sued Kokosing
and the city of Cincinnati (city) claiming that Kokosing paid its employees a wage that was less than the prevailing
rate of wages for pipe fitters and that the city was obligated to ensure that Kokosing paid its employees the prevailing wage rate. Pipe Fitters argued that both Kokosing and the city had allowed Kokosing to pay its employees the
prevailing rate of laborers rather than the prevailing rate paid to pipe fitters. The trial court dismissed Pipe Fitters'
claim for lack of jurisdiction. The court of appeals held that Pipe Fitters had standing and reversed and remanded the
case to the trial court. After hearing the case on remand, the trial court held that the laborers' prevailing rate of wages
had been paid to workers who performed process-piping work in Hamilton County and throughout Ohio in the past
and entered a judgment for Kokosing. The court of appeals again reversed, holding that the proper prevailing rate of
wages to be paid the laborers who performed the process-piping work on the Kokosing project was that of the pipe
fitters because only pipe fitters had done this job in Hamilton County in the past. This cause came before the supreme court upon the allowance of discretionary appeals.
*265 HELD: In determining whether work performed on a public improvement should be classified as work
appropriate to a particular trade or occupation for prevailing wage purposes, a court may consider factors other than
past assignment of similar work in the county where the public improvement is located. The court may additionally
look to factors such as the skills and work involved, certification of the workers, company and industry practice,
agreements between employers and unions and efficient operation of the employer's business. The supreme court
reversed the court of appeals' decision and reinstated the decision of the trial court.
C. Public Employment
Miami Twp. Bd. of Trustees v. Fraternal Order of Police, Ohio Labor Council, Inc.
81 Ohio St. 3d 269, 690 N.E. 2d 1262
Decided March 25, 1998
Patrick M. McCoy (McCoy) was an officer for the Miami Township Police Department. In thesummer of 1995,
McCoy applied for a position on the Moraine Police Department. As part of the application procedure, he was required to take a polygraph test. During this test he admitted to twice stealing from citizens while working as an officer for Miami Township. Moraine Police Chief David D. Hicks told Miami Township Police Chief Tom Angel
about what McCoy had confessed to. McCoy was suspended with pay pending a hearing by the Board of Trustees of
Miami Township (Board). The Board voted to terminate McCoy's employment. McCoy filed a grievance pursuant
to the collective bargaining agreement between Miami Township and the Fraternal Order of Police, Ohio Labor
Council (FOP). The grievance was referred to an arbitrator. The arbitrator reduced the punishment to a thirty day
suspension and restitution. The Board filed a complaint in the Montgomery County Court of Common Pleas asking
the court to vacate the arbitrator's decision. The court of common pleas upheld the award. The court of appeals reversed and remanded for a new arbitration hearing. McCoy appealed pursuant to the allowance of a discretionary
appeal.
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HELD: The court held that an arbitrator's award will not be vacated if the award is drawn from the essence of
the collective bargaining agreement. The essence of the collective bargaining agreement provided that the discipline
imposed will take into account the nature of the violation, the past record of the employee with regard to discipline,
and the past record of the employee's job performance. Since the arbitrator's award took into *266 consideration all
of these factors, the supreme court would not overturn the award. The supreme court reversed the judgement of the
court of appeals and reinstated the judgement of the trial court.
Chubb v. Ohio Bureau of Workers' Compensation
81 Ohio St. 3d 275, 690 N.E.2d 1267
Decided March 25, 1998
Appellant, Kathryn A. Chubb, (Chubb), was employed by the Ohio Bureau of Workers' Compensation (BWC)
under the position of Attorney 2, and later Attorney 3, both classified positions. Chubb received a lucrative offer
from the Industrial Commission of Ohio (Commission), but was offered an unclassified position with the BWC with
a similar salary in order to retain her employment. Chubb was later accused of committing unlawful acts in the
course of her employment. She entered into an agreement with BWC that resulted in her transfer to a different city
and a job that remained unclassified. In February 1995, Chubb was terminated without having been given a reason.
Chubb appealed her termination to the State Personnel Board of Review (SPBR). Prior to the hearing to determine
whether Chubb's position was classified or unclassified, the appeal was dismissed for lack of subject matter jurisdiction because her position was exempt from classified service. Chubb appealed to the court of common pleas who
reversed and remanded to SPBR for determination of whether Chubb's actual duties rendered her a classified or unclassified employee. The court of appeals affirmed the trial court's remand, but it reversed the trial courts finding on
the use of estoppel. The appellate court explained that the employee's job duties need not fall within those of an unclassified position to estop the employee denying her unclassified position. This case was before the supreme court
upon the allowance of a discretionary appeal.
HELD: The court held that in an appeal pursuant to Ohio Revised Code section 124.34 by a terminated public
employee who claimed classified status, the state could assert defenses of waiver and estoppel if the employee accepted a position designated as unclassified and also accepted the benefits of that unclassified position, such as increased salary. Also, the court held that the employee's job duties need not fall within the unclassified status for
waiverness, the court held, an employee who has accepted such benefits should be precluded from claiming the
statutory protection afforded to classified civil servants. The employee to accept or decline this position based on the
knowledge that the position was not afforded the protection of a classified position; thus, waiver and estoppel was
appropriate. The supreme court affirmed the judgment of the court of appeals.
*267 State v. Summit County Human Resources Comm'n
81 Ohio St. 3d 450, 692 N.E.2d 185
Decided April 22, 1998
Judge Judith L. Hunter (Hunter) discharged six juvenile court employees. The employees appealed their terminations to Appellee, Summit County Human Resources Commission (Commission). The Commission scheduled the
discharged employee's appeal for a hearing and referred to the employees as classified employees. Judge Hunter
filed a complaint in the court of appeals for a writ of prohibition to prevent the Commission from exercising jurisdiction over the appeal. The Commission conceded that they were exercising quasi-judicial power over the employees appeal and that power did not exist if the employees were unclassified, at-will employees. The appeals court
dismissed Judge Hunter's complaint and granted the Commission's Ohio Civil Rule 12(b)(6) motion. The case came
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before the supreme court upon an appeal as of right.
HELD: When a tribunal patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction. Under Ohio Revised Code sections 2301.03(I)(2) and 2151.13,
juvenile court employees are at-will under the Commission's own rules. An unclassified employee is appointed at
the discretion of appointing authority and serves at the pleasure of such authority. The supreme court held that the
court of appeals erred in granting the Commission's motion. Because both parties were in agreement about the pertinent facts, the court exercised its plenary authority and issued a writ of prohibition preventing the Commission from
proceeding with the juvenile court employee's appeal.
State ex rel. Mallory v. Public Employees Retirement Bd.
82 Ohio St. 3d 235, 694 N.E.2d 1356
Decided June 24, 1998
Appellant, Diane Mallory (Mallory), was employed with the Franklin County Public Defender's Office
(FCPDO) for fourteen years. In September 1994, Mallory filed a request seeking service credit in Public Employees
Retirement Service (PERS) for her years of employment with the FCPDO. PERS denied Mallory's request because
it found that the FCPDO was a private, non-profit organization during Mallory's tenure with the office. Mallory appealed the staff determination to the Public Employees Retirement Board (Board). The Board denied Appellant's
request and affirmed the staff determination. In May 1996, Mallory filed a complaint for writ of *268 mandamus in
the Court of Appeals for Franklin County, seeking issuance of a writ to compel the Board to credit her with fourteen
years of service as a public employee and to order the Franklin County Commissioners to pay employer and employee contributions to PERS for the years 1978 to 1980 and 1982 to 1994. Mallory contended that the Board
abused its discretion in denying her request. The court of appeals found no abuse of discretion in the Board's determination and denied Mallory's request. Mallory then appealed to the Supreme Court of Ohio as a matter of right.
HELD: A writ of mandamus action was the appropriate remedy for Appellant, but should only be granted if she
could prove that the Board's action in denying her request was an abuse of its discretion. First, the court determined
that the Board was not required to determine the constitutionality of a statute in reaching a determination of Appellant's claim. The Board erred in determining it lacked statutory authority to decide whether Appellant was a public
employee during her employment at the FCPDO for the purposes of PERS. Next, the court determined that the
Board abused its discretion by deciding that Appellant was not a public employee during her employment at FCPDO
for the purposes of compulsory PERS membership. The court found that Appellant was employed by a county officer and a county agency pursuant to statutory authority and she performed a governmental function. Third, the court
found the record absent of any evidence of an oral or written contract between Franklin County Public Defender
James Kura and the FCPDO. Then, the court rejected the Franklin County Commissioners' and the Franklin County
Public Defender's defense that they lacked clean hands and therefore, they were precluded from asserting the defense. Additionally, the court determined that the 1984 enactment of Ohio Revised Code section 120.14(F) did not
end Appellant's membership in PERS. Finally, the court found that Franklin County Commissioners were liable for
both the employee and employer contributions to PERS for Appellant for her fourteen years of employment with
FCPDO. The supreme court reversed the judgement of the court of appeals and granted the writ of mandamus.
D. Workers' Compensation
Stivison v. Goodyear
80 Ohio St. 3d 498, 687 N.E.2d 458
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Decided December 31, 1997
Appellant, Richard (Stivison), was injured in 1992 when a co-worker, Jeffrey (McCormick), assaulted him.
McCormick assaulted Stivison at a *269 restaurant near their employment at the end of a work shift leaving him
with two black eyes, a fractured nose, and two broken bones in his left arm which required the use of steel plates.
Stivison filed a worker's compensation claim for the injuries but was denied, because the hearing officer agreed with
Goodyear that the injuries were not in the course of employment. The Regional Board of Review (Board) allowed
the claim on appeal. The Industrial Commission affirmed the decision. Goodyear appealed to the court of common
pleas which ordered summary judgment for Goodyear and the court of appeals affirmed. Stivison filed an appeal to
the Supreme Court of Ohio.
HELD: The Supreme Court held that the injuries were not received in the course of, and arising out of his employment. The court stated that Ohio Revised Code section 4123.01(C) requires the injury to be closely connected to
the employee's employment. Stivison was injured after his working hours and not at his place of employment. The
court affirmed the decision of the court of appeals.
State ex rel. Kroger Co. v. Indus. Comm'n of Ohio
80 Ohio St. 3d 483, 687 N.E.2d 446
Decided December 31, 1997
Claimant, Wilma C. Williamson (Claiment), was injured in 1989 while working for Appellant, Kroger Company (Kroger). Claimant was injured in a meat cooler when the electricity went out. She fell backward and boxes
fell on her. The fire alarm went off and she became terrified that there was a fire and she was locked in the
cooler. As a result of this incident, Claimant suffered Post Traumatic Stress Disorder (PTSD) and panic attacks. A
licensed psychiatrist treated Claimant and testified as to these symptoms and that these psychiatric illnesses significantly impaired her daily functioning since the incident two and half years earlier. On this evidence, the hearing officer awarded temporary total disability compensation to Claimant to continue upon submission of medical proof
documenting Claimant's inability to return to her former place of employment. Kroger filed a complaint in mandamus alleging that the Commission's hearing officer abused its discretion in awarding disability. The court of appeals
found that the psychologist's reports to be some evidence in support of the Commission's determination and denied
the writ. This cause came before the supreme court upon an appeal as of right.
HELD: Claimant's somewhat guarded prognosis suggested that improvement, while unlikely, had not been ruled
out. Although psychology *270 and psychiatry are imprecise disciplines and their findings are not based on physically observable evidence, the multiple psychological diagnoses were not fatal to Claimant's compensation application for three reasons. First, the psychologist consistently referred to the same symptoms as the cause of the disability. Second, many of the symptoms are common to each diagnosis. Finally, the psychologist always related the
symptoms to the industrial accident. The supreme court held that the hearing officer's reliance on the psychologist's
reports was not an abuse of discretion and the award of temporary total disability compensaffirmed.
State ex rel. Binegar v. Industrial Comm'n.
80 Ohio St. 3d 470, 687 N.E.2d 437
Decided December 31, 1997
On October 4, 1984, Chester Binegar, Appellee, was injured when he was overcome by fumes while working at
Cuyahoga Exploration and Development. The Industrial Commission, Appellant, allowed his workers' compensation
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claim for his natural gas exposure, seizure disorder, post-traumatic stress disorder, and amnestic disorder. Appellee
never worked after September 1986 and moved for permanent total disability compensation (PTD) in 1991. The
medical testimony submitted to the Commission conflicted. Appellee's application was heard on December 15, 1992
and he was found to be permanently and totally disabled, awarded PTD until March 28, 1993 and a hearing was
scheduled to determine the issue of continuation of the award. On April 6, 1993, the Commission denied continuation of PTD. Appellee filed a writ of mandamus in the Court of Appeals for Franklin County. The court of appeals
agreed with Appellee that the Commission abused its discretion when it denied his continued PTD. The case is before the court upon an appeal as of right.
HELD: The court held that the Commission did not abuse its discretion in denying continuation PTD. The court
found that the Commission was not required to extend PTD beyond the interlocutory order. The court held that the
Commission's decision was supported by some evidence. The court rejected Appellee's argument that the Commission abused its discretion by accepting one medical opinion over another. The court held that the Commission was
the only body to evaluate the credibility and weight of the medical evidence. The court reversed the judgment of the
court of appeals.
*271 State v. Ohio Bureau of Workers' Compensation
80 Ohio St. 3d 642, 687 N.E.2d 763
Decided January 7, 1998
Appellee Health Care Facilities, Inc. (HCF) was a self-insured employer. In January 1991, HCF purchased the
Crestview Manor Nursing Home (Crestview), and in August 1991, HCF purchased Piketon Health Care, Inc. (Piketon). Both Crestview and Piketon were State Fund employers. HCF's agreement with Piketon included a covenant
not to compete on behalf of Piketon's principal employees. In July 1991, Appellant Ohio Bureau of Workers' Compensation (BWC) denied HCF's request to add Piketon and Crestview to HCF's self-insured coverage records. BCW
refused, citing former Ohio Administrative Code section 4123-19-03, which required succeeding employers that
wanted self-insured status to buy out of the State Insurance Fund. BCW relied on the definition of succeeding employer found in section 4121-7-02(B)(1). Section 4121-7-02(B)(1) defined succeeding employer as a legal entity
without coverage in the most recent period that succeeds another entity in the operation of a business entity. When
HCF protested to the BCW Adjudicating Committee, the Committee determined that HCF was not a succeeding
employer due to their existing coverage, but that HCF had merged with Crestview and Piketon. HCF was therefore
required to buy out the State Fund pursuant to section 4123-19-03(M). The order of the Committee was affirmed by
the BWC Board Subcommittee, and HCF requested a writ in the court of appeals. The writ was denied by a referee,
but the referee's analysis was rejected by the court of appeals and the writ was granted. The court of appeals determined that HCF had coverage and was therefore exempt from the buy-out requirements.
HELD: The Supreme Court of Ohio held that HCF was not a succeeding employer and that HCF had not
merged with either Piketon or Crestview. HCF could therefore not be required to pay the buy-out amounts requested
by the BCW. The court rejected BCW's argument that a succeeding employer is only a transferee, in whole or in
part. State ex rel. Lake Erie Construction Co. v. Indus. Comm, 62 Ohio St.3d 81, 578 N.E.2d 458, 578 (1991). The
court decided that Lake Erie was not controlling for cases involving the buy-out provisions, since Lake Erie only
decided that issue of determination of an amount paid for coverage.
The court also noted that the BWC was required to give equal force to all of the provisions of their rules, instead
of giving selective effect to some provisions to obtain a desired outcome. The court applied this standard to the “not
having coverage” clause of section 4121-7-02(B)(1).
*272 The court also held that HCF had not merged with either Crestview or Piketon. Since the agencies did not
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assert an actual merger, the agencies were forced to prove a de facto merger. However, BCW failed to prove two
aspects of a de facto merger. First, Piketon was not intended to swiftly cease operations of its other locations after
HCF's acquisition. Second, there was no asset-for-stock exchange, which the court called the sine qua non of a de
facto merger. The Supreme Court of Ohio affirmed the decision of the appeals court and issued the writ of mandamus vacating the order of the Board Subcommittee.
State ex rel. Williams-Laker v. Indus. Comm'n of Ohio
80 Ohio St. 3d 694, 687 N.E.2d 1379
Decided January 14, 1998
In July 1989, Appellant and Cross-Appellee-Claimant, Roberta Williams-Laker, (Williams-Laker) slipped and
injured her back in the scope of employment with Jim Collin Auto Body, Inc. (Auto Body, Inc.). A workers compensation claim was approved for injury to Williams-Laker's back. As part of her treatment for her injury WilliamsLaker participated in a pain control clinic from September 30, 1991 to December 30, 1991, but she continued physical therapy until September 1992. These treatments required Williams-Laker to work part-time rather than full-time.
On March 4, 1993 she applied for wage-loss compensation under Ohio Revised Code section 4123.56(B), seeking
reimbursement for the salary she lost while receiving therapy for the injury. This period was claimed to be from
March 4, 1991 to May 31, 1992. The Appellee, Industrial Commission of Ohio (Commission) held that WilliamsLaker's claim had previously been allowed and no restrictions on employment were established; therefore, her claim
failed. The court of appeals granted the portion of Williams-Laker's writ for mandamus which alleged that the Industrial Commission erred in finding that restrictions on employment were not established nor supported by the evidence. This case was before the supreme court upon an appeal and cross-appeal as of right.
HELD: The supreme court held that when a claimant who suffered from a work-related injury, received workers' compensation benefits therefor, and missed work to receive proscribed, approved treatments for the injury, then
that claimant may recover wage-loss compensation for the time absent from work only if the claimant proved that
the treatment was medically necessary for the claimant to perform his or her job, that without the treatment he or she
could not continue to work full time, and that treatment was available only during claimant's hours of employment.
Based *273 on this finding, the court held Williams-Laker was entitled to compensation for the work which she
missed to attend the pain control clinic from September 30, 1991 to December 30, 1991. The court held, however,
that she was not entitled to compensation for any time she missed for other treatments, including the additional
physical therapy. The supreme court affirmed the judgment of the court of appeals.
State ex rel. Chrysler Corp. v. Industrial Comm'n
81 Ohio St. 3d 158, 689 N.E.2d 951
Decided February 25, 1998
Alford Garrett, Appellant, injured his knees on December 21, 1985, while working for Jeep Corporation, the
predecessor of Chrysler. Chrysler, a self-insured employer, certified Appellant's workers' compensation claim and he
began to receive temporary total disability compensation (TTD) in February 1986. Chrysler moved to terminate Appellant's TTD on the basis of permanency in June 1987. In August 1987, an Industrial Commission of Ohio district
hearing officer (DHO) ordered the continuation of TTD with the permanency issue to be determined again later. A
DHO granted additional allowances and continued TTD with the permanency issue to be reassessed later. On May
17, 1988, a DHO declared that Appellant's condition had become permanent and he applied for permanent total disability compensation (PTD). The DHO ordered TTD continued pending the decision on Appellant's application.
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Chrysler challenged the allowance in the Lucas County Common Pleas Court. Based upon a jury verdict, the
court found that Appellant could not participate in the State Insurance Fund and Chrysler stopped paying him TTD.
In September of 1991, the Lucas County Court of Appeals reversed and held that the common pleas court had erred
when it denied Appellant's motion for summary judgment and as a matter of law, Chrysler had conceded compensability of Appellant's claim when it certified and paid his 1987 medical expenses. In April 1992, the Commission
recognized Appellant's claim for aggravation of pre-existing bilateral patellofemoral arthritis. After a hearing in
January 1993, a DHO ordered Chrysler to make up the TTD payments stopped after the common pleas ruling and to
continue TTD. The DHO authorized surgery to replace Appellant's right knee. In February 1993, Appellant dismissed his May 1988 application for PTD. Chrysler then sought a writ of mandamus in the court of appeals. The
court of appeals accepted a referee's report and granted the writ of mandamus. The case is before the court on an
appeal as of right.
*274 HELD: The court addressed several issues in the opinion. First, the court held that there was inconsistent
or contradictory medical conclusions that could be attributed to mistake and the Commission was able to rely on
other testimony or medical evidence to decide whether to grant compensation or benefits. The court held that the
Commission did not abuse its discretion in granting TTD and medical benefits to Appellant. Secondly, the court held
that the Commission retained jurisdiction to determine whether the Appellant would require surgery and whether
such surgery would improve his condition. The court found that with the appearance of further surgery after 1988,
there existed new and changed circumstance which justified modification pursuant to Ohio Revised Code section
4123.52 and the issue needed to be litigated before the Commission. Finally, the court held that Chrysler was not
entitled to reimbursement from the Surplus Fund. The court found that the Ohio Revised Code section 4123.515
only allowed for reimbursement if compensation had been denied on appeal from the regional board of review and
Appellant was not denied compensation at subsequent levels of Commission or judicial review. The supreme court
reversed the order granting the writ of mandamus and reinstated the Commission's award to Appellant of TTD and
medical benefits.
Ruckman v. Cubby Drilling, Inc.
81 Ohio St. 3d 117, 689 N.E.2d 917
Decided February 25, 1998
Appellees Kenneth E. Ruckman, Jr. (Ruckman), John W. Riggs III (Riggs), and Richard T. Brosius (Brosius)
were all employed by Appellant Cubby Drilling, Inc. (Cubby). Each of the Appellees were injured while on their
way to drilling sites where Cubby had assigned them to drill wells. The injuries sustained by the Appellees were the
result of two separate auto-mobile accidents. Riggs and Brosius, along with two other crew members, were assigned
to a drilling site in Champion, Ohio. The Champion crew met in Canton, Ohio to share a ride to the drilling
site. Riggs and Brosius were injured just before their shift at the Champion site was to start, on a state route in Paris,
Ohio. Ruckman was injured while participating in a like ride sharing agreement, which met in Cadiz, Ohio and traveled to a drilling site in Mercer, Pennsylvania. The automobile accident causing Ruckman's injuries took place in
Portage County, Ohio. Cubby did not encourage or discourage ride sharing, and did not provide the automobiles
involved in either accident. All three Appellees filed claims with the Workers' Compensation Fund. The Court of
Common Pleas of Portage County held in favor of Appellees and the court of appeals affirmed. The case is before
the Supreme Court of Ohio on allowance of a discretionary appeal.
*275 HELD: The first consideration of the court was whether the Appellees were fixed-situs employees under
the coming-and-going rule. This rule determines whether injuries suffered by an employee involved in an auto accident occurred “in the course of” and “ar[ose] out of” the employment relationship, giving rise to a compensable injury under Ohio Revised Code section 4123.01(C). The supreme court held in MTD Products, Inc. v. Robatin, 61
Ohio St. 3d 66, 68, 572 N.E.2d 661, 663 (1991) that employees, under the general coming-and-going rule, are not
entitled to participate in the Workers' Compensation Fund because of the lack of a causal connection between the
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accident and the employer when the employee is traveling to their fixed place of employment. An employee is a
fixed-situs employee, and therefore, within the coming- and-going rule if his or her duties are initiated after arriving
at the definite and identifiable place of work selected by his or her employer. Despite the fact that the job site may
change as much as every day, the rule still applies. The duties of the Appellees were concentrated at the drilling
sites, and they spent their entire work day at the site. Consequently, the court held that the Appellees were fixedsitus employees within the coming-and-going rule.
The second inquiry the supreme court addressed was whether the Appellees may avoid the coming-and-going
rule if they can demonstrate that their injuries occurred in the course of and arising out of their employment with
Cubby. The requirement that the injury take place in the course of employment is only satisfied if an employee is
performing duties that are required by his or her employer. Because the nature of Cubby's business required that the
drilling be performed on the premises of the customer, and Cubby's employees were involved in the furtherance of
their employer's business while traveling to the drilling sites, the Appellees were in the course of their employment
when traveling to the job sites. As to the arising out of element, the court applied the totality of the circumstances
test found in Lord v. Daugherty, 66 Ohio St. 2d 441, 423 N.E.2d 96 (1981), which examines the causal connection
between the employee's injury and the employment contemplated by that element. The test under Lord involved an
analysis of the following: (1) the proximity of the scene of the accident to the place of employment, (2) the degree of
control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured
employees's presence at the scene of the accident. Under this analysis, the Appellees did not satisfy the exception.
An employee may establish a causal connection under the special hazard rule set forth in the syllabus of Littlefield
v. Pillsbury, Co., 6 Ohio St. 3d 389, 453 N.E.2d 570 (1983). The court found that the impermanent nature and constantly varying location of the drilling sites, and the distance which Cubby employees were required to travel to their
job everyday met the Littlefield requirement that *276 the risk be more than that which is common to the public.
The court rejected Cubby's argument that Ohio Revised Code section 4123.452 precluded an employee's right to
participate in the Workers' Compensation Fund merely because the employee participated in ride sharing. The court
held that a fixed-situs employee, is authorized to receive workers' compensation benefits for any injury which takes
place while the employee is coming or going from the place of employment, where the travel furthers the employer's
business and creates a risk which is different in nature or substantially greater than risks routine to the public. The
supreme court affirmed the judgment of the court of appeals.
State ex rel. Maghie & Savage, Inc. v. Nobel
81 Ohio St. 3d 328, 691 N.E.2d 277
Decided April 1, 1998
The Industrial Commission of Ohio (Commission) allowed the workers' compensation claim of Michael Nobel,
Appellant, related to a scaffold accident in which Appellant was injured when the scaffold on which he was working
moved away from the wall and Appellant fell to the floor. The litigants in the case agreed that the scaffold involved
qualified as a manually propelled mobile scaffold under Ohio Administrative Code section 4121:1-3-10(B)(20) and
also as either a tube and coupler scaffold under section 4121:1-3-10(B)(36) or a tubular welded frame scaffold under
section 4121:1-3-10(B)(37). Ohio Administrative Code section 4121:1-03-10(G)(2) requires manually propelled
mobile scaffolds to be equipped with casters with locking devices to hold the scaffold in position. In this case, it is
undisputed that the scaffold's casters had locking devices that had become disengaged. The Commission found no
violation of section 4121:1-03-10(G)(2) because a first-time failure of a safety device cannot sustain a finding of a
violation where the employer had no knowledge of the defect. The Commission instead found violations of Ohio
Administrative Code section 4121:1-3-10(E)(12) and section 4121:1-3-10(F)(5) which require tube and coupler
scaffolds and tubular welded frame scaffolds respectively to be secured to the building at specific intervals. Maghie
& Savage, Inc. (M & S) filed a complaint in mandamus in the Court of Appeals for Franklin County. M & S argued
that the Commission's award was an abuse of discretion because it violated the rules of requirement specificity and
strict construction. The court of appeals issued the writ and the case went before the supreme court on an appeal as
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of right.
HELD: The supreme court held that the court of appeals correctly found that the Commission abused its discretion in finding violations of *277 sections 4121:1-03-10(E)(12) and (F)(5). The court held that strict construction
and requirement specificity are rules of interpretation, however, and this case was one of application rather than interpretation. The court found the specific safety requirements involved in this case unambiguous and, relying on
State ex rel. Harris v. Industrial Comm'n, 12 Ohio St. 3d 152, 465 N.E.2d 1286 (1984), held that where application
of the rules to a specific factual situation gives rise to an illogical result, common sense should prevail. Because
caster locks and structural tie-ups have the same purpose, preventing movement of the scaffold, the court stated that
neither caster locks nor structural tie-ups were necessary in all situations, whether due to a lack of a hazard, the
presence of an equivalent means of protection, or some other reason. The court concluded that there are situations in
which caster locks are the lone prescribed safety device. In the absence of a duplicate protection requirement, the
court found it illogical to require duplicate protection. The judgment of the court of appeals was affirmed.
Robinson v. B.O.C. Group, Gen. Motors
81 Ohio St. 3d 361, 691 N.E. 2d 667
Decided on April 8, 1998
Appellee, Lester Robinson (Robinson), filed a complaint with the Industrial Commission seeking approval to
receive benefits from the state-funded workers' compensation fund. Robinson alleged that while working for B.O.C.
Group, General Motors (GM), he contracted a respiratory disease due to his exposure to secondary fumes. The Industrial Commission ruled in Robinson's favor, thereby granting him permission to receive workers' compensation.
Pursuant to Ohio Revised Code section 4123.519, GM appealed the Industrial Commission's order to the Trumbull County Court of Common Pleas. Subsequently, pursuant to section 4123.519, Robinson filed a petition with the
court of common pleas re-alleging his entitlement to receive workers' compensation. Shortly thereafter, however,
Robinson filed an entry of dismissal with the court pursuant to Ohio Civil Rule 41 (A). Rule 41(A) permits a plaintiff to voluntarily dismiss his case without prejudice. The court of common *278 pleas accepted Robinson's entry
and accordingly dismissed the action without prejudice.
GM responded with a motion to dismiss Robinson's petition with prejudice pursuant to Ohio Civil Rule
41(B)(1). Rule 41(B)(1) permits the court to dismiss a plaintiff's action with prejudice for his failure to prosecute.
GM also contended that it became the plaintiff when it filed its appeal with the court of common pleas; and therefore
Robinson could no longer voluntarily dismiss this case without prejudice. The court of common pleas granted GM's
motion, and dismissed Robinson's case with prejudice. Robinson subsequently re-filed his petition in an effort to
justify his receipt of workers' compensation. However, prompted by another GM motion, the court of common pleas
reissued its order dismissing the case with prejudice. The court of appeals reversed and held that Robinson, as the
plaintiff, was entitled to dismiss the action without prejudice. The court of appeals also granted a GM motion to certify the record to state that its ruling was contrary to the Franklin County Court of Appeals ruling in Rhynehardt v.
Sears Logistics Services, 103 Ohio App. 3d 327, 659 N.E. 2d 375 (1995). The supreme court allowed a discretionary
appeal, consolidating the two cases.
HELD: The supreme court held that while an appellant employer commences action with the court of common
pleas by appealing the Industrial Commission's order, the appellee employee remains the plaintiff. Therefore, as
plaintiff, Robinson was permitted to submit an entry to voluntarily dismiss his action without prejudice after his case
was appealed by GM.
The supreme court determined that Robinson was the plaintiff because of his requirements to (1) file a petition,
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(2) prove a cause of action, and (3) plead and prove all jurisdiction facts. The supreme court also noted the importance of Ohio Civil Rule 42(A)(2) in this matter. Rule 42(A)(2) provides that an action may not be dismissed by a
plaintiff without an approving order from the court. Therefore, the dismissing court would review each entry to dismiss and only accept those which do not allow a plaintiff to unreasonably delay adjudication. Accordingly, the supreme court affirmed the court of appeals decision that allowed Robinson to re-file his petition.
State v. Industrial Comm'n of Ohio
81 Ohio St. 3d 454, 692 N.E.2d 188
Decided April 22, 1998
In 1989, Claimant Raymond D. Nicholls (Nicholls) suffered an industrial injury that resulted in a permanent tear
of his left rotator cuff. At the time of the accident, Nicholls was employed by American National Can Company
(American Can) as a truck driver. Nicholls had also been the subject of a nonindustrial amputation of his right arm
in 1958. On May 3, 1994, respondent Industrial Commission of Ohio (Commission) granted Nicholls permanent
total disability compensation, based on a report by commission specialist Dr. Stanko.
American Can asked the Commission for reconsideration based on a *279 report dated June 14, 1994, from
Parman and Associates, Inc. (Parman). The Parman report suggested that Nicholls had the capacity to do sedentary
work. On March 20, 1995, the Commission denied permanent total disability compensation. The Commission based
their reconsideration on the possibility of a mistake in the previous Industrial Commission order. Nicholls filed an
action for writ of mandamus, alleging an abuse of discretion in denial of his application for permanent total disability compensation.
HELD: The Supreme Court of Ohio held that the reconsideration was invalid on jurisdictional grounds. Citing
Commission Resolution No. R94-1-8, the court noted that reconsideration was allowed in only three instances:
fraud; unusual legal, medical, or factual questions; and previously undiscoverable evidence. Since fraud was never
alleged, the court did not consider it as a basis for the reconsideration.
The court held that no legal, factual, or medical question merited the reconsideration. Although Nicholls's claim
involved a prior nonindustrial injury, the injury was properly excluded from consideration during the determination
of disability. The court also held that the Parman report did not constitute new, previously undiscoverable evidence,
since all of the information in the report would have been available earlier if the employer had attempted to obtain
the information prior to the beginning of the adjudicatory process.
Finally, the court disapproved of the contention by the Commission that Ohio Revised Code section 4123.52
allowed the Commission to review a case any time such review was justified. The court noted that allowing review
at any time the Commission felt such review was justified would give the Commission unlimited jurisdiction. Instead, the Commission was limited to cases of identifiable error. The court held that the Commission abused its discretion by reviewing the merits of their prior determination. The court granted the writ of mandamus and ordered the
Commission to vacate their denial of benefits and to reinstate their May 1994 order that granted permanent total
disability compensation.
Thomas v. Conrad
81 Ohio St. 3d 475, 692 N.E.2d 205
Decided April 22, 1998
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Appellee, Malinda Thomas (Thomas) was injured during the course of her employment with NCRCorporation
(NCR) in 1987. Her claim for workers' compensation was granted. In 1992, she was attacked by a guard dog and
suffered nonwork-related injuries. In July, 1994, NCR moved to *280 terminate Appellee's right to receive workers'
compensation due to the attack. A district hearing officer rejected NCR's motion. NCR appealed to a staff hearing
officer who affirmed the district hearing officer's order but modified it to include the finding that the dog attack did
not constitute an intervening injury. NCR appealed to the Industrial Commission (Commission). It refused to hear
the appeal and NCR appealed to the Montgomery County Court of Common Pleas pursuant to Ohio Revised Code
section 4123.512. Thomas made a motion to dismiss for lack of subject-matter jurisdiction. The court granted her
motion. NCR appealed to the court of appeals, who affirmed the trial court's decision. The case went before the
court upon a certified conflict between courts of appeal.
HELD: The court held that the order of the Commission did not decide Appellee's right to participate in the
plan, but rather it determined the extent of her disability. The court found that only those decisions of the Commission that can be appealed to the court of common pleas are those that resolve an employee's right to participate or
continue to participate and are final decisions. The court found that Appellee's right to participate had been established and NCR had not challenged her original claim. Instead, NCR sought to determine the effect the dog attack
had on Appellee's allowed conditions. Therefore, the court held that NCR did not have the right to appeal the Commission's decision under section 4123.512. The judgment of the court of appeals was affirmed.
State ex rel. Hartness v. Kroger Co.
81 Ohio St. 3d 445, 692 N.E.2d 181
Decided April 22, 1998
Appellee James Hartness (Hartness) injured his back while working as a warehouseman for Appellant Kroger,
and applied to the Industrial Commission for permanent total disability compensation. Hartness's voca-tional evaluation stated that because he was functionally illiterate, had only a fifth grade arithmetic level, and his severe injury
limited him to semi-skilled sedentary jobs requiring a higher academic ability, he was permanently and totally disabled. Hartness was also evaluated by three medical doctors, one agreed with the vocational evaluation's determination of permanent and total disability, while the other two determined that Hartness was limited to a sedentary job.
The Commission staff hearing officers denied Hartness's application for permanent and total disability, and adopted
the view of the two doctors that felt Hartness was not permanently and totally disabled, but was limited to a sedentary desk job. The hearing officers found that because of Hartness's young age, he would be able to *281 acquire the
skills necessary to perform the sedentary work of which he was capable. In response to the Industrial Commission's
denial of his application, Hartness requested a writ of mandamus from the Court of Appeals of Franklin County. The
court of appeals granted and issued a writ of mandamus directing the Industrial Commission to vacate the order denying Hartness permanent disability compensation, and to issue a new order either granting or denying the compensation based upon the specificity requirements set forth in State ex rel. Noll v. Industrial Comm'n, 57 Ohio St. 3d
203, 567 N.E.2d 245 (1991). The case came before the Supreme Court of Ohio as an appeal of right.
HELD: The supreme court rejected Kroger's contention that the Commission's determination was in compliance
with Noll because it demonstrated Hartness's ability to undertake sedentary work by way of his thirty-nine year old
youth and his seventh grade education. In making its determination, the supreme court relied on its holding in State
ex rel. Hall v. Industrial Comm'n, 80 Ohio St. 3d 289, 685 N.E.2d 1245 (1997), which stated that age is not determinative when a claimant lacks the mental capacity to learn. The supreme court affirmed the judgment of the court of
appeals, and determined that the Commission's explanation for denying permanent and total disability compensation
was inadequate. Furthermore, the supreme court granted a writ of mandamus pursuant to State ex rel. Gay v. Mihm,
68 Ohio St. 3d 315, 626 N.E.2d 666 (1994), and ordered the Commission to grant permanent and total disability
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compensation to Hartness.
State ex rel. Frederick v. Licking County Dep't of Human Services et al.
82 Ohio St. 3d 227, 694 N.E.2d 1350
Decided June 24, 1998
Appellant, Deborah Frederick (Frederick), hurt her back, neck, and shoulder on March 20, 1990. She hurt herself while employed for the Appellee, Licking County Department of Human Services. The workers' compensation
claim was allowed and she received temporary compensation. Appellant returned to work full-time on October 28,
1991, as an administrative secretary with the permission of her doctor, Michael B. Shannon, M.D.. Her job position
was removed on October 16, 1992, due to a reduction of employees. In December 1992, the Appellant went to work
full-time again but at a lower wage. Appellant applied for wage loss compensation claiming that her injuries caused
her to lose her former job. The hearing officer denied the wage loss compensation claim since the past injuries did
not cause her to lose her job. The Regional Board of Review (Board) *282 granted the compensation. On another
appeal the Commission vacated the order and reinstated the hearing officer's order which denied the compensation.
Frederick then filed for writ of mandamus to the court of appeals. The court denied the writ since the evidence
showed that Frederick lost her job due to an employment cutback and not due to any medical problems. The case
went before the supreme court as of right.
HELD: The supreme court found that the Appellant was not entitled to compensation when she was laid-off.
The supreme court stated that the Appellant was not earning less due to any medical complications or problems. The
supreme court affirmed the court of appeals judgment.
E. Unfair Labor Practices
State v. State Employment Relations Bd.
81 Ohio St. 3d 173, 689 N.E.2d 962
Decided February 25, 1998
On October 8, 1996, Respondent, the University of Cincinnati (University), decided to privatize the University
of Cincinnati Hospital. On September 26, 1996, before the privatization decision had been finalized, Relators (a collection of labor organizations with collective bargaining agreements with the University) filed an unfair labor practice charge with Respondent, State Employment Relations Board (SERB). Relators asserted that the privatization
agreement would divest the relators of their rights as public employees and evade SERB jurisdiction. A SERB labor
relations specialist investigated the case and recommended that probable cause be found by SERB to indicate that an
unfair labor practice had been committed. The investigator based his conclusion on a confidential University memorandum authorized by the University's Vice President and Provost for Health Affairs. The memorandum and other
sources relied upon by the examiner indicated that one motivation for the privatization was to obtain the more favorable regulations of the National Labor Relations Board (NLRB).
On March 6, 1997, SERB rejected the investigator's recommendation and found that the statutory rights of the
workers had not been interfered with. SERB also determined that there was no probable cause to believe that an unfair labor practice had been committed in the privatization and dismissed the Relator's charge.
On March 27, 1997, Relators filed an original action for a writ of mandamus with the Supreme Court of Ohio.
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Relators sought a writ of mandamus compelling SERB to conduct a hearing on the unfair practices and issue a complaint.
*283 HELD: The supreme court first determined that a writ of mandamus was the proper form of action in this
case. The court cited three requirements for mandamus to issue. First, the Relator must have no plain and adequate
legal remedy. Since no direct appeal was allowed from SERB's order dismissing the unfair labor practices charge,
thisr a legal duty to perform the requested acts. Finally, the Relators were required to have a right to the relief prayed
for. The court decided that although SERB had discretion for the determination of probable cause, SERB's discretion
was not unlimited. The court rejected SERB's contention that Ohio Revised Code section 4117.12(B) does not require SERB to issue a complaint so long as an investigation was conducted.
The court then examined whether the Relators had presented sufficient evidence to show that SERB had abused
their discretion. The court determined that the privatization was motivated at least in part by a desire to gain the
more favorable NLRB regulation. The court also rejected an assertion by SERB that the holding of State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn., 66 Ohio St.3d 485, 613 N.E.2d 605 (1993), shifted the burden of
proof such that SERB did not have to issue a complaint due to a failure by relators to show that an unfair labor practice occurred. The court decided that the relevant issue was “whether probable cause exists to believe that an unfair
labor practice has occurred.” Finally, the court determined that nothing in section 4117 allowed SERB to based its
decisions on what SERB deemed to be good public labor policy. The Supreme Court of Ohio issued a writ of mandamus compelling SERB to issue a complaint and conduct a hearing on the unfair labor practice charge.
X. LEGAL SERVICES
A. Conflict of Interest
Kala v. Aluminum Smelting & Refining Co.
81 Ohio St. 3d 1, 688 N.E.2d 258
Decided January 21, 1998
Appellee, Sher S. Kala (Kala), retained attorney Michael Pearson (Pearson) and the law firm of Spangenberg,
Shibler, & Liber (Shangenberg) to represent him in a lawsuit against Appellant, Aluminum Smelting & Refining
Co., (Aluminum Smelting), his former employer. Kala alleged that Aluminum Smelting had wrongfully terminated
his employment on the basis of age. Richard Hubbard of the law firm of Duvin, Cahr & Hutton (Duvin) represented
Aluminum Smelting. The case went to trial, resulting in a directed verdict in favor of Aluminum Smelting.
Pearson filed an appeal for Kala. Kala had numerous conversations *284 with Pearson during the litigation in
which Kala relied on the fact that his conversations were confidential. Pearson, shortly thereafter, announced his
intentions to leave the Sprangenberg law firm to join Duvin. Attorneys at Duvin were made aware that Pearson was
to be quarantined from any aspect of the Kala case. Duvin sent a letter to Sprangenberg assuring them that measures
were taken to prevent any breach of confidence between Pearson and Kala. Kala filed a motion to disqualify Duvin,
alleging a conflict of interest. The court ordered the disqualification of Duvin. Duvin filed a motion to reconsider,
but the court of appeals denied the motion. The cause went before the supreme court pursuant to the allowance of a
discretionary appeal.
HELD: The supreme court held that in ruling on a motion for disqualifying of either an individual or the entire
firm when an attorney has left a law firm and joined a firm representing the opposite party, a court must hold an
evidentiary hearing and issue findings of fact using a three part analysis: (1) Is there a substantial relationship between the matter at issue and the matter of the former firms prior representation; (2) If there is a substantial relation-
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ship between these matters, is the presumption of shared confidences within the former firm rebutted by evidence
that the attorney had no personal contaIf the attorney did have personal contact with or knowledge of the related
matter, did the new firm erect adequate and timely screens to rebut a presumption of shared confidences with the
new firm so as to avoid imputed disqualification?
The supreme court held that Pearson clearly met the substantial relationship test and possessed client confidences, as he was the lead attorney of Kala's lawsuit. Therefore, the first two parts of the test required disqualification of Pearson and raised a presumption in favor of disqualifying Duvin. The Court stated that Pearson was negotiating with Duvin while still actively representing Kala without disclosing to Kala his negotiations. The appearance
of impropriety was so strong that the Duvin firm could do nothing to raise a sufficient screen to replace the trust and
confidence that Kala had in his attorney or the legal system if such representation was permitted. The supreme court
affirmed the disqualification ruling of the court of appeals.
*285 B. Discipline
Columbus Bar Ass'n v. Finneran
80 Ohio St. 3d 428, 687 N.E.2d 405
Decided December 31, 1997
On April 17, 1996, Relator Columbus Bar Association (Relator) filed a complaint against Respondent Finneran
(Respondent), charging him with a consistent pattern of incompetence, dilatory tactics, flagrant failure to respond to
discovery demands, and repeated dismissal and refiling of cases. Respondent did not plead or answer the complaint.
A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court (Board) agreed with the
charges and also found that the Respondent had failed to respond to Relator's attempts to investigate the matter. It
found at least eleven cases where Respondent repeatedly voluntarily dismissed and refiled cases. This tactic led to
at least five of those cases being dismissed. The panel recommended indefinite suspension from the practice of law.
The Board accepted and adopted the findings, conclusions and recommendation of its panel.
HELD: Engaging in a procedure or tactic for the substantial purpose of delay is representation of a client outside
the bounds of the spirit and intent of the law. The Model Code of Professional Responsibility requires that an attorney be qualified to handle the cases chosen, and that an attorney take adequate steps to prepare for those cases. Respondent repeatedly was not qualified and did not take adequate steps to prepare, and therefore used the tools of his
trade to the detriment of his clients. Tactics used to circumvent discovery were prejudicial to the administration of
justice, harmful to Respondent's clients and a violation of the Model Code of Professional Responsibility. Respondent's tactics brought the administration of justice into disrepute and went against the goal of promptly resolving
disputes. Respondent also operated outside the bounds of Rule V of the Rules for the Government of the Bar of
Ohio, when he attempted to introduce evidence in his appellate brief and during his oral argument to the supreme
court. Thus, the supreme court decided that the findings oecision. Respondent was suspended indefinitely from the
practice of law in Ohio, and costs were assessed against respondent.
*286 Warren County Bar Ass'n v. Bunce
81 Ohio St. 3d 112, 689 N.E.2d 566
Decided February 18, 1998
On April 15, 1996, the Warren County Bar Association, Relator, filed a complaint with the Board of Commissioners on Grievance and Discipline of the Supreme Court (Board) against Respondent, James P. Bunce (Bunce).
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This complaint arose from Bunce's performance in handling legal matters for June Herman (Herman) concerning
establishment of guardianship of her father. On November 1, 1996, a panel of the Board conducted a hearing with
respect to Relator's complaint. In a written stipulation submitted by the parties, Bunce admitted to failing to handle a
legal matter entrusted to him, he agreed to provide restitution to Herman, and he agreed to undergo a psychological
evaluation. Respondent testified that he was in the process of going through a divorce and that he had various health
problems that adversely affected his practice. The panel subsequently ordered Bunce to undergo a psychological
evaluation and submit the results to the panel. The evaluation was conducted by a psychologist and it was determined that in addition to Bunce's other health concerns, he also suffered from major depression that could involve
medication and certainly the establishment, development, and maintenance of a psycho-therapy relationship. The
panel found that Bunce had violated Disciplinary Rule 6-101(A)(3) by neglecting to handle legal matters entrusted
to him. The panel recommended that Bunce be suspended from the practice of law for a period of one year, but that
the suspension be stayed on the condition that Bunce's practice be monitored by Relator and that he receive psychological treatment. The Board accepted the findings of fact and conclusions of law of the panel but disagreed with the
panel's recommendation. The Board recommended that Bunce be suspended from the practice of law for a period of
eighteen months with the final twelve months stayed on the condition that Bunce's practice be monitored and he
receive psychological treatment. Bunce then appealed to the supreme court.
HELD: The supreme court adopted the findings of the Board and the conclusion that Bunce had violated Rule 6101(A)(3). Relying on Dayton Bar Ass'n v. Shaman, 80 Ohio St. 3d 196, 685 N.E.2d 518 (1997), however, the court
held that the recommendation of the panel should be adopted. The court held that when imposing a sanction it will
consider not only the duty violated, but the lawyer's mental state, the actual injury caused, and whether mitigating
factors existed. The court noted Bunce's health problems that existed at the time of the misconduct and the fact that
he had accepted full responsibility for his actions and shown remorse. The court also considered *287 that he agreed
to provide full restitution to the client and the fact that he agreed to undergo psychological treatment for his depression. Based on these considerations, the court held that Bunce was suspended from the practice of law for one year,
with the suspension stayed on the condition that Bunce's practice be monitored by Relator for a period of two years.
Bunce was also ordered to undergo psychological treatment for his depression and, prior to discontinuing treatment,
he must provide a medical statement to Relator proving that treatment is no longer necessary.
C. Disqualification
In re Disqualification of Krichbaum
81 Ohio St. 3d 1205, 688 N.E.2d 511
Decided March 4, 1997
James S. Gentile (Gentile) and E. Winther McGroom (McGroom), counsel for Defendant Sydney Cornwell
(Cornwell), asserted that Judge R. Scott Krichbaum was biased and prejudiced against their client because of his
September 12, 1996 acceptance of guilty pleas from Williams, McGaha, and Bunkley, who were accomplices of
Cornwell. Gentile and McGroom further contended that Judge Krichbaum had favored the prosecution because the
pleas of Williams, McGaha, and Bunkley were conditioned on their agreement to provide sworn statements and testimony against Cornwell. Finally, Gentile and McGroom proffered the argument that Judge Krichbaum was biased
and prejudiced because he presided over the trial of Johnson and Stoutmire, two additional accomplices of Cornwell,
on September 16, 1996, during which he heard the testimony of Williams, McGaha, and Bunkley. The affiants filed
a motion of recuse on February 12, 1997 in the Mahoning County Court of Common Pleas to disqualify Judge
Krichbaum from Corwell's case. Judge Krichbaum overruled the motion to recuse. Gentile and McGroom subsequently filed an affidavit of disqualification with the Supreme Court of Ohio on February 25, 1997.
HELD: The court relied on In re Disqualification of Corrigan, 77 Ohio St. 3d 1243, 674 N.E.2d 355 (1996)
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when they held that the involvement of a judge in the plea bargain agreement of a co-defendant does not necessitate
the disqualification of the judge. In addition, the court cited State v. D'Ambrosio, 67 Ohio St. 3d 185, 616 N.E.2d
909 (1993) in support of the proposition that the participation of a judge in a previous case, in which the judge
learned of the facts of the underlying case, does not compel the judge's disqualification. Correspondingly, the fact
that Judge Krichbaum heard the testimony of Williams, McGaha, and Bunkley at the trial of the *288 two additional
accomplices and had accepted the guilty pleas of these individuals, did not mandate Judge Krichbaum's disqualification in Cornwell's case. The record did not indicate that Judge Krichbaum expressed a view as to the evidence presented by the state against Cornwell or to the credibility of the testimony given by Williams, McGaha, and Bunkley.
Further, the defendant's attorneys did not file their objection to Judge Krichbaum until some time after the acceptance of Williams, McGaha, and Bunkley's guilty pleas and the trial of Johnson and Stoutmire. An affidavit of disqualification needs to be filed as soon as possible after the occurrence of the event or events which gave rise to the
judge's prejudice. If the objection to the judge is not raised in a timely fashion and the facts supporting the objection
have been known for some time, the party making the objection is deemed to have waived his or her objection. The
supreme court denied the affidavit.
XI. LITIGATION
A. Arbitration
Council of Smaller Enterprises v. Gates, Mc Donald & Co.
80 Ohio St. 3d 661, 687 N.E. 2d 1352
Decided on January 14, 1998
The parties in this case are the Appellant, Council of Smaller Enterprises (COSE), and the Appellee, Gates,
McDonald & Co. (Gates). On January 1, 1992, COSE and Gates entered into a service agreement whereby Gates
would administer and operate a Workers' Compensation Group Experience Rating Program on COSE's behalf. After
a contract renewal in 1993, COSE provided Gates with notice of its intent to terminate their contractual relationship
upon completion of the 1993 contract. On February 8, 1994, Gates presented COSE with a letter claiming that
COSE continued to owe Gates money for various services provided. By a letter dated February 14, 1994, COSE
responded by stating all fees were paid in full, but that even if some fees were still outstanding, COSE was not the
responsible party pursuant to their contract. On February 24, 1994, COSE sent a letter to Gates acknowledging the
existence of a dispute between the parties and opined that the parties should meet, discuss, and resolve the dispute.
The parties' contract contained an arbitration clause that expressly stated “all disputes and controversies of every
kind and nature” arising between the parties will be subject to arbitration. The contract further stated that the party
seeking arbitration must make a request for the arbitration within ninety days after the dispute arose.
*289 On August 2, 1994, COSE filed a complaint with the Cuyahoga County Court of Common Pleas seeking
a declaratory judgment stating that Gates had waived its right to resolution on this matter by allowing the ninety-day
time limit on seeking arbitration to elapse. Gates denied that it failed to comply with the ninety-day time limit provision, and averred that said time limit provision was understood differently by the parties and should therefore be
subject to arbitration.
The trial court disagreed with Gates and issued a declaratory judgment in favor of COSE. That decision, however, was reversed by the court of appeals. The court of appeals held that the parties were in dispute over the understanding of the ninety-day time limit provision. Accordingly, the court of appeals required the parties to submit this
dispute to arbitration. The supreme court heard this case pursuant to its allowance of a discretionary appeal.
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HELD: The supreme court held that once parties have agreed to resolve all disputes through arbitration, matters
coming into dispute, unless expressly stated otherwise, are presumed to be subject to arbitration. The supreme court
did not believe the issue was whether Gates had allowed the ninety-day time limit to elapse; but whether there existed a dispute in theunderstanding of the time limit provision. Based on the evidence presented, the supreme court
was convinced that such a dispute existed. Therefore, by definition, the dispute fell within the arbitration clause
which encompassed “all disputes and controversies of every kind and nature” between Gates and COSE. There was
therefore a presumption in favor of arbitration in this instance. As COSE failed to overcome this presumption, the
supreme court affirmed the court of appeals' decision to submit the matter to arbitration.
B. Class Actions
Hamilton v. Ohio Savings Bank
82 Ohio St. 3d 67, 694 N.E.2d 442
Decided June 10, 1998
Appellants, Frances Hamilton, Barbara Seidel, and George Seidel, brought an action against Appellee, Ohio
Savings Bank (OSB). The claim alleged that OSB had improperly amortized the interest on the appellants' residential mortgage loans. Appellants attempted to obtain class certification pursuant to Ohio Civil Rule 23(A), (B)2, and
(B)3. The trial court denied the motion for certification, with no explanation. The court of appeals affirmed in part
and reversed in part, denying certification to subclasses with retired mortgage loans but granting certification to subclasses with *290 outstanding mortgage loans. The court of appeals noted that the question of whether the claims of
the holders of the retired loans had been barred by the statute of limitations was an inquiry individual to each claimant and therefore inappropriate for class certification. The case came before the Supreme Court of Ohio on discretionary appeal.
HELD: The court first determined that the proper standard of review for failure to certify is abuse-of-discretion,
not de novo as suggested. The court held that certification was a matter of expertise and docket management, not
credibility assessment. However, the court held that the discretion of the trial court was not unlimited, and that a
rigorous analysis of the class action requirements of Rule 23 was required. To that end, the court made the suggestion that a trial court make formal written findings in each of the seven class action requirements when decideng a
class action certification question. The court then proceeded to examine the seven requirements for certification.
During their analysis, the court noted that the class membership requirement could be satisfied by representatives
who had the same interest and the same injury as the class. The court held that the representatives did not necessarily
have to suffer the injury in the same manner as the class in order to be proper representatives. The court also held
that no element of reliance was necessary to find damages with respect to Rule 23. After a lengthy analysis, the
court determined that the trial court abused its discretion in failing to certify the subclasses in the case, and the
judgment of the court of appeals with respect to that issue was reversed. The supreme court affirmed the judgment
of the court of appeals with respect to the certifications that the court of appeals approved. The case was remanded
to the trial court for proceedings consistent with the supreme court's opinion.
C. Costs
Williamson v. Ameritech Corp.
81 Ohio St. 3d 342, 691 N.E.2d 288
Decided April 1, 1998
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An age discrimination suit was brought by Appellants, Susan Williamson and Roger Renzetti against their former employer, Ohio Bell Telephone and it's parent, Ameritech Corporation (Ameritech). At the conclusion of the
action, a jury entered a judgment in favor of Ameritech, finding that neither former employees' termination had resulted from age discrimination. Pursuant to Ohio Civil Rule 54(D), Ameritech moved for reimbursement of deposition expenses, witness fees, and court reporter fees totaling $7,515.93. *291 The trial court awarded Ameritech
$2,704.47 in costs, which included court reporter fees for taking depositions. The court of appeals affirmed the trial
court's order, holding that Rule 54(D) and Ohio Revised Code section 2319.27 conjoin to permit a prevailing party
in a civil action to recover, as costs, court reporter fees for taking depositions, conditional on the prevailing party's
use of the deposition at trial. Upon independent review, the Supreme Court of Ohio determined that a conflict existed and directed the parties to brief the following issue: Whether expenses related to the taking of a deposition are
‘costs' within the meaning of Rule 54(D).
HELD: Costs recoverable by a prevailing party in a civil case are generally defined as statutory fees to which
officers, witnesses, jurors, and others are entitled for their services in an action and which are authorized by statute
to be taxed and included in the judgment. There was neither general statutory authority which empowered the trial
court to award deposition expenses to a prevailing party nor a specific statutory mandate permitting an award in this
case. Section 2319.27 does not provide a statutory basis for taxing the services of a court reporter at a deposition as
costs under Rule 54(D). The supreme court reversed the judgment of the court of appeals and remanded the cause
for proceedings consistent with this opinion.
D. Pleading
State v. Clerk, Court of Claims
80 Ohio St. 3d 495, 687 N.E.2d 456
Decided December 31, 1997
Appellant, prison inmate Michael Thomson (Thomson), filed a complaint alleging personal injuries in the Court
of Claims. Appellee, Clerk of the Court of Claims, denied Thomson's claim administratively pursuant to Ohio Revised Code section 2743.10(C). Pursuant to R.C. 2743.10(D), the Court of Claims reviewed and adopted the clerk's
order. The clerk refused to transmit the record when Thomson subsequently attempted to appeal the Court of Claims'
judgment.
Thomson filed a complaint in the Franklin County Court of Common Pleas for a writ of mandamus to compel
the clerk to transmit the record. The clerk filed a motion to dismiss, and Thomson filed a motion to amend his petition to add the Court of Claims as a respondent. In his amended complaint, Thomson also alleged that the Court of
Claims had abused its discretion by not allowing his claim. Thomson failed to file his amended complaint or to serve
the opposing party. The court of appeals dismissed *292 Thomson's complaint. The case came before the Supreme
Court of Ohio as an appeal of right.
HELD: The Supreme Court of Ohio found three reasons to uphold the decision of the court of appeals. First, the
court found that the court of appeals had properly not considered the amended complaint since it had been neither
filed nor served. Second, the court held that Thomson's abuse of discretion claim lacked merit, since, even if judicial
discretion is abused, a writ of mandamus will not issue to control that discretion. Finally, the court held that, pursuant to section 2743.10(D), the clerk had no duty to transmit the record to the court of appeals. Therefore, the court
found no error in the court of appeals' dismissal of the complaint. The court affirmed the judgment of the court of
appeals.
Jim's Steak House, Inc. v. City of Cleveland
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81 Ohio St. 3d 18, 688 N.E.2d 506
Decided January 28, 1998
Appellant, Jim's Steak House, Inc. (Jim's), is a restaurant located near the Eagle Avenue lift bridge, along Cuyahoga River in the Flats section of Cleveland. The bridge provides convenient, but not exclusive, access to downtown
Cleveland, across the river from Jim's. In 1987, the City of Cleveland (city) unexpectedly closed the bridge for immediate repair. The bridge did not reopen until December 1993. In 1988, Jim's filed a complaint against the city,
alleging that the bridge closure interfered with its business, which was dismissed for failure to state a claim. In 1992,
Jim's filed another complaint alleging five theories of recovery. The city answered the second complaint raising res
judicata as one of its defenses. In 1994, Jim's filed an amended complaint adding another party with distinct claims.
The city never filed an answer to the amended complaint and thus raised no affirmative defenses to the claims raised
therein. The jury awarded damages to Jim's. The court of appeals reversed the jury verdict and held that the first
complaint was dismissed after adjudication on the merits, precluding relitigation of the issues and barring Jim's second complaint and amended complaint. The cause came before the supreme court upon the allowance of a discretionary appeal.
HELD: An affirmative defense is waived unless it is presented by motion before pleading pursuant to Ohio
Rules of Civil Procedure 12(b), affirmatively in a responsive pleading under Ohio Rules of Civil Procedure 8(c), or
any amendment under Ohio Rules of Civil Procedure 15. Affirmative defenses other than those listed in Rule 12(b)
are also waived if not *293 raised in the pleadings or in an amendment to the pleadings. Thus, the supreme court
found for Jim's because the city never filed an answer to Jim's amended complaint, and therefore waived its opportunity to raise res judicata as an affirmative defense. The supreme court reversed the judgment of the court of appe
E. Sanctions
Ron Scheiderer & Associates v. City of London
81 Ohio St. 3d 94, 689 N.E.2d 552
Decided February 18, 1998
Appellants, Ron Scheiderer and Associates, and Ron Scheiderer (Scheiderer) filed a complaint in the common
pleas court against county prosecutor David A. Sams (Sams), the city of London (London), and various city officials. The complaint alleged defamation and breach of contract by the defendants, and demanded compensatory,
unspecified special and general damages, and punitive damages from each defendant. Prior to trial, an additional
claim of conspiracy and/or complicity to compound a crime was entered by Scheiderer. At trial, Scheiderer refused
to identify any clients of his business on the grounds that such information was privileged. Scheiderer further denied the existence of a master list of clients that he had mentioned in his deposition. London filed a motion with the
trial court seeking attorney fees pursuant to former Ohio Revised Code section 2323.51 and Ohio Civil Rule 11. The
trial court concluded that Scheiderer had engaged in frivolous conduct in pursuing the suit against the defendants,
and awarded attorney fees pursuant to the aforementioned sections. The court of appeals affirmed the judgment of
the trial court. The court of appeals certified a conflict with a decision of the Hamilton County Court of Appeals in
Riley v. Langer, 95 Ohio App. 3d 151, 642 N.E.2d 1 (1994), on the question of whether such an award should include attorney fees incurred in prosecuting the motion for sanctions. This case was before the court upon the determination that a conflict existed.
HELD: The court held that former section 2323.51 permitted awarding attorney fees incurred in prosecuting a
motion for sanctions. Such an award may be made against a party, a party's counsel, or both. Reasonable attorney
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fees under the section included fees incurred by a party in prosecuting a motion for sanctions when the other party
was found to have acted frivolously. Furthermore, the court held that the risk of incurring such fees is one that
should be anticipated by an attorney. The court affirmed the judgment of the court of appeals.
*294 F. Settlements
Fidelholtz et al. v. Peller et al.; Ong et al.
81 Ohio St. 3d 197, 690 N.E.2d 502
Decided March 11, 1998
Appellants, Bernice Fidelholtz and her husband Irving, sued Dr. Ong (Ong), Aultman Pathology Associates,
Inc. (Associates), Dr. Sebek (Sebek), and Cleveland Clinic Foundation (CCF). Appellants alleged negligent misdiagnosis of cancer. Sebek and CCF reached a settlement agreement with the Appellants for $125,00. The case went to
trial against Ong and Associates with a jury verdict for the Appellants. The jury awarded damages in the amount of
$250,001. Appellees filed a motion to have the damage award offset by the $125,000 that Appellants received from
Sebek and CCF based upon former Ohio Revised Code section 2307.32(F). The trial court granted the motion and
the court of appeals affirmed. Both courts used the precedent case of Ziegler v. Wendel Poultry Serv., Inc., 67 Ohio
St. 3d 10, 615 N.E.2d 1022 (1993). The case went before the Supreme Court of Ohio as a discretionary appeal.
HELD: A settlement agreement with a co-defendant that is determined to be not liable in tort does not setoff any
jury verdicts against the other co-defendants. The supreme court found that Sebek was not negligent and the settlement agreement should not reduce the jury award. The Ziegler case was overruled. The Appellees were found negligent and were not entitled to a setoff. The supreme court reversed the judgment of the court of appeals and reinstated
the original jury verdict of $250,001.
XII. REAL PROPERTY
A. Adverse Possession
Grace v. Koch
81 Ohio St. 3d 577, 692 N.E.2d 1009
Decided May 6, 1998
Leonard Grace, Jr. (Grace) built a house on Wuest Road in Colerain Township in the early 1960's. The land
(parcel 44) had been given to him by his parents from a larger tract (parcel 43). Grace built a fence outside the property line, on parcel 43 which was retained by his parents. In 1970, Grace sold parcel 44 to Anthony H. and Elizabeth
A. Koch (Kochs). Grace obtained an easement from his parents over their parcel so that the Kochs could use the
driveway and conveyed the easement (the strip) to the Kochs. *295 The Kochs testified that they knew that they did
not own the strip of land. They used the strip for various purposes.
When Grace's father died in 1991, Grace became the owner of parcel 43. Grace became upset about the noise
from a race car belonging to the Koch's son. In July 1992, Koch spread gravel over the strip. Grace objected and
ordered Koch to stop trespassing. When Koch refused, Grace parked his truck over the strip to prevent Koch from
spreading more gravel. He also removed portions of the fence which separated the strip from the remainder of
Grace's property.
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In September 1992, Grace filed a complaint against the Kochs for trespass. The Kochs filed a counterclaim to
quiet title of the strip in them through adverse possession and for damages. The trial court found that the Kochs
owned the strip by adverse possession and awarded them $577.49 in damages. On appeal, the court of appeals reversed on the basis that the Kochs did not prove by clear and convincing evidence that their use of the strip was sufficiently exclusive, hostile, or notorious for the required twenty-one years to take title by adverse possession.
This case was before the Supreme Court of Ohio pursuant to the allowance of a discretionary appeal.
HELD: Adverse possession must be proven by clear and convincing evidence. To acquire title by adverse possession, the party claiming title must show exclusive possession and open, notorious, continuous, and averse use for
a period of twenty-one years. The Kochs did not establish by clear and convincing evidence that they held the strip
adversely to Grace for the entire statutory period. The decision of the court of appeals was affirmed and the case
remanded to the trial court for restoration of the title to the strip to Grace and determination of damages for the
Koch's trespass on the strip.
B. Contractors and Developers
Sopkovich v. Ohio Edison Co.
81 Ohio St. 3d 628, 693 N.E.2d 233
Decided May 13, 1998
Morakis Sons Industrial Painting Company, Inc. (Morakis) was hired by Ohio Edison Company (Edison) to
paint steel structures at their electric substation in Masury, Ohio. In the course of this work, Michael J. Lexie
(Lexie), an employee of Morakis came into contact with high voltage electricity and sustained injuries. Patrick
Cambell (Cambell), an on-sight representative for Edison, was to deactivate certain electric conductors and *296
inform Morakis of the areas that were deactivated. Morakis would then tell the paint crew the areas in which it was
safe to paint. In July, 1989 Lexie brought suit in the Court of Common Pleas of Trumbull County against Edison for,
negligent supervision, stating Edison had actively participated in the work. In 1995, the trial court granted summary
judgement for Edison. The court of appeals reversed, holding Edison did not control the performance of the work
but exerted control over a vital aspect of Lexie's working environment. Thereafter, the court of appeals, finding its
judgement on the issue of active participation to be in conflict with the decision of the court of appeals for the Ninth
Appellate District in Dehass v. Edison Co., No. 15970, (Summit App. 1993), (unreported), entered an order certifying a conflict. The case was brought before the supreme court upon their determination that a conflict exists.
HELD: The Supreme Court of Ohio held that the case at hand and the Dehass case were not in conflict, however
the court felt the issue of active participation was worthy of review. Relying in part on the definition of active participation used in Bond v. Howard Corp., 72 Ohio St.3d 332, the court held that Edison did not actively participate
in the job activities of Morakis but had retained and exercised exclusive control over a critical variable in the working environment which resulted in a duty extending from Edison to Lexie. The court stated the duty was not absolute, and was only breached if Ohio Edison failed in de-energizing the areas they said they had, and that failure was
the proximate course of Lexie's injuries. The supreme court affirmed the decision of the court of appeals.
C. Premises Liability
Texler v. D.O. Summers Cleaners & Shirt Laundry Co.
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81 Ohio St. 3d 677, 693 N.E.2d 271
Decided May 13, 1998
On August 21, 1993, Appellant, Dorothy Texler, tripped over a bucket obstructing the sidewalk outside the
business of Appellee, D.O. Summers Cleaners & Shirt Laundry Company (Summers). The jury found for Texler,
concluding that Appellee's negligence was approximate cause of Texler's injury and that Summers was responsible
for one hundred percent of the negligence. The trial court denied Appellee's motion for judgment notwithstanding
the verdict or, in the alternative, a new trial. The Cuyahoga County Court of Appeals reversed the judgment of the
trial court and entered judgment for the Appellee. The case came before the Supreme Court of Ohio on discretionary
appeal.
*297 HELD: The court decided that the issue in this case was whether the trial court could determine as a matter of law that Appellant contributed over fifty percent of the negligence involved in the accident, barring recovery
by the Appellant. The court decided that such an issue was fit for determination by the trial court only if it was an
issue upon which reasonable minds could not differ. The court wrote that in the instant case reasonable minds could
differ with respect to the level of the Appellant's negligence, and therefore the trial judge should not have ruled on
the motion for judgment notwithstanding the verdict. The court reaffirmed its general holding that “the question of
whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions ofOhio Revised Code section 2315.19(A)(1).” The
court reversed the judgment of the court of appeals and remanded the case to the court of appeals to review the assignments of error that had been raised by both parties.
D. Zoning and Planning
Ameigh v. Baycliffs Corp.
81 Ohio St. 3d 247, 690 N.E.2d 872
Decided February 6, 1998
In 1989, J.I. Develoment, Inc. (J.I. Development), the prior owner of the real property now owned by Appellee
Baycliffs Corporation (Baycliffs), attempted to procure a zoning permit to build one hundred docks. The docks were
to be individually owned and appurtenant to private lots located on Johnson's Island in Sandusky Bay in Danbury
Township of Ottawa County. Johnson's Island has been classified as an R-3 or multifamily residential district. The
township zoning inspector determined that the building of the docks was in accord with the R-3 zoning classification, and issued a permit to J.I. Development. The township trustees revoked the permit under the reasoning that the
docks were a commercial usage of the land, and not in compliance with the R-3 zoning. In response to the revocation of the permit, Baycliffs filed an administrative appeal in accordance with Ohio Revised Code chapter 2506. The
trial court held that neither Ohio Revised Code chapter 519 nor the Danbury Township Zoning Resolution gave the
trustees jurisdiction to nullify the permit unless it was issued upon a false statement. The proper recourse for the
township trustees was to appeal the decision of the inspector with the Board of Zoning Appeals. The trustees appealed the trial court's decision, but later dismissed the action.
Again in 1991, the trustees revoked Baycliffs' permit on the grounds that the permit was issued upon false information supplied by Baycliffs. *298 Baycliffs again filed an administrative appeal and the trial court again reversed the decision of the trustees, holding that the trustees' decision was arbitrary and unsupported by reliable and
material evidence. No appeal of the trial court's decision was initiated and the permit was reissued to Baycliffs. Several owners of property on Johnson's Island and the Johnson's Island Property Owners' Association (Owners' Association) filed a complaint against Baycliffs and Johnson's Island, seeking injunctive and declaratory relief pursuant
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to Ohio Revised Code section 519.24. The property owners asserted that Baycliffs intended to erect a marina on the
island in violation of the R-3 zoning classification. The property owners also alleged that because the project violated the R-3 zoning classification, the permit issued to Baycliffs was invalid, and an injunction was necessary to
prevent the construction of the docks. Baycliffs advanced the defense of res judicata unsuccessfully, as the trial court
found the two prior appeals not to have addressed the legality of the zoning permit. Consequently, the trial court
granted the property owners' motion for summary judgment and issued an injunction to prevent Baycliffs from constructing the docks. Baycliffs appealed and the court of appeals reversed, holding that the doctrine of res judicata
was applicable. The case came before the Supreme Court of Ohio on the allowance of a discretionary appeal.
HELD: The supreme court first addressed the issue of whether the court of appeals was correct in its determination that the doctrine of res judicata barred the property owners' action. The court held that the trial judge's decision
in the first appeal by Baycliffs was no more than a determination that the trustees were without power to revoke
Baycliffs' permit. There was no determination of the merits, and the trial judge made only a procedural resolution,
not a final judgment on the claim that construction of the docks was not an approved use. Similarly, the second appeal by Baycliffs was only a determination that the trustees were not acting within their given authority in revoking
Baycliffs' permit. Because the issue of Baycliffs' use of the land was not actually litigated, res judicata will not apply
in any subsequent proceeding on that issue. The next determination that the supreme court made, was whether the
court of appeals correctly determined that the trial court was without jurisdiction to hear the property owners' action
because they had not exhausted their administrative remedies. The supreme court relied on Jones v. Chagrin Falls,
77 Ohio St. 3d 456, 674 N.E.2d 1388 (1997) in holding that a declaratory action is not barred jurisdictionally by a
failure to exhaust admin jurisdiction to hear the property owners' action for a declaratory judgement despite their
failure to exhaust administrative remedies. The supreme court reversed the judgement of the court of appeals and
remanded the case to that court.
*299 Goldberg Companies, Inc. v. Council of the City of Richmond Heights
81 Ohio St. 3d 207, 690 N.E.2d 510
Decided March 11, 1998
In 1992, Appellant Goldberg Companies Inc. (Goldberg), requested a parking variance and approval of a site
plan in connection with Goldberg's plan to build a sixty-two thousand square feet retail building with fifty-five thousand three hundred fifty square feet of usable floor area, in the city of Richmond Heights. Richmond Heights zoning
code required retail stores to provide one parking space per thousand square feet of usable floor area. Goldberg requested 372 parking spaces instead of the required 554. The city's Board of Zoning Appeal (BZA) recommended
variance to Appellee Council of the City of Richmond Heights (Council). The Council rejected the BZA's recommendation and denied the parking variance sought by Goldberg, stating that “ the granting of the variance would be
contrary to the purpose, intent and objectives of the Zoning Code and Master Plan of the City.” The Council also
disapproved Goldberg's site plan. Goldberg appealed these decisions and sought a declaratory judgment that the
parking ordinance was unconstitutional and that the site plan was a permitted use. The trial court affirmed the Council's decision. The court of appeals affirmed. The cause went before the supreme court upon the court granting a
motion for reconsideration.
HELD: The Ohio State Supreme Court reinstated the rule set forth in Euclid v. Amber, 272 U.S. 365 (1926),
holding that a zoning regulation is presumed to be constitutional unless demonstrated by a court to be clearly arbitrary and unreasonable without substantial relation to public health, safety, morals, or general welfare of the community. The burden of proof remains with the party challenging an ordinance's constitutionality, and the standard of
proof remains “beyond fair debate.” The supreme court reversed and remanded the matter to determine whether
Goldberg established the standard set forth for challenging the constitutionality of the zoning ordinance and to determine if the denial of Goldberg's parking variance and rejection of it's site plan was lawful.
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*300 XII. SECURITIES REGULATION
A. Arbitration
AMB Farms, Inc. v. Woods
81 Ohio St. 3d. 498. 692 N.E.2d 574
Decided April 29, 1998
Appellee Judith Woods (Woods) signed a transfer form authorizing the transfer of her securities account from
The Ohio Company to Appellant Advest, Inc. (Advest). That same day, she signed without reviewing a brokerage
account acceptance form that created a brokerage account with Advest. Appellant Allan Maust (Maust) was the broker. The acceptance form contained an arbitration clause requiring all controversies be determined by arbitration and
that the arbitration decision be final and binding. Woods filed a third party complaint against Advest and Maust alleging, inter alia, fraud. Woods testified that she relied on Maust's integrity and that he never mentioned existence of
an arbitration agreement on the acceptance form. Advest and Maust filed motions to dismiss and/or stay the proceedings pending arbitration between the parties. The trial court denied the motions holding Woods had been
fraudulently induced to sign the acceptance form containing the arbitration argument and the court of appeals affirmed. This case came before the supreme court upon the allowance of a discretionary appeal.
HELD: Ohio and federal courts encourage arbitration to settle disputes and it is preferred by the brokerage industry. Ohio Revised Code section 2711.03 provides that only when the making of the arbitration clause is itself at
issue may the trial court proceed to try the action. In order to defeat a motion for stay brought pursuant to the code, a
party must demonstrate that the arbitration provision in the contract itself is at issue, and not merely that the contract
was fraudulently induced. The supreme court held that there was no evidence presented to the trial court that Maust
discussed arbitration at all with Woods, much less that he made a misrepresentation about it. The court reversed the
judgement of the court of appeals and remanded the case to the trial court for entry of an order staying the matter.
*301 XIV. TAXATION
A. Appeals
Cleveland Electric Co. v. Lake County Bd. of Revision
Duqesne Light Co. v. Lake County Bd. of Revision
Toledo Edison Co. v. Lake County Bd. of Revision
Pennsylvania Power Co. v. Lake County Bd. of Revision
Ohio Edison Co. v. Lake County Bd. of Revision
80 Ohio St. 3d 591, 687 N.E.2d 723
Decided January 7, 1998
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On March 31, 1995, Appellants (collectively referred to as CEI) filed real property valuation complaints with
the Lake County Board of Revision (BOR) regarding valuations of their respective power generating plants. The
local school districts filed counterclaims, requesting that the increased values be applied. The school districts
claimed that CEI had not properly filed out the complaint forms, and therefore did not meet the requirements of
Ohio Revised Code sections 5715.13 and 5715.19. The school districts claimed that asa result, the BOR had no jurisdiction. The BOR dismissed CEI's complaints for lack of jurisdiction, and the Board of Tax Appeals (BTA) affirmed. The cases were consolidated and came before the supreme court upon appeal of right.
HELD: Any omissions on the forms in question did not go to the core of procedural efficiency, and therefore the
requirements of sections 5715.13 and 5715.19 were met and the BOR had jurisdiction. The BOR and BTA relied
upon Stanjim Co. v. Mahoning Cty Bd. Of Revision 38 Ohio St.2d 233 (1974), in deciding that the forms in question were designed to elicit the type of information required by sections 5715.13 and 5715.19, and that omission of
information on the forms meant a failure to comply with those sections. However, the forms have changed since
Stanjim, and the information omitted in that case is no longer required on the present forms. Although CEI's answers
were somewhat vague, the information provided could be used to provide a ceiling figure for the maximum true
value of its property. This ceiling figure met the requirements of section 5715.19, but it also needed to comply with
the procedural efficiency requirements of the tax appeals process. At the core of procedural efficiency here was the
notice from the auditor to the school districts, that a complaint existed regarding an overvaluation of $17,500 or
more. Although CEI's claim of *302 overvaluation of at least $50,000 was vague, it school districts. Therefore,
CEI's actions did not offend procedural efficiency. Additionally, section 5715.19 required that all evidence be provided to the BOR, but did not specifically state that the evidence be included in the complaint itself for procedural
efficiency to be met. Therefore, because CEI's omissions on the forms did not offend procedural efficiency, the requirements of sections 5715.13 and 5715.19 were substantially met. The supreme court reversed the decision of the
BTA.
B. Business
Cincinnati Bell Tel. Co. v. Cincinnati
81 Ohio St. 3d 599, 693 N.E. 2d 212
Decided on May 13, 1998
Appellee, Cincinnati Bell Telephone Co. (Bell), filed complaints with each respective Board of Revision (BOR)
for the municipalities of Cincinnati, Blue Ash, and Fairfax. Bell sought a refund for taxes it paid in accordance with
each municipality's excise tax on its business activity. Bell argued that because a state imposed excise tax affecting
the same subject matter and proceeds already existed, Ohio Revised Code section 5727.30, the municipalities were
effectively preempted from imposing their municipal excise taxes.
Each municipal BOR ruled against Bell, holding that identical state and municipal excise taxes were permitted
to co-exist. Pursuant to Ohio Revised Code section 2506.04, Bell continued this action by filing a complaint in the
Hamilton County Court of Common Pleas in pursuit of his refund. The court of common pleas, however, ruled
against Bell. The Hamilton County Court of Appeals reversed, holding that Ohio Revised Code section 5727.30
impliedly preempted the municipalities from enacting their excise taxes on Bell's net profits.
The municipalities argued that (1) only the General Assembly is authorized to restrict a municipality's taxing
power, (2) the General Assembly has not disallowed municipalities from enacting local excise taxes, and (3) there is
therefore no valid obstacle prohibiting the municipalities from enacting the excise taxes at issue. GM argued the
municipalities' excise taxes amounted to double taxation, and were therefore impermissible. GM submitted that only
an income tax could exist as both a state and municipal tax pursuant to controlling common law. This case was be-
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fore the supreme court on a discretionary appeal.
*303 HELD: The supreme court held that the taxing authority of a municipality may only be preempted by an
express act of the General Assembly. Therefore, since the General Assembly has not expressly prohibited a municipality from imposing an excise tax on subject matter already burdened by a state excise tax, a municipality has the
right to impose such a tax. The supreme court referred to article XVIII section 3 of the Ohio constitution which empowered municipalities to exercise all powers of local self-government, including the power to tax. Moreover, article XIII section 6 and article XVIII section 13 the Ohio constitution expressly provide that only the General Assembly may limit or restrict a municipality's taxing power.
This case overrules Cincinnati v. Am. Tel. & Tel. Co., 112 Ohio St. 493, 147 N.E. 806 (1925), which created a
treatment distinction between an income tax and an excise tax. Under Am. Tel. & Tel. Co., a municipality was permitted to impose an income tax where there existed a state income tax, but a municipality could not impose an excise tax where there existed a state excise tax. In the case sub judice, the supreme court determined that Am. Tel. &
Tel. Co. was contrary to the express grants of power by the Ohio constitution to municipalities. Therefore, the court
of appeals was reversed, and Bell's tax refund request denied.
C. Real Property
Dublin City Sch. Dist. Bd. of Educ. v. Franklin County Bd. of Revision
80 Ohio St. 3d 450, 687 N.E.2d 422
Decided December 31, 1997
During November of 1994, Appellee Merry Land & Investment Company, Inc. (Merry) purchased twelve properties from Fogelman Secured Equity, L.P. (Fogelman) for a total price of $154,413,500. Among the properties that
Merry acquired was Saw Mill Village, an apartment complex consisting of 340 units. Of the total purchase price,
$19,591,212.81 was allocated to the Saw Mill Village complex. The Franklin County Auditor valued the Saw Mill
Village property at $15,400,000 for the 1994 tax year. In response to the auditor's valuation, Appellant Dublin City
School District Board of Education (Dublin) filed a complaint with the Franklin County Board of Revision (BOR),
arguing that the actual price of the Saw Mill property was the price that was allocated to it by Merry. Correspondingly, Merry filed a counter-complaint asserting that the correct price was that given to the property by the auditor.
The BOR ratified the auditor's valuation of the Saw Mill property, and Dublin appealed to the Board of Tax Appeals
(BTA). Merry presented its vice president of administration, *304 Dorrie Green (Green), as a witness at the BTA
hearing. Green testified that the allocated price was intentionally high in order to situate Merry in a better negotiating position with prospective buyers, lower Merry's income tax exposure, and exercise the contract option to exclude
Saw Mill from the purchase as an overpriced property. The BTA found in favor of Merry, holding that the allocated
price was artificially high in order to serve the business interests of Merry. Because Dublin had not sustained its
burden of proving a value different from that determined by the BOR, the BTA adopted the $15,400,000 value. The
case came before the Supreme Court of Ohio on an appeal as of right.
HELD: The supreme court rejected Dublin's contention that Green's testimony violated Evidence Rule 602 because he lacked of personal knowledge of the facts to which he was testifying. The supreme court followed its ruling
in Orange City Sch. Dist. Bd. of Educ., 74 Ohio St. 3d 415, 417, 659 N.E.2d 1223, 1224 in holding that the BTA
was not required to comply with the Rules of Evidence, but may use them as a guide in its hearings. The supreme
court relied on the determination in Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Servs., Inc., 81 Ohio App. 3d
591, 611 N.E.2d 955 to hold that Green's testimony was reasonably reliable, and that the BTA properly admitted and
weighed it. Green had access to the information to which he testified by way of his attendance of corporate management meetings, supervision of numerous tax filings, financial reporting, and insurance, and his duties of adminis-
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tering the purchased properties. Due to his level of involvement, the BTA could reasonably find that Green had sufficient knowledge of the facts to which he testified. The court held that because Dublin had the burden of proving a
price different from that accepted by the BOR and failed to meet that burden, the BTA correctly adopted the
$15,000,000 valuation. The supreme court affirmed the decision of the BTA.
Dublin Senior Community Ltd. Partnership v.
Franklin County Bd. of Revision
80 Ohio St. 3d 455, 687 N.E.2d 426
Decided Dec. 31, 1997
Appellant, Dublin Senior Community Limited Partnership (Dublin), obtained a note and mortgage on a congregate living facility. Subsequently, Dublin purchased the corresponding property at a sheriff's foreclosure sale. Dublin filed a real property valuation complaint with the Franklin County Board of Revision (BOR) for tax year 1992
alleging a true value for the property at $3.4 million. The Board of Education of Dublin *305 City School District
(Board of Education) responded by filing a counter-complaint alleging the true valuation of the real property should
be $8.3 million. The Franklin County Auditor valued the real property at $6.68 million. At a hearing before the
BOR, Dublin had Wayne E. Swift present written and oral testimony as to the proper appraisal of the property. At
the Board of Tax Appeals (BTA) hearing, Dublin presented the testimony of appraiser Bruce Pickering. Pickering
emphasized an income approach to appraisal and came up with a value of $3.57 million dollars for the real property.
The BTA ruled the evidence not competent and probative and found the true value to be the auditor's value of $6.68
million. The case came before the supreme court upon an appeal as of right.
HELD: The court held that a taxpayer's purchase of note and mortgage on real property does not transfer fee
simple title to the tract of real property and thus does not establish true value for property tax purposes. In the case
of a congregate living facility, the real property should be valued at its actual occupancy rate on the tax lien date, not
at an assumed stabilized occupancy rate. The reduction in value attributed to decreased occupancy must be considered in the appraisal. In order to accurately appraise the value of real property, income and expenses between business and real estate activities must be separated. The addition or subtraction of business income and expenses may
distort the valuation of the real estate and must be deleted from the appraisal process. The court held that the BTA
should have taken Swift's testimony into consideration. If they did not accept the appraisal they should have set forth
that fact in the decision, along with reasons for not accepting the appraisal. The court reversed the decision of the
BTA and remanded to the BTA to determine whether the appraisal methods and factual evidence of Dublin's appraisers were proper and sufficient to prove the amount of reduction due to a reduced occupancy rate.
Simmons v. Cuyahoga County Bd. of Revision
81 Ohio St. 3d 47, 689 N.E. 2d 22
Decided on February 11, 1998
Appellant, Simmons, filed a complaint with the Cuyahoga County Board of Revision (BOR) in an attempt to
have changed the county auditor's valuation of his real property for taxing purposes. The auditor valued Simmons'
property at $320,000. Simmons, however, personally appraised his property to be worth $290,500. Therefore, there
existed a difference of $29,500 in the appraised values.
Simmons' method of computation may be summarized in the following manner. First, Simmons used the value
of a neighboring house, as *306 determined by its recent sale, and divided that figure by the number of square feet
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of that house. That calculation yielded a figure of $68.60 per square foot. Simmons then multiplied that figure by the
number of square feet existing in his house. That calculation yielded a value of $274,000. Simmons then added
$12,100 to his figure, which represented the value for extra garage space. He also added $4,000 to his figure to account for an extra fireplace. With these additions, Simmons' reached his final valuation figure of $290,500.
The BOR was not convinced that Simmons' calculating methods warranted any credibility. Accordingly, the
BOR rejected Simmons' argument outright. On appeal, the BTA affirmed the BOR's decision. The BOR did not produce evidence at the BTA hearing to justify its position.
Simmons argued that the BTA failed to fulfil its obligation to determine his property's true value by failing to
require the BOR to justify its valuation by introducing evidence. The BOR argued that as Appellee before the BTA,
it did not have the burden of persuasion and therefore was not required to present any evidence. This case was before the supreme court as a matter of right.
HELD: The supreme court held that Simmons had the burden of persuasion at the BTA hearing to prove his
right to a valuation reduction. Moreover, the supreme court held that when an Appellant before the BTA fails to
meet this reme court stated that the BTA has broad discretion to determine the weight and credibility of witnesses. Therefore, the supreme court will not reverse a BTA's determination of witness credibility unless a clear
abuse of discretion is demonstrated. As Simmons failed to establish an abuse of discretion, the decisions of the BTA
and the BOR were affirmed.
Westhaven, Inc. v. Wood County Bd. of Revision
81 Ohio St. 3d 67, 689 N.E. 2d 38
Decided on February 11, 1998
The parties in this case are the Appellee, Westhaven, Inc. (Westhaven), and the Appellant, Wood County Board
of Revision (BOR). This matter began when a county auditor valued Westhaven's property at $985,000 for tax purposes. Westhaven responded by (1) conducting a private appraisal, and (2) filing a complaint with the BOR to seek a
valuation reduction. The private appraiser, Ronald Davis (Davis), testified that Westhaven's property had an accurate value of $600,000. Thus, there existed a $385,000 differ-ence in the appraised values. The BOR rejected the
Davis appraisal, ruling in favor of the county, and therefore accepted the value to be $985,000.
*307 On appeal to the Board of Tax Appeals (BTA), Westhaven reintroduced the Davis appraisal in support of
its case. The BOR presented no evidence of valuation on its behalf. The BTA accepted Davis's appraisal methods as
sound, reliable, and justified. Accordingly, the BTA held that Westhaven had satisfied its burden of persuasion and
therefore reversed the BOR's prior ruling.
The BOR argued the BTA ruling should be reversed because the BTA abused its discretion in granting Davis
credibility. This argument was divided into two theories. First, Davis unreasonably failed to support his appraisal
opinion with adequate facts. Second, Davis was not an objective party since he was paid to render his services by a
third party. This case is before the supreme court as a matter of right.
HELD: The supreme court held that the BTA has broad discretion to grant credibility to witnesses. Accordingly,
the BTA was within its discretion when granting Davis credibility since the BTA's grant of credibility was based on
its finding that Davis's appraisal methods were sound and reliable. The BTA believed Davis had effectively justified
his appraisal valuation. With deference to the BTA's broad discretion, only a clear abuse of discretion will warrant
the reversal of a BTA grant of credibility. The BOR failed to persuade the supreme court that any such abuse of discretion transpired.
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The supreme court also held that the BTA did not abuse its discretion by granting Davis credibility despite his
receiving payment for his appraisal by a disinterested third party. The supreme court found the record to clearly indicate that Davis and the third party, a tax consultant, shared no common interest. Furthermore, the supreme court
noted that Davis's fee was not contingent upon a favorable ruling for Westhaven. Accordingly, the supreme court
affirmed the prior ruling of the BTA.
Kalmbach Wagner Swine Research Farm v. Wyandot County Bd. of Revision
81 Ohio St. 3d 319, 691 N.E. 2d 270
Decided on April 1, 1998
Appellee, Kalmbach Wagner Swine Research Farm (Kalmbach), filed a complaint with the Wyandot County
Board of Revision (BOR) seeking a reduction in the valuation of its real property for taxing purposes. As a complainant, Kalmbach was required to submit certain evidentiary statements to the BOR in accordance with a statutory
complaint form pursuant to Ohio Revised Code sections 5715.28 and 5715.30. The form required Kalmbach to submit multiple income and expense statements *308 regarding its rental real property. However, Kalmbach's property
was not rental. Utilizing this distinction, Kalmbach declined to tender the requested financial statements. In response, the BOR requested that Kalmbach provide the requested statements as supplemental information, irrespective of the property's non-rental nature. Kalmbach refused to comply with this request. Based on this refusal, the
BOR dismissed Kalmbach's complaint.
On appeal, the Board of Tax Appeals (BTA) reversed. The BTA held that the BOR had no authority to dismiss
this case because Kalmbach had complied with all statutory requirements. The BTA subsequently accused the BOR
of promulgating evidentiary requirements when it had no authority to do so.
The BOR argued that it had authority to require Kalmbach to provide the income and expense statements, regardless of its non-rental nature, because Kalmbach was producing income from its use. Accordingly, the BOR argued that it had authority to dismiss Kalmbach's complaint upon its failure to tender the required information.
Kalmbach argued the BOR's authority to demand information was limited to the express language of the statutory complaint form. As the form did not require the disclosure of financial statements for non-rental property,
Kalmbach argued he was under no obligation to provide same; and therefore the BOR had no authority to dismiss its
case. This case is before the supreme court as a matter of right.
HELD: The supreme court held that a taxpayer complainant is not required to provide information beyond that
which is required by statute. Accordingly, the BOR may not dismiss a complainant's action for his failure to supply
supplemental information. This does not connote, however, that the BOR is unable to dismiss an action where the
complainant fails to comply with the statutory evidentiary requirements. Nor does this case connote that the BOR
lacks authority to request supplemental information from the complainant. Rather, the supreme court simply required the BOR to base its decision entirely on the evidence before it when all statutory evidentiary requirements
were satisfied. Accordingly, the BTA's ruling reinstating Kalmbach's complaint was affirmed.
Elkem Metals Co. v. Washington County Bd. of Revision
81 Ohio St. 3d 683, 693 N.E.2d 276
Decided May 13, 1998
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For the tax year 1993, Appellee, Elkem Metals Company (Elkem), filed a real property valuation complaint
seeking a decrease in value. The common pleas court dismissed the complaint for lack of subject matter *309 jurisdiction for the Board of Revision (BOR) to hear the case. On February 24, 1995, Elkem filed a complaint for the
1994 tax year with the BOR. The Board of Education of Warren Local School District (BOE) filed a motion to dismiss, claiming Elkem lacked standing because it had filed a prior complaint in the same interim period, and that
Elekem failed to allege circumstances required by Ohio Revised Code section 5715.19. The BOR dismissed the case
and it was appealed to the Board of Tax Appeals (BTA). The BTA decided that the complaint regarding the 1993 tax
year was not effective and therefore not filed pursuant to section 5715.19. Therefore, Elkem had standing to make
the 1994 tax year complaint. The case came before the Supreme Court of Ohio on a right of appeal.
HELD: The complaint regarding the 1993 tax year was filed within the meaning of section 5715.19 and therefore Elkem filed two complaints for the same property within the same interim period. Elkem therefore did not have
standing to sue. Also, the BOR had jurisdiction to see if Elkem met jurisdictional requirements. A paper is filed
when it is delivered to the proper official and by him received and filed, according to United States v. Lombardo,
241 U.S. 73, 76 (1916). Therefore, because the complaint for 1993 was inaccurate or imperfect, this did not make it
not filed. In addition, section 5715.19 does not say that a second complaint can be filed when the first complaint was
dismissed for lack of jurisdiction. Therefore, the second complaint submitted by Elkem constituted another complaint. Furthermore, because Elkem did not allege in its second complaint any change in circumstances, as per
section 5715.19, it did not have standing to sue. The BOR can only examine the merits of a case iOR does have jurisdiction for the purposes of assessing whether it has jurisdiction to address the merits. The supreme court thus held
that the decision of the BTA allowing the filing of the 1994 complaint was unreasonable and unlawful, and reversed
that decision.
Salem Med. Arts & Dev. Corp. v. Columbiana County Bd. of Revision
82 Ohio St. 3d 193, 694 N.E.2d 1324
Decided June 24, 1998
Appellant, Salem Medical Arts & Development Corporation (Salem), owned the subject property which was an
office building and adjacent parcels of land. Salem leased the offices to healthcare professionals. In early 1993, Salem Community Hospital and four leaseholders in the subject property owned all sixty shares of stock in Salem. Later that year, the hospital purchased all outstanding shares of stock. Salem filed a complaint with the
Columbiana County Board of Revision, Appellee, to reduce the *310 value of the land and office building for tax
year 1994. Salem also sought a reduction in value of one of the adjacent parcels to account for the demolition of a
building. Appellee reduced the value of only the land to account for the value of the demolished building. Salem
appealed this decision to the Board of Tax Appeals (BTA).
Salem presented evidence to BTA regarding the stock transfer and other aspects of the corporation's finances to
establish the property's value. Salem also attempted to discredit the county auditor's efforts in valuing the property
by challenging the work of the auditor, his employees, and contracted consultants. Salem argued that BTA should
have awarded expenses and attorney fees to Salem as a sanction for the Appellee's acting in bad faith in denying
Salem's request for admissions. Salem asserted that it proved at the hearing facts denied by Appellee. Appellee justified the denials on the basis that Salem requested admission of matters presenting a genuine issue for trial. Because
Salem failed to demonstrate its entitlement to a reduction in value, the BTA ratified appellant's determination. BTA
also ruled that counsel for Appellee properly denied Salem's request because he justifiably believed that all of said
requests related to a genuine issue for trial. The case was before the Supreme Court of Ohio upon an appeal as of
right.
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HELD: Evidence regarding the sale of taxpayer's stock did not establish the valuy's value. An appraisal or expert testimony would be necessary to establish the value of the property. Finding that counsel for Appellant justifiably believed that taxpayer's requests for admissions related to a genuine issue for trial was insufficient to establish
that good reason existed for the denials, so as to preclude an award of sanctions. The taxpayer was not required to
file a motion to compel before moving for sanctions. On remand, BTA must review the requests for admissions in
light of what Salem eventually proved. If Salem proved matters denied by Appellee, BTA will need to consider
whether each matter denied was genuinely in issue, using an objective standard of reasonableness. Although a motion to compel was a prerequisite for sanctions on certain discovery violations, a request for admissions was distinguishable from other discovery motions. The supreme court affirmed BTA's decision as to the property's value and
reversed BTA as to Salem's motion for sanctions and remanded to BTA to rule on that motion.
*311 XV. TORTS
A. Negligence
Miller v. Bike Athletic Co.
80 Ohio St. 3d 607, 687 N.E.2d 735
Decided January 7, 1998
On September 7, 1990, John Patrick Miller (Appellant) was seriously injured while playing football for St.
John's Central Catholic High School in Bellaire, Ohio. Miller collided head-on with another player. Miller sustained
a comminuted fracture of the vertebral body of C5 with severe spinal cord injury and was rendered quadriplegic. He
filed a lawsuit against Bike Athletic Company (Appellee), Ace Cleaners & Reconditioners of Athletic Equipment,
Inc., Athletic Helmet, Inc., the Catholic Diocese of Steubenville, St. John's Central Catholic High School, and Frank
E. Vingia, the football Coach. Miller alleged that the Bike air helmet he was wearing at the time of the accident was
negligently designed, manufactured, and sold by Bike.
Appellee filed motions for summary judgment, challenging the expert opinion of James Lafferty (Lafferty), a
mechanical and biomedical engineer retained by Appellant. Lafferty believed that Appellant's injury could have
been prevented if the helmet had been properly inflated. Appellee also questioned the procedures Lafferty used to
have the helmet tested. The trial court granted summary judgment for Appellees and held that Lafferty's opinion and
that of two other experts who relied upon Lafferty's opinion were inadmissible. The trial court reasoned that since
Lafferty's opinion was based on an out-of-court experiment which was dissimilar to conditions on the playing field,
his opinion could not be considered. The court relied on an expert for Appellees, whose opinion was that no football
helmet is designed to prevent the type of injury Miller sustained to his neck.
The court of appeals affirmed on similar grounds. It found that the trial court was warranted in striking
Lafferty's expert opinion, that the experiment on the helmet was inadmissible, and that Appellant's other experts'
opinions were inadmissible as well. The court of appeals concluded that the type of injury Miller sustained was a
risk of playing football and cannot be avoided even with the proper headgear. The case came before the supreme
court upon the allowance of a discretionary appeal.
HELD: Appellants presented sufficient evidence to support the reliability of their expert's theory under Ohio
Evidence Rule 702. Lafferty's theory was not so complicated that it would overwhelm a jury. The *312 supreme
court found that his testimony could aid the trier of fact in determining whether the football helmet was a cause of
injury to Appellant's neck. The trier of fact should have the opportunity to weigh Lafferty's expert opinion against
those of Appellee's experts. The supreme court found that the lower courts were incorrect in holding that the athletic
equipment standard committee's test (performed by Lafferty) was inadmissible because the test did not duplicate
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conditions on the playing field at the time of Appellant's injury. The test was used to analyze whether the helmet
was able to perform adequately under conditions of use. The test was not relied upon to replicate the playing conditions or the way in which Appellant was injured. Since Lafferty's opinions met the requirements of Ohio Evidence
Rule 702, and since the out of court test was reliable and admissible, the supreme court found that the trial court
abused its discretion in excluding Lafferty's expert oes were excluded erroneously. Ohio Evidence Rules 703 and
705 provide that an expert's opinion may be based on facts or data perceived by him or admitted into evidence. The
additional expert witnesses based their opinions on the evidence presented. The trial court abused its discretion in
excluding these witnesses. Since the Appellant's expert witnesses' opinions were in direct conflict with the opinions
expressed by Appellee's expert witnesses, genuine issues of material fact remained on the liability issues presented.
The trial court abused its discretion in granting Appellees' motions for summary judgment. The supreme court reversed the judgment of the court of appeals and remanded the cause to the trial court for further proceedings.
B. Wrongful Death
Collins v. Sotka
81 Ohio St. 3d 506, 692 N.E. 2d 581
Decided April 29, 1998
On July 31, 1992 Angel C. Ormston (Ormston) disappeared. On December 15, 1992, Ormston's body was discovered by two hunters. The autopsy found the cause of death to be multiple stab wounds. The date of death was
listed as being July 31, 1992. On January 4, 1993, the Lake County Grand Jury handed down a secret indictment
against Mark J. Sotka (Sotka). On February 5, 1993, Sotka plead guilty to the aggravated murder and kidnaping of
Ormston. The plea was journalized on February 10, 1993. On February 6, 1995, Luckye Collins, the administrator of
Ormston's estate, filed a wrongful death action against Sotka. The trial court dismissed the complaint as not being
within the two year statute of limitations. The trial court relied on Shover v. Cordis Corp., 61 Ohio St. 3d 213 which
held that the statute began to run in a wrongful death action when the death occurred. *313 The court of appeals
affirmed, also relying on Shover v. Cordis Corp.. Collins appeals pursuant to an allowance of a discretionary appeal.
HELD: Shover v. Cordis Corp. is overruled. The supreme court found the rationale behind Shover v. Cordis
Corp. to be flawed and instead holds that the discovery rule is applicable to wrongful death suits. The supreme court
said that Shover v. Cordis Corp. ignored many policy considerations. First, a wrongful death claim is not just triggered by a death but by a death caused by a wrongful act. Second, the discovery rule has been extended to other areas besides malpractice. Third, it is inequitable to not use the discovery rule. If a crime is not solved until two years
after the murder, then no wrongful death claim would lie. The supreme court held that this would encourage a tortfeasor to kill his victim and fraudulently conceal the cause of death for two years. The supreme court reversed the
judgement of the court of appeals and remanded the matter to the trial court for further proceedings.
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