Oral Argument Previews

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Wednesday, March 12, 2008

Donald T. Kraynak v. Youngstown City School District Board of Education et al., Case no. 2007-0740
7th District Court of Appeals (Mahoning County)

State of Ohio v. Laura Mercier, Case no. 2007-0980
1st District Court of Appeals (Hamilton County)

Elizabeth Burnett v. Motorists Mutual Insurance Companies et al., Case nos. 2007-0954 and 2007-1176
11th District Court of Appeals (Trumbull County)

U.S. Bank National Association As Trustee v. Giuseppe Gullotta et al., Case no. 2007-1144
5th District Court of Appeals (Stark County)


Did Former Child Abuse Reporting Law Allow Subjective Analysis of Whether Abuse ‘Suspected’?

Donald T. Kraynak v. Youngstown City School District Board of Education et al., Case no. 2007-0740
7th District Court of Appeals (Mahoning County)

ISSUE:  Under a former version of a state law that requires certain professionals to report known or suspected child abuse, was a judge or jury deciding a civil claim against a teacher for failing to report abuse supposed to: a) apply the objective standard of whether what the teacher observed would cause a reasonable person to suspect abuse, or b) apply the subjective standard of whether, under the circumstances of that specific case, the teacher’s conduct indicated that she actually suspected abuse, but failed to report it?

BACKGROUND:  This case involves a civil lawsuit filed by Donald Kraynak of Youngstown against the Youngstown City School District and teacher Helen Marino, who taught a 4th-grade language arts class in which Kraynak’s son, Derek, was enrolled during the 1999 school year. The suit seeks damages from the school district (Marino was initially named as a co-defendant but later dropped from the case) based on Marino’s alleged failure to comply with a former version of R.C. 2151.421, a state law that required teachers, physicians, nurses and certain other professionals to make a report to police or a children services agency whenever they “know or suspect” that a child has suffered a physical or mental injury that “reasonably indicates” abuse. In his complaint, Kraynak, who was divorced from Derek’s mother, alleged that Marino should have suspected and reported that Derek was being abused by his mother after reading entries describing abusive conduct that Derek had made in a “creative writing journal” that he kept for her language arts class.

The case went to trial before a jury. In instructing the jury on how to apply the reporting statute during its deliberations, the judge stated that, in order to find that Marino had violated her legal duty to report, the jurors must review the evidence and circumstances of the case and subjectively decide that Marino actually suspected that Derek had been abused, but failed to report her suspicion. The jury returned a verdict in favor of the school district. Kraynak appealed, and the 7th District Court of Appeals vacated the jury’s verdict and remanded the case for a new trial. The appellate panel held that the trial judge’s jury instruction was fatally flawed because it told jurors to apply a subjective standard regarding Marino’s duty to report, when it should have directed them to apply the objective standard that Marino was guilty of negligence if she failed to make a report to the proper authorities after reading entries in Derek’s journal that would have led a reasonable person to suspect that the child had been or was being abused.

Attorneys for the school district now ask the Supreme Court to reverse the 7th District and reinstate the trial court judgment in their favor. They argue that the trial court’s interpretation of the version of R.C. 2151.421 in force in 1999, as set forth in its jury instruction, was correct and the 7th District’s analysis was mistaken. In support of that argument, they point to a change in the wording of the law that took effect in 2006. They note that the 2006 amendment specifically deleted the “knows of or suspects (abuse)” language in the former reporting statute and replaced it with new wording that now requires a covered professional to make a report if that person “has reasonable cause to suspect, based on facts that would cause a reasonable person in a similar position ... to suspect (abuse).”  They contend that this change clearly indicates the legislature’s intent to establish a new, objective and more stringent “reasonable person” standard that was not imposed under the former version of the statute that is applicable to this case.

Attorneys for Kraynak urge the Court to affirm the 8th District’s ruling granting a new trial. They argue that the 2006 amendment to the language of the mandatory reporting statute, portrayed by the school district as proof of a change in the intent of the law, can just as easily be interpreted as a clarification of what the legislature always intended – which was to set an objective “reasonable person” standard for courts to apply in deciding whether a covered professional like Marino acted negligently in failing to report evidence of child abuse.

Contacts
Joel Levin, 216.928.0600, for Donald Kraynak.

John C. Pfau, 330.702.9700, for the Youngstown City Schools Bd. of Education.

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May Police Search Vehicle Passenger’s Purse When Passenger Was Not Subject to Personal Search?

State of Ohio v. Laura Mercier, Case no. 2007-0980
1st District Court of Appeals (Hamilton County)

ISSUE:  When police make a lawful vehicle stop and arrest the driver, do they have authority to perform a warrantless, non-consensual search of the purse of a female passenger in the vehicle who is not suspected of a crime when the purse was worn or carried on the passenger’s person at the time of the stop?

BACKGROUND:  A recent line of U.S. Supreme Court decisions has held that police who make a lawful stop of a vehicle and place an occupant of the vehicle in custody have authority to perform a non-consensual search of the passenger compartment of the vehicle and any “container” located within the passenger compartment.  This case asks the Supreme Court of Ohio to apply those rulings to a situation in which the driver of a car was stopped and arrested for drug trafficking, and officers subsequently performed a non-consensual search of the purse of a female passenger in the car, which she was holding in her lap at the time of the stop.

Laura Mercier was a passenger in a car driven by Charles Hagedorn when Hagedorn drove to Hamilton County trailer park where he exited the vehicle and sold a large quantity of marijuana to a buyer who was an undercover police informant. Within minutes after the transaction was completed, waiting police officers stopped Hagedorn’s car. Hagedorn turned over an additional quantity of marijuana that was still in the car. The marked “buy” money he had received from the informant and a package of cigarette rolling papers was also recovered from Hagedorn.

After Hagedorn was removed from the car and placed under arrest, one of the officers ordered Mercier to step out of the car but to leave her purse on the passenger seat. Without asking for her consent, the officer then searched Mercier’s purse, in which he found an Advil bottle that contained four tablets of Adderall, a prescription medication for which Mercier admitted that she did not have a prescription. Based on that evidence, Mercier was charged with aggravated possession of drugs. At trial, Mercier moved to have the search results excluded from evidence on the basis that the police search of her purse violated her Fourth Amendment right against unreasonable searches and seizures. When that motion was denied, Mercier entered a plea of no contest to the possession charge and was sentenced to three years of community control and other penalties.

Mercier appealed the denial of her motion to exclude the evidence obtained through the search of her purse. The 1st District Court of Appeals affirmed the ruling of the trial court. Mercier then sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for Mercier argue that the court of appeals wrongly applied a legal standard from the U.S. Supreme Court’s 1981 decision in New York v. Belton. Unlike this case, they assert, in Belton the occupants of a stopped vehicle were held to have sacrificed their privacy rights in light of the fact that they had all been placed under arrest before the vehicle search took place. Thus, they argue, Belton did not address the right of police to search the person or property of a vehicle passenger, like Mercier, who was not under arrest, and whom police admitted was not suspected of a crime at the time her purse was seized and searched without her consent.  

They also assert that a later U.S. Supreme Court decision cited by the court of appeals, Wyoming v. Houghton  (1999), allowed police to search an unattended purse found on the floor of the back seat of a stopped car, not a purse being carried or worn by a passenger whose person police had no probable cause to search. Mercier urges the Court to follow an alternative line of cases in which state courts have held that, because women typically use a purse to carry valuables and personal effects that a man would carry in a wallet or a pocket of his clothing, a police search of a purse being worn or carried by a woman who is not lawfully in custody must be supported by the same probable cause criteria that would apply to a warrantless search of a man’s wallet or pockets.

The Hamilton County prosecutor’s office, arguing on behalf of the state, asserts that the trial and appellate courts in this case properly applied the standards set forth in the U.S. Supreme Court’s Belton and Houghton decisions. They argue that a key concern cited in both those decisions was the need for a clear, “bright line” test that police conducting vehicle stops can apply under everyday conditions in order to determine whether and to what extent they may legally search a vehicle and its occupants once an occupant of the vehicle has been arrested. They argue that the standard urged by Mercier would force officers to make case-by-case judgments about whether an occupant’s baggage was a “purse,” and if so whether a woman was “holding or wearing” her purse if it was in her lap, next to her on the seat, resting on the floor between her feet, etc. They urge the Court to affirm the lower court rulings in this case, which they say allow officers to assume that, if any vehicle occupant is lawfully placed in custody, they may legally search any purse or other “container” capable of holding contraband or a weapon that was inside the passenger compartment at the time the vehicle was stopped.

Contacts
Jeffrey A. Burd, 513.793.9550, for Laura Mercier.

James M. Keeling, 513.946.3178, for the State of Ohio and Hamilton County prosecutor’s office.

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Did Exclusion of UM/UIM Coverage for Car Owner’s Household Members Violate Equal Protection?

Elizabeth Burnett v. Motorists Mutual Insurance Companies et al., Case nos. 2007-0954 and 2007-1176
11th District Court of Appeals (Trumbull County)

ISSUE: Did a provision in a former version of Ohio’s uninsured/underinsured motorist (UM/UIM) statute create an arbitrary and illogical classification of accident victims that violated the equal protection clause of the state constitution by denying UM/UIM coverage to certain injured parties solely because they were related to and lived in the household of the policyholder?

BACKGROUND:  In February 2000, Elizabeth Burnett of Trumbull County was injured in a traffic accident while riding as a passenger in a 1995 Ford Taurus owned and operated by her husband. The car was listed as a covered auto in an insurance policy issued by the Motorists Mutual Insurance Company, and Burnett’s husband was a named insured driver under that policy.

When Burnett sought to recover for her injuries under the liability provisions of the Motorists policy, the company denied her claim based on an exclusion barring liability coverage for injuries to family members of an insured driver who are riding in the insured person’s vehicle at the time of a crash.  She then sought to recover under the uninsured motorist provision of the Motorists policy. The company also denied that claim, citing a policy provision that excluded from the definition of an “uninsured vehicle” any vehicle “owned by ... or available for the regular use of (an insured person) or any family member.”

Burnett filed a civil lawsuit challenging the constitutionality of a provision of state law enacted in 1997, R.C. 3937.18(K)(2), which allowed Motorists and other auto insurance companies to exclude UM/UIM coverage from their Ohio auto insurance policies for vehicles owned by an insured person or a family member who lived with an insured person. (NOTE: The challenged provision was later repealed and replaced by the General Assembly, but because that provision was in effect at the time of Burnett’s injuries, it is the law that must be applied to her claim). The Trumbull County Court of Common Pleas rejected Burnett’s constitutional claims and granted summary judgment in favor of the insurance company.

On review, however, the 11th District reversed the trial court. The court of appeals held that R.C. 3937.18(K)(2), when read together with another provision of R.C. 3937.18, violated Burnett’s right to equal protection of the law by creating an “arbitrary and illogical” distinction between persons injured in traffic accidents that did not further a legitimate public interest and had no rational basis. Based on that finding, the 11th District ruled that the policy exclusion cited by Motorists in denying Burnett’s UM claim was void and unenforceable, and that she was therefore entitled to recover under the UM coverage in her husband’s policy.

Attorneys for Motorists now ask the Supreme Court to overrule the court of appeals and reinstate the trial court’s summary judgment in their favor. They argue that the challenged former code section could not have created an unconstitutional “classification of persons” because it does not distinguish between persons who are eligible for UM/UIM coverage, but rather precludes certain vehicles from the category of “uninsured motor vehicles” for which coverage is provided.

Attorneys for Burnett respond that, when applied to Burnett’s case and similar real-world situations, the challenged policy provision did create an illogical and arbitrary classification of accident victims by providing or denying UM/UIM coverage to an injured party based on the irrelevant factor of whether or not the victim was related to and lived in the same household with the policyholder. They assert that, when applied as Motorists claims it should be, R.C. 3937.18(K)(2) resulted in the irrational and unconstitutional outcome that if two passengers suffered identical injuries in the same accident, a non-family member of the vehicle owner would be entitled to full recovery for her injuries while a family member would be precluded from any recovery.

Contacts
Merle D. Evans III, 330.455.0173, for Motorists Mutual Insurance Co.

James L. Pazol: 330.792.6033, for Elizabeth Burnett.

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Are Successive Foreclosure Actions on Same Mortgage Separate ‘Claims’ Exempt from Two-Dismissal Rule?

U.S. Bank National Association As Trustee v. Giuseppe Gullotta et al., Case no. 2007-1144
5th District Court of Appeals (Stark County)

ISSUE: Does each missed payment on a promissory note and mortgage by a borrower yield a “new claim” that the lender may assert as grounds for a separate foreclosure action, and therefore exempt the lender from application of the “two-dismissal” rule to bar future claims against a borrower after the lender has filed and dismissed two prior foreclosure actions on the same mortgage?

BACKGROUND: Under the Ohio Rules of Civil Procedure, a plaintiff in a civil lawsuit may unilaterally dismiss its claim against a defendant “without prejudice” (without impairing the plaintiff’s ability to refile that claim later) only once. Civ.R. 41(A)(1), often referred to as the “two dismissal rule,” provides that if a plaintiff has voluntarily dismissed a claim and then refiled it, he may not dismiss that claim a second time (except with the agreement of the other parties or permission of the court) without causing the entry of a final judgment on the merits of the case – an outcome that generally precludes the plaintiff from filing any future court action against the same defendant(s) based on the same facts.

In this case, U.S. Bank held a mortgage on a property owned by Giuseppe Gullotta of Canton. After Gullotta missed scheduled payments on the mortgage, the bank filed a civil foreclosure action asking the court to “accelerate” the note to make the full balance of $164,390 payable immediately, plus interest on that amount from November 2003. The bank voluntarily dismissed its original claim in June 2004, then filed a second foreclosure action again seeking accelerated payment of the full amount of the note plus interest dating to Dec. 1, 2003. The bank dismissed its second suit in March 2005, without having received any intervening payment from Gullotta or agreeing to any change in the mortgage agreement or promissory note.

The bank subsequently filed a third foreclosure action, initially seeking the same recovery stated in its first claim. Gullotta entered a motion for summary judgment dismissing the bank’s latest foreclosure action on the basis that it had already voluntarily dismissed complaints based on the same conduct and seeking the same relief twice, and therefore was precluded by the “two-dismissal rule” from asserting any further claim against him based on an alleged default of the mortgage agreement. The bank then filed an amended complaint restating its claim to include only the $164,390 amount of the note plus interest from April 1, 2005. The trial court granted the bank’s motion to amend its complaint and denied Gullotta’s motion for summary judgment. It subsequently entered judgment in favor of the bank for foreclosure of the full mortgage amount and awarded interest on that amount from April 1, 2005.

Gullotta appealed, arguing that the trial court erred in failing to grant his motion for summary judgment because the bank’s third foreclosure action against him was barred by the two-dismissal rule. The 5th District Court of Appeals affirmed the action of the trial court, but certified that its ruling was in conflict with a 2006 decision of the 10th District, EMC Mortgage Co. v. Jenkins, in which that court held that a lender was barred by Civ.R. 41(A)(1) from pursuing a new foreclosure action against a mortgagee after having twice voluntarily dismissed similar actions seeking the same recovery and based on the same default. The Supreme Court has agreed to hear arguments in the case to resolve the conflict between appellate districts.

Attorneys for U.S. Bank urge the Court to affirm the ruling of the 5th District that, by amending its complaint in the third foreclosure action to forego recovery of interest dating from the original date of Gullotta’s first missed payment (November 2003) until the first month after its most recent suit was filed (April 2005), the bank asserted a new and different claim than was stated in the two earlier foreclosure actions that it dismissed. Thus, they argue, the claim that was granted by the trial court was not  a refiling of the earlier actions they dismissed, and was not barred as res judicata (a matter already decided) through application of the two-dismissal rule.

Attorneys for Gullotta urge the Court to follow the ruling of the 10th District in EMC Mortgage holding that, when a lender sues to “accelerate” a  mortgage to make the full balance immediately payable, all past and future payments are telescoped into one amount the plaintiff seeks to collect, and the alleged debt becomes a fixed amount that does not change with the passage of intervening months. They point out that both of the earlier court actions filed and dismissed by the bank sought identical awards of $164,390 based on Gullotta’s identical conduct in failing to make scheduled payments. By unilaterally dismissing its foreclosure claim a second time absent any intervening action or agreement with Gullotta, they argue, the bank forfeited its right to sue again for the same damages based on the same conduct, and the trial court erred in failing to grant summary judgment in favor of Gullotta based on that fatal procedural error.

Contacts
John A. Polinko, 216.621.1530, for U.S. Bank National Association.

Timothy D. McKinzie, 330.864.3100, for Giuseppe Gullotta.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.