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Wednesday, April 9, 2008

William Evanich et al. v. Steven Bridge et al., Case no. 2007-0863
9th District Court of Appeals (Lorain County)

Ohioans For Concealed Carry, Inc., et al. v. City of Clyde et al., Case no. 2007-0960
6th District Court of Appeals (Sandusky County)

John A. LaNeve et al. v. Atlas Recycling, Inc., China Shipping (North America) Holding Co., Ltd., et al., Case nos. 2007-1199, 2007-1372 and 2007-1373
11th District Court of Appeals (Trumbull County)

Wally Pattison v. W.W. Grainger, Inc., et al., Case no. 2007-1345
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Ernest Hollingsworth, Case no. 2007-1752
1st District Court of Appeals (Hamilton County)


Is Intent of Claimant to Take Title to Property Relevant to ‘Adverse Possession’ Claim?

William Evanich et al. v. Steven Bridge et al., Case no. 2007-0863
9th District Court of Appeals (Lorain County)

ISSUE:  When a property owner claims legal ownership of a portion of an adjoining neighbor’s lot by virtue of “adverse possession,” should a court reviewing that claim consider evidence of the intent of the claimant at the time he encroached on the adjoining lot?

BACKGROUND:  Under the legal doctrine of adverse possession, which dates back to medieval England, a plaintiff can acquire legal title to another person’s real property if he can prove that he has exercised exclusive possession of the property for a period of 21 years and has made open, notorious, and continuous use of the property that was adverse to the actual owner during that time. 

This case involves a dispute over an irregular strip of land less than 1/100th of an acre in size that forms part of the side yard boundary between two residential lots in an Elyria subdivision. William and Roselyn Evanich, who built the first house on a previously undeveloped  street in the Briar Lake subdivision in 1966, established what they believed to be an accurate property line between one side of their lot and an adjacent, undeveloped lot. The Evaniches installed a mixed border of split rail fencing, railroad ties and sandstone blocks along that line, inside of which they planted ivy and various other low-growing shrubs and ground cover to create a decorative border along the side of their property. A house was later built on the lot next door to the Evaniches, and in 1977 Steven and Margaret Bridge purchased and moved into that property. Both couples continued to occupy their homes for the next 25 years.

In 2002, the Bridges sent a letter to the Evaniches complaining that their plantings along the side yard boundary between the two lots had become overgrown and unsightly. They also indicated that a recent survey of the Bridges’ property had determined that some of the fencing and landscaped beds the Evaniches had installed when they built their house extended several feet across the lot line into the Bridges’ property. The Bridges asked the Evaniches to take action to trim their plantings and to remedy the encroachment. After obtaining their own survey, which confirmed that some of their plantings extended across the lot line, the Evaniches filed a court action seeking a declaration that, because their fence and landscape beds had continuously and openly occupied a portion of the Bridges’ lot for more than 21 years without objection, the Evaniches had acquired legal ownership of that strip of land through adverse possession.

The Lorain County Court of Common Pleas granted the Evaniches’ adverse possession claim and awarded them legal ownership of the disputed strip of property.  On review, the 9th District Court of Appeals voted 2-1 to affirm the trial court’s ruling.  The Bridges then sought and were granted a review of the case by the Supreme Court.

They argue that the lower courts did not follow a 1998 Supreme Court of Ohio decision, Grace v. Koch, in which this Court held that a claimant could not obtain ownership of real property by means of adverse possession without demonstrating that the claimant occupied the property of another with the intention to obtain title to that property. In this case, they point out, the Evaniches stated that when they located their landscape beds they believed them to be on their own side of the lot line, and said they would not have intentionally located them to encroach on the adjoining lot. Accordingly, they contend, the trial court and 9th District’s decisions should be overturned based on their failure to apply the intent requirement established by Grace.

Attorneys for the Evaniches argue that the Grace decision is not applicable to their case because Grace did no involve a case of “mutual mistake” in which both the claimant and the titled owner believed that the disputed land or improvements were located on the claimant’s property, and the adverse possession went unchallenged for the requisite period of 21 years.  They point to prior decisions of the 9th District and other courts of appeals affirming claims of adverse possession where it is shown that  a claimant’s long-term possession and use of land was based on a “good faith” error in determining an accurate boundary between properties.

Contacts
Stephen G. Meckler, 440.324.5353, for Steven and Margaret Bridge.

Frank S. Carlson, 440.930.4001, for William and Roselyn Evanich.

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Does State ‘Concealed Carry’ Law Preempt Local Ordinance Banning Weapons In City Parks?

Ohioans For Concealed Carry, Inc., et al. v. City of Clyde et al., Case no. 2007-0960
6th District Court of Appeals (Sandusky County)

ISSUES:

BACKGROUND: In January 2004, the General Assembly enacted R.C. 2923.126, a state law allowing persons who meet certain qualifications and obtain a license to carry a concealed firearm anywhere in Ohio other than in excepted locations enumerated in the statute. In uncodified language adopted as part of the concealed carry bill, the legislature declared that its purpose was to adopt a general and uniform regulatory scheme for the concealed carry of firearms in all parts of the state. In adopting that scheme, the legislature stated that it intended to preempt the future adoption or enforcement by any Ohio municipality or political subdivision of any local ordinance that conflicted with state law by prohibiting the carrying of a concealed weapon in a location where concealed carry is permitted by R.C. 2923.126.

In June 2004, the Clyde City Council enacted a municipal ordinance that prohibited any person within the confines of any city park from possession of a deadly weapon. The ordinance expressly  included in its weapons ban persons who were licensed to carry a concealed firearm “pursuant to R.C. 2923.125.” In August 2004, Ohioans for Concealed Carry (OCC) filed suit in the Sandusky County Court of Common Pleas seeking a declaratory judgment that the Clyde ordinance was void and unenforceable because it was in conflict with R.C. 2923.126. 

While the Clyde case was pending, the 6th District Court of Appeals in Toledo v. Beatty upheld a Toledo city ordinance banning guns from city parks. Citing Beatty, the trial court entered judgment in favor of Clyde. OCC appealed.  While its appeal was pending, the legislature adopted new legislation, H.B. 347, reaffirming its intention to enact a general law that  would “provide uniform laws throughout the state” and explicitly stating that Ohioans have a fundamental constitutional right to possess a firearm where such possession is not expressly prohibited by the U.S. or Ohio constitutions or by a state or federal law.  In light of the adoption of H.B. 347, the 6th District abandoned its previous holding in Beatty, reversed the ruling of the trial court, and invalidated the Clyde city ordinance as in conflict with a “general law of the state.”

Clyde now asks the Supreme Court to reverse the 6th District and reinstate its ordinance. Attorneys for the city assert two primary arguments:

1) They argue that while the stated purpose of R.C. 2923.126 is to establish a “uniform and predictable” regulatory scheme, in actual operation the statute allows the owner of virtually any private property to ban concealed weapons simply by posting a sign on the premises. The result of this “owner’s choice” exception, they contend, is a lack of uniformity, predictability or consistency regarding where a gun owner may or may not carry a concealed weapon. As an example, they note that the Whirlpool Corporation, which has a manufacturing plant in Clyde, operates a private park in the city that includes a swimming pool, tennis courts and baseball fields. Under R.C. 2923.126, they say, Whirlpool is free to ban weapons from its park while a similar park operated by the city is barred from imposing any restriction on firearms. They also point to what they term the “unreasonable and arbitrary” distinction made by the statute between a privately owned golf course open to the public, which is free to either ban guns or permit them anywhere on the premises, and a municipally owned golf course, which is required to permit guns anywhere on its property except in the pro shop, where a patron would be subject to arrest for carrying a gun because it is a “building” owned by a “political subdivision.” Because of the inconsistency and unpredictability inherent in the “owner choice” provision of the state law, and what they term its unreasonable distinction between identical facilities based on whether they are publicly or privately owned, Clyde urges the Court to hold that  R.C. 2923.126 is not a “general law” that invalidates their city ordinance because the statute does not “operate uniformly” across the state.

2) Clyde also argues that, under the home rule provision of the state constitution, the authority of a municipality to operate and regulate the use of public parks within its city limits is not an “exercise of police power” but rather a “power of local self government” that is not subject to preemption by the state legislature regardless of whether the legislature declares its enactments to be “general laws.”  They argue that, just as the state’s power to regulate liquor sales cannot preempt a city from banning alcohol in its public parks, the state’s adoption of  uniform standards for the licensing of concealed weapons cannot extinguish a home rule municipality’s right to adopt and enforce reasonable regulations for the use of city-owned parks.

Attorneys for Ohioans for Concealed Carry respond that R.C. 2923.126 is a general law because it imposes a uniform set of licensing requirements for those who wish to carry concealed firearms anywhere in the state, and sets specific, limited exceptions, enforceable in all 88 counties, for locations in which licensed persons are restricted from exercising their right to bear arms. They argue that the statute “operates uniformly across the state” precisely by preempting all municipalities from enacting or continuing to enforce a patchwork of conflicting restrictions on gun ownership and possession that would make it all but impossible for gun owners to exercise their constitutionally guaranteed right to bear arms without inadvertently breaking the law and exposing themselves to serious criminal charges.

They point to prior court decisions holding that local ordinances regulating ownership and possession of firearms are not the exercise of local self-government powers but rather the exercise of a municipality’s police powers, and are therefore subject to preemption by the General Assembly through the enactment of a general law addressing an issue of statewide concern that creates a uniform statewide regulatory scheme.  

NOTE:  Amicus curiae (friend of the court) briefs supporting the position of Clyde have been submitted by the Ohio Municipal League, representing a number of city governments, and by the City of Cleveland.
Ohio Attorney General Marc Dann has been granted leave to intervene in the case and has filed a brief  supporting the constitutionality  of R.C. 2923.126.  An amicus brief supporting the  position of OCC has been entered by the National Rifle Association.

Contacts
John C. McDonald, 614.462.2201, for the City of Clyde.

Daniel T. Ellis, 419.882.7100, for Ohioans for Concealed Carry.

William P. Marshall, 614.466.8980, for the Ohio Attorney General’s Office.

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Procedures, Time Limits Disputed for Identifying, Serving ‘John Doe’ Defendants in Civil Suit

John A. LaNeve et al. v. Atlas Recycling, Inc., China Shipping (North America) Holding Co., Ltd., et al., Case nos. 2007-1199, 2007-1372 and 2007-1373
11th District Court of Appeals (Trumbull County)

ISSUE:  Does Ohio’s “saving statute” apply to preserve a civil action in which the original complaint filed by the plaintiff lists “John Doe” defendants whose identities were unknown on the filing date, when the plaintiff’s complaint and subsequent service upon specific defendants once their identities were known did not strictly comply with the Rules of Civil Procedure applicable to such cases?

BACKGROUND:  The statute of limitations (statutory time limit) for commencing a personal injury claim in Ohio is two years from the date an injury was incurred or discovered. A lawsuit is determined to be commenced within that period if the plaintiff’s complaint is filed within the two-year limit and the defendant(s) are served with the complaint within one year thereafter. Ohio’s saving statute, R.C. 2305.19(A), gives the plaintiff in a civil lawsuit a one-time opportunity to voluntarily dismiss a complaint that was timely filed and refile the original or replace it with an amended complaint against the same defendants based on the same injury within one year after the dismissal.

This case involves a number of technical and procedural challenges raised by two defendants seeking dismissal of personal injury claims asserted against them by dock worker John LaNeve for injuries he suffered on May 28, 2002, in the course of his employment with Atlas Recycling, Inc. when he opened a container box filled with scrap metal and was exposed to hazardous chemicals that had been applied to the container.

LaNeve’s original complaint, filed on May 28, 2004, identified Atlas as one defendant and listed five other “John Doe” defendants whose identities LaNeve indicated he had not yet discovered but described as “Unknown Company No. 1 – Manufacturer/Owner;” “Unknown Company No. 2-Distributor;” “Unknown No. 3-Lessor/Lessee;” etc. On May 6, 2005, LaNeve filed an amended complaint identifying China Shipping Holding Co. as the manufacturer of the container and ContainerPort Group as the operator of the cargo facility at which he was injured. China Shipping and ContainerPort filed motions asking the trial court to dismiss LaNeve’s claims against them, based on his failure to comply with several different provisions of Ohio’s Rules of Civil Procedure. The trial court granted the motions to dismiss, citing among other errors LaNeve’s failure to serve either defendant in person with a copy of his original complaint, and failure to make any service upon  China Shipping within one year after the May 28, 2004, filing date.

On review, the 11th District Court of Appeals reversed the trial court and reinstated LaNeve’s claims against China Shipping and ContainerPort. The defendants now ask the Supreme Court to overrule the court of appeals and affirm the trial court’s dismissal of the claims against them based on the failure of LaNeve to “strictly comply” with the procedural requirements of Ohio Civil Rules 3(A), 15(C) and 15(D).

LaNeve urges the Court to affirm the holding of the 11th District that his filing of an amended complaint naming China Shipping and ContainerPort as two of the John Doe defendants within one year after the filing of his original complaint triggered the operation of the saving statute to allow an additional 12 months for perfection of service on the defendants. His attorneys also urge the Court to find that the other technical flaws in the wording of his original complaint and the manner of its service were not substantive in nature, did not interfere with the defendants’ awareness of or ability to prepare a defense against his claims, and should not be sufficient grounds to dismiss his complaint for minor procedural errors rather than allowing the trial court to hear and decide his claims against the defendants on their merits.

Contacts
Julia R. Brouhard, 216.861.4533, for the China Shipping (N.A.) Holding Co.

Thomas W. Wright, 216.348.1700, for ContainerPort Group.

Robert F. Burkey, 419.882.7100, for John and Melissa LaNeve.

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May Plaintiff Temporarily Dismiss Rest of Lawsuit To Expedite Appeal of Partial Summary Judgment?

Wally Pattison v. W.W. Grainger, Inc., et al., Case no. 2007-1345
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a trial court hearing a civil lawsuit has summarily dismissed some of the claims in a plaintiff’s complaint, but has left other claims pending, may the plaintiff use a voluntary dismissal of its remaining claims without prejudice under Ohio Civil Rule 41 to pursue an immediate appeal of the trial court’s partial summary judgment?

BACKGROUND: Ohio Civil Rule 41(A)(1) gives the plaintiff in a civil action a one-time option to unilaterally dismiss his or her complaint before trial without the consent of the defendant “without prejudice” (i.e., while preserving for at least one year the defendant’s right to refile the dismissed claims.)

Wally Pattison of Cleveland filed a civil lawsuit against a former employer, W.W. Grainger Inc. and supervisor Sam DiMeo, setting forth two different claims for wrongful termination: one alleging violation of state civil rights statutes and the other alleging violation of the state’s non-statutory public policy against age discrimination in employment. The trial court granted a pretrial motion by Grainger summarily dismissing Pattison’s statutory claim. On June 29, 2006, Pattison filed an entry invoking his privilege under Civ.R. 41(A)(1) to voluntarily dismiss his remaining public policy claim in order to pursue an immediate appeal of the summary judgment denying his statutory claim. The trial court did not journalize its notice memorializing the dismissal until July 10. On Aug. 9, 2006, Pattison filed a notice of appeal seeking review of the trial court’s dismissal of his statutory claim. The 8th District Court of Appeals noted that a Civ.R. 41 dismissal entry is “self-executing,” and therefore Pattison’s entry had immediately created a final, appealable order in his case effective on June 29, rather than on July 10 when the trial court journalized the dismissal.  Applying that timetable, the 8th District held that by waiting until Aug. 9 to file his notice of appeal, Pattison had missed the 30-day deadline for doing so and had thereby forfeited his eligibility for appellate review.

In its decision, the 8th District noted that several other Ohio appellate districts have ruled that plaintiffs may only invoke Civ.R. 41(A) to dismiss all of a pending court action, and may not use that rule to dispose of “leftover” issues in order to pursue an immediate appeal of a trial court ruling dismissing other claims that were part of the same complaint. The Supreme Court has agreed to hear arguments to resolve the conflict between appellate districts over the proper application of Civ.R. 41(A)(1) dismissals.

Attorneys for Pattison urge the Court to hold that the 8th District erred in finding that his voluntary dismissal of the unadjudicated portion of his case created a final appealable order and thereby started the 30-day time limit within which he was required to appeal. They argue that the plain language of Civ.R. 41(A)(1)(a) provides that, by taking specified steps, a plaintiff “may dismiss all claims asserted by that plaintiff against a defendant.”  Because the rule makes no mention of a “partial” dismissal, they assert, it is not applicable to multi-issue cases like this one in which a trial court has already ruled on some issues raised in the complaint but has left others pending. They argue that the 8th District’s application of the rule allows plaintiffs to withdraw and then refile unresolved partial claims against a defendant, resulting in the prospect of prolonged and piecemeal litigation of disputes that can be avoided by following the well-established doctrine that appellate courts should accept cases for review only after a trial court has issued “final” rulings addressing  all of the claims asserted in a plaintiff’s complaint.

Attorneys for Grainger and DiMeo argue that the 8th District’s interpretation of Civ.R. 41(A) dismissals is consistent with 2001 amendments to the rule that changed references to dismissing “an action” (meaning the entire case) to dismissal of “claims.” They also contend that the 8th District’s application of the rule in this case is consistent with the Supreme Court of Ohio’s 1999 decision in Denham v. New Carlisle, holding that when a plaintiff’s claims against one of several defendants had been dismissed by a trial court, a Civ.R. 41(A)(1)(a) dismissal of claims against all the other defendants converted the trial court’s preliminary order addressing the dismissed defendant into a final order subject to immediate appellate review.

Contacts
Caryn M. Groedel, 440.544.1122, for Wally Pattison.

James E. Davidson, 614.462.2700, for W.W. Grainger Inc. and Sam DiMeo.

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When Does 180-Day Time Period Begin To Run for Filing of Petition for Post-Conviction Relief?

State of Ohio v. Ernest Hollingsworth, Case no. 2007-1752
1st District Court of Appeals (Hamilton County)

ISSUES:

BACKGROUND:  The state statute governing petitions for postconviction relief in criminal cases, R.C. 2953.21, provides that a defendant must file such a petition within 180 days after the “trial transcript” is filed with a court of appeals in the defendant’s direct appeal. 

In this case, Ernest Hollingsworth filed a post-conviction petition seeking reversal of his conviction and nine-year prison sentence for trafficking in marijuana that was denied on its merits by the Hamilton County Court of Common Pleas. Hollingsworth appealed the trial court’s ruling to the 1st District Court of Appeals. Although neither the state nor the trial court had raised an objection to the timeliness of his petition, the 1st District  declined to consider the merits of his appeal based on its finding that

Hollingsworth had not filed his petition with the trial court within 180 days after a partial transcript of his trial court proceeding was received by the court of appeals on March 3, 2005, and that the trial court therefore had erred in even accepting his petition.

Hollingsworth’s attorneys now asks the Supreme Court to reverse the ruling of the court of appeals and remand his appeal to the 1st District for consideration on its merits. They assert that Hollingsworth, who was acting pro se (without the assistance of an attorney), relied on the only notice he received from the clerk of the court of appeals, which advised him that the 1st District had received and filed the record of his case “including transcript of proceedings” on April 6, 2005.  Having received no notice of any earlier filing, they say, Hollingsworth  assumed that he had 180 days from April 6 to file his post-conviction action and subsequently submitted his petition to the common pleas court on Sept. 30, several days ahead of the presumed deadline.

They point out that there was no “trial” in the case because Hollingsworth entered a guilty plea, and thus there was no “trial transcript” – in the customary usage of that term – to be filed in his direct appeal. They dispute the 1st District’s finding that the March 3, 2005 filing of a transcript of a pretrial hearing on evidentiary motions, of which Hollingsworth received no notice, qualified as the filing of a “trial transcript” and triggered the 180-day post-conviction filing period. Even if the March 3 filing did constitute the “trial transcript,” they argue that the clerk of court’s subsequent notice to Hollingsworth that his case record “including transcript” had been received on April 6 plainly misled him in calculating the time limit for filing his petition. Under similar circumstances, they assert, U.S. Supreme Court decisions have held that when a defendant has been misled by state action about time limits in his case, and has relied on that information, he is entitled to “equitable tolling” (delay of enforcement) of a deadline when he makes the required filing within the time limit he reasonably understood to be in effect.

The state, represented by the Hamilton County prosecutor’s office, responds that because the only trial court proceeding relevant to Hollingsworth’s post-conviction claims was the pretrial hearing on his evidentiary motions, the March 3 filing of the transcript of that hearing constituted receipt of the “trial transcript” and triggered the running of the 180-day deadline for seeking post-conviction relief. They assert that the April 6 date referenced in the clerk of court’s notice established the date on which the complete “case record” from the trial court was received by the court of appeals, thus triggering a different time limit for the filing of briefs in Hollingsworth’s direct appeal. Because the expiration of the 180-day filing deadline prevented the common pleas court from ever obtaining jurisdiction over Hollingsworth’s post-conviction petition, they contend, that court could not exercise its discretion to permit equitable tolling of the time limit, and the Supreme Court should affirm the ruling of the 1st District.

Contacts
Scott M. Heenan, 513.946.3227, for the state of Ohio and Hamilton County prosecutor’s office.

Elizabeth E. Agar, 513.241.5670, for Ernest Hollingsworth.

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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.