Oral Argument Previews

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Wednesday, Jan. 21, 2009

State of Ohio v. Timothy Evans, Case no. 2008-0363
8th District Court of Appeals (Cuyahoga County)

Randy J. Eppley et al. v. Tri-Valley Local School District et al., Case no. 2008-0366
5th District Court of Appeals (Muskingum County)

Medcorp, Inc. v. The Ohio Department of Job and Family Services, Case nos. 2008-0584 and 2008-0630
10th District Court of Appeals (Franklin County)

George Sullivan v. Anderson Township and Trend Construction, Inc., Case nos. 2008-0691 and 2008-0817
1st District Court of Appeals (Hamilton County)

Trumbull County Bar Association v. George Nicholas Kafantaris, Case no. 2008-2097


Should Facts of Case Be Considered in Determining Whether Crime is ‘Lesser Offense’ of Another Crime?

State of Ohio v. Timothy Evans, Case no. 2008-0363
8th District Court of Appeals (Cuyahoga County)

ISSUE: In determining whether a crime for which a defendant was not indicted is a “lesser included offense” of another crime for which the defendant was indicted, may Ohio courts consider the factual context of an individual case, or must they rely exclusively on an abstract comparison of the statutory language defining the two offenses?

BACKGROUND:  In a 1988 decision, State v. Deem, the Supreme Court of Ohio held that in determining whether one crime is a “lesser included offense” of another crime, Ohio courts should not consider the specific facts of an individual case but rather should compare the statutory elements of the two crimes “in the abstract” and determine whether the greater offense, as statutorily defined, can ever be committed without the lesser offense, as statutorily defined, also being committed.

In this case, Timothy Evans of Cleveland was indicted on a charge of aggravated robbery for an incident in which he stole the purse of a woman after telling her that he had a gun. The victim’s hand was injured when she wrestled with Evans to keep possession of her purse. In order to obtain a conviction under the aggravated robbery statute, R.C. 2911.01(A)(1), the state was required to show that Evans was in possession or control of a deadly weapon and either displayed, brandished, indicated he possessed or used that weapon in committing a theft offense. The victim testified that she had not seen a gun at the time of the attack, and no gun was recovered by police. The trial court acquitted Evans on the aggravated robbery charge based on its finding that the state had not proved that he was actually in possession or control of a deadly weapon at the time of the theft. 

The court went on, however, to find that Evans had committed the crime of robbery as defined in R.C. 2911.02(A)(2). Proof of that offense requires only a showing that in committing or attempting to commit a theft offense, the defendant did “inflict, attempt to inflict or threaten to inflict physical harm on another.” Holding that robbery was a “lesser included offense” of the aggravated robbery charge for which Evans had been indicted, the trial court convicted him of robbery despite the fact that he was not indicted for that specific offense. On review, the 8th District Court of Appeals reversed Evans’ conviction for robbery on the basis that the grand jury had not made factual findings to support his indictment on that charge. The court of appeals specifically held that, under the Deems test, robbery was not a lesser included offense of aggravated robbery because it was theoretically possible to commit the greater offense without also committing the lesser offense. 

In seeking reversal of the 8th District’s ruling, the Cuyahoga County prosecutor’s office now urges the Supreme Court to modify or expand the guidelines it set in Deem to permit courts to consider the factual context of specific cases in determining whether one crime is a lesser included offense of another crime.  They ask the Court to rule that a defendant may be convicted of a crime that was not charged in an indictment based on a finding that the defendant’s conduct as committed in the instant case constituted a “lesser included offense” of a crime that was charged in the indictment.

They argue that while it may be possible to construct some hypothetical set of facts under which a person could commit aggravated robbery without also committing robbery, the grand jury in this case made specific findings that Evans a) announced that he had a gun while b) attempting to seize the victim’s purse. Because the grand jury found that Evans not only employed a deadly weapon during a theft offense but also “caused or  threatened physical harm” during a theft offense, they assert, the indictment should be held legally sufficient to inform Evans and his attorneys that he was liable to conviction for either aggravated robbery under R.C. 2911.02(A)(1), or for robbery under R.C. 29011.02(A)(2).

As precedent for a less demanding standard for comparing the elements of different crimes, they point to this Court’s recent holding in State v. Cabrales (April 2008) that when a court determines whether separate crimes charged against a defendant are “allied offenses of similar import” (and must therefore be consolidated into a single conviction), the court must compare the statutory elements of the crimes in the abstract but is not required to find “an exact alignment” of elements so long as it finds that, as a practical matter, the commission of one offense necessarily results in commission of the other.

Attorneys for Evans urge the Court to reaffirm the Deem standard, which they say requires that in order for a crime to be a lesser included offense of another crime, a court must find that it is “impossible” for a person to commit the greater offense as statutorily defined without also committing all statutory elements of the lesser crime. In this case, they say, the 8th District correctly found that it is possible in the abstract for a person to possess and display a deadly weapon during the commission of a theft offense in violation R.C. 2902.11(A)(1) without necessarily causing or threatening physical harm to another person in violation of R.C. 2902.11(A)(2).

They point out that the prosecutor’s office had every opportunity to seek a separate indictment against Evans for the crime of robbery, but chose not to do so. They argue that, after the trial court found that the state had not proved the elements of aggravated robbery, the only crime with which Evans was charged,  it was a violation of his right to due process of law for the court to impose a conviction for robbery, a different statutory offense for which the defendant had not prepared or presented a defense because he had never been indicted on that charge by a grand jury as required by the U.S. and Ohio constitutions.

Contacts
Matthew E. Meyer, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

David M. King, 216.443.3667, for Timothy Evans.

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Does Different ‘Saving Statute’ for Wrongful Death Claims Violate Plaintiffs’ Equal Protection Rights?

Randy J. Eppley et al. v. Tri-Valley Local School District et al., Case no. 2008-0366
5th District Court of Appeals (Muskingum County)

ISSUES:

BACKGROUND: In November 2003, Joshua Eppley, a high school student in the Tri Valley Local School District, was killed in a single-vehicle traffic accident on his way home from school while riding as a passenger in a car driven by another student, Corey Jenkins.  In August 2005, within Ohio’s two-year time limit for filing wrongful death lawsuits, Joshua’s father, Randy Eppley filed a lawsuit seeking damages from the school district and several unnamed district employees for alleged negligence in allowing Joshua to leave the school premises as a passenger in Jenkins’ car without first obtaining his parents’ permission. Eppley voluntarily dismissed his complaint on Sept. 15, 2005, and subsequently refiled it on Sept. 7, 2006, within the one-year refiling deadline set by R.C. 2305.19, Ohio’s general “saving statute” for civil lawsuits.

After both sides submitted written briefs, Tri Valley moved for judgment in its favor based on the pleadings. The district argued that: 1) Eppley had not advanced any legal argument that would defeat the district’s immunity from liability for Joshua’s death under the state sovereign immunity statute, and 2) because Eppley’s suit asserted a wrongful death claim, it was subject to the provisions of a state law, R.C. 2125.04, that required his dismissed complaint to be refiled by Nov. 25, 2005, even though he would have had longer to do so under the general saving statute. The trial court entered judgment in favor of Tri Valley based on the pleadings, but did not indicate whether its holding was based on the alleged missed refiling deadline or the district’s claim of statutory immunity.

Eppley appealed. The 5th District Court of Appeals vacated the trial court judgment in favor of the school district and remanded the case for further proceedings. In its opinion, the court of appeals held that, as applied in this case, the more restrictive refiling deadline for wrongful death claims set by R.C. 2125.04 was unconstitutional because Tri Valley had not asserted any “rational basis” for depriving wrongful death plaintiffs like Eppley of the same legal protection afforded to other civil litigants by the state’s general saving statute. The 5th District also held that it was possible for Eppley to defeat the district’s claim of statutory immunity and recover damages from it under R.C. 2744.03 if he proved his claim that school employees had acted “recklessly or wantonly” in allowing Joshua to leave school property in another student’s car without parental permission.

Tri Valley sought and was granted Supreme Court review of the 5th District’s rulings. Attorneys for the district argue that the court of appeals erred in concluding that the more restrictive refiling deadline in R.C. 2125.04 violates the constitutional guarantee of equal protection by imposing different legal requirements on parties who are “similarly situated.” They assert that, because wrongful death is not a cause of action based on the common law but rather a claim created by legislative enactment, parties pursuing wrongful death claims are not “similarly situated” to parties pursuing other civil actions, and are not denied equal protection because the legislature chose to establish a less permissive deadline for refiling such claims than it set for other types of civil lawsuits.

Even if the Court should hold that the shorter refiling period for wrongful death claims is unconstitutional, they contend, it should still uphold the trial court’s ruling dismissing Eppley’s complaint because his pleadings did not overcome the presumption that the school district was immune from liability for Joshua’s death by establishing that any of the five exceptions to sovereign immunity set forth in R.C. 2744.02(B) apply to the facts of this case.  They urge the Court to follow its holding in Cater v. City of Cleveland (1998), which they say established that, when a plaintiff fails to establish that any of the exceptions to political subdivision immunity in R.C. 2744.02(B) applies to its claim, a trial court should cease its inquiry and grant judgment in favor of the defendant.

Attorneys for Eppley respond that the 5th District correctly found no “rational basis” for the conflict between a general law that uniformly allows plaintiffs in every other type of civil lawsuit one year after a dismissal to refile their claims, and a separate provision limiting wrongful death claimants to as little as one day after dismissal to refile if they happen to dismiss their initial claim before the two-year anniversary of the death that triggered their claim. They also argue that the 5th District’s remand for further proceedings was appropriate because the trial court made no indication in its judgment that it had determined there was no set of facts Eppley could establish that would overcome the immunity of the school district for its negligence in supervising Joshua on the day he was killed.

Contacts
Michael E. Stinn, 216.503.5063, for the Tri Valley Local School District.

John W. Gold, 440.442.6677, for Randy Eppley.

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Must Administrative Appeal Notice State Factual ‘Grounds’ for Court to Reverse Agency Ruling?

Medcorp, Inc. v. The Ohio Department of Job and Family Services, Case nos. 2008-0584 and 2008-0630
10th District Court of Appeals (Franklin County)

ISSUE:  In a notice of appeal filed under R.C. 119.12 (through which an appellant asks a court to reverse an administrative order of a state agency) must the appellant set forth some specific factual and/or legal grounds supporting reversal of the challenged order, or is it sufficient for the appeal notice to assert as its “grounds” the statutory standard of review applicable to all administrative appeals: that the order appealed from “is not in accordance with law and is not supported by reliable, probative and substantial evidence?”

BACKGROUND: In 2005, the Ohio Department of Job & Family Services (ODJFS) issued an adjudication order requiring Medcorp Inc. to repay the department $534,719 for ambulette services for which Medcorp had billed and been paid by the Ohio Medicaid program between March 1996 and September 1997. The order was based on findings by ODJFS auditors that the Medcorp charges had not been billed properly.

Pursuant to R.C. 119.12, Medcorp filed a notice of appeal with the Franklin County Court of Common Pleas seeking judicial reversal of the department’s administrative order.  In its appeal notice, Medcorp did not set forth any specific factual or legal information supporting reversal of the department’s order in this case, but simply recited the statutory standard set forth in R.C. 119.12 for reversal of any administrative order: that the order appealed from “was not in accordance with law and is not supported by reliable, probative and substantial evidence.” The trial court accepted the notice of appeal as sufficient, and subsequently reversed the ODJFS repayment order based on its finding that the department had used an invalid statistical method in calculating the amount of Medcorp’s alleged overcharges.

ODJFS appealed to the 10th District Court of Appeals, arguing that the common pleas court had acted without jurisdiction in accepting and ruling on Medcorp’s administrative appeal because the company’s notice of appeal did not comply with the requirement in R.C. 119.12 that all such notices must set forth the appellants “grounds for appeal.”  The 10th District affirmed the decision of the trial court, holding that Medcorp’s appeal notice had met the “grounds” requirement by incorporating the generic statutory language cited above. The 10th District certified, however, that its ruling on the “grounds” requirement was in conflict with a 2007 decision of the 2nd District Court of Appeals.

The Supreme Court has agreed to review the case to resolve the conflict between appellate districts.

Attorneys for ODJFS point out that the language in R.C. 119.12 requiring that an administrative appeal notice include a statement of the “grounds” for appeal appears early in the statute in the section specifically addressing what appellants must do to initiate an appeal, whereas the language included in Medcorp’s notice appears many paragraphs later in a section that addresses what a reviewing court must find in order to grant such any administrative appeal. They argue that this separation of the two requirements in the statute contradicts the trial and appellate court rulings in this case because merely reciting the generic standard of review in all administrative appeals does not satisfy the separate and distinct requirement that each appellant’s notice must state “grounds” for that specific appeal.

They also point to language in R.C. 199.12 that makes the filing of written briefs by the parties in administrative appeals optional rather than mandatory, and that authorizes a reviewing court to immediately rule on an appellant’s appeal based solely on the notice of appeal and the court’s review of the administrative agency record. They argue that in order for courts to employ this expedited process as envisioned in the statute, a valid notice of appeal must identify specific alleged legal or evidentiary errors by an administrative agency, because otherwise a reviewing court would be left to review the case record with no indication of what mistakes the appellant believes were made.

Attorneys for Medcorp respond that in contemporary legal practice, courts hearing administrative appeal cases invariably require the parties to enter written briefs in which they set forth their claims of and defenses against specific defects in the challenged administrative proceedings. They argue that R.C. 119.12 requires a reviewing court to reverse an administrative agency order if it finds that the order was “not in accordance with law and not supported by reliable, probative and substantial evidence,” and assert that the lower courts in this case correctly held that any notice of appeal that includes that language has stated sufficient “grounds” to establish a trial court’s jurisdiction to hear the appellant’s appeal.

Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Department of Job & Family Services.

Geoffrey E. Webster, 614.461.1156, for Medcorp Inc.

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Is Partial Trial Court Ruling Denying Subdivision’s Sovereign Immunity Claim Immediately Appealable?

George Sullivan v. Anderson Township and Trend Construction, Inc., Case nos. 2008-0691 and 2008-0817
1st District Court of Appeals (Hamilton County)

ISSUE:  In a case involving multiple parties and claims, when a trial court’s partial ruling denies a defendant political subdivision the benefit of a claimed immunity from liability under Ohio’s political subdivision immunity statute, but the court does not certify that there is “no just reason for delay” in appealing its partial ruling pursuant to Civ.R. 54(B), is the partial ruling denying immunity a “final, appealable order” subject to immediate review by a court of appeals despite the absence of a Civ.R. 54(B) certification?

BACKGROUND: In civil cases involving multiple parties and multiple claims, when a trial court issues an order that finally resolves some but not all of the claims, or that resolves all of the claims involving some but not all of the parties, Ohio Civil Rule 54(B) authorizes the trial court in its discretion to certify that there is “no just reason for delay” in allowing a party or parties negatively impacted by the partial ruling to file an immediate appeal. In the absence of a Civ.R.54(B) certification, a trial court’s partial ruling is normally not “final and appealable,” meaning it is not yet ripe for review by a court of appeals.

In this case, property owner George Sullivan filed suit against Anderson Township and Trend Construction, a contractor the township had  hired to work on a road widening project. Sullivan claimed that his property had been damaged by work performed by Trend on behalf of the township. He advanced multiple claims against both Trend and the township under different theories of liability. After the parties filed written pleadings, the township entered a motion seeking judgment on the pleadings dismissing all Sullivan’s of claims against it, arguing that it was immune from any liability for his alleged damages under R. C. Chapter 2477, Ohio’s political subdivision immunity statute.

The trial court entered an order partially granting and partially denying the township’s motion.  Specifically, the court held that the township was immune from Sullivan’s claims based on trespass and from the portion of his complaint seeking punitive damages, but was not immune from other claims alleging breach of oral contract, vicarious negligence and negligent supervision of Trend. In its order, the trial court did not address any of Sullivan’s separate claims against Trend, and did not include Civ.R.54(B) language indicating that there was “no just reason for delay” in appealing its rulings on the immunity issues.

The township attempted to appeal the portions of the order denying its immunity claims despite the absence of a Civ.R.54(B) certification, citing language in R.C. 2477.02(C) that confers the status of a “final order” on any trial court ruling that denies a motion of a political subdivision alleging immunity under R.C. Chapter 2477.  The 1st District Court of Appeals ruled that despite the cited statutory provision it did not have jurisdiction to accept the township’s appeal in a multi-issue, multi-party case until and unless the trial court made a Civ.R.54(B) entry authorizing immediate review of its partial judgment. The court of appeals certified that its ruling on the appealability of the trial court’s partial judgment was in conflict with a 1999 decision of the 4th District, Drew v. Laferty. The Supreme Court agreed to hear arguments in the case to resolve the conflict between appellate districts.

Attorneys for the township argue that the 1st District erred by failing to follow this Court’s 2007 holding in Hubbell v. Xenia that any ruling denying a pretrial motion by a political subdivision seeking immunity under R.C. Chapter 2477 “is a final appealable order.” They note that in its Hubbell decision the Court placed a high priority on the early appeal and resolution of disputed immunity issues as a way of eliminating needless delay and expense for the parties and making efficient use of judicial resources.  They contend that there is nothing in the Hubbell decision to indicate that it should not be applied to partial rulings addressing immunity issues in a multi-party case, and argue that the judicial discretion conferred on trial courts by Civ.R.54(B) should not be given precedence over the clear statutory language of R.C. 22477.02(C) indicating that rulings denying governmental immunity are to be considered “final.”

Attorneys for Sullivan respond that the Hubbell decision is not applicable to the facts of this case because Xenia was the sole defendant in that case and therefore the trial court’s ruling on immunity did not require or permit the application of Civ.R.54(B) to determine whether the interests of other parties provided a “just reason for delay” in authorizing an immediate appeal of the immunity ruling. They urge the Court to follow other court decisions emphasizing the state’s interest in preventing protracted “piecemeal litigation” that can result when claims against multiple defendants arising from the same events become fragmented into multiple court proceedings as a result of premature appeals of preliminary issues that are commenced before the court has disposed of all related claims or all claims applicable to a given party.

Contacts
Edward J. Dowd, 937.222.2333, for Anderson Township.

A. Brian McIntosh, 513.929.4040, for George Sullivan.

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Attorney Discipline

Trumbull County Bar Association v. George Nicholas Kafantaris, Case no. 2008-2097

The Board of Commissioners on Grievances & Discipline has recommended that Warren attorney George N. Kafantaris be permanently disbarred for misappropriating funds of two different clients that were on deposit in his law office trust account and for filing a false affidavit with the Supreme Court stating that he had complied with all conditions of a prior license suspension.

Kafantaris, whose license has been under an interim remedial suspension since November 2008, has filed objections to the board’s findings and recommended sanction. While admitting that he made unauthorized personal use of client funds on deposit in his trust account, Kafantaris urges the Court to give weight to mitigating factors including the fact that he restored all the misappropriated funds to his clients and that he was and continues to be under treatment for depression that he claims contributed to his misconduct. He cites numerous prior attorney discipline cases in which the Court imposed a license suspension rather than permanent disbarment for attorneys who mishandled client funds, and urges the Court to impose an indefinite suspension as the appropriate sanction in this case.

The Trumbull County Bar Association has filed a response to Kafantaris’ objections. They point out that Kafantaris was guilty of a prior disciplinary infraction that resulted in suspension of his license, and also note the aggravating factors that he engaged in a pattern of fraudulent and deceptive conduct involving more than one client, acted with a selfish and dishonest motive, and failed to cooperate with disciplinary authorities investigating his misconduct. They cite prior cases in which the Court has held that in the absence of mitigating factors not found in this case, disbarment is the “presumptive” sanction for an attorney who misappropriates client funds.

Contacts
Randil J. Rudloff, 330.393.1584, for the Trumbull County Bar Association.

Mark G. Kafantaris, 614.223.1444, for George Kafantaris.

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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.