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Tuesday, April 22, 2009

State of Ohio v. Hugh Hunter, Case no. 2008-0661
8th District Court of Appeals (Cuyahoga County)

Mary Niskanen v. Giant Eagle, Inc., et al., Case no. 2008-0895
9th District Court of Appeals (Summit County)

Kauffman Racing Equipment, LLC v. Scott Roberts, Case no. 2008-1038
5th District Court of Appeals (Knox County)

Reynold Williams, Jr. v. Spitzer Autoworld Canton LL[C], Case no. 2008-1337
5th District Court of Appeals (Stark County)


Did 2006 Court Decision Void State Law Authorizing Enhanced Sentences for Repeat Violent Offenders?

State of Ohio v. Hugh Hunter, Case no. 2008-0661
8th District Court of Appeals (Cuyahoga County)

ISSUES: 

BACKGROUND: In Blakely v. Washington, decided in June 2004, the U.S. Supreme Court held that when a criminal defendant is found guilty by a jury, it is unconstitutional for the defendant’s sentence to be enhanced beyond the minimum penalties applicable to the crime for which he was convicted unless any factual findings (except a finding of a prior conviction) justifying the imposition of an enhanced sentence are made by the jury, rather than by the judge.

In State v. Foster, decided in February 2006, the Supreme Court of Ohio reviewed various parts of Ohio’s felony sentencing scheme in light of Blakely and related U.S. Supreme Court decisions. The Court ruled that parts of Ohio’s criminal sentencing statutes were unconstitutional because they authorized the imposition of enhanced sentences based on factual findings made by judges. The Court severed the sections of the sentencing statute that required judges to make specific findings to support sentence enhancements and left the remainder of the statute in place.

Some of the sentencing statute language found to be unconstitutional and severed was in former R.C. 2929.14(D)(2)(b). That provision empowered judges to add from one to 10 years to a defendant’s prison sentence for a current violent offense if the defendant had previously been convicted and imprisoned for a 1st or 2nd degree felony that “resulted in the death of a person or physical harm to a person” and if  the judge also made specific findings that: 1) imposing the normal maximum penalty for the defendant’s current offense would be “inadequate to punish the offender or protect the public from future crime;” and 2) imposing the normal maximum sentence for the offender’s current offense would be “demeaning to the seriousness of the offense” because one or more specified aggravating factors were present in the case.  In its Foster decision, the Court stated that it was severing the judicial fact-finding provisions in the RVO statute that were barred by the U.S. Supreme Court’s ruling in Blakeley, and added: “After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.”

In this case, Hugh Hunter of Cleveland was charged with felonious assault in 2004 for attacking a church employee with his fists when he was asked to leave the building because it was closing.  In its indictment of Hunter, the state also included an RVO specification based on Hunter’s earlier conviction for striking a corrections officer while he was incarcerated at the Cuyahoga County jail. After extensive pretrial proceedings that delayed final resolution of the case until October 2006, Hunter was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification.

[Note: In May 2006, shortly after the Foster decision was announced, the General Assembly enacted H.B. 95, which revised the repeat violent offender statute to allow RVO sentence enhancement based solely on proof of an offender’s prior conviction for a crime defined by law as a “violent felony.” Because the crime at issue in this case was committed before the effective date of H.B. 95, however, the law applicable to Hunter is the pre-H.B. 95 version of the RVO statute that was addressed in the Foster decision.] 

Hunter subsequently appealed the addition of an RVO enhancement to his sentence. His attorneys argued that either: 1) the Supreme Court of Ohio’s Foster decision had invalidated the entire pre-H.B. 95 RVO statute; or 2) if a portion of the law remained in effect, that portion was unconstitutional under the U.S. Supreme Court’s holding in Blakeley. The 8th District Court of Appeals rejected Hunter’s arguments and affirmed the RVO sentence enhancement imposed by the trial court. Hunter sought and was granted Supreme Court review of the lower court decisions.

Attorneys for Hunter argue that, if Foster invalidated only the judicial factfinding provisions in the former RVO statute that addressed the “adequacy” of a maximum sentence and whether a maximum sentence would be “demeaning to the seriousness of the offense,” the remaining language in that statute still required that judges to make “findings of fact” that are impermissible under Blakeley in order to justify enhancement of a defendant’s sentence. They point out that the pre H.B. 95 statute allowed trial judges to impose an RVO sentence enhancement only after making findings that: 1) in committing the current crime with which he is charged, the defendant actually caused or attempted to cause “serious physical harm” to a person; 2) the defendant was previously convicted of a 1st or 2nd degree felony that “resulted in the death of a person or in physical harm to a person;” and 3) the defendant served time in prison for the prior conviction.

Because the former statute required that each of these factual findings must be made by the judge in order for an RVO sentence enhancement to be imposed, and all three of the required findings go beyond Blakeley’s sole exception for a judicial finding of “a prior conviction,” they argue that 1) if Foster severed all provisions of the RVO law that were contrary to Blakely, then Foster barred the judge in this case from making the necessary findings to impose a sentence enhancement on Hunter. Alternatively,  2) if Foster left in place the statutory language that required judges to make factual findings regarding “serious physical harm” and the defendant’s prior imprisonment to justify a sentence enhancement, then that unsevered language was unconstitutional under Blakeley. Either way, they contend, Hunter’s RVO sentence enhancement is invalid and must be reversed.

Attorneys for the state respond that the Supreme Court of Ohio stated plainly in the syllabus of the Foster decision that trial court judges would continue to have authority to enhance criminal sentences based on proof of a defendant’s prior conviction for a violent felony, without meeting the pre-Foster requirement that they make specific factual findings to justify such enhancements. In this case, they say, the trial judge did not make other findings of fact that had been excised from the pre-H.B. 95 RVO statute, and correctly imposed an RVO sentence enhancement after verifying that both Hunter’s 2006 assault offense and his prior conviction fell within the category of violent felonies for which the legislature had authorized enhanced sentences.

Contacts
Cullen Sweeney, 216.443.3660, for Hugh Hunter.

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

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Did Trial Court Err By Barring Jury Finding on ‘Actual Malice,’ Allowing Jury to Consider Self Defense Claim?

Mary Niskanen v. Giant Eagle, Inc., et al., Case no. 2008-0895
9th District Court of Appeals (Summit County)

ISSUES:

BACKGROUND: Under the legal doctrine of “comparative negligence,” when a jury finds that the plaintiff in a civil lawsuit was partially responsible for his own injuries, the total damages payable  to the plaintiff by the defendant are reduced by the percentage of the plaintiff’s comparative negligence. In cases where a plaintiff is found to be more than 50 percent responsible for his own damages, the plaintiff is barred from any recovery from the defendant. There is an exception to this rule holding that if a jury finds that a defendant acted with “actual malice” (deliberate intent to injure or reckless disregard for probable injury), comparative negligence does not apply and the plaintiff may recover from the defendant for 100 percent of his damages despite the plaintiff’s own negligent acts. A finding of actual malice on the part of a defendant is also required in order to support a jury award of punitive damages in favor of the plaintiff.

In this case, Paul Niskanen of Summit County died from asphyxiation as a result of being forcibly pinned to the ground for more than five minutes by several employees of a Giant Eagle store in Rootsville after Niskanen left the store and began loading groceries into his car without paying for them. Mary Niskanen, Paul’s mother, filed a wrongful death lawsuit against the store and individual employees involved in the incident seeking both compensatory and punitive damages.

Niskanen’s complaint alleged that although Giant Eagle had specific company policies that barred employees from pursuing a suspected shoplifter outside the store or engaging in a physical struggle with a combative person, and company management knew that there was a danger of death or serious injury arising from violent physical confrontations, the company had negligently failed to train the manager or any other Rootsville store employees in how to deal with shoplifters. The suit also alleged that store personnel had used unreasonable force in restraining Paul, contrary to a state law that permits merchants to use “reasonable restraint” to detain shoplifters until police arrive.

At trial, Giant Eagle argued that it could not be held liable for damages arising from Paul’s injuries because store employees had been violently attacked by Paul when they confronted him in the parking lot, and his asphyxiation was an accident that occurred while they were acting in self-defense by subduing and then restraining him until police arrived. Attorneys for Niskanen argued that while Paul’s own actions may have contributed to his injuries, his death was a direct result of Giant Eagle’s “actual malice” in recklessly failing to train its employees in dealing with shoplifters and their subsequent use of excessive force to restrain Paul after he had ceased to be combative. 

At the conclusion of the trial, the judge overruled a motion by Giant Eagle to dismiss Niskanen’s claims for punitive damages before they went to the jury, based on the court’s determination that the evidence could support a finding of actual malice. The judge gave the jury interrogatories that asked them to 1) determine whether Giant Eagle was negligent in training store employees and/or employed excessive force in restraining Paul;  2) what damages Mary Niskanen and Paul’s estate were entitled to recover from Giant Eagle; 3) to what extent Paul’s comparative negligence caused his own injuries; and 4) whether the store employees were acting in self-defense when they caused Paul’s death. The court overruled several motions by Niskanen’s attorneys asking that it also instruct the jury to make a finding on whether or not Giant Eagle acted with actual malice. The jury returned a general verdict finding that: 1) Giant Eagle was liable to Niskanen for $1 million in damages for negligence in failing to train store personnel; 2) store personnel had acted in self defense and had not unreasonably restrained Paul in violation of the shopkeeper privilege statute; and 3) Paul was 60 percent responsible for his own injuries. As a result of the finding of 60 percent comparative negligence by the plaintiff, the court vacated the jury’s damage award and entered judgment absolving Giant Eagle of all liability.

Niskanen’s attorneys appealed, arguing that by refusing to give the jury an interrogatory on the issue of actual malice, the trial court had made it impossible for Niskanen to overcome comparative negligence by obtaining a jury finding that Giant Eagle acted with deliberate intent or reckless disregard of the consequences of failing to train its employees. The 9th District Court of Appeals reversed the trial court and remanded the case for a new trial, holding that the jury instructions should have included a directive to decide whether there had been a showing of actual malice that would negate Paul’s comparative negligence and allow Mary Niskanen to recover all of her damages. The court of appeals also ruled that the jury should not have been given an instruction to consider Giant Eagle’s claim of self-defense, because such a defense was “irrelevant” to Niskanen’s negligence claim based on failure to train employees.  Giant Eagle sought and was granted Supreme Court review of the 9th District’s decision.

Attorneys for Giant Eagle argue that Niskanen’s complaint alleged only negligence and did not set forth any separate, specific claim of an intentional wrongful act by the company or its employees that would support a finding of actual malice and thus an award of punitive damages. They point to prior court decisions holding that punitive damages may be awarded to a plaintiff only where compensatory damages have also been awarded, and argue that because the trial court in this case found Niskanen was not entitled to compensatory damages based on comparative negligence, the 9th District erred in holding that the jury should have been directed to consider actual malice and punitive damages when there was no underlying award of compensatory damages. They also argue that, if affirmed, the 9th District’s ruling barring a claim of self-defense in this case would effectively strip merchants of the protection from liability the legislature intended to provide by enacting a statute that allows them to reasonably restrain a shoplifter until police arrive.

Attorneys for Niskanen respond that the 9th District’s decision does not authorize a court to require jury findings on punitive damages where there is no underlying award of compensatory damages, but rather requires a court that has found sufficient evidence to support a possible finding of actual malice to instruct the jury to address that issue before it considers comparative negligence, on the sound legal basis that if actual malice is found, comparative negligence no longer applies. They point out that Niskanen’s complaint alleged not only ordinary negligence but also “willful, intentional and/or grossly negligent violations of (Giant Eagle’s) duties” to Paul. They argue that under Ohio’s liberal rules governing pleadings in civil cases, the “willful, intentional and grossly negligent” language in the complaint was sufficient to allege a tort for which a jury finding of actual malice is required.

With regard to the 9th District’s ruling on Giant Eagle’s claim of self-defense, they say the court of appeals did not hold that such a defense was inapplicable in any case based on negligence, but rather held that such a defense was irrelevant to the specific negligence claim asserted in this case. Because Niskanen’s negligence claim was based on the company’s failure to train its employees before the events that caused Paul’s death,  and self defense can only be asserted regarding the employees’ actions during the actual struggle in the parking lot, they say, the 9th District correctly held that self-defense was inapplicable to the plaintiff’s specific claim in this case, and the jury should not have been instructed to consider it as a bar to liability.

Contacts
Scott D. Livingston, 412.471.3490, for Giant Eagle, Inc.

Steven A. Goldfarb, 216.621.0150, for Mary Niskanen.

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Does Ohio Court Have Jurisdiction Over Claim That Virginia Resident Defamed Ohio Company Via Internet?

Kauffman Racing Equipment, LLC v. Scott Roberts, Case no. 2008-1038
5th District Court of Appeals (Knox County)

ISSUE: Does an Ohio trial court have personal jurisdiction over a civil lawsuit in which an Ohio company seeks damages for defamation from a Virginia resident who has no personal presence in Ohio based on negative statements made by the defendant about the Ohio company that were posted on interactive Internet Web sites?

BACKGROUND:  In 2006 Kauffman Racing Equipment (KRE) of Knox County, which specializes in the manufacture and sale of race car parts, sold an auto engine block to Virginia resident Scott Roberts.  Eight months later, Roberts called KRE to complain that the engine block was defective. KRE had Roberts ship the block back to Ohio, where an examination to determine whether there were manufacturing defects revealed that the block had been modified by Roberts, a fact that Roberts subsequently admitted. KRE declined to buy back the engine block based on the modifications made by Roberts, and shipped the block back to him.

During a two-month period following KRE’s refusal to replace the engine block, Roberts posted a number of comments that were highly critical of KRE’s business practices and products on the bulletin board pages of several Internet sites dedicated to automobile racing equipment, performance and related subjects. In some of those comments, Roberts indicated that it was his intention to “make up for” his economic loss by disparaging KRE  via postings on Web sites frequented by car racing enthusiasts.

KRE filed suit against Roberts in the Knox County Court of Common Pleas, alleging that Roberts had injured the company’s reputation and business by posting false and malicious statements on the Internet and seeking damages for defamation and intentional interference with contracts and business relationships.  Roberts filed a motion to dismiss KRE’s claims against him on the basis that the trial court had no personal jurisdiction over him because he was a Virginia resident with no legal presence in Ohio, and because he had not directed any negative communications about KRE to any person or business located in Ohio. The trial court granted Roberts’ motion to dismiss based on lack of jurisdiction.

KRE appealed. On review, the 5th District Court of Appeals reversed and remanded the case to the trial court for further proceedings.  The court of appeals found that Roberts’ alleged defamatory comments fell under Ohio’s “long arm” statute, R.C. 2307.382, because although Roberts’ statements were made outside Ohio, they were made “with the purpose of injuring persons ... in this state.” The appellate panel also held that requiring Roberts to be subject to the jurisdiction of an Ohio court did not violate his due process rights because the alleged defamatory statements were made about an Ohio-based business and the “effects” of those statements, i.e. the brunt of the harm suffered by KRE, was suffered in Ohio. Roberts sought and was granted Supreme Court review of the 5th District’s decision.

Attorneys for Roberts cite a number of court decisions from other states holding that, in cases where a plaintiff alleges that it was defamed by means of Internet postings by an out-of-state resident, the plaintiff’s home-state courts do not have personal jurisdiction over a foreign defendant unless the defendant had a personal or business presence in the plaintiff’s home state, the statements were initiated via computers located in the plaintiff’s home state, or the defendant “aimed” its defamatory communications at one or more persons or businesses located in the plaintiff’s home state.  In  this case, they say, Roberts has never personally been in Ohio nor had a business presence here; the statements at issue in the case were transmitted via computers located in Virginia; and Roberts never specifically directed his statements to any person or business in Ohio, because their only dissemination had been made by posting them on Internet sites that are equally accessible to anyone in the world.

Attorneys for KRE respond that the court decisions cited by Roberts are not applicable to KRE’s claims against Roberts because those cases involved defamatory Internet statements made by out-of-state residents with whom the plaintiff had no prior business relationship. They cite several Internet defamation cases in which the jurisdiction of a plaintiff’s home state courts over a foreign defendant has been upheld based on the locus of the alleged harm caused by the defendant’s statements and the fact that the defendant’s statements arose from a prior business transaction or relationship with the plaintiff that took place in the plaintiff’s home state. In this case, they argue, Roberts’ purchase of the disputed engine block from KRE was an Ohio-based transaction, and his subsequent disparaging remarks about KRE based on that transaction are sufficient grounds to confer jurisdiction on an Ohio court to hear KRE’s defamation claim – regardless of whether Roberts’ Internet postings were or were not specifically “directed” to anyone in Ohio.

Contacts
Brett Jaffe, 614.443.7654, for Kauffman Racing Equipment, LLC.

William J. Kepko, 740.392.2900, for Scott Roberts.

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Does ‘Parol Evidence’ Rule Apply to Suits Filed Under Ohio Consumer Sales Practices Act?

Reynold Williams, Jr. v. Spitzer Autoworld Canton LL[C], Case no. 2008-1337
5th District Court of Appeals (Stark County)

ISSUE:  Under the common law “parol evidence rule,” if an agreement between parties has been reduced to a signed, written contract, and that contract includes language stating that all terms and conditions of the agreement are set forth in the contract and no other terms or conditions previously discussed by the parties are binding on the parties, then neither party may later introduce “parol” evidence (evidence of alleged verbal or written commitments outside of the signed contract) to seek additional compensation from the other party. In this case, the Court is asked to determine whether the parol evidence rule applies to bar a consumer who brings a deceptive sales practice claim against an auto dealer under the state’s Consumer Sales Practices Act (CSPA) from introducing evidence of an alleged verbal agreement between the parties that is contrary to a specific provision included in the signed sales contract.

BACKGROUND:  In October 2004, Reynold Williams, Jr. purchased a 2004 GMC Yukon from a Canton auto dealer, Spitzer Autoworld.  As part of that transaction, Williams traded in a 2003 Ford Explorer. The sales contract signed by both parties indicated that Spitzer had credited Williams with a trade-in allowance of $15,500 toward the purchase price of the Yukon. In 2006, Williams filed suit against Spitzer alleging that the dealer had committed multiple violations of the state consumer sales practices act in the course of the transaction in which he purchased the Yukon. Among those claimed violations, Williams alleged that the Spitzer representative with whom he negotiated the transaction had verbally committed to a trade-in allowance of $16,500 for his Explorer, but had later reduced the allowance stated in the sales contract to $15,500 without consulting Williams, and Williams had signed the contract without noticing that change.

After a jury trial, Williams was awarded damages of $2,500 based on a finding that Spitzer had engaged in a deceptive sales practice by reducing the promised trade-in allowance. Spitzer moved the trial court for a directed verdict or judgment notwithstanding the verdict setting aside the jury award. The trial  court denied that motion. Pursuant to penalty provisions included in the CSPA, the court subsequently tripled the damages awarded by the jury, and also ordered Spitzer to pay Williams’ attorney fees.

Spitzer appealed, alleging that the trial court should have granted its motion for a directed verdict on the basis that Williams had improperly been allowed to introduce parol evidence (i.e., evidence relating to a verbal commitment allegedly made by the dealership during negotiations when that commitment was not reflected in the final contract signed by the parties.)  On review, the 5th District Court of Appeals affirmed the trial court’s judgment and damage award. In its opinion, the 5th District held that the parol evidence rule is a common law doctrine applicable to contract-based lawsuits, but does not apply in cases like Williams’ which involve claims of deceptive sales practices under the CSPA. Spitzer sought and was granted Supreme Court review of the court of appeals ruling.

Attorneys for Spitzer, supported by amicus curiae (friend of the court) briefs filed by the National Federation of Independent Businesses/Ohio and the Ohio Auto Dealers’ Association, argue that the 5th District’s decision in this case goes beyond prior Ohio court rulings, which they say have allowed plaintiffs in CSPA actions to introduce evidence of a vendor’s oral representations to a consumer, but only when those representations did not contradict a clear and unambiguous provision included in the final contract between those parties. In this case, they point out, Williams signed a sales contract that clearly and unambiguously stated that he would receive a trade-in allowance of $15,500, and also clearly stated that the terms of the written contract constituted the entire agreement between the parties and  superseded any prior offers or representations made by either party.

They assert that, by enabling Williams to sign a contract agreeing to a clearly stated trade-in allowance, but later sue to recover a larger amount based on an alleged promise that is directly contradicted by the written agreement, the trial court and 5th District have created a legal environment in which a consumer can sign off on the terms of a  “final” and “binding” sales contract, but later abandon that agreement and recover damages from the seller based on the buyer’s unsupported claim that the merchant orally promised a better deal than the one set forth in the written contract. They urge the Court to reverse the lower court rulings and hold that the parol evidence rule must be followed in CSPA actions where a vendor’s alleged oral representation is contrary to a clear and unambiguous provision included in a written contract.

Attorneys for Williams, supported by amicus briefs submitted by the Ohio Attorney General, National Association of Consumer Advocates and Ohio legal aid agencies, point to prior appellate court decisions holding that the clear legislative intent underlying the CSPA “is to protect consumers from unscrupulous suppliers in a manner not afforded under the common law.” They note that the parol evidence rule is a common law rule applicable only to contract-based claims, whereas complaints under the CSPA do not seek to enforce the terms of a contract but rather to protect consumers and punish fraudulent, deceptive and unconscionable business practices. 

They also point out that, pursuant to the language of the CSPA, the state attorney general has adopted administrative rules that clearly allow consumers to pursue statutory recovery from vendors based on false and deceptive oral representations made to induce the consumer to sign a written contract that does not incorporate the vendor’s promises or substitutes different terms than those the consumer was promised.  They contend that requiring adherence to the parol evidence rule in actions brought under the CSPA would render that statute largely toothless and unenforceable, and would negate the public policy judgment of the General Assembly in drafting the CSPA that consumers need broader protection from unscrupulous suppliers than is provided by the common law governing contract disputes.

Contacts
Anthony B. Giardini, 440.244.1811, for Spitzer Autoworld Canton, LLC.

G. Ian Crawford, 330.452.6773, for Reynold Williams Jr.

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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.