Oral Argument Previews

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Tuesday, May 19, 2009

Washington Mutual Bank fka, Washington Mutual Bank, FA v. Jack K. Beatley, et al., Case no. 2008-1056
10th District Court of Appeals (Franklin County)

Meijer Stores Limited Partnership v. Franklin County Board of Revision, Franklin County Auditor and the Licking Heights School District Board of Education, et al., Case no. 2008-1248
State Board of Tax Appeals

State of Ohio v. Cleveland L. Cargile, Case no. 2008-1452
8th District Court of Appeals (Cuyahoga County)

City of Youngstown v. Jammie Traylor, Case no. 2008-1460
7 th District Court of Appeals (Mahoning County)

State of Ohio v. Phillip L. Elmore, Case no. 2007-0475
5 th District Court of Appeals (Licking County)


Is Unregistered Foreign Corporation Barred from Appealing a Ruling of Ohio Trial Court?

Washington Mutual Bank fka, Washington Mutual Bank, FA v. Jack K. Beatley, et al., Case no. 2008-1056
10th District Court of Appeals (Franklin County)

ISSUE: When an Ohio trial court has dismissed a civil lawsuit filed by a foreign corporation not registered with the Ohio Secretary of State on the basis that such a company is barred by law from maintaining an action in any Ohio court, does R.C. 1703.29 bar an Ohio court of appeals from accepting or hearing an appeal by the foreign corporation challenging the trial court’s ruling?

BACKGROUND:  Ohio’s foreign corporation statute, R.C. Chapter 1703, requires that any corporation headquartered outside Ohio that does business in this state must register with and be licensed by the Ohio Secretary of State. A subsection of the statute, R.C. 1703.29, provides that “no foreign corporation which should have obtained such license shall maintain any action in any (Ohio) court until it has obtained such license.”

In July 2006, Washington Mutual Bank, a corporation headquartered outside Ohio, filed suit in the Franklin County Court of Common Pleas seeking to foreclose on the mortgage of a property on West Northwood Avenue in Columbus owned by Jack K. Beatley.  The mortgage was acquired by Washington Mutual from its original holder, Home Savings of America FA, when the two companies merged. [NOTE: After this case was commenced, Washington Mutual was placed in receivership and its assets, including the mortgage at issue in this case, are now under the control of the Federal Deposit Insurance Corporation (FDIC).  However, those facts are not relevant to the legal issue the Court is asked to decide].

Beatley filed a motion asking the trial court to dismiss the foreclosure action on the basis that the trade name listed in the foreclosure complaint “Washington Mutual Bank, f.k.a. Washington Mutual Bank FA” was a “fictitious name” that had never been registered with the Ohio Secretary of State, and therefore Washington Mutual was precluded by R.C. 1329.10 from filing any legal action in an Ohio court.  Beatley included with his filing certified documents from the Secretary of State’s office affirming that Washington Mutual was not registered. The trial court granted dismissal, holding that it lacked jurisdiction to consider a complaint brought by Washington Mutual and that Washington Mutual had failed to present a claim on which the court could grant relief.

Washington Mutual appealed the trial court’s dismissal order to the 10th District Court of Appeals.  Beatley filed a new motion for dismissal, this time citing the language in R.C. 1703.29 stating that a foreign corporation that has not registered with the Secretary of State “shall not maintain any action in any court,” and arguing that this bar applied to the filing of appeals as well as to trial court proceedings. The 10th District denied the motion to dismiss, holding that Washington Mutual had legal standing to pursue an appeal, and went on to find errors in the trial court’s rulings, reinstate the foreclosure claim and remand the case for further proceedings. The 10th District certified, however, that its acceptance of Washington Mutual’s appeal was in conflict with an earlier ruling by the 9th District holding that R.C. 1703.29 barred both trial and appellate courts from considering any legal action initiated by an unregistered foreign corporation. The Supreme Court agreed to review the case to resolve the conflict between districts.

Attorneys for Beatley note that the Ohio Constitution does not guarantee civil litigants an absolute right to appeal any and all trial court rulings, but rather limits the state’s courts of appeals to “such jurisdiction as may be provided by law.” They assert that this language gives the legislature authority to adopt laws setting limits on the circumstances under which parties may pursue appeals. They urge the Court to hold that the 10th District’s acceptance of Washington Mutual’s appeal in this case was contrary to the plain language of R.C. 1703.29 that bars a foreign corporation from pursuing “any action in any court” until and unless they have registered with the Secretary of State.

Attorneys representing Washington Mutual and the FDIC as its successor-in-interest respond that the state law establishing the jurisdiction of Ohio’s courts of appeals, R.C. 2505.03, provides that “(e)very final order, judgment or decree of a court ... may be reviewed by a court of common pleas, court of appeals or the supreme court, whichever has jurisdiction.” Pointing out that the trial court dismissed Washington Mutual’s foreclosure action “with prejudice,” meaning that unless overturned by a higher court the case may not be refiled, they argue that the dismissal must be regarded as a “final” order subject to immediate appeal. In support of that claim, they note that the trial court specifically included in its dismissal order required language stating that its ruling was “final and appealable.”

They also contend that failure to allow appeals of trial court rulings on whether or not a party has legal  standing or “capacity to sue,” as in this case, would effectively make those courts the absolute and unreviewable arbiters of such issues, a result they argue is clearly contrary to the legislative intent and public policy underlying R.C. 2505.03.

Contacts
Charles A. Bowers, 216.241.2838, for Washington Mutual Bank & Federal Deposit Insurance Corporation.

Kevin E. Humphreys, 614.241.5550, for Jack K. Beatley.

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Retailer Challenges Property Tax Valuation

Meijer Stores Limited Partnership v. Franklin County Board of Revision, Franklin County Auditor and the Licking Heights School District Board of Education, et al., Case no. 2008-1248
State Board of Tax Appeals

In this case, the owners of a 32-acre property in suburban Columbus occupied by a newly constructed Meijer retail store and gas station/convenience mart appealed to the Franklin County Board of Revision (BOR) contesting an assessment by the Franklin County Auditor that set the taxable value of the property for the 2003 tax year at $13,290,000. The owners sought a decrease from the auditor’s assessment to a taxable value $9,500,000. The Board of Education of the Licking Heights Local School District, in which the subject property is located, filed a counter complaint asking the BOR to retain the auditor’s valuation.

At a hearing before the BOR, an appraiser retained by Meijer presented testimony stating his opinion that the true value of the land and improvements was $8,800,000.  The BOR retained the auditor’s valuation.  Meijer appealed the BOR’s ruling to the State Board of Tax Appeals (BTA).  In proceedings before a BTA attorney-examiner, Meijer’s appraiser again presented testimony supporting a tax valuation of $8,800,000 while an appraiser retained by the Licking Heights school board presented testimony supporting a valuation of $14,850,000.  The BTA adopted the opinion of the school board’s appraiser and set the taxable value of the property for 2003 at $14,850,000.  Meijer has exercised its right to appeal the ruling of the BTA to the Supreme Court.

Attorneys for Meijer argue that the BTA erred in adopting the opinion of the school board’s appraiser because that opinion was based on faulty methodology and incorrectly assessed the tax value of the property as its replacement value to the current owner (Meijer) rather than the significantly lower market price for which the land and structures could be sold to a third party. They assert that the assumptions and value comparisons with similar properties underlying the school board expert’s appraisal are not consistent with past rulings by the BTA and decisions of the Supreme Court, and urge the Court to instead adopt the valuation of their own appraiser, who they argue used correct assumptions and methods approved in prior court cases in arriving at a significantly lower valuation.

Attorneys for the school district and Franklin County BOR  assert that Meijer’s appeal does not set forth evidence that the BTA abused its discretion or that it acted unreasonably or unlawfully in finding the appraisal of  school board’s expert more persuasive than that of Meijer’s expert. What Meijer is asking the Court to do, they argue, is to act as a “super BTA” by substituting its own opinion of the competing appraisals for that of the appeals board. They point to numerous prior decisions in which the Court has refused, absent an abuse of discretion or unlawful act, to reexamine the evidence presented to the BTA, and urge the Court to follow its precedent of deferring to the BTA’s rulings if the record contains competent evidence supporting the board’s conclusion.

Contacts
Nicholas M.J. Ray, 614.442.8885, for Meijer Stores Limited Partnership.

William J. Stehle, 614.462.3520, for the Franklin County Board of Revision and Franklin County Auditor.

Mark H. Gillis, 614.228.5822, for the Licking Heights Local School District.

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Does Arrested Person ‘Voluntarily’ Convey Drugs into Jail by Failing to Disclose Possession to Police?

State of Ohio v. Cleveland L. Cargile, Case no. 2008-1452
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a person has been placed under arrest and transported to jail by police, and has been advised that conveying illegal drugs into a correctional facility can expose him to an additional criminal charge, does the prisoner’s failure to disclose drugs hidden on his person to officers prior to entering the jail constitute a “voluntary act” in violation of the state law that prohibits conveyance of drugs into a prison?

BACKGROUND: In March 2007, Cleveland Cargile was arrested outside the Tower City mall in downtown Cleveland and transported to jail after having been identified by a robbery victim as one of the assailants. While he was being transported, officers told Cargile that if their initial pat-down search at the time of his arrest had failed to turn up illegal drugs or other contraband on his person, he should disclose that information to them before entering the jail because bringing drugs into the jail would expose him to an additional criminal charge under R.C. 2921.36(A)(2), which prohibits conveyance of a controlled substance into a correctional facility.

Cargile repeatedly denied possession of illegal drugs or other contraband, and was brought into to the jail facility. Upon a follow-up search of Cargile’s person, officers found three small plastic bags containing marijuana concealed in the rolled-up cuffs of his jeans. Cargile was subsequently charged with two counts of robbery and one count of conveying illegal drugs into a correctional facility. At trial, a jury found him not guilty on both robbery counts, but guilty on the conveyance charge. He was subsequently sentenced to two years in prison.

Cargile appealed. On review, the 8th District Court of Appeals vacated his conviction, holding that Cargile could not be convicted of conveying drugs into a jail “because his act was not voluntary.”  The state sought and was granted Supreme Court review of the 8th District’s ruling.

On behalf of the state, attorneys for the Cuyahoga County prosecutor’s office point out that the required guilty mental state necessary for a conviction under the drug conveyance statute is “knowingly.” In this case, they assert, it is undisputed that Cargile a) knew he was in possession of marijuana at the time of his arrest;  b) was warned by officers that if he brought drugs into the jail, he would be committing the crime of conveying drugs into a correctional facility; and c) entered the jail while in possession of illegal drugs despite knowing that act was illegal. They argue that these facts were sufficient to establish that Cargile acted “knowingly,” and therefore to sustain his drug conveyance conviction. They contend that allowing arrestees like Cargile to escape criminal liability for knowingly bringing illegal drugs into a correctional facility is contrary to the legislative intent underlying R.C. 2921.36, and contrary to the public policy against drug possession and trafficking within the state’s jails and prisons.

Attorneys for Cargile respond that under provisions of R.C. 2901.21 applicable to all criminal offenses, a defendant may be found guilty of a crime only if the state demonstrates not only that the accused acted with a specified mental state such as “knowingly,” but also that the illegal act with which he is charged was committed voluntarily, meaning that it was an action initiated by the defendant and over which he had control. In this case, they contend, the 8th District correctly found that while Cargile knew he was in possession of marijuana, he was transported to and brought into the county jail against his will and thus did not initiate or have control over the act of entering a correctional facility. They point out that arresting officers are required to carefully search arrestees and confiscate all contraband before bringing them into a jail, and argue that the legislative intent underlying R.C. 2921.36 is to prohibit and deter prison employees, visitors and other non-prisoners from voluntarily conveying drugs and other contraband into a correctional facility.

They argue that because the arresting officers in his case failed to search Cargile thoroughly before taking him to jail, the only way Cargile could have avoided entering the facility with the drugs on his person was to tell police about them, thereby incriminating himself for the additional criminal offense of possessing illegal drugs. Because the U.S. and Ohio constitutions protect an arrestee’s right to remain silent and not to be forced into making self-incriminating statements, they urge the Court to affirm the 8th District’s ruling that Cargile did not “voluntarily” violate the drug conveyance statute and therefore should not have been found guilty of that offense.

Contacts
Jerome Emoff, 216.861.4211, for Cleveland Cargile.

Kristen Sobieski, 216.698.2226, for the state and Cuyahoga County prosecutor’s office.

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Suit Challenges Youngstown ‘Vicious Dog’ Ordinance

City of Youngstown v. Jammie Traylor, Case no. 2008-1460
7 th District Court of Appeals (Mahoning County)

ISSUE:  Does a city ordinance that prohibits failing to confine or leash a “vicious” dog violate a dog owner’s due process rights if the ordinance does not permit a unilateral, unreviewable decision by a state actor that the dog is vicious, but rather requires the state to prove the viciousness of the dog as an element of the offense?

BACKGROUND: In April 2007, David Roch of Youngstown and his small dog were attacked while walking in a city park by two unleashed and unaccompanied Italian Mastiff/Cane Corso dogs weighing approximately 175 and 140 pounds. Roch was bitten on the hand and wrist and his dog suffered several bites before they were able to retreat to a residential garage bordering the park.  Police officers summoned to the scene subsequently shot and killed both of the attacking dogs when they advanced toward the officers in what was perceived to be an aggressive manner.

A follow-up investigation determined that one of the attacking dogs was owned by a nearby resident, Jammie Traylor, and the other was temporarily present at Traylor’s home for breeding purposes at the time of the attack. Traylor was subsequently charged in Youngstown Municipal Court with two violations of a city ordinance, YCO 505.19(B), which prohibits the owner or person having care of a “vicious” dog from permitting the dog “to go beyond the premises of such person unless such dog is securely leashed or otherwise securely restrained.” The ordinance defines a “vicious” dog as a) one “with a propensity, tendency or disposition to attack, to cause injury to or otherwise endanger the safety of  human beings or other domestic animals;” or b) “(a)ny dog which attacks a human being or another animal without provocation.”

Traylor entered a pretrial motion to dismiss the charges on the basis that the Youngstown ordinance was unconstitutional under the Supreme Court of Ohio’s 2004 ruling in State v. Cowan.  In Cowan, the Court held that provisions of the state’s vicious dog statute, R.C. 955.22, violated a dog owner’s right to due process by allowing a dog warden to unilaterally and without a hearing identify a dog as “vicious,” and by doing so to impose on the dog’s owner several statutory duties including a duty to confine the dog in a specified manner on the owner’s property and to purchase liability insurance to protect others who may be attacked by the dog. 

The trial court denied Traylor’s motion to dismiss. A jury subsequently found Traylor guilty of the charged offense on one count and of a lesser included offense on the other count. Traylor was fined, sentenced to 90 days in jail followed by a two-year term of probation, and ordered to pay restitution to Roch.  Traylor appealed. The 7th District Court of Appeals vacated his convictions and sentence, holding that the Youngstown ordinance under which Traylor was charged is unconstitutional pursuant to the Supreme Court’s decision in Cowan. The Youngstown city prosecutor’s office sought and was granted Supreme Court review of the 7th District’s ruling.

Attorneys for the city assert that the 7th District failed to recognize significant differences between R.C. 955.22, the state law ruled unconstitutional in Cowan, and YCO 505.19, the city ordinance at issue in this case. They argue that the key constitutional flaw identified in Cowan was that the statute empowered a deputy dog warden to unilaterally identify the defendant’s dog as “vicious” based on the warden’s own factual findings, and immediately imposed costly and restrictive legal obligations on the owner based on the warden’s determination of viciousness without first affording the owner a right to a hearing to challenge the warden’s findings. In this case, they say, the Youngstown ordinance does not empower a dog warden, police officer or other agent of the state to make a presumptive determination of viciousness, but rather requires that in order to obtain a conviction the state must prove in court beyond a reasonable doubt that the owner’s dog was “vicious” under the definition set forth in the ordinance. They argue that by requiring the state to prove viciousness, the city ordinance meets the due process requirement established by Cowan

Attorneys for Traylor respond that the Supreme Court’s decision in Cowan not only found constitutional flaws in the absence of a hearing process to challenge a warden’s finding that a dog was “vicious,” but also held that a dog owner’s due process rights were violated because the statutory scheme gave an owner no opportunity to contest a requirement that her dog must be specially confined under penalty of law until after an alleged violation of that duty had taken place and the owner was facing criminal charges. They argue that the Youngstown city ordinance similarly violated due process because it provided no advance notice to Traylor that he had a special duty to confine his dogs until after they had attacked Roch and his dog, and thereby for the first time qualified as “vicious.”

Contacts
James E. Lanzo, 330.782.8283, for Jammie Traylor.

Joseph R. Macejko, 330.742.8791, for the Youngstown city prosecutor’s office.

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Did Court’s 2006 ‘Foster’ Decision Violate Offenders’ Presumptive Right to Minimum, Concurrent Sentences?

State of Ohio v. Phillip L. Elmore, Case no. 2007-0475
5 th District Court of Appeals (Licking County)

ISSUE: Did the Supreme Court of Ohio’s February 2006 decision in State v. Foster violate offenders’ constitutional rights by allowing courts to resentence an offender whose offense was committed before Foster was announced to non-minimum or consecutive sentences without factual findings being made by a jury to support such a sentence?

BACKGROUND: In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the U.S. Supreme Court held that it is unconstitutional for a criminal defendant’s sentence to be enhanced beyond the minimum penalties applicable to his crime based on factual findings made by a trial court unless those findings were made by a  jury (rather than by the judge). In State v. Foster, announced on Feb. 27, 2006, the Supreme Court of Ohio analyzed Ohio’s felony sentencing scheme in light of Apprendi and Blakely and ruled that the portions of Ohio’s criminal sentencing statute requiring judges to make factual findings to support non-minimum and consecutive sentences were unconstitutional. 

To cure the constitutional defect, the Foster court severed (deleted) from Ohio’s sentencing statutes all requirements of judicial fact-finding to support non-minimum or consecutive sentences, and ordered that all criminal cases that were pending on appeal in Ohio courts on the date Foster was decided must be remanded to the trial court for resentencing under post-Foster guidelines. In setting those guidelines, the Court held that, with the former fact-finding-to-support-non-minimum-sentences provisions removed, the remaining language of Ohio’s criminal sentencing statute now gave judges discretion to resentence an offender to any term of imprisonment within the prescribed statutory range for that offender’s crime, and also allowed judges unrestricted discretion to decide whether multiple sentences imposed on a defendant for separate crimes would be served  concurrently or consecutively.

This case involves a challenge to the constitutionality of the post-Foster resentencing guidelines by Phillip Elmore of Newark. Elmore is currently under a death sentence for the 2002 murder of Pamela Annarino. However, this case does not involve either his conviction for aggravated murder or his death sentence, both of which were affirmed by the Supreme Court in December 2006.

In addition to aggravated murder, Elmore was also convicted of kidnapping, aggravated burglary, aggravated robbery and grand theft based on the events leading up to and following the killing of Annarino. Because the trial judge made factual findings supporting non-minimum prison terms for Elmore’s non-capital crimes, and supporting consecutive rather than concurrent sentences for the aggravated robbery, aggravated burglary and grand theft counts, when the Supreme Court affirmed Elmore’s death sentence the Court also remanded his non-capital sentences to the Licking County Court of Common Pleas for resentencing consistent with Foster. On remand, the trial court again imposed maximum prison terms of 10 years each for the kidnapping, aggravated robbery and aggravated burglary convictions and 18 months for grand theft, and ordered that the latter three terms be served consecutively. Elmore has appealed the trial court’s resentencing order to the Supreme Court.

Attorneys for Elmore assert that in its Apprendi and Blakely decisions, the U.S. Supreme Court held that a criminal defendant found guilty by a jury may be sentenced only to the minimum prison term prescribed by law for his offense unless a jury makes factual findings supporting a more severe sentence. On the date Elmore’s crimes were committed, they argue, Ohio’s pre-Foster criminal sentencing scheme prescribed a minimum prison term of three years for kidnapping, aggravated robbery and aggravated burglary, and a minimum term of six months for grand theft; and also presumed that all sentences imposed at the same time would be served concurrently with each other. They contend that, because there were no jury findings supporting enhanced or consecutive sentences for Elmore’s non-capital crimes, when his case was remanded for resentencing he should have received a total sentence for those offenses of three years instead of the 21½ years actually imposed.

They argue that by removing from Ohio’s sentencing statute not only the requirement of judicial fact-finding but also the presumption in favor of minimum and concurrent sentencing, the Foster court acted contrary to the U.S. Supreme Court’s holdings in Blakeley and Apprendi, and violated the due process rights of criminal defendants to be sentenced in accordance with the laws that were in place at the time their offenses were committed.

Attorneys for the state respond that the Supreme Court of Ohio’s Foster decision responded appropriately to Apprendi and Blakeley by severing from the state’s felony sentencing statute both parts of the pre-Foster sentencing scheme, which a) set a range of permissible sentences for a crime and directed courts to begin with a presumptive minimum sentence; and b) provided for enhancement of the minimum sentence based on additional findings of fact. They argue that the change in guidelines following the Foster decision did not constitute an unconstitutional ex post facto increase in the punishment faced by offenders, because Foster exposed defendants like Elmore to exactly the same range of potential sentences for various types of crimes that they had faced before, and merely changed the procedure followed by trial courts in determining which of the available sentences to impose. They point out that the aggregate term of imprisonment imposed on Elmore when he was resentenced under Foster was exactly the same as his original sentence, and therefore cannot support a finding that Foster resulted in an after-the-fact increase in his punishment.

Contacts
Kenneth W. Oswalt, 740.670.5255, for the state and Licking County prosecutor’s office.

Keith A. Yeazel, 614.885.2900, for Phillip Elmore.

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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.