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Yoshanta Beckett et al. v. Richard Warren et al., Case no. 2008-2106
9th District Court of Appeals (Summit County)
Marcia A. Mayer et al. v. Mario Medancic et al., Case nos. 2008-2363 and 2009-0170
11th District Court of Appeals (Geauga County)
State of Ohio v. Juanita M. Troisi, Case no. 2008-2490
11th District Court of Appeals (Lake County)
Disciplinary Counsel v. William Matthew Crosby, Case no. 2009-1172
Cuyahoga County
Is Dog-Attack Victim Required to Choose Between Pursuing Statutory or Common Law Negligence Claim?
Yoshanta Beckett et al. v. Richard Warren et al., Case no. 2008-2106
9th District Court of Appeals (Summit County)
May a plaintiff seeking damages for bodily injury caused by a dog attack simultaneously pursue both a statutory claim under R.C. 955.28 and a common law negligence claim against the dog’s owner, or is the plaintiff required to choose between those causes of action, and prosecute only one of them?
BACKGROUND: A ‘strict liability’ provision of state law, R.C. 955.28, allows a person who is injured by another person’s dog to recover compensatory damages from the dog’s owner without proving that the owner knew the dog was dangerous or that the owner acted negligently in failing to prevent the attack. Plaintiffs asserting claims under the strict liability statute are barred from seeking or recovering punitive damages from the owner, and case law interpreting the statute has held that in lawsuits brought under it, evidence regarding any prior attacks by the same dog is inadmissible, because such evidence would be relevant only to a claim for punitive damages.
The state laws governing civil lawsuits also allow a person injured by a dog attack to pursue recovery from the dog’s owner for both compensatory and punitive damages based on a common law claim of negligence. In order to obtain such recovery, however, the plaintiff must prove by evidence that the owner: 1) had prior knowledge that the dog was dangerous and 2) did not exercise reasonable care to protect the plaintiff from being injured by the dog.
In this case, 12-year-old Timeasha Beckett suffered injuries to her head and scalp when she was mauled by a large dog owned by Richard Warren and Mary Wood (now Truitt) while she was a visitor in their home. Timeasha’s mother, Yoshanta Beckett, filed suit against Warren and Wood asserting both a strict liability claim under R.C. 955.28 and a common law negligence claim asserting that Warren’s dog had attacked another person a few weeks earlier and that Warren knew the dog was dangerous but had failed to take precautions to protect her daughter.
During pretrial proceedings, the trial judge ruled that Beckett could not pursue both her statutory and common law causes of action, and must elect to prosecute either one or the other. Over Beckett’s repeated objections, the case proceeded to trial on only the statutory claim for which no punitive damages were available, precluding Beckett from presenting evidence of the previous dog attack. The jury returned a verdict in favor of Beckett, awarding compensatory damages totaling $5,000. Beckett sought a ruling by the trial court that the jury award was not adequate to compensate
her daughter for the injuries and pain and suffering she had sustained. The court affirmed the jury’s award and entered final judgment in the case.
Beckett appealed. Among several assignments of error, she argued that the trial court erred in refusing to allow her to pursue recovery under both the strict liability statute and a common law claim of negligence. The 9th District Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial in which Beckett was permitted to pursue both her statutory and common law causes of action. The court of appeals subsequently certified that its ruling in this case was in conflict with Rodenberger v. Wadsworth, a 1983 decision in which the 6th District Court of Appeals held that a plaintiff in a similar case could not pursue both statutory and common law actions but must choose between them. The Supreme Court has agreed to review the case to resolve the conflict between appellate districts.
Attorneys for Warren urge the Court to follow the 6th District’s reasoning in Rodenberger that allowing a plaintiff to pursue both types of claims in the same lawsuit would inevitably cause confusion among jurors and prejudice to the defendants. They argue that combining the two causes of action would require the jury determining compensatory damages for the strict liability statutory claim to also hear evidence regarding a previous dog attack that was not only irrelevant to the amount of compensatory damages, but inadmissible in a suit brought under the statute. In support of that position, they cite language from a 1964 Supreme Court of Ohio decision, Warner v. Wolfe, in which this Court held that a plaintiff injured by a dog attack could institute a lawsuit “either under the statutes or at common law.” They argue that this language indicates that a plaintiff in Beckett’s position is free to choose one or another of the available causes of action, but may not pursue both.
Attorneys for Beckett respond that the Supreme Court’s Warner decision did not address the question raised in this case, but rather held that a common law negligence action for injuries caused by a dog was not preempted by the legislature’s enactment of R.C. 955.28. Read in proper context, they assert, Warner affirmed that the creation of a new statutory cause of action did not eliminate or constrain a victim’s right to seek additional recovery, including punitive damages, in cases where proof of a dog owner’s negligence could be established. They argue that it is well established in Ohio case law that a plaintiff may assert multiple claims and causes of action in the same lawsuit, and that when evidence supporting one theory of liability would not be admissible as proof of a different claim asserted in the same suit, the proper remedy is for the court to structure trial proceedings and craft jury instructions to minimize juror confusion while still allowing all of the plaintiff’s legal claims to be presented and resolved.
Contacts
Michael J. O’Shea, 440.241.0011, for Yoshanta Beckett, et al.
Donald P. Wiley, 330.499.6000, for Richard Warren et al.
When Debtor Defaults on Note with Stated Annual Interest Rate, Is Creditor Entitled to Compound Interest?
Marcia A. Mayer et al. v. Mario Medancic et al., Case nos. 2008-2363 and 2009-0170
11th District Court of Appeals (Geauga County)
ISSUE: When a debtor defaults on a written instrument which promises the payment of interest at a stated annual percentage rate, in the absence of a statutory or contractual provision for compounding of unpaid interest, is the creditor limited to recovery of simple
BACKGROUND: This case involves a long-running legal dispute between Robert and Marcia Mayer and several members of the Medancic family arising from three promissory notes signed by the Medancics on which the Mayers claim that the Medancics defaulted. The Mayers filed foreclosure actions on the notes, and were awarded court judgments ordering the Medancics to repay the principal amounts of the notes plus simple interest at the rates stated in each of the notes from the date they fell into default until the date each note is paid in full.
The Medancics appealed, asserting among other arguments that they should be charged post-judgment interest not at the original rates stated in the promissory notes, but at the lower rate set by statute for judgment interest in cases where a party against whom a judgment has been entered delays
paying that judgment while an appeal is pending. The Mayers counter-claimed, arguing that they were entitled not only to simple interest on the unpaid notes calculated at the rate set forth in each note, but also to interest on the interest that they had not received from the Medancics during the multi-year period during which the notes had remained unpaid, i.e., compound interest.
The case was remanded to the trial court, which issued a nunc pro tunc (now for then) ruling that the Mayers were entitled to simple interest on the unpaid balances of the three promissory notes calculated at the rates stated in those notes, rather than at the lower statutory rate. The Mayers appealed. On review, the 11th District Court of Appeals reversed the trial court and held that, based on a 1943 Supreme Court of Ohio decision, State ex rel. Bruml v. Brooklyn, the Mayers were entitled to recover compound interest on the unpaid amounts of the promissory notes from the dates of default until the dates on which full payment was received. The 11th district certified that its ruling on the issue of compound interest was in conflict with a 1993 ruling of the 10th District Court of Appeals on the same legal question. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
Attorneys for the Medancics assert that the 11th District misunderstood and misapplied the Supreme Court’s holding in Bruml. They point out that the written debt instruments at issue in Bruml were not standard promissory notes but were bonds that not only promised repayment of the principal at a specified annual rate of interest, but also specified that the interest due for each year would be paid to the bond holder annually. They argue that it was this agreement of the parties that interest would be paid annually that prompted the Bruml court to award interest on the unpaid interest in that case, and point out that the notes at issue in this case contained no similar provision, or any other reference to compounding of interest in case of a default. In the absence of any statutory or contractual provision imposing compound interest, they contend, R.C. 1343.03(A) that when money becomes due and payable as the result of a judgment, the creditor is entitled only to simple interest on that amount.
Attorneys for the Mayers urge the Court to affirm the 11th District’s conclusion that, under Bruml,when there is a default on a written instrument that promises payment of a specified rate of annual interest, and a court determines that the debtor has defaulted on payment of that interest, the creditor is entitled not only to simple interest at the rate specified in the instrument, but also to annual compounding of the unpaid interest dating back to the date of default.
Contacts
Joel A. Nash, 216.691.3000, for Mario Medancic et al.
Timothy T. Brick, 216.241.5310, for Marcia and Robert Mayer.
State Disputes Dismissal of Trademark Counterfeiting Conviction Based on Flaws in Expert’s Testimony
State of Ohio v. Juanita M. Troisi, Case no. 2008-2490
11th District Court of Appeals (Lake County)
ISSUE: Did the court of appeals err in permanently vacating a defendant’s conviction for trademark counterfeiting, rather than ordering a new trial, based on the court’s finding that expert witness testimony presented by the state did not establish an essential element of the charged offense?
BACKGROUND: Juanita Troisi of Kirtland was arrested and charged with trademark counterfeiting and possession of criminal tools after police raided a “purse party” hosted by Troisi at which she sold and offered for sale hundreds of purses, wallets, belts, jewelry items and other merchandise that were imitations or “knock-offs” of designer brand name items manufactured by Louis Vuitton, Prada, Gucci, Coach, Chanel and Dior, among others.
At trial, the state presented expert testimony by Timothy Richissin, a Cleveland police officer specializing in intellectual property crimes who also serves as a private consultant to brand name manufacturers and investigator of alleged knock-off merchandise. In his direct testimony, over repeated objections by defense counsel, Richissin defined “trademark counterfeiting” as “copying the registered trademark of a property owner,” and identified each of dozens of items seized by police at Troisi’s party as a counterfeit rather than a legitimate product of the manufacturer identified on its label based on his personal familiarity with the designers’ products, and stated his opinion that the trademarks on each the pieces he examined were substantially indistinguishable from the brand name manufacturer’s real trademark. The only other evidence presented by the state was a Mirandized statement made by Troisi after her arrest stating that she knew the items she was offering for sale were knock-offs and not authentic designer merchandise, and that she had never represented those items as being authentic designer-label goods.
Richissin was subsequently re-called as a witness by the defense. In response to questioning by Troisi’s attorneys, Richissin stated that he had never obtained a copy or personally viewed the trademarks of the manufacturers at issue in this case from the principal register of the U.S. patent and trademark office. At the conclusion of testimony, the jury found Troisi guilty on both the trademark counterfeiting and possession of criminal tools charges. She was subsequently sentenced to three years in prison.
Troisi appealed her convictions. Among several claims of error by the trial court, she argued that her conviction for trademark counterfeiting must be overturned because the state had failed to prove an essential element of that crime as it is defined in R.C. 2913.34(F): i.e., that the trademarks on the merchandise she offered for sale were “identical with or substantially indistinguishable from a mark that is registered on the principal register in the United States patent and trademark office.” The 11th District court of Appeals agreed and issued a decision permanently vacating Troisi’s convictions on both criminal counts. In a 2-1 majority opinion, the 11th District held that Richissin’s testimony was insufficient as a matter of law to support a jury finding of guilt, because the state had not introduced into evidence either authentic designer merchandise or copies of the actual trademarks on file at the U.S. patent office to which the jury could compare the trademarks on the knock-off merchandise sold by Troisi in order to make the necessary finding that those marks were “identical or substantially indistinguishable.”
The Lake County prosecutor’s office, representing the state, sought and was granted Supreme Court review of the 11th District’s decision. They argue that the deficiency in the state’s evidence identified by the court of appeals did not justify permanent dismissal of the Troisi’s convictions, but instead should have been ruled a “procedural error” that was grounds to dismiss her convictions and grant her a new trial. They assert that, if a proper foundation had been laid at trial, Richisson’s testimony and Troisi’s statement admitting that the merchandise she sold was counterfeit were sufficient to prove the counterfeiting charge, and they cite prior court decisions holding that the proper remedy for such procedural errors is a new trial, not permanent dismissal of the defendant’s conviction.
Attorneys for Troisi urge the Court to affirm the 11th District’s finding that in order to enter a verdict convicting Troisi of trademark counterfeiting, the jury was required to make a comparison between the actual trademarks of the designer companies and the trademarks on the merchandise sold by Troisi, and to make a specific finding that those marks were identical or substantially indistinguishable. They assert that, by failing to introduce evidence sufficient to allow the required jury finding, and instead relying totally on the opinion testimony of Richisson, the state failed to prove an essential element of the crime with which Troisi was charged and she was therefore entitled to acquittal as a matter of law. They also argue that allowing the state to try her again after failing to prove its case the first time would violate Troisi’s constitutional right against double jeopardy.
Contacts
Teri Daniel, 440.350.2683, for the Lake County prosecutor’s office.
Dominic Vitantonio, 440.449.3333, for Juanita Troisi.
Attorney Discipline
Disciplinary Counsel v. William Matthew Crosby, Case no. 2009-1172
Cuyahoga County
The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney William M. Crosby be suspended from practice for two years based on the board’s findings that Crosby failed to maintain only funds held on behalf of clients in his law office trust account; wrote checks totaling more than $327,000 on his client trust account in 2006 and 2007 to pay for personal and law office operating expenses; and improperly retained legal fees he had already earned in his client trust account as a tactic to prevent his creditors from obtaining access to those funds.
Crosby has filed objections to the board’s findings of disciplinary violations and recommended sanction. Among other claims, he asserts that he delegated authority to write checks on both his office operating account and client trust account to his administrative assistant, and that she inadvertently wrote many of the checks for office and personal expenses from the wrong account. Crosby also argues that he made a conservative business choice to keep a “buffer” of legal fees he had already earned in his trust account rather than immediately transferring all such funds to his personal or law firm operating accounts in case he might need to cover a sudden, unexpected expense related to a case. If the Court finds that his conduct was in violation of state disciplinary rules, Crosby argues that the license suspension recommended by the board is excessive in light of the fact that none of his clients suffered any economic loss as a result of his accounting errors. If any sanction is imposed, he urges the Court to make it a reprimand rather than a suspension.
The Office of Disciplinary Counsel, which prosecuted the complaint against Crosby, has responded to his objections by pointing out that Crosby could produce no records or accounts disclosing what amounts on deposit in his trust account on any given date were held for clients and what amounts were his own funds, but claimed to have kept track of those figures “in his head.” They also note that, during the time period in which Crosby made improper use of his trust account, his creditors, including state tax authorities, had obtained judgments against him for unpaid debts totaling more than $25,000 that could have been satisfied by garnishment of his personal or business bank accounts if his personal funds had been properly transferred to those accounts from his client trust account.
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Lester S. Potash, 216.771.8400, for William M. Crosby.
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.