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Tuesday, July 10, 2012

State of Ohio v. Phillip L. Jones , Case no. 2008-0525
Summit County Court of Common Pleas

Roshel Smith v. Donald E. Landfair et al., Case no. 2011-1708
Ninth District Court of Appeals (Summit County)

DeVries Dairy, LLC v. White Eagle Cooperative Assoc., et al., Case no. 2011-1995
U.S. District Court for the Northern District of Ohio

Disciplinary Counsel v. Steve J. Edward, Case no. 2012-0681


Death Penalty

State of Ohio v. Phillip L. Jones , Case no. 2008-0525
Summit County Court of Common Pleas

Phillip Jones of Akron has appealed his convictions and death sentence for the 2007 rape and aggravated murder of Susan Yates. Yates’ body was found by a jogger the morning after she was assaulted and strangled to death in a cemetery.

Jones was arrested and charged with the killing the day after the body was discovered, after his wife, Delores Jones, told a friend that her husband had admitted strangling a woman named Susan. The friend, Charletta Jeffries, called police, and when Akron police detective Richard Morrison came to Jeffries’ home, Mrs. Jones repeated her husband’s statements to him.

At trial, Jones testified that he and Yates had engaged in consensual sex, and that her fatal injuries were suffered when he complied with her request to restrain her breathing during intercourse, and while doing so heard a “crack” after which Yates went limp and stopped breathing.

Jones was found guilty of aggravated murder and rape, with the death penalty specification that he had killed Yates during the commission of a violent felony (rape). A jury found him guilty on all counts and specifications, and the court imposed a sentence of death. In his appeal, Jones’ attorneys have raised ten assignments of legal and procedural error by the trial court that they allege are grounds to vacate his convictions or reduce his death sentence to a term of life imprisonment.

Among those claims of error, Jones’ attorneys allege that:

Attorneys for the state argue that the trial court correctly found that Mrs. Jones’ statements to Charletta Jeffries and Detective Morrison fell within the exception to the hearsay rule for “excited utterances,” because those statements were made shortly after she had learned from her husband that he had killed Yates, and had fled to the home of Jeffries, while she was clearly in fear that her husband would find and try to silence her.

They assert that the “other acts” testimony was admissible because it was offered to show that Jones had a pattern of using strangulation as a way to subdue and control his victim during a sexual assault; and argue that requiring Jones to demonstrate his version of the events that led to Yates’ death to the jury by simulating his actions with a life-size doll was necessary in order to allow the state’s medical expert to explain how the physical evidence in the case did not support Jones’ account of what happened at the crime scene.

Contacts
Heaven DiMartino, 330.643.7459, for the state and Summit County prosecutor’s office.

Nathan A. Ray, 330.253.7171, for Phillip Jones.

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Does Immunity of Owner for Injury to ‘Equine Event Spectator’ Apply to Onlooker Injured In Unloading of Horse From Trailer?

Roshel Smith v. Donald E. Landfair et al., Case no. 2011-1708
Ninth District Court of Appeals (Summit County)

ISSUE: Does a provision of state law that confers general immunity on an “equine event participant” for injuries suffered by a “spectator at an equine event” apply to an incident in which a bystander at a horse barn was injured by a horse while its owner was unloading the animal from a trailer?

BACKGROUND: Roshel Smith suffered head and facial injuries when she was kicked by an untrained horse that had knocked its owner, Donald Landfair, to the ground while being unloaded from a trailer at the Wayne County Fairgrounds. Smith, who was watching her father exercise a different horse on an adjacent racetrack at the time, testified that she “heard a commotion” from the direction of Landfair’s trailer, turned to see Landfair laying on the ground with his horse prancing around him, and was kicked by the horse when she tried to go to Landfair’s assistance.

Smith filed suit against Landfair in the Summit County Court of Common Pleas seeking to recover for her injuries. Her complaint alleged that Landfair had been negligent in attempting to handle an untrained and unbroken horse and in failing to seek assistance in unloading the horse from its trailer.  Landfair filed an answer and a motion for summary judgment dismissing Smith’s complaint, arguing that he was immune from liability for Smith’s injuries under R.C. 2305.321, which bars civil claims against a “participant in an equine event” by other participants, including claims by a person who is a  “spectator at an equine event.”

The trial court granted summary judgment in favor of Landfair, holding that the immunity statute applied because Smith was a “spectator” at the time she was injured.  On review, the Ninth District Court of Appeals reversed and remanded the case to the trial court for further proceedings based on its finding that Smith was not a “spectator at an equine event” at the time her injuries were incurred.  Landfair sought and was granted Supreme Court review of the Ninth District’s ruling.

Attorneys for Landfair argue that the court of appeals gave too narrow a reading to the very broad language of the equine immunity law, which includes the “trailering, loading, unloading or transportation” of a horse in the definition of an “equine activity,” and immunizes persons engaged in such activities from liability to a spectator resulting from “an inherent risk of an equine activity.” In this case, they urge the court to reinstate the trial court’s holding that Landfair was entitled to summary judgment under the immunity statute because Smith was injured at a horse barn while she watched Landfair engaging in the “equine activity” of unloading his horse from its trailer.

Attorneys for Smith respond that by identifying Smith as a “spectator” at the time she was injured, the trial court improperly equated the status of a “bystander” or “witness,” i.e., someone who simply happens to be present and inadvertently sees an event happen, with a “spectator,” which they say is commonly defined as a person who has intentionally positioned him or herself for the express purpose of viewing an event.  In this case, they assert, the Ninth District correctly held the language adopted by the legislature specifically extends immunity to injuries suffered by a “spectator” who intentionally attends an “equine event” for the purpose of watching it, but does not exempt a horse owner or event sponsor from liability for negligent injuries suffered by bystanders who did not intentionally expose themselves to “the inherent risk of equine activities.”

NOTE: An amicus curiae (friend of the court) brief supporting the position of Landfair has been submitted by the Ohio Horseman’s Council.  An amicus brief supporting the position of Smith has been submitted by the Ohio Association for Justice.

Contacts
Kenneth A. Calderone, 330.670.7300, for Donald Landfair.

John K. Reinhardt, 419.529.2717, for Roshel Smith.

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Does Ohio Recognize Claims for ‘Tortious Acts in Concert’ Pursuant To The Restatement of Torts, Section 876?

DeVries Dairy, LLC v. White Eagle Cooperative Assoc., et al., Case no. 2011-1995
U.S. District Court for the Northern District of Ohio

ISSUE: Does Ohio recognize legal claims asserted under Section 876 of the Restatement of Torts for “tortious acts in concert,” i.e. claims asserted by a plaintiff against not only the party whose conduct directly caused the plaintiff’s loss or injury, but also against a third party or parties that assisted or encouraged the primary defendant in committing the injurious conduct with knowledge that that conduct breached a duty owed to the plaintiff?

BACKGROUND: Restatement of Torts is one of several influential treatises assembled by the American Law Institute which review and summarize court decisions and legislative trends across the country in various substantive areas of law (e.g., torts, contracts, property, trusts, employment law, etc.). While provisions of the Restatements are often cited in pleadings, court decisions and legal commentary, a Restatement provision is not binding on a state court unless it has been officially adopted as the law by the highest court of that state.

This case involves claims asserted under a Restatement provision by DeVries Dairy LLC, a commercial dairy farm located in Marion County. From 2003 through April 2008, DeVries was a member of the White Eagle Cooperative Association, an Indiana-based coop that provided marketing services for multiple dairy farms. White Eagle’s day-to-day operations were conducted through a contract with T.C. Jacoby & Co. and Jacoby’s affiliate, Dairy Support Inc. (DSI). Jacoby and DSI determined who would purchase milk produced by White Eagle members and the terms of those sales, including the prices that White Eagle members would receive for their milk.

DeVries filed a civil action in the U.S. District Court for the Northern District of Ohio alleging that it had not received the full proceeds from White Eagle for the sale of its milk because of improper reductions and deductions made by Jacoby and DSI and unequal treatment of DeVries in comparison with other White Eagle members. Among other legal claims included in its complaint, DeVries sought recovery collectively from White Eagle, Jacoby and DSI for “tortious acts in concert,” a specific cause of action described in Section 876 of the Restatement of Torts.

Jacoby and DSI moved for dismissal of the “in concert” claims asserted against them, arguing that DeVries had no direct business relationship with them, and could not pursue third-party claims against them for knowingly “assisting or encouraging” White Eagle’s alleged tortious conduct under Section 876 of the Restatement because Ohio had never adopted that provision. In its answer to the motion to dismiss, DeVries cited several Ohio court cases, including two decisions of the Ohio Supreme Court, in which Section 876 claims were acknowledged even though no award was made based on those claims.

Rather than applying its own analysis, the federal court asked the Supreme Court of Ohio to address the question of whether Ohio has or has not adopted Section 876 as the law of the state, and the justices have agreed to do so.

Contacts
Ryan K. Miltner, 866.740.5219, for DeVries Dairy LLC.

Jeffrey M. Stopar, 419.241.6000, for White Eagle Cooperative Association.

Richard M. Kerger, 419.255.5990, for T.C. Jacoby & Co. and Dairy Support Inc.

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Attorney Discipline

Disciplinary Counsel v. Steve J. Edward, Case no. 2012-0681

The Board of Commissioners on Grievances & Discipline has recommended that the license of attorney Steve J. Edwards of Grove City be suspended for two years, with the full term of suspension stayed, for making improper use of client funds that were on deposit in his law office trust account

The board found that, despite Edwards’ later restoration of the misappropriated funds to his trust account and the absence of harm to his clients or their insurers, his actions in writing multiple checks from client funds over a period of more than a year to cover his own personal and family expenses violated the state attorney discipline rule that prohibits commingling of an attorney’s personal funds with the funds of clients, and also constituted conduct that reflects adversely on an attorney’s fitness to practice law.

In recommending a sanction, the board found that Edwards’ writing of multiple checks against his trust account over a period of more than a year was an aggravating factor in the case, but concluded that mitigating factors including his lack of any prior infractions, self-reporting of the violations, prompt restoration of funds, and entry into a contract with the Ohio Lawyers’ Assistance Program  (OLAP) and a mentoring arrangement with a senior attorney weighed in favor of a stayed suspension, conditioned on continued compliance with his OLAP contract and monitoring arrangement.

Attorneys for the Office of Disciplinary Counsel, which prosecuted the complaint against Edwards before the board, have filed objections to the  recommended sanction. They argue that regardless of his later actions, Edwards engaged in multiple acts of misappropriating funds that belonged to his clients, and prior decisions of the court involving misappropriation have found that such misconduct merits a period of actual suspension from practice. Accordingly, they recommend that the court suspend Edwards license for 12 months, with the last six months of that term stayed on conditions.

Edwards urges the court to adopt the findings and recommendation of the disciplinary board, which he says examined all the evidence submitted by the parties, weighed the aggravating and mitigating factors in the case, and concluded that a stayed suspension was the appropriate penalty for his rule violations.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

William C. Mann, 614.224.4114, for Steve Edwards.

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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.