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Wednesday, February 6, 2013

Stammco, LLC, d.b.a. The Pop Shop, et al. v. United Telephone Company of Ohio, d.b.a. United Telephone Co., et al., Case no. 2012-0169
Sixth District Court of Appeals (Fulton County)

State of Ohio v. Matthew Lindstrom, Case no. 2012-0252
Eighth District Court of Appeals (Cuyahoga County)

Lang Dunbar v. State of Ohio, Case no. 2012-0565
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Gary Athon, Case no. 2012-0628
First District Court of Appeals (Hamilton County)

Did Trial Court Err by Considering Merit Issues in Ruling That ‘Phone Cramming’ Lawsuit Cannot Be Pursued as Class Action?

Suit Alleges Phone Company Negligent In Verifying Charges Added to Customers’ Bills

Stammco, LLC, d.b.a. The Pop Shop, et al. v. United Telephone Company of Ohio, d.b.a. United Telephone Co., et al., Case no. 2012-0169
Sixth District Court of Appeals (Fulton County)

ISSUE: In denying class action certification of a civil lawsuit brought by multiple customers against a phone company, did the trial court err by basing its decision on an evaluation of the merits of claims asserted by the plaintiffs, rather than on the compliance or noncompliance of the proposed class definition with the criteria for class certification set forth in Ohio Civil Rule 23?

BACKGROUND: Stammco LLC, a business owned by Kent and Carrie Stamm, and a number of other businesses and individuals filed a civil lawsuit in the Fulton County Court of Common Pleas against United Telephone Company of Ohio, a subsidiary of Sprint Nextel Corporation. In their complaint, originally filed in 2005, Stammco and its co-plaintiffs alleged that Sprint had engaged in negligent billing practices that allowed third-party providers of various add-on telephone services to engage in a practice known as  “cramming.” Cramming is the practice of placing unauthorized charges on a customer’s telephone bill.

The plaintiffs sought to pursue their claims against Sprint as a class action, i.e. as a single lawsuit through which multiple plaintiffs seek to recover damages from the same defendant based on the same alleged wrongful conduct. 

Ohio Civil Rule 23 sets forth requirements that must be met in order for a trial court to “certify a class” of plaintiffs as eligible to pursue  recovery from a defendant through a class action (rather than requiring each plaintiff to pursue his or her claim in an individual lawsuit). Those criteria include providing the court with a definition of the proposed class that unambiguously describes an identifiable group of plaintiffs who claim to have suffered actual harm or economic loss as a result of a specified type of  tortious conduct by the defendant.

The plaintiffs submitted a definition that identified the class members as all Ohio customers of United Telephone who had received bills from the phone company within the preceding four years to which United Telephone had added charges assessed by third-party service providers “without their permission.” The trial court approved that definition and the other information submitted by the plaintiffs, and certified that they had met the Civ.R. 23 requirements to proceed with their suit as a class action.

Sprint appealed. The Sixth District Court of Appeals affirmed the trial court’s certification.  Sprint then sought and was granted Supreme Court review of the Sixth District’s decision.  In 2009, the Supreme Court held that the class definition that had been approved by the lower courts was ambiguous. In its decision, the court declined to rule on most of the specific assignments of error alleged by Sprint,  but pointed to several phrases in the approved definition that were not sufficiently precise and remanded the case to the trial court to “redefine the class.”

The plaintiffs subsequently filed a motion asking the trial court to review and approve a revised class definition that clarified the ambiguities the Supreme Court had identified.  Rather than ruling on the sufficiency of the revised class definition, the trial court entered a final judgment reversing its prior certification of the case as a class action and dismissing the plaintiffs’ complaint.  As the bases for that action, the trial judge found that 1) the definition submitted described a prohibited “fail-safe” class, 2) the plaintiffs had brought their suit against Sprint rather than the third-party providers who were the real party at fault, and 3) the suit proposed imposing a duty on Sprint that was not required by current statutes or case law.

The plaintiffs appealed the trial court’s action. On review, the Sixth District overruled the trial court’s finding that the plaintiffs’ revised definition constituted a prohibited “fail-safe” class, and held that the two other findings on which the trial court had based its denial of certification were irrelevant and inappropriate conclusions by the trial judge about the merits of the plaintiffs’ claims, because his analysis at this stage of the case should have been limited to whether the revised class definition met the criteria set forth in Civ.R. 23.  Accordingly, the court of appeals remanded the matter  to the trial court with a directive to reopen the case and reanalyze the amended class definition according to the Civ.R. 23 criteria.

Sprint sought and was granted Supreme Court review of the Sixth District’s latest ruling.

Attorneys for the telephone company assert that the Sixth District erred by failing to follow the U.S. Supreme Court’s recent decision in Wal-Mart v. Dukes (2011), in which the court held that the decision to grant or deny class action certification often requires analysis of issues related to the merits of the plaintiffs’ claims, and rejected arguments that a denial of class certification based on merit findings like those made by the trial court in this case is presumptively invalid.  They assert that both the trial court’s and Sixth District’s prior rulings granting class approval were rendered void in 2009 when the Supreme Court remanded to case to redefine the class, and argue that the trial court did not abuse its discretion in refusing to certify a class whose members might well include a majority who were only billed for third-party services that they actually received, and others who suffered no losses for which Sprint could be held liable.

Attorneys for the plaintiffs urge the court to affirm the decision of the Sixth District, which they say correctly held that the trial court “lost its way” when it overruled earlier decisions that had approved their petition for class certification, and engaged in irrelevant analysis of the merits of their claims when its charge under the Supreme Court’s 2009 remand order was limited to determining whether the revised class definition submitted by plaintiffs corrected the ambiguities identified by the Supreme Court, and therefore met the Civ.R. 23 criteria to go forward as a class action.

Representing General Telephone Co. of Ohio and Sprint Nextel Corp.: Michael K. Farrell, 216.621.0200

Representing Stammco LLC and other class action plaintiffs: Dennis E. Murray Sr., 419.624.3000

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Was Juvenile Offender ‘Apprehended’ Before 21st Birthday By Filing of Juvenile Court Complaint and Service of Summons?

For Offenses Allegedly Committed When Defendant Was Between Nine and 14 Years Old

State of Ohio v. Matthew Lindstrom, Case no. 2012-0252
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does a state law that keeps crimes committed by juveniles under the jurisdiction of a juvenile court if the defendant is “taken into custody or apprehended” for a juvenile offense before his 21st birthday apply to a case in which a delinquency complaint was filed in juvenile court, a summons was issued by the juvenile court and the summons was served on the defendant before his 21st birthday, but the defendant was never placed under arrest and did not make a first appearance in court until after he turned 21?

BACKGROUND:  On October 21, 2010, a delinquency complaint was filed in the Cuyahoga County Juvenile Court alleging that Matthew Lindstrom, who was then 20 years of age,  had engaged in sexual conduct with his younger sister between 1999 and 2003, while he was between nine and 14 years of age and his sister was between five and nine years of age.

The juvenile court did not issue an arrest warrant, but instead issued a summons notifying Lindstrom of the charges and ordering him to appear at an arraignment on November 22, 2010.  The summons was served on Lindstrom by registered mail on October 26, 2010, one day before his 21st birthday. He subsequently appeared for arraignment before the juvenile court, and entered a formal denial to the allegations set forth in the complaint.  He was released by the judge on his own recognizance. 

The juvenile judge ordered the parties to submit briefs on the question of whether the case was properly before the juvenile court.  Lindstrom filed a brief arguing that the juvenile court had properly exercised jurisdiction over his case. The state did not submit a brief, but instead obtained a secret grand jury indictment charging Lindstrom with 10 felony-level adult charges based on the same conduct alleged in the juvenile complaint.  One day after obtaining the indictment, the prosecutor  dismissed the complaint pending against Lindstrom in juvenile court and filed adult charges against him in the General Division of the court.

Lindstrom filed a motion asking the administrative judge of the common pleas court to set aside the adult indictment, stay proceedings in the general division, and remand the case to juvenile court for adjudication. The judge granted Lindstrom’s motion, holding that Lindstrom had been “apprehended” for the alleged juvenile offenses prior to his 21st birthday because the complaint charging him with those crimes had been filed in juvenile court, a summons had been issued based on that complaint,  and Lindstrom had been served with the summons before he turned 21 on October 27, 2010. 

The state appealed, and the Eighth District Court of Appeals affirmed the trial court’s finding that the case fell within the jurisdiction of the juvenile court.  The state sought and was granted Supreme Court review of the Eight District’s decision.

Attorneys for the Cuyahoga County prosecutor’s office argue that the Eighth District erred by not applying the plain and ordinary meaning of “taken into custody or apprehended,” which they say is that an individual has been “seized” or “arrested” by legal process, and instead finding that the filing of a complaint and/or the service of a juvenile court summons on Lindstrom qualified as custody or apprehension, despite the fact that neither of those actions involved the seizure of Lindstrom’s person or the restraint of his freedom.

Attorneys for Lindstrom cite prior court decisions including State ex rel. N.A. v. Cross (2010) in which they assert that the Supreme Court held that when a juvenile court has initiated a delinquency action against a defendant prior to his 21st birthday based on an offense he committed as a juvenile, that exercise of jurisdiction is legally equivalent to the “apprehension” of the defendant.  In this case, they point out, the state initiated the prosecution of Lindstrom in juvenile rather than adult court based on its recognition that he was under 21 years old when the complaint was filed against him, and therefore the prosecution of offenses he allegedly committed between the ages of nine and 13 or 14 was subject to the exclusive jurisdiction of the juvenile court.

They urge the court to reject what they say is an attempt by the state to evade that jurisdictional requirement by the procedural maneuver of dismissing the juvenile complaint after jurisdiction had vested in that court, and then immediately indicting Lindstrom as an adult based on the same alleged conduct that was the basis for the juvenile complaint.

Representing the state and Cuyahoga County prosecutor’s office: Daniel T. Van, 216.443.7800

Representing Matthew Lindstrom: John B. Gibbons, 216.363.6086

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Is Defendant Who Entered Guilty Plea Eligible to Recover From State Under Wrongful Imprisonment Statute?

In Case Where Defendant’s Plea and Conviction Were Later Vacated on Appeal

Lang Dunbar v. State of Ohio, Case no. 2012-0565
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  Does a provision of the state’s wrongful imprisonment statute that limits recovery to persons who “did not plead guilty” to the offense(s) for which they were imprisoned bar a claim against the state by a defendant who was imprisoned after entering a guilty plea, but whose plea and conviction were later vacated on appeal based on a finding that the trial court erred in accepting the guilty plea?

BACKGROUND: In November 2004, Lang Dunbar of Cleveland was convicted of domestic violence and sentenced to 180 days in jail based on an incident in which he battered his fiancée and then  instructed her not to leave the house or respond if anyone came to the door. While Dunbar was serving his sentence for the domestic violence conviction, the Cuyahoga County prosecutor obtained a grand jury indictment against him on a felony count of abduction, based on the same incident. 

Dunbar and the prosecutor negotiated a plea agreement under which Lang entered a plea of guilty to abduction and the state agreed to recommend that a term of postrelease community control be added to the jail time he was already serving, but that he not be sentenced to additional prison time. At sentencing, the court accepted Lang’s guilty plea but rejected the state’s recommended sanction and instead imposed an additional two-year prison term.

Dunbar appealed, asking the Eighth District Court of Appeals to allow him to withdraw his guilty plea and go to trial on the abduction charge. The appellate panel vacated the guilty plea and conviction, holding that when the trial court decided to impose a sentence that was contrary to the terms of the  plea agreement, it should have afforded Dunbar the opportunity to withdraw his guilty plea. 

On remand, a jury found Dunbar guilty of abduction and the court sentenced him to five years in prison.  Dunbar appealed that conviction.  On review, the Eighth District found that state had not proved at trial that the victim had been physically restrained or otherwise prevented from leaving the couple’s home after she was beaten, and the evidence was therefore not sufficient to support a conviction for the offense of abduction. The court of appeals subsequently ordered that Dunbar be discharged from prison.

In 2010, Dunbar filed suit seeking damages from the state under Ohio’s wrongful imprisonment statute. The Cuyahoga County Court of Common Pleas entered summary judgment finding that he met the criteria to qualify as a “wrongfully imprisoned individual” under the statute, and authorized him to proceed with a claim for damages in the Ohio Court of Claims.

The state appealed the trial court’s ruling. The Eighth District rejected the state’s arguments and affirmed Dunbar’s eligibility to pursue his wrongful imprisonment claim against the state. The state sought and was granted Supreme Court review of the Eighth District’s decision.

Attorneys for the state argue that the trial court and court of appeals’ decisions ignored the plain and unambiguous language of R.C. 2743.48(A)(2), which specifies that in order to pursue damages for wrongful imprisonment, a claimant whose conviction has been “vacated or ... dismissed or reversed on appeal” must also show that he or she “did not plead guilty to the particular charge.” In this case, they assert, it is undisputed that Dunbar was convicted of abduction and sentenced to prison pursuant to his plea of guilty to that charge, and therefore the law does not permit him to recover damages from the state for wrongful imprisonment.

They argue that nothing in the language or legislative history of the statute suggests an intent by the legislature to grant an implicit or explicit exception to the “did not plead guilty” requirement for cases in which a defendant’s guilty plea is vacated on appeal.  They point out that in every case where an offender who entered a guilty plea has his conviction “vacated, dismissed or reversed on appeal,” the effect of that ruling is to nullify the defendant’s guilty plea.  Thus, they assert, the reading of the law adopted by the Eighth District in this case would effectively write the “did not plead guilty” requirement out of the statute, because there would be no case in which that requirement could be applied to disqualify a claim asserted by a person whose conviction was vacated on appeal.

Attorneys for Dunbar urge the court to affirm the judgment of the Eight District, which they say correctly held that when a defendant’s guilty plea is conditioned on the terms of a plea agreement, and a trial court acts on that plea in a manner contrary to the agreement and without affording the defendant an opportunity to withdraw his plea, the plea is a nullity that is of no legal effect, including no legal effect on the defendant’s eligibility to pursue damages for wrongful imprisonment.

They assert that the prosecution in which Dunbar entered a guilty plea was declared void and of no legal effect when the Eight District granted his original appeal, vacated his plea and conviction and ordered that he receive a new trial.  They argue that his wrongful imprisonment claim is premised on the second prosecution, in which he entered a plea of not guilty, and in which the trial court sentenced him to five years in prison but the court of appeals later found that the crime of abduction had never been committed, and that his imprisonment based on that crime was contrary to law.

Representing Lang Dunbar: Terry H. Gilbert, 216.241.1430

Representing the state and Ohio Attorney General’s Office: Alexandra T. Schimmer, 614.995.2273

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May Criminal Defendant Avoid Reciprocal Discovery by Obtaining Police Documents Via Public Records Request?

Or Is Defense Limited to Obtaining Records Through Discovery Under Criminal Rule 16

State of Ohio v. Gary Athon, Case no. 2012-0628
First District Court of Appeals (Hamilton County)


BACKGROUND: Under Ohio Criminal Rule 16, if a defendant files a discovery request seeking access to  police reports, witness statements and other information that the state may use as evidence at the defendant’s trial, the state is then entitled to demand reciprocal discovery from the defendant disclosing the identity of witnesses and any physical evidence the defense intends to introduce at trial.

Gary Athon of Cincinnati was arrested by a state trooper in December 2010 and charged with DUI, speeding, and failure to reinstate his driver license.

While his case was awaiting trial, Athon’s defense attorney, Steven Adams, arranged to have another attorney, Christopher Finney, file a public records request with the highway patrol seeking copies of the arresting officer’s incident report and other documents and information in the state’s possession that could be used by the state as evidence at Athon’s upcoming trial. The patrol provided Finney with hundreds of pages of documents and a dashboard camera video of the traffic stop that resulted in Athon’s arrest. Finney forwarded all of the information he obtained through the public records request to Adams. 

At a pretrial hearing in Athon’s case, the prosecutor attempted to provide Adams with discovery information from the state’s files, including the video of the traffic stop.  Adams refused to accept the proffered discovery information, indicating that he was conducting his own research. The state subsequently filed a motion for discovery of  the defense witnesses and evidence Athon planned to present at trial, arguing that the public records request that had been filed on Athon’s behalf was in effect a discovery request that triggered the state’s right to demand reciprocal discovery under Crim.R. 16(H). The trial court granted the state’s motion and ordered Adams to provided reciprocal discovery top the state. 

Athon appealed that ruling.  The First District Court of Appeals reversed the trial court and vacated its discovery order, holding that a defendant’s serving of a public records request on the state and receipt of discoverable information about his case through that avenue did not invoke the state’s right to demand reciprocal discovery under Crim. R. 16(H).  The state sought and was granted Supreme Court review of the First District’s decision.

Attorneys for the state assert that the First District erred by failing to follow the Supreme Court’s 1994 decision in State ex rel. Steckman v. Jackson.  In Steckman, they point out, the court  cited the “chaos” that had resulted from defendants’ use of public records requests to circumvent the discovery process laid out in Crim.R. 16, and  held that a criminal defendant may not use such requests to obtain information from the state for a pending case, but may use only Crim.R. 16 as the vehicle for obtaining discovery.

They also argue that amendments to Crim.R. 16 adopted in 2010, which expanded the scope of information that both prosecutors and defendants are required to disclose to each other through reciprocal discovery, were made for the express purpose of promoting fair and orderly trials and eliminating  “gamesmanship” through which parties in a case try to “ambush” each other at trial by concealing the identity of witnesses and the nature of evidence they plan to present until it is too late for the other side to prepare for effective cross-examination or assemble rebuttal experts or evidence.

They assert that the First District’s ruling in this case is contrary to both the law as set forth in Steckman and the intent of  open and reciprocal discovery underlying Crim R. 16, because it “stacks the deck” against prosecutors by allowing defendants to obtain all the information they want from the state through public records requests while denying the state any reciprocal ability to demand discovery from the accused.

Attorneys for Athon urge the court to affirm the First District’s decision, which they say is not in conflict with the Steckman decision because Steckman addressed only the situation where a defendant sought to obtain through a public records request materials (such as internal police investigative reports and work product of the prosecutor’s office) that the defendant was not entitled to obtain through a discovery request under the pre-2010 version of Crim.R. 16.  In this case, they assert, Steckman is not applicable because Athon’s attorneys did not seek or obtain any information through their public records request that they were not entitled to receive under the discovery rule.

They point out that the Public Records Act, R.C. 149.43, entitles every resident of Ohio to access documents and information that fall within the broad definition of a public record, and makes no distinction in the accessibility of such records based on whether the person making the request is or is not currently a defendant in a pending criminal case.  They also note that the plain language of Crim.R. 16 entitles the state to reciprocal discovery from a defendant only if the defendant first files a formal request for information from the state under that rule.  They argue that this language gives defendants the tactical option to avoid providing pre-trial information to the state about their case by foregoing the discovery process and using other means, including public records requests, to obtain the information they believe is necessary to their defense.

Representing the state and Cincinnati solicitor’s office: Marva K. Benjamin, 513.352.1565

Representing Gar Athon: Steven R. Adams, 513.929.9333

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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.