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Tuesday, June 10, 2014

Jason T. Bode v. State of Ohio, Case no. 2013-1044
Fifth District Court of Appeals (Fairfield County)

State of Ohio v. Todd E. Brown, Case no. 2013-1110
State of Ohio v. Jeffrey J. Shipley, Case no. 2013-1111
State of Ohio v. Raymond McCloude, Case no. 2013-1112
Fifth District Court of Appeals (Stark County)

The Cincinnati Insurance Companies v. DTJ Enterprises, Inc., and Duane A. Hoyle, Case no. 2013-1405
Ninth District Court of Appeals (Summit County)

Disciplinary Counsel v. Scott C. Smith, Case no. 2014-0197
Cuyahoga County

May Juvenile Conviction With Sentence of Treatment Be Used to Enhance Later Adult Criminal Charges?

Jason T. Bode v. State of Ohio, Case no. 2013-1044
Fifth District Court of Appeals (Fairfield County)

ISSUE: May a juvenile conviction for operating a vehicle under the influence of alcohol (OVI) be used to enhance later OVI charges when, during the juvenile proceeding, the juvenile did not have an attorney, did not formally waive his right to counsel, and was sentenced to a three-day treatment program?

As a juvenile, Jason T. Bode was found in 1992 to have driven under the influence of alcohol in Franklin County. During the court proceedings, Bode did not have an attorney. He was fined, had his license suspended for one year, and was sentenced to a three-day driver intervention program for teens.

In May 2011, Bode, then an adult, was arrested by Lancaster police and charged with OVI. While this case was pending, he was again charged in Fairfield County for driving under the influence.

Bode was indicted in January 2012 on several counts of OVI stemming from these two cases. Each count included a specification that he had five OVI convictions in the prior 20 years. A defendant convicted of this specification serves an additional one to five years in prison. As an adult, Bode had been convicted of driving under the influence in 1996, 1997, and twice in 1998. The fifth conviction was the 1992 juvenile adjudication.

Bode entered a plea agreement with the state in which he pled no contest to two of the OVI counts, including a specification on each count for the earlier convictions. The court sentenced him to 8½ years in prison – 3 years of mandatory prison time and 5½ years that were suspended for community control.

He appealed to the Fifth District Court of Appeals, which upheld the trial court’s decision.

Bode then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.
Attorneys for Bode first note that Bode did not have an attorney at the 1992 juvenile OVI hearing, and he did not submit a written waiver of his right to counsel. They argue that the U.S. Supreme Court and Ohio Supreme Court have held that the conviction of a defendant who did not have an attorney and did not sign a waiver cannot be used later to enhance the penalties for an offense if the earlier conviction resulted in a sentence of confinement.

They contend that three Ohio appeals courts have ruled that a suspended sentence with an order to complete a driver intervention program is considered confinement because an offender can be incarcerated if he or she does not complete treatment.

“[I]f a juvenile fails to comply with any dispositional order of the juvenile court for a juvenile traffic offense, including failing to complete a Driver Intervention Program for a juvenile OVI offender, a juvenile court can make any disposition available for a delinquency case, including detention in a juvenile detention facility,” the attorneys wrote in their brief to the court. “In essence, a juvenile court order to complete a Driver Intervention Program is a suspended sentence since, if the juvenile fails to complete the program, the juvenile is subject to confinement in a juvenile detention facility.”

Attorneys from the Fairfield County Prosecutor’s Office counter that “confinement” occurs when a defendant is sentenced to jail or prison. They assert that Ohio’s rules for criminal proceedings prohibit trial courts from sentencing a person to incarceration unless he is represented by an attorney or properly waives that right. However, they point out that Bode was not sentenced as a juvenile to incarceration.

The prosecutors contend that Bode was not confined during the teen treatment program, there was no guard supervision, and he wore his regular clothes. Unlike some adult cases in which an adult is ordered to attend treatment or else be sent to jail, Bode in his juvenile case was sentenced only to treatment, they argue.

“The Franklin County Juvenile Court did not reserve the right to reinstate suspended time or place him on community control or probation that could result in future incarceration,” they wrote in their brief to the court. “Because [Bode] did not establish that the sentence to a treatment program … was a sentence of confinement, the uncounseled misdemeanor adjudication may be used to enhance subsequent offenses, as both the trial and appellate courts held.”

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Jason T. Bode: Scott Wood, 740.653.6464

Representing the State of Ohio from the Fairfield County Prosecutor’s Office: Gregg Marx, 740.652.7560

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Do Probate Judges Have Authority to Issue Search Warrants?

State of Ohio v. Todd E. Brown, Case no. 2013-1110
State of Ohio v. Jeffrey J. Shipley, Case no. 2013-1111
State of Ohio v. Raymond McCloude, Case no. 2013-1112
Fifth District Court of Appeals (Stark County)

ISSUE: Does a probate judge have the authority as a judge in a division of the court of commons pleas to hear evidence and issue search warrants in criminal matters?

Todd E. Brown, Jeffrey J. Shipley, and Raymond McCloude leased a space in Alliance to open a business called “Little Vegas.” In February 2012, the Alliance police sought a warrant to search the business premises from Judge Dixilene Park, who serves as a judge in the probate division of the Stark County Court of Common Pleas. The judge found probable cause and issued the warrant.

Brown, Shipley, and McCloude were charged with illegal gambling and operating a gambling house. A magistrate recommended, however, that the evidence from the search not be allowed because the probate judge did not have the authority to issue a search warrant in the case. The municipal court judge agreed.

The state appealed to the Fifth District Court of Appeals, which affirmed the municipal court’s decision.

The state appealed to the Ohio Supreme Court, which agreed to hear the cases and consolidated them for oral argument.

The statute at the center of this case is R.C. 2931.01, effective on January 1, 1976, which states:

As used in Chapters 2931. to 2953. of the Revised Code:
(A) “Magistrate” includes county court judges, police justices, mayors of municipal corporation[s], and judges of other courts inferior to the court of common pleas.
(B) “Judge” does not include the probate judge.
(C) “Court” does not include the probate court.
(D) “Clerk” does not include the clerk of the probate court.

The law director for the city of Alliance explains that, between 1851 and 1968, Ohio had separate probate courts, which were not part of the rest of the state’s court structure. However, the 1968 Modern Courts Amendment overhauling Ohio’s judicial system eliminated the separate probate courts, and created probate divisions within the state’s courts of common pleas. The city’s law director adds that the amendment resulted in a unified court system in Ohio and gave the Ohio Supreme Court administrative authority over the courts.

She contends, however, that R.C. 2931.01 either was missed when the General Assembly reworked the relevant laws after the Modern Courts Amendment went into effect or was improperly recodified. She noted that, before 1968, probate courts were not considered courts of record.

The law director argues that the “antiquated” statute also conflicts with the state’s rules for criminal proceedings, one of which defines “judge” in part as a “judge of the court of common pleas.” Another criminal rule grants “a judge of a court of record” with the power to issue search warrants. As a division within the common pleas courts, probate courts are courts of record, and probate court judges are common pleas court judges, she reasons.

She maintains that the Ohio Supreme Court has repeatedly rejected arguments disputing the authority of probate judges to hear and decide criminal cases based on the language of R.C. 2931.01. In a 1978 case (State v. Cotton), the Ohio Supreme Court held that a judge in the probate division was qualified to sit on a three-judge panel for a death penalty case, according to the attorney.

She also contends that Ohio’s appellate courts have considered many cases in which probate court judges have found probable cause and issued search warrants, and the courts have not questioned the jurisdiction of the probate courts in those cases – implicitly agreeing that probate judges have the power to find probable cause and issue search warrants.

Attorneys for Brown, Shipley, and McCloude did not submit briefs in these cases, so they are not permitted to participate in the court’s oral arguments.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-1110, 2013-1111, and 2013-1112).

Representing State of Ohio from the City of Alliance: Jennifer Arnold, 330.456.7702

Representing Todd E. Brown: Stephen Kandel, 330.453.4444

Representing Jeffrey J. Shipley: Donald Malarcik, 330.253.0785

Representing Raymond McCloude: Fredrick Pitinii, 330.458.2411

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When Is Insurer Obligated to Cover Employer in Employee Claim of Injury from Removal of Safety Guard, and What Is Employee’s Burden of Proof?

The Cincinnati Insurance Companies v. DTJ Enterprises, Inc., and Duane A. Hoyle, Case no. 2013-1405
Ninth District Court of Appeals (Summit County)


In March 2008, Duane A. Hoyle was working as a carpenter on a construction project at Wyoga Place Apartments in Cuyahoga Falls. On March 24, Hoyle was positioned on a platform about 13 feet above the ground positioned between two extension ladders. He alleges that he was injured when the scaffold collapsed, and he fell to the ground onto concrete pavement.

Hoyle filed a civil lawsuit in March 2010 against his employers, DTJ Enterprises and Cavanaugh Building Corporation. He seeks damages, alleging that his employers committed an intentional tort by deliberating removing pins that would have kept the ladders from separating and collapsing. R.C. 2745.01 governs intentional torts committed by employers, and the deliberate removal of an “equipment safety guard” by an employer is a violation of division (C) of that section.

At the time of the accident, DTJ and Cavanaugh had a commercial general liability policy and a commercial umbrella liability policy with Cincinnati Insurance Company (CIC). The trial court allowed the insurance company to intervene in the case to address questions about coverage for Hoyle’s claims.

The trial court found that Hoyle did not show that the employers had a specific intent to cause an injury under divisions (A) and (B) of R.C. 2745.01. However, it ruled that the claim under division (C) could go forward. The court also determined that the insurer was not required to cover the claim because the insurance policies excluded coverage for employer liability.

On appeal, the Ninth District Court of Appeals reversed the trial court’s decision that the insurer had no duty to cover an equipment safety guard claim under R.C. 2745.01(C).

The insurance company appealed to the Ohio Supreme Court, which agreed to hear the case.

R.C. 2745.01 states that an employer is liable only when the employee proves that “the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur,” and “‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”

Under division (C), “[d]eliberate removal by an employer of an equipment safety guard … creates a rebuttable presumption that the removal … was committed with intent to injure another if an injury … occurs as a direct result.”

Burden of proof
Attorneys for CIC contend that Hoyle has the ultimate burden to prove that the employer acted with intent to injure him. If the employer does not adequately rebut the presumption of an intent to injure, then the employee has established that the employer acted with “deliberate intent to injure,” and the employer will be liable for the injury, CIC’s attorneys argue. However, if the employer successfully rebuts the presumption with enough evidence to show it did not intend to injure the employee, then the case will go to a jury to decide, and the verdict could go either way, they maintain.

While R.C. 2745.01(A) and (B) require direct evidence of intent to injure, and R.C. 2745.01(C), by contrast, is inferential, the employee still must prove the same deliberate intent to injure, CIC’s attorneys assert.

“[I]f Cavanaugh can’t or doesn’t come forward with evidencetorebut the presumption created by the removal of the ladder jack pins – assuming they are found ultimately to be safety guards which were deliberately removed by the employer – the legal import and consequence will be that Cavanaugh acted with specific intent to injure Mr. Hoyle,” they wrote in their brief to the court. “On the other hand, if Cavanaugh does present evidence to rebut the statutory presumption, the only wayfor Mr. Hoyle to prevail will be through presentation of direct evidence that Cavanaugh intended to injure him. Either way, there will be no insurance coverage giving rise to a duty to indemnify because public policy prohibits the coverage (Proposition of Law No. II), or, alternatively, the terms of the CIC policy endorsement precludes such coverage (Proposition of LawNo. III). Whatever happens between Mr. Hoyle and Cavanaugh in the trial court at the conclusion of this appeal will have no impact upon whether the indemnity coverage sought herein is against public policy or whether such coverage is owed by CIC pursuant to the terms of the [commercial general liability] or umbrella policies.” (Footnotes omitted.)

Attorneys for DTJ and Cavanaugh agree that Hoyle has the burden to prove that the employers intended to injure him.

“The Court of Appeals’ decision, determining that CIC was not entitled to summary judgment, in no way holds that Mr. Hoyle does not bear the burdens CIC asserts,” they wrote in their brief to the court. “Rather, the Court of Appeals merely held that CIC was not entitled to summary judgment because the Court found that genuine issues of material fact exist regarding the scope of indemnity coverage afforded under the terms of this Policy.”

Attorneys for Hoyle contend in their brief that “if the presumption [in R.C. 2745.01(C)] is unrebutted, or the employer adduces weak evidence, such as the self-serving ‘we didn’t mean to hurt anyone’ affidavits, then a plaintiff may establish a prima facie intentional tort case without ever having to actually demonstrate the deliberate intent to injure the employee that would invoke the exception to liability established by CIC’s insurance policy language. Establishing an employer intentional tort claim and the applicability of … insurance exclusions are therefore separate considerations.”

“This mens rea is inferred only for purposes of allowing damages to be recovered under R.C. 2745.01, even where the employer has removed a safety guard without actually intending to injure or kill the plaintiff,” Hoyle’s attorneys argue. “Since there is no legal authority that allows CIC to apply the same inference to its intentional acts exclusion [in its policy], the attempt to evade coverage was properly rejected by the appellate court.”

Public policy
The insurance company’s attorneys contend that under current Ohio law insurance companies cannot cover intentional torts by employers, and public policy in Ohio should prohibit insurers from providing coverage to employers for these types of claims.

DTJ’s and Cavanaugh’s attorneys, however, point to the Ohio Supreme Court’s decision in Harasyn v. Normandy Metals, Inc. (1990). They argue that the court held that Ohio public policy in fact does not bar liability insurance for employers in torts where the employer did not intend to injure the employee but was aware that the injury was “substantially certain” to occur. The attorneys assert that the court concluded that different public policies apply in the two scenarios, and quote the decision: “In the case of a direct intent tort, the presence of insurance would encourage those who deliberately harm another. In torts where intent is inferred from ‘substantial certainty’ of injury, the presence of insurance has less effect on the tortfeasor’s actions because it was not the tortfeasor’s purpose to cause the harm for which liability is imposed. In the latter situation, the policy of assuring victim compensation [and allowing insurance] should prevail.”

And the Ohio Supreme Court has not determined that the state legislature has overruled or set aside the permissibility of liability insurance in cases where the employer did not have the purpose of harming an employee, DTJ’s and Cavanaugh’s attorneys argue.

Hoyle’s attorneys contend that CIC created a policy attractive to businesses by adopting its own definition of “intentional act,” which provided broad insurance coverage. Because the definition in CIC’s insurance contract does not violate public policy, the policy controls, they reason.

“CIC wants to conflate the public policy against insurance coverage for the employer’s actual and deliberate intent to injure, with the employer’s action in removing a safety feature, which legally becomes an act compensable as an employer intentional tort through 2745.01(C) regardless of the actual intent to injure,” Hoyle’s attorneys wrote.

Employers Liability Coverage Endorsement
Cavanaugh and DTJ paid additional premiums for extra insurance coverage for employer tort liability. The endorsement provided coverage for “bodily injury” caused by an “intentional act,” but excluded coverage for “acts committed by or at the direction of an insured with deliberate intent to injure.”

Under R.C. 2745.01(C), if the employers are presumed to have deliberately removed an equipment safety guard, then “deliberate intent” has been inferred, and the act is not covered under the policy’s endorsement, CIC’s attorneys maintain.

The employers’ attorneys argue, though, that the appeals court ruled that the facts of this case still must be determined, so no ruling has yet been made about whether Cavanaugh and DTJ are liable for Hoyle’s injuries or whether the CIC policies apply.

“A reasonable interpretation of the provisions in the Policy is that CIC intended for the phrase ‘deliberate intent to injure’ as used in the Policy exclusion to apply only to situations where the employer actually intended to harm or injure an employee because the Policy expressly covers liability for ‘intentional acts’ where the employer knew that injury was substantially certain to occur,” the employers’ attorneys wrote. “That is, because the Policy expressly affords coverage for intentional acts where injury is ‘substantially certain’ to occur, this indicates that the phrase ‘deliberate intent to injure’ as used in the Policy exclusion covers intent different from that which exists in such covered situations, i.e., the Policy exclusion is intended to cover only situations where the employer actually intended to harm or injure an employee, not where an employer merely knows that injury is substantially certain to occur.”

The employers had no reason to purchase this additional coverage and pay more premiums if they thought the endorsement excluded coverage for all intentional tort claims, the attorneys conclude.

Hoyle’s attorneys agree, adding that insurance contract exclusions must be unambiguous to be enforceable, and any uncertainty must be resolved in favor of the insured, in this case the employers.

An amicus curiae brief supporting the position of Cincinnati Insurance Company has been submitted by the Ohio Association of Civil Trial Attorneys. The Ohio Association for Justice has filed an amicus brief supporting Duane A. Hoyle, DTJ Enterprises, and Cavanaugh Building Corporation.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Cincinnati Insurance Companies: Timothy Fitzgerald, 216.539.9370

Representing DTJ Enterprises and Cavanaugh Building Corporation: Mark Bernlohr, 330.252.9060

Representing Duane A. Hoyle: Paul Flowers, 216.344.9393

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Attorney Discipline

Disciplinary Counsel v. Scott C. Smith, Case no. 2014-0197
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that Scott C. Smith of Pepper Pike be indefinitely suspended from the practice of law. The board found that Smith engaged in unethical billing practices with three long-term care company clients over several years while he was a partner with Weston Hurd in Cleveland.

In five cases for the three clients, the board determined that Smith’s billing descriptions had no relation to the tasks he performed on a case, he billed clients for work that was not in their case files, he repeatedly billed many clients for the same amounts on the same day even though the cases were at different stages of litigation, he abused his partnership position at the firm, and he tried to hide his misconduct from Weston Hurd, harming the firm and his clients.

The law firm has filed a civil suit against Smith, which has not yet been resolved. In its report to the Supreme Court, the board recommends that if Smith applies to practice law again he be required to pay any restitution resulting from the lawsuit before being reinstated.

Smith has objected to the board’s findings and recommended sanction. His attorneys contend that the five cases involved insurance defense representation of claims against the clients’ long-term care facilities. These types of claims are billed and managed through the facilities’ insurance companies and third-party administrators, rather than directly with the clients. The attorneys argue that these cases required a distinctly different billing process, and the insurance companies and administrators told Smith not to give detailed and narrative descriptions describing his legal work because they were too risky and could subject the companies to liability.

Smith’s attorneys also assert that the board considered other claims and evidence beyond the five cases at issue in this disciplinary matter, and Smith was not given full access to the electronic databases used by the administrators and insurance companies, the complete case files, or other evidence. The attorneys contend that this matter lacked enough evidence to go to a hearing, and the testimony and witnesses presented did not prove the case. They add that the recommended sanction is unduly harsh and does not consider mitigating circumstances, such as Smith’s cooperation with his law firm in investigating these cases.

The Office of Disciplinary Counsel, which filed the charges against Smith, has responded to Smith’s objections. Counsel maintains that before the disciplinary hearing, Smith never claimed that the administrators rather than the long-term care companies were his clients, and he clearly maintained that the facilities knew and approved of his billing practices. Yet now he claims that the long-term care facilities did not supervise the legal work and did not handle the billing, counsel asserts.

While Smith argues that the third-party administrators could not testify because they did not waive attorney-client privilege, the Disciplinary Counsel counters that the administrators were not the client, and the actual clients – the long-term care facilities – submitted waivers for these five cases. Testimony from two representatives of the clients, and other witnesses, contradicted Smith’s contentions, counsel asserts. The clients testified that they expected their bills to accurately describe the work Smith completed.

On the other objections, the Disciplinary Counsel asserts that it limited its arguments at the hearing to the five cases at issue, and the board found the evidence and testimony convincing while concluding that Smith lacked credibility. Counsel also states in its response that it shared every document and communication it received during discovery with Smith. They argue that summary judgment was not an appropriate resolution to this disciplinary matter, and the sanction is supported by similar cases, several aggravating circumstances, and only one mitigating factor.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Scott C. Smith: Kenneth Donchatz, 614.745.8350

Representing the Office of Disciplinary Counsel: Stacy Beckman, 614.461.0256

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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.