Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Wednesday, June 25, 2014

Honorable Steven E. Gall et al. v. State of Ohio ex rel. Donald Yeaples and Debra Yeaples, Case no. 2013-0941
Eighth District Court of Appeals (Cuyahoga County)

Board of Commissioners of Fairfield County v. Scott J. Nally, Director of Environmental Protection, Case no. 2013-1085
Tenth District Court of Appeals (Franklin County)

State of Ohio v. Frank Rogers Jr., Case nos. 2013-1255 and 2013-1501
Eighth District Court of Appeals (Cuyahoga County)

Auto-Owners Insurance, et al. v. Steve Granger, et al., Case no. 2013-1527
Ninth District Court of Appeals (Summit County)

Must Case Against Employer and Co-Worker for Injury Be Filed Where Employer Is Located?

Honorable Steven E. Gall et al. v. State of Ohio ex rel. Donald Yeaples and Debra Yeaples, Case no. 2013-0941
Eighth District Court of Appeals (Cuyahoga County)


Donald and Debra Yeaples filed a personal injury complaint in January 2012 in the Cuyahoga County Common Pleas Court against Precision Directional Boring, LLC, and Gary Cole. Donald Yeaples worked for Precision. While working out on assignment, fellow Precision employee Cole hit Yeaples with a mini excavator.

Yeaples was injured in Summit County, and Precision’s corporate office is located in Medina County. However, the Yeaples filed their complaint in Cuyahoga County where Cole resides.

In March 2012, a judge granted Precision’s request to transfer the case for improper venue to Medina County Court of Common Pleas. In July 2012, the court transferred the case back to Cuyahoga County. Judge Steven E. Gall granted Precision’s request to adhere to the March 2012 order.
In January 2013, the Yeaples filed an original action in mandamus and procedendo in the Eighth District Court of Appeals against Judge Gall, Precision, and Cole to move the case to Cuyahoga County. The appeals court agreed with the Yeaples. Judge Gall, Precision, and Cole appealed the decision to the Ohio Supreme Court.

In Precision’s and Cole’s brief submitted to the Supreme Court, their attorneys state that claims of intentional tort against another person, regardless of location, are governed by traditional common law and, therefore, the Yeaples did not establish a legal right to request writs of  mandamus and  procedendo.

“The Appellate Court incorrectly held that Ohio law permits a fellow employee to allege a substantial certainty Workplace Intentional Tort as created in Blankenship v. Cincinnati Milacron Chemicals, Inc.…(1982) and modified thereafter by Fyffe v. Jeno’s Inc.…(1991). The Cuyahoga County Appellate Court issued Writs of Mandamus and Procedendo ordering Judge Gall to vacate the orders transferring the underlying case and to accept venue over the underlying case even though Judge Gall no longer had jurisdiction over the personal injury matter since it was still pending in Medina County,” the brief states.

The attorneys argue that Ohio courts have recognized various common law intentional torts, but that Ohio law does not recognize an intentional tort against a fellow employee.

“The entire common law employer intentional tort, and now the General Assembly’s statutory standard [R.C. 2745.01], is directed to the actions of the employer, not the employee,” they write.

“In Blankenship, this Court only held that an intentional tort committed in the workplace would be deemed an injury which occurred outside the course and scope of one’s employment and, therefore, an intentional tort claim would not be encompassed by the constitutional immunity. There is nothing in this Court’s language to even suggest that the Court was creating a new tort which could be asserted against fellow employees.”

With regard to the court in which the lawsuit was filed, the attorneys argue that since Precision was the main defendant, and not Cole, the case should have been filed in Medina County. They note that the only tie to Cuyahoga County is Cole’s place of residence and state that Cole is a “nominal party” to the lawsuit.

“Civ.R. 3(E) directs that venue in a multiple part action is proper, ‘if the venue is proper as to any one party other than a nominal party, or as to any one claim for relief’…As has been established, Yeaples never set forth a legally recognized cause of action against his fellow employee, Cole. Accordingly, Cole, at best, must be considered merely a ‘nominal party’ supporting the Cuyahoga County Common Pleas Court’s transfer of venue to Medina.”

The brief also states that when a matter is considered moot, a court is “without subject matter jurisdiction and any order issued is void.” So when Judge Gall transferred the case to the Medina County Court of Common Pleas, the Eighth District Court of Appeals did not have jurisdiction to issue the writs, and its judgment was invalid.

In his brief to the Supreme Court, Judge Gall agreed with the arguments brought forth by Precision and Cole.

The Yeaples contend that the Supreme Court should affirm the Eighth District’s decision.

“Pursuant to Civ. R. 3(B)(1), venue has always been proper in any county where any legitimate defendant resides,” they write. “Given that Defendant Cole resides in Cuyahoga County and defense counsel also maintain their offices in Cleveland, one would have thought that this unsurprising selection would have been welcomed by all parties.”

The Yeaples state that Cole is a co-defendant with Precision.

“Neither Cuyahoga County Judge explicitly found that Cole was just a ‘nominal’ party or that the Complaint failed to allege a valid cause of action against him.”

In their reply brief, attorneys for Precision and Cole state: “The ‘substantial certainty’ employer intentional tort standard which this Court created was a legal standard to be applied by an employee in a cause of action against one’s employer. Relator in this matter has filed a complaint which seeks to apply this employer-based standard to a cause of action asserted by one employee against another employee. Ohio law does not permit such a cause of action.”

An amicus curiae brief supporting Judge Gall position has been submitted by the Ohio Association of Civil Trial Attorneys.

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

Representing Donald and Debra Yeaples: Paul W. Flowers, 216.344.9393

Representing Judge Gall on behalf of the Cuyahoga County Prosecutor’s Office: Charles E. Hannan, 216.443.7758

Representing Precision Directional Boring, LLC, and Gary Cole: Shawn W. Maestle, 216.241.6602

Return to top

Does Affected Stakeholder Have Due Process in Water Pollutant Limits?

Board of Commissioners of Fairfield County v. Scott J. Nally, Director of Environmental Protection, Case no. 2013-1085
Tenth District Court of Appeals (Franklin County)


To improve the quality of Ohio’s bodies of water, the Ohio Environmental Protection Agency (Ohio EPA) administers the Total Maximum Daily Load (TMDL) program that focuses on identifying and restoring polluted streams, rivers, and other surface waters. TMDL plans are developed by the Ohio EPA and then submitted to the U.S. EPA for approval.

The Ohio EPA issued a National Pollution Discharge Elimination System (NPDES) permit in 2006 for the Fairfield County wastewater treatment plant on Tussing Road in Pickerington. The permit included a new, lower limit of phosphorus that could be emitted from the plant into Blacklick Creek. The new limit was taken from a TMDL for the watershed that includes Blacklick Creek. The Fairfield County Commissioners appealed to the Environmental Review Appeals Commission (ERAC) that the phosphorus discharge limitations in the permit were unlawful and, with an estimated $5 million price tag to meet the new limit, unreasonable. ERAC found that while the Ohio EPA director had a valid factual foundation for imposing the phosphorus limit, he violated R.C. 6111.03(J) by failing to consider the technical feasibility and economic reasonableness of imposing the limits. The commission sent the issue back to the director for further action. Fairfield County appealed to the Tenth District Court of Appeals, which affirmed ERAC’s decision.

Fairfield County has asked the Ohio Supreme Court to consider three issues related to TMDL plans. The first is whether the plans are rules that would be subject to public notice and comment before being established as standards. To make the point, the county draws parallels with several Supreme Court cases, including Ohio Nurses Association, Inc. v. State Board of Nursing Education and Nurse Registration from 1989 that held: “[T]he pivotal issue in determining the effect of a document is whether it enlarges the scope of the rule or statute from which it derives rather than simply interprets it.”

Fairfield County argues: “Ohio EPA … is not merely ‘interpreting’ the law when it: (1) sets the ‘maximum’ amount of pollution that a particular waterbody can accommodate, (2) elevates ‘target values’ from a technical guidance document into de facto water quality standards for the waterbody, and (3) develops a second set of standards (consisting of the loading ‘allocation diet’) required to achieve the new standard,” the county wrote. “[W]hen Ohio EPA applies this mandatory ‘diet’ to numerous dischargers located within a specific waterbody or watershed, the TMDL is being applied just like any other rule.”

The county also notes that Idaho and other states have analyzed the rule-like properties of TMDLs: “After a diligent review of other states’ TMDL processes, Fairfield County was unable to locate a state court holding that TMDLs are exempted from … rulemaking.”

The county also wants the Supreme Court to determine that it did not get a new, fair hearing before ERAC when it ruled that U.S. EPA’s approval of the TMDL constituted a valid basis for upholding it under Ohio law.

“U.S. EPA’s approval … was a limited procedural review that did not include a substantive review of the TMDL on its merits under Ohio law,” the county wrote. “ERAC was obligated to provide that substantive review. It erred when it mistook the federal approval as somehow limiting its obligation to provide such review, and the Court of Appeals compounded the error by affirming it.”

In the brief for appellee Ohio EPA, the state’s attorneys counter that a TMDL report is not a rule because the recommendations are not binding, and that failure to prevail with ERAC and the appeals court does not mean that Fairfield County was denied due process. 

“Fairfield County seeks to make this case about more than just its permit complaints. In order to do so, it makes arguments that are not only legally incorrect, but they are in conflict with the arguments it made and the positions it took before the Environmental Review Appeals Commission and the Tenth District.”

The state finds fault with the county’s assertion that other states require TMDLs go through a formal rulemaking process: “Several of the states that Fairfield County identifies as requiring TMDL rulemaking do not actually impose such a requirement. … Fairfield County relies heavily on the decision from Idaho Supreme Court … but fails to mention that case has been legislatively overruled.”

The state goes on to contend that the General Assembly did not intend for TMDLs to be developed as formal rules.

“The General Assembly has required that the rules about how to prepare a TMDL report go through rulemaking but, once those rules have been established, it has not required additional rulemaking every time a TMDL report is itself developed.”

The state's attorneys add that TMDL-recommended discharge limits do not impose any legal duties, the reports merely are tools that assist the Ohio EPA in fulfilling legal obligations for water quality standards, and that the appropriate place to challenge the U.S. EPA’s approval of a TMDL is in federal court.

Amici curiae briefs supporting Fairfield County have been submitted by the Association of Ohio Metropolitan Wastewater Agencies and National Association of Clean Water Agencies; Ohio Municipal League and County Sanitary Engineers Association of Ohio; and the Ohio Chamber of Commerce.

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

Representing Fairfield County Board of Commissioners: Stephen P. Samuels, 614.464.1211

Representing the Ohio Environmental Protection Agency: Eric E. Murphy, 614.466.8980

Return to top

Do Receiving Stolen Property Offenses Against Two Different Victims Merge for Sentencing?

State of Ohio v. Frank Rogers Jr., Case nos. 2013-1255 and 2013-1501
Eighth District Court of Appeals (Cuyahoga County)

Note: The Supreme Court determined that a conflict exists between the conclusions of two different panels of judges on the Eighth District in State v. Rogers and cases from the Sixth District Court of Appeals and the Ninth District Court of Appeals. The Supreme Court ordered that the certified-conflict case (2013-1255) filed by the appellant/cross-appellee be consolidated with the certified-conflict case (2013-1501) filed by the appellee/cross appellant for oral argument.


In 2011, Frank Rogers Jr. pled guilty to receiving stolen property in two cases, each consisting of multiple felony counts. One case had to do with a stolen pickup truck, its tires and rims, and the possession of criminal tools. The other case concerned jewelry taken from two homeowners. For his crimes, Rogers received consecutive sentences of three and one-half years total. Rogers appealed and argued that the trial court erred by imposing consecutive sentences on allied offenses for the multiple felonies in the truck case and for the multiple felonies in the jewelry case. A three-judge panel of the Eighth District affirmed Rogers’ sentence and rejected his allied offenses argument on March 21, 2013.

However, the full complement of the judges on the appeals court sua sponte accepted the case for review. The en banc review reversed the sentence in the truck case because of a lack of facts, but affirmed the jewelry case sentence. Each side filed a notice with the Supreme Court certifying a conflict. The Supreme Court agreed to hear the matter and consolidated the cases.

Under Ohio’s “allied offenses” statute, R.C. 2941.25, and court decisions interpreting that statute, when a defendant is charged with two different crimes arising from the same conduct and is found guilty on both counts, the court must determine whether the defendant may be sentenced for more than one count or whether the convictions merge.

The state argues that Rogers forfeited or waived his right to raise the allied offenses argument on appeal because he did not bring it up at sentencing.

“Accordingly, since he did not object at sentencing to the trial court’s alleged failure to merge the offenses and he knew of his maximum potential sentences for those offenses knowingly, intelligently, and voluntarily [he] waived any challenge of double jeopardy or allied offenses on appeal,” the brief states.

The state also argues that the en banc ruling misinterprets the Ohio Supreme Court’s 2010 ruling in State v. Underwood that ‘“allied offenses of similar import must be merged at sentencing or the sentence is contrary to law.”’

“The Eighth District circumvented conventional plain error analysis by taking this Court’s holding in Underwood out of context by relieving defendants of the responsibility to object at sentencing in order to preserve for appeal a claimed error by a trial court concerning the merger of sentences for allied offenses of similar import,” the state’s brief notes.

In addition, the state urges the Supreme Court to affirm the portion of the en banc ruling that held that two offenses of receiving stolen property from two victims are not allied offenses and do not merge for sentencing.

“Separate victims alone established a separate animus for each offense,” the brief states. “Even if the defendant cannot distinguish one victim’s goods from another’s does not mean his conduct did not impact multiple victims. Each victim has a specific and identifiable right to redress against the conduct of the defendant.”

Rogers’ attorney writes that this case is not about plain error, but the sentencing authority of a trial court.

“The Eighth District’s decision in this case is a simple application of Underwood,” Rogers’ brief states. “Because the trial court neglected its obligation to make an allied offense determination ‘when the charges facially present a question of merger,’ … the individual sentences must be vacated.”

Rogers’ attorney cites the Supreme Court’s 2010 decision in State v. Johnson as outlining a two-step process for a trial court to consider allied offenses and whether to impose a single sentence: 1) can a defendant commit the two offenses with the same conduct?, and 2) were the offenses committed separately?

Rogers’ attorney asserts that it is possible to commit these offenses with the same conduct, so the offenses are allied and require a single sentence.

“This Court must consider the implications of a trial court imposing multiple sentences on allied offenses without making any findings that the offenses were committed with separate conduct,” his attorney writes. “Rogers maintains that the Eighth District correctly held that a trial court cannot impose separate sentences upon allied offenses without making such findings. According, the cases must be remanded to the trial court for a new sentencing hearing.”

Rogers’ attorney calls the state’s argument that Rogers forfeited his right to bring up allied offenses on appeal as “illogical” and states that argument has been rejected by the Supreme Court.

In addition, Rogers’ attorney claims that because the allied offenses statute incorporates a constitutional right, a defendant cannot waive his double jeopardy protections via silence.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-1255 and 2013-1501).

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Adam Chaloupka, 216.443.7800

Representing Frank Rogers Jr.: Cullen Sweeney, 216.443.3660

Return to top

Can Inferred Intent Cause Insurance Company to Refuse Coverage Under Intentional Act Exclusion in Umbrella Policy?

Auto-Owners Insurance, et al. v. Steve Granger, et al., Case no. 2013-1527
Ninth District Court of Appeals (Summit County)


In June 2010, Steve Granger and Paul Steigerwald placed an advertisement on Craigslist for an Akron-area rental property they owned, with the intention of finding renters to live in the dwelling. Valerie Kozera contacted Granger about the property on June 7, 2010, and indicated that she would live there with her then-6 year old son. Granger told her that he would not rent the property to anyone with children, a direct violation of Ohio and federal fair-housing laws.

Kozera followed up by contacting the Fair Housing Contact Service, Inc. (FHCS), which investigated Granger’s conduct by sending experienced “testers” to interact with Granger by inquiring about the rental property. Granger continued to inform “testers,” both through e-mail and in person, that he and Steigerwald would not permit children to live at the property. Based on its investigation, in September 2010, FHCS filed a housing discrimination complaint against Granger and Steigerwald with the Ohio Civil Rights Commission.

Granger and Steigerwald maintain that neither man knew it was illegal or discriminatory to refuse to rent to those with children. Consequently, they hold, there was never an intention to discriminate against anyone.

After the lawsuit was filed, Granger and Steigerwald obtained counsel and attempted to resolve the claims with Kozera and FHCS. Negotiations, however, were unsuccessful, and Kozera and FHCS filed a lawsuit in March 2011 against the two men in the U.S. District Court for the Northern District of Ohio.

During this time period, Owners Insurance Company and Auto-Owners (Mutual) Insurance Company had several insurance policies in effect with one or both men. At issue in this case is an umbrella insurance policy issued by Auto-Owners solely to Granger.

In June 2011, Auto-Owners denied a claim to defend or cover Granger and Steigerwald in the lawsuit. The men then voluntarily settled with FHCS and Kozera a month later and without communicating with the insurance company. Soon after, Granger and Steigerwald filed suit for breach of contract against Owners, Auto-Owners, and the insurance agency. Following the parties’ depositions, Owners, Auto-Owners, and the insurance agency all filed for summary judgment. The Summit County Court of Common Pleas granted the defendants’ motions for summary judgment.

Granger and Steigerwald then appealed to the Ninth District Court of Appeals, which, in June 2013, issued a split decision reversing the trial court’s decision. After an application for reconsideration was denied by the Ninth District court, the appellants, Auto-Owners and Owners, filed a notice of appeal with the Ohio Supreme Court in September 2013.

In their merit brief, appellants claim that the Ninth District “erred in finding that a question of fact existed regarding the application of the intentional acts exclusion and a finding that a claim of emotional distress constitutes a claim for ‘humiliation.’”

Inferred Intent Doctrine
The insurance companies assert that “[d]iscriminatory intent is inferred as a matter of law for purposes of an intentional act exclusion under an umbrella policy of insurance on a claim for pre-leasing housing discrimination.” The “inferred intent doctrine,” they claim, was “formally recognized” by the Ohio Supreme Court in 1996 in Gearing v. Nationwide Ins. Co. In Gearing, the court said an insurance company “is under no obligation to its insured, or to others harmed by the actions of an insured, unless the conduct alleged of the insured falls within the coverage of the policy. Coverage is provided if the conduct falls within the scope of coverage defined in the policy, and not within an exception to the policy.”

The appellants add, “The intentional act of pre-leasing housing discrimination can only result in harm. Whether Granger intended the harm caused by his intentional discrimination against individuals with children is irrelevant as the harm cannot be separated from the act of intentionally discriminating.” Citing the Supreme Court’s 2010 decision in Allstate Ins. Co. v. Campbell, the appellants point out that “the inferred intent doctrine applies only in cases in which the insured’s intentional act and the harm caused are intrinsically tied, so that the act results in the harm.”

Intentional Act Exclusion
In the Auto-Owners umbrella policy purchased by Granger, the policy’s exclusions clause (Exclusion (d)) states:

We do not cover:
(d) personal injury or property damage expected or intended by the insured.
We do cover assault and battery committed to protect persons or property.

When filing suit, Kozera claimed she suffered emotional distress as a result of the discrimination. In addressing her claim, the appellees maintain that the policy’s personal-injury language specifically allows for “humiliation” as a damage that the insurance company would cover, and thus, should provide coverage for Kozera’s claim of emotional distress.

In their merit brief, the appellants maintain that “Granger did not put in place a benign policy that had an unintended discriminatory effect. He singled out potential renters with children because he specifically intended to exclude that class of people from the property. He committed an intentional act under the plain and ordinary meaning of the language used in the policy and this conduct does not fall within the scope of coverage defined in the policy.”

Citing Auto-Owners’ policy language on exclusions – “We do not cover personal injury or property damage expected or intended ….” – the appellants maintain that Granger’s act of discrimination against prospective tenants “constituted an intentional act that will absolutely result in harm in every instance.”

Ambiguous Provisions of an Insurance Policy
Using the Ohio Supreme Court’s decision in Westfield Ins. Co. v. Hunter (2011), the appellees cite: “Ambiguous provisions in an insurance policy must be construed strictly against the insurer and liberally in favor of the insured. This is particularly true when considering provisions that purport to limit or qualify coverage under the policy.” They also point to Faruque v. Provident Life & Acc. Ins. Co. (1987), in which the Supreme Court said, “Language in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer.”

Auto-Owners’ umbrella policy language on personal injury states, in part:

Personal injury is defined as:
…(c) false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation.

The appellees’ merit brief points to the appellants claim that “the underlying claims of (Kozera) did not fall into its definition of ‘personal injury,’ and if it did, then its ‘expected or intended’ exclusion would exclude all coverage for such claims,” because, the appellees argue, Auto-Owners believes Granger intended to discriminate.

The appellees assert that “there is nothing in the policy itself which mandates that coverage only arises when a party plaintiff correctly and exactly states a claim/cause of action in the very same words as are found in Auto-Owners’ policy.” And they continue: “All ambiguities must be construed against the drafter – Auto Owners – and in favor of the insured – in favor of coverage.”

The Church Agency and Mike Condriet did not file a merit brief with the Supreme Court in this case, so they will not be permitted to participate in oral arguments.

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

Representing Auto-Owners (Mutual) Insurance Company and Owners Insurance Company: Brian Winchester, 216.621.9870

Representing Steve Granger and Paul Steigerwald: Thomas Loepp, 330.688.0560

Representing The Church Agency and Mike Condriet: Stephan Kremer, 330.375.1311

Return to top

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.