Oral Argument Previews
2012 Archive | 2011 Archive | 2010 Archive | Calendar
Live Streaming Video Coverage
Tuesday, Nov. 18, 2008
Styrk Walburn et al. v. Wendy Sue Dunlap et al. and National Union Fire Insurance Company of Pittsburgh, PA, Case nos. 2007-2150 and 2007-2302
4th District Court of Appeals (Vinton County)
State of Ohio v. William C. Bartrum, Case no. 2007-2193
9th District Court of Appeals (Summit County)
Duke Energy Ohio, Inc. v. The Public Utilities Commission of Ohio, Case no. 2008-0367
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2008-0466
Disciplinary Counsel v. John Robert Lentes, Case no. 2008-1709
Meigs County
Is Declaratory Judgment Finding Insurance Coverage But Not Addressing Damages an Appealable Order?
Styrk Walburn et al. v. Wendy Sue Dunlap et al. and National Union Fire Insurance Company of Pittsburgh, PA, Case nos. 2007-2150 and 2007-2302
4th District Court of Appeals (Vinton County)
ISSUE: In a case in which a plaintiff seeks money damages from a tortfeasor and insurance companies, is a trial court’s declaratory judgment that finds the plaintiff is entitled to coverage from an insurer but does not address the issue of damages a “final, appealable order” if the trial court includes in its decision a Civ.R. 54(B) finding that there is “no just cause for delay” in appealing that order?
BACKGROUND: In this case the Court is asked to address a procedural issue arising from a personal injury lawsuit in which plaintiffs Styrk and Betty Walburn sought to recover uninsured/underinsured motorist (UM/UIM) coverage from their employers’ insurance policies for injuries Mr. Walburn suffered in a traffic accident caused by a third party, Wendy Dunlap.
The Walburns filed a motion for summary judgment on the issue of whether they were entitled to UM/UIM coverage under a policy issued by the National Union Fire Insurance Co. of Pittsburgh to Mr. Walburn’s employer, the Sherwin Williams Company. On Aug. 28, 2006, the trial court issued an order granting summary judgment in favor of the Walburns on the issue of coverage, but not addressing whether they were entitled to recover damages from Dunlap. In that order, the trial court included language from Ohio Civil Rule 54(B) certifying that its ruling was final and there was “no just cause for delay” in appealing its holding.
On Sept. 12, 2006, National Union filed a motion in the trial court asking it to reconsider the immediate appealability of its Aug. 28 order on the basis that the order was not “final” because it left the issue of damages unresolved. While that motion remained pending, on Sept. 25, 2006, National Union filed an appeal of the Aug. 28 order in the 4th District Court of Appeals. Later that same day, the trial court granted the motion for reconsideration and vacated the portion of its Aug. 28 ruling that had certified that order as “final” and therefore immediately appealable. On Sept. 26, National Union dismissed its appeal.
In December 2006 the trial court granted a new summary judgment in favor of the Walburns. In that ruling, the court determined that it had erred in vacating its Aug. 28 order because the state’s civil rules do not authorize a trial court to reconsider a final judgment. National Union attempted to appeal this new ruling to the 4th District, but the court of appeals held that it did not have jurisdiction to hear the case because the trial court’s reinstated Aug. 28 decision was the “final order” from which the company sought to appeal, and the 30-day time limit for appealing that order had expired. The 4th District certified that its ruling was in conflict with decisions in several other appellate districts, and the Supreme Court agreed to review the case to resolve the conflict.
Attorneys for National Union now ask the Supreme Court to overrule the 4th District and adopt the position of other appellate districts that a partial declaratory judgment addressing whether or not a plaintiff is entitled to insurance coverage but not addressing the damages that the plaintiff has alleged in the same complaint is not a “final, appealable order.”
Attorneys for the Walburns urge the Court to give deference to the trial court’s finding that its Aug. 28, 2006 order establishing insurance coverage was “final,” and therefore triggered the 30-day time limit for National Union to appeal it. They point to case law holding that a trial judge has discretion under Civ.R. 54(B) to determine that a partial ruling that leaves another portion of a case unresolved should nevertheless be immediately appealable. They assert that in this case the trial judge knew that the tortfeasor had no assets from which the Walburns could recover for their damages, and determined that the parties should go forward with an immediate appeal on the issue of UM/UIM coverage because, if the trial court’s holding were reversed on appeal, there would be no point in the plaintiffs going forward with the case.
Contacts
Steven G. Janik, 440.838.7600, for National Union Fire Insurance Co.
C. Russell Canaestro, 614.221.3318, for Styrk and Betty Walburn.
Does Crime of Compelling Child Prostitution Require That Solicitation Involve a Real Child?
State of Ohio v. William C. Bartrum, Case no. 2007-2193
9th District Court of Appeals (Summit County)
ISSUE: In order to convict a defendant of violating the state law that prohibits paying or agreeing to pay a minor to engage in sexual conduct, must the state show that the payment or agreement to pay involved an actual (as opposed to a fictional) minor?
BACKGROUND: R.C. 2907.21(A)(3) provides that “No person shall knowingly ... Pay or agree to pay a minor, either directly or through the minor’s agent, so that the minor will engage in sexual activity, whether or not the offender knows the age of the minor.”
In this case, an informant advised a Cuyahoga Falls police officer that William Bartrum of Summit County had asked her about arranging a sexual encounter between himself, an adult woman and that woman’s underage daughter. The officer subsequently recorded a telephone call in which the informant and a female police employee, impersonating the requested mother and daughter, talked to Bartrum and he agreed to pay them $500 to engage in sexual activity. Bartrum made arrangements to meet with the fictional mother and daughter at a hotel and later contacted them saying he was on his way there, but ultimately did not show up at the appointed location or go through with the encounter.
Based on his recorded phone conversations and a transcript of text messages between Bartrum and the fictional mother and daughter, he was charged and convicted of compelling prostitution by a minor under R.C. 2907.21(A)(3). Bartrum appealed. The 9th District Court of Appeals reversed his conviction, holding that a conviction under the charged statute requires proof that a defendant paid or offered payment for sex with an actual minor, and the state had not provided such proof.
Attorneys for the Summit County prosecutor’s office urge the Supreme Court to overrule the 9th District and instead follow decisions of the 2nd and 8th Districts holding that, in order to obtain convictions for attempted rape and compelling prostitution, the state was only required to prove that the defendant attempted to engage in illegal sexual conduct with a child, and the fact that the child at issue was fictitious rather than real was not relevant to his guilt.
Attorneys for Bartrum urge affirmance of the 9th District’s ruling. They specifically urge the Court to follow the 9th District’s reasoning that because the legislature has adopted clear language in other child sex abuse statutes that allows conviction when the child at issue is fictitious, but did not insert such language in the prostitution statute under which Bartrum was charged, R.C. 2907.21(A)(3) must be read to require proof that the defendant paid or offered to pay for sex with an actual underage person.
Contacts
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.
Christopher P. Muntean, 330.535.2839, for William Bartrum.
Consumer Groups Ask Court to Reject PUCO-Approved Electric Rate Adjustments
Duke Energy Ohio, Inc. v. The Public Utilities Commission of Ohio, Case no. 2008-0367
The Office of the Ohio Consumers' Counsel v. The Public Utilities Commission of Ohio, Case no. 2008-0466
NOTE: The Court will hear separate oral arguments in the two cases captioned above. They are summarized together because both involve challenges to orders of the PUCO granting electric utility rate adjustments sought by Duke Energy, a primary supplier of electrical power in southwest Ohio.
ISSUE: Did the Public Utilities Commission of Ohio (PUCO) act unreasonably or unlawfully in approving electric utility rate adjustments sought by the former Cincinnati Gas & Electric Company, now Duke Energy Ohio, Inc., by failing to comply with a 2006 decision in which this Court remanded a previous PUCO order granting Duke similar rate increases and directed the commission to review and if appropriate adjust its prior order consistent with specific concerns identified by the Court?
BACKGROUND: In both cases, the challenged PUCO orders are new versions of orders issued by the commission in 2004 granting similar rate adjustments to Duke’s predecessor, Cincinnati Gas & Electric Co. (CG&E). The 2004 orders were appealed to the Supreme Court by the state’s Office of Consumers’ Counsel (OCC). The appeals alleged that the PUCO had improperly based its approval of the proposed new rate plan on stipulations (agreements by various user groups not to oppose the rate proposals) that were tainted by the fact that CG&E/Duke had previously entered into confidential “side agreements” with several user groups that may have significantly reduced the impact of the new rate plan on those groups at the expense of the utility’s residential and small business customers. In a November 2006 decision, the Court partially reversed the commission’s 2004 orders and remanded the case for further proceedings. The Court directed the PUCO to allow the OCC to discover the contents of the side agreements, and ordered the commission to reevaluate the proposed rate plan if it found that the terms of the side agreements had tainted the negotiation process that resulted in the stipulated agreement.
In a 2007 ruling, the PUCO withdrew its approval of the stipulated 2004 rate plan, finding that the side agreements between CG&E/Duke and several user groups had resulted in a lack of serious bargaining in the negotiation process. The commission then proceeded to adopt and approve an “alternative rate plan” that Duke had submitted prior to the negotiation of the stipulated agreement. OCC now asks the Supreme Court to invalidate the PUCO’s order approving the alternative plan.
In Case No. 2008-0367, the OCC challenges the commission’s order approving a “rate stabilization plan” (RSP) proposed by Duke. In Case No. 2008-0466 the OCC challenges three “riders” to the RSP that would allow Duke to use charges collected from its customers to recover certain costs and defray the expense of paying outside suppliers for purchased power to meet potential peak demand.
Among multiple arguments opposing the new PUCO-approved rate plan, the OCC argues that in most respects the new plan is virtually identical to the stipulated agreement that the commission approved in 2004 – despite the commission’s finding that the 2004 rate plan was the product of a corrupted bargaining process in which industrial and commercial user groups obtained economic concessions from Duke at the expense of residential and small business users. They assert that the Supreme Court’s 2006 order remanding the case to the PUCO included a mandate to determine whether the 2004 negotiation process had been corrupted and, if the prior plan were fatally flawed, to have the parties develop a new plan via negotiations in which there were no side agreements and all user groups were on the same footing. Instead of following the Court’s mandate, they contend, the PUCO ignored its own findings of fundamental unfairness in the prior rate-setting process and adopted an “alternative” Duke proposal that incorporated virtually all of the same inequitable and factually unsupported provisions that were included in the discredited stipulation.
Attorneys for the PUCO, supported by Duke (which sought and was granted leave to intervene in the case) argue that the commission complied with the Court’s 2006 remand order by ordering Duke to provide copies of its side agreements with user groups to the OCC, and by ultimately withdrawing its approval of the 2004 stipulated rate agreement based on the flawed bargaining process. They contend that the commission then acted within its statutory authority and discretion in reviewing and approving the only other rate plan that was “on the table,” which was the alternative plan Duke had proposed and user groups had responded to prior to the adoption of the flawed stipulation. They urge the Court to defer to the commission’s statutory authority and presumed competence to review and adjust proposed rate structures in a way that balances the competing interests of a regulated utility and its customers.
Contacts
Jeffrey L. Small, 614.466.8574, for the Office of Consumers’ Counsel.
Colleen L. Mooney, 614.488.5379, for Ohio Partners for Affordable Energy.
Stephen A. Reilly, 614.644.8588, for the Public Utilities Commission of Ohio.
Paul A. Colbert, 614.466.7502, for Duke Energy Ohio Inc.
Attorney Discipline
Disciplinary Counsel v. John Robert Lentes, Case no. 2008-1709
Meigs County
The Board of Commissioners on Grievances & Discipline has recommended that Meigs County attorney John R. Lentes be permanently disbarred for neglecting the cases of three different clients and subsequently engaging in repeated acts of deceit and misrepresentation, including forgery of a court document, to prevent the clients from discovering his neglect.
The disciplinary board, which was forced to adjudicate the complaint against Lentes by means of default proceedings because he failed to respond to numerous letters and notices or to appear for a scheduled hearing, also found that Lentes violated the state bar governance rule that requires attorneys to cooperate with disciplinary proceedings.
Lentes has filed objections to the board’s recommended sanction. He urges the Court to consider the mitigating factors that he has no prior disciplinary violations in 23 years of practice, has provided free legal services to numerous victims of domestic abuse and has participated extensively in civic leadership and public service activities, including two terms as Meigs County prosecutor and service on the boards of many charitable and civic organizations.
The Office of Disciplinary Counsel, which prosecuted the charges against Lentes, has filed a response to his objections noting that Lentes was given opportunities to present mitigating evidence on his own behalf at every stage of the disciplinary process but chose not to do so. They urge the Court to follow its holdings in prior cases that an attorney who fails to cooperate with or provide requested information to disciplinary authorities throughout a proceeding may not introduce evidence of mitigation for the first time after the board has issued its findings and submitted the case to the Supreme Court for final disposition.
Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
John R. Lentes, pro se: 740.446.1356.
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.