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Tuesday, May 11, 2010

State of Ohio v. Fred Johnson, Case no. 2009-1481
1st District Court of Appeals (Hamilton County)

Global Knowledge Training, LLC v. Richard A. Levin, Tax Commissioner of Ohio, Case no. 2009-1543
State Board of Tax Appeals

Barbara Pettiford v. Rajendra K. Aggarwal, Case no. 2009-1602
2nd District Court of Appeals (Montgomery County)

Robert Berry et al. v. Javitch, Block & Rathbone, L.L.P., Case no. 2009-1507
8th District Court of Appeals (Cuyahoga County)


Are Child Endangering and Felony Murder Predicated on Child Endangering ‘Allied Offenses’ Subject to Merger?

Or May Defendant Be Convicted, Sentenced Separately on Both Charges

State of Ohio v. Fred Johnson, Case no. 2009-1481
1st District Court of Appeals (Hamilton County)

ISSUE: Are the elements of the crime of child endangering set forth in R.C. 2929.22(B)(1) sufficiently similar to the elements of felony murder predicated on child endangering that the murder offense cannot be committed without also committing child endangering, thereby making the two crimes “allied offenses of similar import” subject to a single sentence?

BACKGROUND: 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 elements of those two crimes are  so similar that the greater offense cannot be committed without also committing the lesser, in which case the court must merge the two convictions and impose a single sentence.

In this case, Fred Johnson of Cincinnati was arrested in connection with the death of his girlfriend’s 7-year-old son.  He was charged with aggravated murder with death penalty specifications, one count of felonious assault, separate counts of murder during the commission of felonious assault and murder during the commission of child endangering, and three counts of child endangering. At trial, Johnson was acquitted of the capital murder charge but convicted on the six remaining counts.

At sentencing, the trial court found that Johnson’s conviction for felonious assault was an allied offense that must be merged with his conviction for murder during the commission of felonious assault, and imposed a single sentence for those convictions.  The judge declined, however to merge the three child endangering counts with the murder count predicated on child endangering, and sentenced Johnson separately on all four counts.

Johnson appealed. The 1st District Court of Appeals affirmed the judgment of the trial court that the three child endangering counts in Johnson’s indictment were not allied offenses subject to merger with the murder count.  The 1st District subsequently certified that its ruling in this case was in conflict with a ruling on the same legal issue by the 5th District Court of Appeals in State v. Mills (2009).  The Supreme Court has agreed to review the case in order to resolve the conflict between appellate districts.

Attorneys for Johnson cite a line of recent Supreme Court decisions, including State v. Cabrales (2008) and State v. Winn (2009), in which the Court has held that a defendant’s convictions for two different crimes based on the same conduct must be merged into a single conviction subject to a single sentence when it is not reasonably possible for the defendant to have committed the more serious offense without also committing the statutory elements of the lesser offense.  They urge the Court to follow the reasoning in State v. Mills, in which the 5th District wrote: “We fail to see how a person could cause the death of a child (i.e. commit murder) without at the same time abusing the child in such a manner that the abuse resulted in serious physical harm,” (i.e. commit child endangering).

Attorneys for the state urge the Court to affirm the decision of the 1st District.  They argue that under  a different Supreme Court decision, State v. Brown (2008), trial courts are not required to conduct the comparison of statutory elements described in Cabrales and Winn if an examination of the statutes defining two different crimes shows that the societal interests protected by those statutes were not the same.  They contend that the trial court in this case correctly determined that the societal interest protected by Ohio’s murder statute is not the same as the societal interest protected by the child endangering statute, and therefore those two offenses are not allied offenses of similar import that must be merged for sentencing.

Contacts
Philip R. Cummings, 513.946.3012, for the state and Hamilton County Prosecutor’s Office.

Lindsey R. Gutierrez, 513.587.2887, for Fred Johnson.

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Did Commissioner Err in Assessing Use Tax on Training Courses as ‘Computer Services?’

Provider Also Claims Tax Statute is Unconstitutional

Global Knowledge Training, LLC v. Richard A. Levin, Tax Commissioner of Ohio, Case no. 2009-1543
State Board of Tax Appeals

ISSUES: 

BACKGROUND:  R.C. 5739.01(B)(3)(e) includes “computer services” among the types of business activities subject to Ohio’s use tax.  R.C. 5739.01(Y)(1)(b) defines “computer services” to include “training of computer programmers and operators” that is “provided in conjunction with and to support the sale, lease or operation of taxable computer equipment or systems.” Regulations adopted by the Ohio Department of Taxation to implement these code sections specify that training programs are taxable when they involve “instruction of computer programmers and operators in use of computer equipment and its system software,” but are not taxable when they involve “instruction in the use of application software or other result-oriented procedures.”

Global Knowledge Training (GKT) provides information technology training services to individuals and corporate clients at its own training centers and at customers’ business locations in Ohio and other U.S. states and in several foreign countries. After an audit of GKT’s Ohio operations between July 1997 and June 2000,  the state tax commissioner ruled that 36 training programs the company had conducted in Ohio during the audit period were subject to state use tax because they constituted “computer services” as defined by R.C. 5739.01(Y)(1)(b).  Based on that finding, the commissioner issued a final determination that GKT owed a total of $91,872 in  delinquent taxes and interest.

GKT appealed the commissioner’s ruling to the State Board of Tax Appeals (BTA), which affirmed the commissioner’s determination and assessment of tax liability for all but  two of the 36 training programs conducted in Ohio during the audit period. GKT has exercised its right to seek Supreme Court review of the BTA’s decision.

Attorneys for GKT assert both statutory and constitutional grounds on which they say the Court should overrule the BTA and vacate the tax assessments against them.  They argue that many of the training programs in question dealt with the operation of routers and switches, which they say are not “computer equipment” but rather communication devices that merely connect one computer or group of computers to others in a network. They also contend that most of the employees who attended those programs were not classified by their employers as “computer programmers or operators,”  and that the subject matter covered in those classes did not fall within the definition of “system software,” and therefore those programs were not taxable “computer training” under the applicable statutes.

They also assert that R.C. 5739.01(B)(3)(e) and R.C. 5739.01(Y)(1)(b)  are unconstitutional and therefore unenforceable  on the bases that: 1) they violate free speech rights by taxing speech based on its content; 2) they violate equal protection rights by taxing some types of training programs and not others without any rational basis for that distinction; and 3) the language of the challenged provisions is unconstitutionally vague because it fails to clearly define terms crucial to enforcement of the statute such as “computer operator” and “computer equipment” in such a way that an ordinary person can understand whether a given business activity is or is not subject to the use  tax.

Attorneys for the tax commissioner argue that the BTA’s decision  made clear and detailed findings of fact to support its conclusion that the GKT training programs in question, including those covering the use of switches and network routers, were taxable “computer training” as that term is defined in the applicable statutes and regulations. They note that a ruling of the BTA may be overturned only upon a showing by the appellant that the board’s decision was unreasonable or unlawful, and argue that  GKT has not met that burden of proof.

With regard to GKT’s constitutional claims, the commissioner urges the Court to dismiss all three on the basis that none was raised in the earlier proceedings before the BTA, and therefore are not appropriately before the Supreme Court in an appeal of the BTA’s ruling.  If the Court does consider GKT’s free speech claim, they argue that the spoken content of computer training seminars is not “protected speech” that may not be taxed based on its content under the First Amendment, but is rather one part of a commercial product that included use of computer equipment and voluminous written course materials that are tangible property and therefore subject to taxation by the state without regard to the subject matter or spoken content of the course.

Contacts
Nicholas M. J. Ray, 614.442.8885, for Global Knowledge Training LLC.

Damion F. Clifford, 614.466.5967, for State Tax Commissioner Richard A. Levin.

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Should Court Consider Expert’s Follow-Up Affidavit Despite Conflict With Earlier Deposition Testimony?

When Deciding Summary Judgment Motion in Medical Malpractice Case

Barbara Pettiford v. Rajendra K. Aggarwal, Case no. 2009-1602
2nd District Court of Appeals (Montgomery County)

ISSUE:  In determining whether to grant a motion for summary judgment dismissing a plaintiff’s medical malpractice claim for lack of required expert medical evidence, should a trial court disregard an affidavit submitted by the plaintiff’s expert witness if substantive statements in the affidavit conflict with the same expert’s statements during an earlier deposition, and no explanation for the conflict is provided?

BACKGROUND: Under statutory guidelines that govern medical malpractice litigation in Ohio, in order for a plaintiff’s claim against a physician or other medical service provider to proceed to trial, the plaintiff must first file with the court a sworn statement  in which a qualified medical expert attests that he or she has reviewed the facts of the case  and believes that 1) the defendant’s treatment of the plaintiff failed to meet the normal standard of professional care for the services that were provided, and 2) the substandard care provided by the defendant was a proximate cause of the plaintiff’s injuries.

This case involves a medical malpractice lawsuit filed by Barbara Pettiford of Dayton against  her physician, Dr. Rajendra Aggarwal.  Pettiford alleged that in analyzing a chest  x-ray taken in 1999 Dr. Aggarwal negligently failed to detect a non-cancerous tumor in her lung that subsequently grew and involved surrounding tissue to the point that the lung collapsed and had to be removed three years later.

Pettiford identified Dr. Trent Sickles as an expert witness who would provide evidence in support of her claim. In responding to questions posed by Dr.  Aggarwal’s attorneys during  a pretrial deposition, Dr. Sickles indicated that he had not formed an opinion regarding whether Dr. Aggarwal’s acts or omissions had resulted in Pettiford’s injuries, and did not plan to testify with regard to the issue of causation. Dr. Aggarwal subsequently entered a motion for summary judgment dismissing Pettiford’s complaint, arguing that because her expert had not attested that her injuries were the result of his actions, Pettiford had not met the statutory requirements for her claims to proceed to trial. On the day before the court was to rule on the summary judgment motion, Pettiford submitted an affidavit signed by Dr. Sickles stating that in his opinion Dr. Aggarwal’s negligent actions in 1999 were responsible for the subsequentr collapse of Pettiford’s lung and extended hospital stay as a result of that crisis.

The trial court granted summary judgment in favor of Dr. Aggarwal, finding that Pettiford had not established a material question of fact that would entitle her to a trial on her malpractice claim.  The decision did not state a basis on which the court had rejected the content of Dr. Sickle’s affidavit.  Pettiford appealed.  On review, the 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings on Pettiford’s malpractice complaint.  In its opinion, the court of appeals held that the apparent conflict between Dr. Sickles’ deposition testimony and his later affidavit was not a sufficient basis for the trial court to ignore the content of the affidavit, and that the affidavit had established a sufficient evidentiary basis for Pettiford’s claim to survive a summary judgment motion. Dr. Aggarwal sought and was granted Supreme Court review of the 2nd District’s ruling.

Attorneys for Dr. Aggarwal argue that the 2nd District should have followed the Supreme Court of Ohio’s 2006 decision in Byrd v. Smith, in which this Court held that when a party makes statements in a pretrial deposition that would entitle the opposing party to summary judgment, but then recants or attempts to modify those statements in a later affidavit opposing summary judgment, the court should disregard the affidavit as self-serving and rule on the summary judgment motion based on the rest of the record. In this case, they assert, Dr. Sickles clearly and unambiguously stated in his deposition that the evidence he had examined did not support a conclusion that Pettiford’s injuries were the result of negligence by Dr. Aggarwal, and the trial court’s refusal to consider a last-minute affidavit in which he attested to an opposite opinion should be upheld under the rationale of Byrd.

Attorneys for Pettiford argue that this Court’s opinion in Byrd focused exclusively on conflicting statements made by a party in a lawsuit, and made no reference to changes in the opinion of a third-party expert witness. They point out that the 2nd District’s opinion in this case noted important distinctions between the roles of a party with a strong presumptive interest in the outcome of a case and a third-party expert, whose only function is to review facts and express an objective opinion. In this case, they contend, Dr. Sickles declined during his deposition to express an opinion about whether the loss of Pettiford’s lung could have been avoided if Dr. Aggarwal had detected the tumor three years earlier, whereas his later affidavit narrowly stated the opinion that Pettiford’s pain and physical and emotional trauma resulting from the subsequent collapse of her lung and emergency hospitalization would not have occurred if Dr. Aggarwal had properly interpreted her 1999 chest x-ray. Because a trial court considering a summary judgment motion is required to construe all evidence most favorably to the  party opposing that motion, they argue, the trial court in this case should have  given weight to Dr. Sickles’ affidavit and allowed the case to proceed to trial, where  a judge or jury could evaluate the credibility of his testimony.

Contacts
Lawrence J. White, 937.294.5800, for Barbara Pettiford.

Kevin W. Popham, 614.485.1800, for Dr. Rajendra K. Aggarwal.

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After Settling Civil Suit, May Plaintiff Seek Damages For Fraud Without First Rescinding Settlement?

When Defendant Did Not Disclose Possible Insurance Coverage

Robert Berry et al. v. Javitch, Block & Rathbone, L.L.P., Case no. 2009-1507
8th District Court of Appeals (Cuyahoga County)

ISSUE: When the plaintiff in a civil lawsuit has entered into a settlement agreement with the defendant, but later claims that it was fraudulently induced to accept the settlement, is the plaintiff required by Civil Rule 60(B)(3) to rescind the settlement agreement and return the compensation it received from the defendant before it may seek additional damages based on fraud?

BACKGROUND:  In this case, Robert and Diane Berry sued the Cleveland law firm of Javitch, Block and Rathbone for malpractice that allegedly occurred between October 1998 and October 1999. During discovery in that case, the Berrys submitted an  interrogatory demanding that  Javitch disclose to them the company name and policy number of  “each and every insurance policy that may cover your alleged liability in this action.”  In his response, Javitch indicated that the only insurance policy that may provide coverage for the Berrys’ claim was one issued by the Legion Insurance Company. Legion subsequently denied that the policy it had issued to Javitch provided any coverage for the Berrys’ damages.

The Berrys and Javitch both pursued suits against Legion alleging that its policy did provide coverage for the Berrys’ damages. In April 2002, while that litigation was still pending, the Berrys and the law firm entered into a consent judgment that the Berrys were entitled to damages totaling $195,000, but that they would accept $65,000 as full payment of Javitch’s share of liability, and would pursue recovery of any or all of the remaining $130,000 from Legion. A trial court subsequently ruled that the Legion policy identified by Javitch did not cover the time period during which the Berrys’ malpractice damages were incurred, and therefore the policy provided no coverage for those damages.

Four years after the consent judgment was entered, the Berrys discovered that in responding to their interrogatories Javitch had failed to disclose that it was covered by a malpractice insurance policy issued by the Clarendon National Insurance Company that provided coverage for “claims made” between October 1998 and October 1999.  They filed a new lawsuit seeking recovery from Javitch of the remaining $130,000 of the consent judgment based on claims that Javitch had fraudulently concealed its policy with Clarendon and that the Berrys had only accepted the terms of the settlement agreement because they believed Javitch had no insurance coverage other than the Legion policy. 

Javitch filed a motion for summary judgment dismissing the Berrys’ fraud claims, arguing that under Civil Rule 60(B)(3), a plaintiff that has settled a claim and released the defendant from further liability has one year from the date of settlement in which to rescind the prior judgment or settlement, return any consideration it accepted as part of the settlement agreement and reactivate its original claims against the defendant. Because the Berrys had not filed their fraud action within 12 months after the 2002 settlement agreement, and had not returned the $65,000 they accepted from the law firm, Javitch argued that they were time-barred from asserting any further claims against Javitch. The trial court granted summary judgment in favor of Javitch without issuing an opinion. The Berrys appealed.  On review, the 8th District court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings on the Berrys’ fraud claims.

Javitch sought and was granted Supreme Court review of the 8th District’s decision. Their attorneys argue that the court of appeals erred in finding that the Berrys’ fraud claim was not subject to the one-year time limit for revoking a settlement set forth in Civ.R. 60(B)(3).  They assert that in signing the settlement agreement the Berry’s had agreed that the maximum amount they could recover from Javitch on their malpractice claim was the $65,000 they had already received.  Having failed to rescind that agreement and return the $65,000 within one year, they argue, the Berrys had forfeited their right to seek additional recovery based on the alleged malpractice underlying their original suit.

Attorneys for the Berrys contend that their current fraudulent concealment complaint against Javitch is not a continuation of the malpractice action that resulted in the 2002 settlement agreement, but is rather a new claim based on the law firm’s concealment of its insurance policy with Clarendon during the negotiation of the settlement. They assert that under long-established Ohio case law, including this Court’s 1924 decision in Frederickson v. Nye, a plaintiff who suspects fraud in the resolution of a prior civil matter may elect either to rescind the earlier agreement, return any consideration and reinstate their original complaint under the one-year time limit in Civ.R.60(B)(3) or allow the earlier settlement of their original complaint to stand as final, and pursue a new claim against the defendant based exclusively on the other party’s fraudulent conduct. They urge the Court to affirm the 8th District’s ruling that, under Frederickson, their current suit against Javitch was timely filed under the statute of limitations applicable to claims of civil fraud.

Contacts
Christopher M. DeVito, 216.687.1212, for Robert and Diane Berry.

Roger M. Synenberg, 216.622.2727, for Javitch, Block and Rathbone, LLP.

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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.