Oral Argument Previews

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Wednesday, Jan. 19, 2011

Westfield Insurance Company v. Michael Hunter et al., Case nos. 2009-2214 and 2010-0024
12th District Court of Appeals (Butler County)

State of Ohio v. Ronald Gingell, Case no. 2010-0047
1st District Court of Appeals (Hamilton County)

State of Ohio v. Jeffrey L. Lynn, Case no. 2010-0251
2nd District Court of Appeals (Montgomery County)

City of Elyria, City of Avon Lake, City of North Ridgeville, and Amherst Township v. Lorain County Budget Commission et al., Case no. 2010-0564
State Board of Tax Appeals (Lorain County)

Disciplinary Counsel v. Dea Lynn Character, Case no. 2010-1693
Cuyahoga County

Disciplinary Counsel v. Bruce A. Brown (AKA B. Andrew Brown, AKA Amir Jamal Tauwab), Case nos. 2002-1380 and 2008-1573
Cuyahoga County


Does Injury 'Arise Out of' Noninsured Property Owned by Policyholder Because Injury Occurred There?

Court Asked to Interpret Policy Exclusion for ‘Other Owned Property’

Westfield Insurance Company v. Michael Hunter et al., Case nos. 2009-2214 and 2010-0024
12th District Court of Appeals (Butler County)

ISSUE:  When a homeowner’s insurance policy excludes coverage for bodily injury “arising out of” a separate premises that is owned by the policyholder but is not included in the policy as a covered location, does injury “arise out of” the separate property only if a dangerous condition on that premises contributed to a plaintiff’s injury, or does injury “arise out of” the separate premises if a plaintiff’s injury merely occurred on that property?

BACKGROUND:  Michael and Marilyn Hunter owned and resided in a home in Hamilton, Ohio and also owned a farm in Indiana. In July 2001, they allowed two of their grandchildren, Terrell Whicker and Ashley Arvin, to operate all-terrain vehicles (ATVs) on the Indiana property. The vehicle operated by Terrell was owned by the Hunters and was housed in a shed on the farm property. The vehicle operated by Ashley was owned by her parents, who transported it to the farm for her use there.

While Terrell and Ashley, who were both minors at the time, were riding the ATVs on the Hunters’ farm property, the vehicles collided. Terrell was injured as a result of the accident. Terrell and his parents filed suit against Ashley’s parents and the Hunters seeking damages for his injuries. The complaint against the Hunters alleged that they were aware Ashley had a history of negligent and reckless conduct, and that the Hunters had been negligent in allowing her to ride an ATV on their property on the day of the accident without close adult supervision. The Hunters filed claims under two different insurance policies seeking legal defense and indemnification for damages that might be awarded against them in the lawsuit. One was a homeowner’s policy issued by Westfield Insurance Co. on their home in Hamilton. The second was a farm insurance policy issued by Grinnell Mutual Reinsurance Co. covering the Indiana property.

Westfield sought a declaratory judgment that it owed no defense or coverage for Terrell’s injuries to the Hunters under the homeowner’s policy issued on their home in Hamilton. The trial  court entered summary judgment dismissing Westfield as a defendant in the case, finding that the farm property was not an “insured location” under the Westfield policy, and that because Terrell’s injuries were incurred on the Hunter’s farm property, those damages were excluded from coverage under the policy exclusion for “other owned property.” Grinnell, which had opposed Westfield’s declaratory judgment action and sought to compel Westfield to help cover defense costs and damages in the case, appealed the trial court’s summary judgment order.

On review, the 12th District Court of Appeals affirmed that the Hunters were not entitled to defense or indemnification under their  Westfield policy based on its exclusion of damages arising from “other owned property.” Grinnell sought and was granted Supreme Court review of the 12th District’s ruling.

Attorneys for Grinnell and for the Whickers point out that while the 12th District based its decision on a broad reading of the “other owned property” exclusion in the Westfield policy, other appellate courts, including the 2nd District in American States Insurance Co. v. Guillermin (1996), have construed the same “arising out of” policy language at issue in this case to exclude coverage only for injuries caused by a dangerous condition or hazard on a policyholder’s other property. In this case, they argue, the Whickers’ lawsuit against the Hunters does not “arise out of” their Indiana farm property because the complaint has nothing to do with a condition or hazard on that property, but rather asserts that the Hunters acted negligently in allowing Ashley to operate an ATV without adult oversight when they had prior knowledge that she was prone to act recklessly. They contend that the physical location of the accident that caused Terrell’s injuries is irrelevant to the merits of their negligence claim. Therefore, they say, applying the “other property” exclusion in the Hunters’ policy to bar coverage for an otherwise insurable event just because it took place on a piece of property that was also owned by the Hunters is an improper application of the policy language, which must be construed most favorably to the policyholder.

Attorneys for Westfield respond that because the Hunters are not Ashley’s parents and were not acting in place of her parents at the time of the accident, and also were not the owners of the ATV she was riding, the only legal basis on which the Whickers can assert a negligence claim against them is as the owners of the property on which Terrell’s  injuries occurred. Accordingly, they argue, the Whickers’ claims clearly “arise out of” the Hunters’ ownership of the Indiana farm, and because the farm is not identified as an insured location in their Westfield homeowner’s policy, coverage under that policy is precluded by the exclusion for claims arising from “other owned property.”

Contacts
James J. Englert, 513.381.9200, for Grinnell Mutual Reinsurance Co.

James H. Ledman, 614.221.2121, for Westfield Insurance Co.

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Is Imposing 'Adam Walsh Act' Penalty on Sex Offender Classified Under Prior Law Unconstitutional?

For Failure to Report Change of Address After 2008 Legislation Took Effect

State of Ohio v. Ronald Gingell, Case no. 2010-0047
1st District Court of Appeals (Hamilton County)

ISSUE:  Pursuant to the Supreme Court of Ohio’s recent decision in State v. Bodyke, if failure of a sex offender to register his current address was punishable as a fifth-degree felony at the time a court imposed the duty to register, and the offender subsequently failed to report an address change after the Jan. 1, 2008 effective date of the Ohio Adam Walsh Act (AWA), is it a violation of the Ohio Constitution’s prohibition against retroactive laws for a court to punish that registration violation as a first-degree felony based on the increased penalty schedule established by the AWA?

BACKGROUND:  Ronald Gingell was convicted of rape in 1981 and served 25 years in prison for that offense. In 2003, following enactment of Megan’s Law requiring the classification and post-release registration of sex offenders, a court hearing was conducted at which Gingell was classified as a “sexually-oriented offender” and ordered to register and maintain a current record of his residence with the local sheriff for 10 years after his release from prison. At that hearing, Gingell was advised that a violation of his post-release registration requirements would be punishable as a fifth-degree felony, which would expose him to a prison term of up to one year.

Gingell was released from prison in 2006, and registered with the Hamilton County sheriff’s office as required in 2006 and 2007. In 2007 the General Assembly enacted the AWA, which took effect Jan. 1, 2008. The act made significant changes in the Meagan’s Law sex offender classification and registration scheme under which Gingell was classified. Among those changes, the Act increased a violation of post-release registration requirements based on a rape conviction from a fifth-degree to a first-degree felony, an offense punishable by a prison term of up to 10 years.

In May 2008, Gingell moved and failed to notify the sheriff of his new address within the mandatory time period for doing so. In July 2008 he was charged and found guilty under the AWA version of the sex offender statute on a first-degree felony count of failure to comply with a registration requirement based on a rape conviction. Following the sentencing guidelines for first degree felonies, the trial court sentenced Gingell to an additional eight years in prison and five years of post-release control.

Despite the fact that he had entered a guilty plea to the registration violation charge, Gingell subsequently appealed his sentence. He argued that by sentencing him under the enhanced penalty provisions of the AWA that took effect in 2008, rather than the penalty provisions that were in place at the time of his 2003 classification hearing, the trial court had violated the prohibition in the Ohio Constitution against retroactive laws. The 1st District Court of Appeals affirmed the sentence imposed by the trial court.  Gingell sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for Gingell point to the Supreme Court of Ohio’s June 2010 decision in State v. Bodyke, in which the Court held unconstitutional provisions of the Adam Walsh Act that authorized the attorney general to reclassify and impose more restrictive registration requirements against sex offenders who had been classified by court order under Ohio’s pre-2008 Meagan’s Law classification scheme. In this case, just as in Bodyke, they argue, the AWA was applied retroactively to impose a more severe penalty against Gingell despite the fact that a trial court had entered a final order under the pre-AWA sex offender statute placing him in a classification, imposing specific registration requirements, and stating that any future violation of  those requirements would be punishable as a fifth-degree felony.

Gingell also argues that the provisions of the AWA increasing penalties for registration violations do not include language clearly indicating legislative intent that the enhanced penalties be applied retroactively to offenders whose registration requirements were imposed prior to Jan. 1, 2008, and cites prior Supreme Court decisions holding that legislative enactments not containing such language may be applied only prospectively.

Attorneys for the Hamilton County prosecutor’s office, representing the state, urge the Court to affirm the 1st District’s holding that the sentence imposed on Gingell did not apply the AWA retroactively, because Gingell’s registration violation took place in May 2008, several months after the effective date of the AWA and its increased penalty provisions, and therefore his sentence for a first degree felony was consistent with the law that was in effect on the date his registration offense was committed. They cite decisions in similar cases in which the 3rd, 5th, and 10th District courts of appeals have held that a sex offender who violates his duty to maintain current registration is subject to sentencing based not on the penalty provisions in effect at the time of his classification hearing, but rather on the penalty provisions that were in effect at the time the registration offense was committed.

Contacts
Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.

Marguerite Slagle, 513.421.1108, for Ronald Gingell.

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Is Aggravated Burglary Conviction Void if Jury Was Instructed on Underlying Offense Not in Indictment?

State of Ohio v. Jeffrey L. Lynn, Case no. 2010-0251
2nd District Court of Appeals (Montgomery County)

ISSUE: If an indictment for aggravated burglary returned against a defendant indicates that he unlawfully entered  an occupied residence in order to commit the underlying offense of theft, and the trial  judge later instructs jurors that they may find the defendant guilty if they find that he intended to commit either theft or assault, is the defendant’s subsequent conviction for aggravated burglary invalid because jurors may have based their guilty verdict on an underlying offense (assault) that was not reviewed by the grand jury or included in its indictment?

BACKGROUND: R.C. 2911.11(A)(1), the state law that defines the crime of aggravated burglary, prohibits any person from trespassing in an occupied structure with the purpose to commit “any criminal offense,” and while present in that structure causing or attempting to cause physical harm to another.

In this case, Jeffrey Lynn of Dayton was arrested after kicking in the apartment door of his estranged girlfriend, Juanita Turnage.  Once inside the apartment, Lynn threatened to injure Turnage, pushed her against a wall and slammed a door on her foot, causing injury. A Montgomery County grand jury returned an indictment against Lynn for aggravated burglary.  Although it was not necessary for the grand jury to specify what underlying crime Lynn intended to commit after entering the apartment, the document recording the indictment indicated that Lynn  intended to commit the offense of theft.

Prior to trial, the state filed a motion to amend the indictment to remove the reference to theft. Lynn objected to the proposed amendment, and the trial judge denied the state’s motion on the basis that amending the indictment  would impermissibly change the identity of the charged offense. The judge indicated, however, that at the end of the presentation of evidence, he would instruct the jury on the elements of both the offense of theft and assault, and would require the jury to complete separate written interrogatories indicating whether they unanimously found that Lynn’s purpose for entering the apartment was to commit theft, to commit assault, or to commit both offenses. At the close of evidence, the judge instructed the jury as he had indicated. The jury returned a guilty verdict on the charged offense of aggravated burglary. In response to the interrogatories, the jurors indicated that they unanimously agreed Lynn’s purpose was to commit assault. Lynn was convicted of aggravated burglary and sentenced to three years in prison.

Lynn appealed, arguing that his right to due process had been violated because the trial judge did not restrict the jury to considering whether he entered the apartment with the purpose of committing the only predicate offense listed in his indictment, theft, but allowed jurors to find him guilty based on a predicate offense (assault) that was not considered by the grand jury. In a 2-1 decision, the 2nd District Court of Appeals vacated Lynn’s conviction and remanded the case for a new trial. The state sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for the state argue that, in order to be valid, an indictment must merely set forth the elements of the crime with which a defendant is charged.  In this case, they say, Lynn’s indictment properly set forth the accusation that he trespassed in Turnage’s apartment with the purpose to commit “any criminal offense,” and that he threatened and actually caused physical harm to Turnage while in the apartment.  They point out that Lynn’s attorney was fully aware before the trial began that the state had attempted to remove the predicate offense of theft from the indictment by way of amendment, and knew through open pretrial discovery of the state’s evidence that prosecutors would allege that his criminal intent was to assault Turnage, not to steal from her.  Because defense counsel made no request for a continuance after the judge announced that he would instruct jurors on both theft and assault, and made no objection to those jury instructions at the time they were given, they assert, Lynn waived his right to appeal the inclusion of assault as a predicate offense and has no valid claim that he was not made aware of the basis on which the state would seek to convict him of aggravated burglary.

Attorneys for Lynn urge the Court to affirm the 2nd District’s holding that, under Rule 7 of the state’s Rules of Criminal Procedure, the indictment returned against a defendant must enable him to prepare a defense against the criminal conduct of which he is accused, and that requirement includes the element of  intent.  They argue that the court of appeals properly found that in this case the trial court’s instruction to the jury on a predicate offense of assault was improper, because it allowed Lynn to be convicted of aggravated burglary based on a theory of criminal intent that was neither considered nor found by a grand jury.

Contacts
R. Lynn Nothstine, 937.225.5757, for the state and Montgomery County prosecutor's office.

Melissa M. Prendergast, 614.466.5394, for Jeffrey Lynn.

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Suit Challenges County's Formula for Allocating State Tax Revenues Among Local Political Subdivisions

City of Elyria, City of Avon Lake, City of North Ridgeville, and Amherst Township v. Lorain County Budget Commission et al., Case no. 2010-0564
State Board of Tax Appeals (Lorain County)

ISSUE: Did the Board of Tax Appeals (BTA) err in approving the Lorain County Budget Commission’s use of a “new alternative formula” adopted in 2003 to allocate state tax revenues received by the county among local political subdivisions for the 2004, 2005 and 2006 tax years?

BACKGROUND: Four political subdivisions in Lorain County, Amherst Township and the cities of Elyria, North Ridgeville and Avon Lake, are appealing a ruling by the BTA that the Lorain County Budget Commission acted within the law when it allocated the county’s share of state tax revenues for 2004, 2005 and 2006 among political subdivisions within the county according to a new alternative (non-statutory) allocation formula adopted by the county in 2003. 

Attorneys for Elyria and the other appellant subdivisions argue that the BTA correctly held that Lorain County was barred by law from applying the alternative formula it adopted in 2003 to reduce the shares of state revenue allocated to Elyria and the other appellant subdivisions for that tax year because that formula was based on the settlement of a lawsuit between the county and the City of Lorain, and R.C. 5747.55(D) specifically prohibits any reduction in the allocation of revenues to a political subdivision arising from a judgment or settlement to which that subdivision was not a party.

While the BTA correctly required Lorain County to “pay for” a $500,000 increase in the city of Lorain’s allocation for 2003 included in its settlement by subtracting that full amount from the county’s own share of 2003 state revenues, they say, the tax board erred by failing to apply that same  legal reasoning for future tax years and instead allowing the county to “pay for” the remainder of its settlement agreement with Lorain in 2004, 2005 and 2006 by subtracting a cumulative $320,000 from the annual allocations payable to the other subdivisions within the county for each of those future years. They urge the Court to reverse the BTA ruling with regard to the 2004, 2005 and 2006 tax years and instead require the county to pay the appellants the unreduced amounts of their pre-2003 allocations and to cover the full amounts of increased disbursements to the city of Lorain for those years from the county’s own share of state tax money.

Attorneys for the Lorain County Budget Commission respond that under the applicable state tax laws it must distribute the county’s share of state tax revenues among local political subdivisions either according to the statutory formula or according to an alternative formula properly approved by a majority of local government units. They urge the Court to affirm the BTA’s ruling that the alternative formula adopted in 2003 meets those requirements, and say the allocation formula Elyria and the other appellants seek to impose cannot be upheld because it would preserve those entities’ shares under the pre-2003 alternative formula, award the city of Lorain its new, larger allocation under the new alternative formula, and require the county to absorb the difference rather than receiving its designated allocation under either the old or new alternative formulae.

Contacts
Terry S. Shilling, 440.326.1464, for the city of Elyria.

Dennis P. Will, 440.329.5631, for the Lorain County Budget Commission.

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Attorney Discipline

Disciplinary Counsel v. Dea Lynn Character, Case no. 2010-1693
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Dea Lynn Character be permanently revoked based on findings that she engaged in a pattern of misconduct involving more than 50 violations of state attorney discipline rules in her dealings with 7 different clients.

Character’s license has been under an interim suspension since October 2009 based on her guilty pleas to 10 felony counts. Those charges were based on her involvement in a mortgage fraud scheme
for which she is currently serving a four-year prison term. Although the current disciplinary complaint against her included alleged rule violations arising from the fraud scheme, the board stayed consideration of ethics charges based on Character’s criminal convictions because an appeal of those convictions remains pending.

The board found that in her dealings with various clients over a four-year period, Character committed multiple violations of, among others, the state disciplinary rules that prohibit an attorney from charging excessive fees, neglecting entrusted client matters, failing to place client funds in her possession in a separate trust account, commingling client funds with her own, intentionally causing harm to clients, and engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, conduct prejudicial to the administration of justice, and conduct that reflects adversely on an attorney’s fitness to practice.

Character has filed objections to the board’s findings and recommended sanction of disbarment.  She denies that her conduct with regard to each of the complaining clients violated disciplinary rules.  She also asserts that the board’s procedures in adjudicating the charges against her violated her right to due process of law because, among other factors, she was required to give videotaped testimony that was viewed by the board while she was in a prison environment and was wearing a prison uniform. Character also alleges that she was denied due process because she was unable to access files and records from her law practice that could have assisted in her defense, many of the charged acts of misconduct in the complaint against her should have been barred as unreasonably delayed, and only two members of the three-member panel that conducted her hearing were physically present for parts of the proceedings. 

The Office of Disciplinary Counsel, which prosecuted the complaint against Character before the board, responds that the circumstances under which her video depositions were conducted were dictated by her status as a prison inmate. Disciplinary Counsel also points to a number of instances in the board’s report in which additional ethics charges included in the complaint were scrupulously dismissed whenever the absence of documentary evidence or direct witness testimony prevented proof of those violations by “clear and convincing” evidence. Counsel also argues that, having failed to raise her procedural objections at the time of her hearing, Character has waived consideration of those objections by the Court in reviewing the board’s findings and recommended sanction.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Gerald R. Walton, 216.621.1230, for Dea Lynn Character.

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Attorney Discipline

Disciplinary Counsel v. Bruce A. Brown (AKA B. Andrew Brown, AKA Amir Jamal Tauwab), Case nos. 2002-1380 and 2008-1573
Cuyahoga County

Bruce Andrew Brown, aka Amir Jamal Tauwab, aka B. Andrew Brown, has been ordered to appear before the Court to show cause why he should not be held in contempt for failure to comply with a March 2009 order in which the Court enjoined him from any future conduct constituting the unauthorized practice of law in Ohio, imposed a $50,000 civil penalty for prior acts of unauthorized law practice, and prohibited him from any future use of the terms Esquire, Esq., J.D. or Juris Doctor in connection with his name or business name.

Brown/Tauwab, who resides in Cleveland, was admitted to law practice in New York in 1985 but disbarred in 1992. He has never been admitted to the practice of law in Ohio. Since 1992, he has been convicted and served prison sentences for more than 50 felony offenses including grand theft, forgery, and tampering with documents based on conduct related to his unauthorized practice of law. 

The current show cause order arises from a complaint filed by the Office of Disciplinary Counsel citing instances since the Court’s 2009 decision in which Brown has used the term J.D. in connection with his name and business.  The complaint also notes that neither the $50,000 civil penalty nor the assessment of costs included in the Court’s 2009 order have been paid.

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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.