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Wednesday, April 6, 2011

Ruby K. Pula et al. v. Adrienne Haunani Pula-Branch, Case no. 2010-0985
8th District Court of Appeals (Cuyahoga County)

Robert N. White et al. v. Warren H. Leimbach, II, M.D., Case no. 2010-0988
10th District Court of Appeals (Franklin County)

State of Ohio v. Stephen M. Lester, Case nos. 2010-1007 and 2010-1372
3rd District Court of Appeals (Auglaize County)

In the Matter of the Application of Columbus Southern Power Company for Approval of its Program Portfolio Plan and Request for Expedited Consideration, Case no. 2010-1533
Appeal from Order of the Public Utilities Commission of Ohio

Disciplinary Counsel v. David Nittskoff, Case no. 2010-2245
Cuyahoga County


Do Ohio Domestic Relations Courts Have Jurisdiction to Hear Interstate Child Support Petitions?

When Parents Unmarried, Action not Connected to Divorce or Dissolution

Ruby K. Pula et al. v. Adrienne Haunani Pula-Branch, Case no. 2010-0985
8th District Court of Appeals (Cuyahoga County)

ISSUE:  Does an Ohio domestic relations court have subject matter  jurisdiction to hear and decide an interstate petition for child support that was filed by a resident of another state under the Uniform Interstate Family Support Act (UIFSA) when the requested support order involves a child born out of wedlock and is not related to a divorce, dissolution of marriage, legal separation or annulment?

BACKGROUND: The UIFSA is a uniform statute developed by a national commission in 1992 and subsequently adopted by each of the 50 states.  The statute:  1) assists the parent or custodian of a child in obtaining an enforceable child support order against a non-custodial parent who currently resides in a different state; and 2) prevents the issuance of conflicting child support orders by courts in different states by establishing an agreement that, once a valid support order has been issued by a court in one state, that state retains exclusive jurisdiction over issues of child support involving the subject child. Ohio adopted the UIFSA in 1998.

Pursuant to the UIFSA, the state of Hawaii initiated a petition for child support with the Cuyahoga Support Enforcement Agency (CSEA) on behalf Hawaii resident Ruby Pula, who is the custodian and maternal grandmother of a child identified as K.G.P. The petition sought an Ohio court order requiring the child’s mother, Adrienne H. Pula-Branch of Cleveland, to pay past and future child support to Pula to cover her expenses of raising K.G.P.  Documents filed with the enforcement agency indicated that Pula-Branch was not and had never been married to the child’s father.

CSEA in turn filed a child support action in the Cuyahoga County Court of Common Pleas, Domestic Relations Division on behalf of Pula, naming Pula-Branch as respondent. The domestic relations court entered a judgment ordering Pula-Branch to pay current child support plus arrearage totaling $60 per month. Pula-Branch appealed the support order, arguing that the trial court had not properly considered the child’s father’s income in setting Pula-Branch’s support obligation.

On review, the 8th District Court of Appeals sua sponte (on its own initiative) questioned whether the support order was valid because it had been issued by the domestic relations court.  After considering briefs submitted by the parties, the 8th District ruled that the support order was void and unenforceable because the state law setting the jurisdiction of the Cuyahoga County domestic relations court limits that court’s authority to matters involving divorce, dissolution of marriage, legal separation and annulment of marriage.  Because the child in question was born out of wedlock, and the issue of her custody and support did not arise in the context of a divorce or dissolution of a marriage, the court of appeals held that CSEA could not pursue a petition for support against Pula-Branch in domestic relations court.

On behalf of Ruby Pula, CSEA sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for CSEA argue that the 8th District overturned the domestic relations court’s child support order based on an incorrect application of one subsection of the statute defining the authority of Ohio domestic relations courts, R.C. 2301.03, in isolation from other parts of the same statute and from the UIFSA.  They point to language in the UIFSA that they say authorizes “any trial court of record” in a responding state to hear and decide an interstate petition for child support, and also note that the 8th District’s holding  that the Cuyahoga County juvenile court has exclusive jurisdiction over out-of-wedlock child support petitions in that county is contradicted by R.C. 2151.23(A), which enumerates the types of matters in which juvenile courts have exclusive jurisdiction and does not include UIFSA support actions in that list.

Pula-Branch did not file an appellee brief in the case, and therefore is precluded by the Supreme Court’s Rules of Practice and Procedure from presenting oral argument before the Justices.

The Ohio Attorney General has entered an amicus curiae (friend of the court) brief on behalf of the state supporting the position of CSEA.

Contacts
Kestra Smith, 216.443.8868, for the state and Cuyahoga County prosecutor's office.

Adrienne H. Pula-Branch, pro se, No current contact information available.

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Is Expert Testimony Required to Prove Tort Claim Asserting Lack of Informed Consent Prior to Surgery?

Robert N. White et al. v. Warren H. Leimbach, II, M.D., Case no. 2010-0988
10th District Court of Appeals (Franklin County)

ISSUE: When a patient sues a physician based on a claim that the doctor did not obtain the patient’s “informed consent” to a surgical procedure because the doctor did not adequately warn the patient about the likelihood of post-surgical complications, is the plaintiff patient required to present expert witness testimony at trial to establish the alleged lack of informed consent?

BACKGROUND:  Robert White of Columbus was referred to a neurosurgeon, Dr. Warren Leimbach, after experiencing  low back pain that extended down one leg to the knee.  White told Dr. Leimbach that he was reluctant to have spinal surgery and wanted to be treated conservatively.  After physical therapy did not ameliorate his symptoms, White inquired about the probability of a successful resolution of his pain through surgery. Dr. Leimbach advised White that the disk repair operation he recommended was a fairly routine procedure that successfully resolved symptoms similar to White’s in more than 90 percent of cases, and that less than 1 percent of patients undergoing the operation experienced a worsening of their symptoms or other post-operative complications.

White consented to the surgery, which was successful in resolving his back and leg pain. Within a few weeks he returned to work and was able to engage in a full range of physical activities without any continuing symptoms.  About ten weeks after returning to work, White slipped on a wet driveway and felt the same type of pain he had felt prior to surgery.  Dr. Leimbach diagnosed the new condition as a re-herniation of the same spinal disk that had been repaired in the previous surgery, and recommended that he perform a “do over” operation to make the same type of repair. 

White consented to a second operation. From the time he emerged from the anesthetic after the second surgery to the present, White has complained of constant, severe pain from his hip to his toes that responds only to high doses of narcotic pain-killing drugs.  White and his wife filed suit against Dr. Leimbach.  In their complaint, they alleged that 1) prior to the second surgery, the doctor did not advise them that the risk of an unsuccessful outcome and/or of post-operative complications after a second operation on the same disk was significantly higher than the risks that were explained to them prior to the first surgery, and 2) if the increased risk of a second surgery had been made clear, White would have declined to undergo the second operation and instead continued to treat his symptoms with heat and non-narcotic pain medication.

After both sides had presented evidence at trial, the judge granted a defense motion for a directed verdict in favor of Dr. Leimbach. In its decision, the trial court indicated that White had not presented evidence sufficient to show that the doctor had failed to adequately explain the risks of the second surgery, and also had not made a required showing that his increased pain and disability after the second operation were caused by a type of surgical complication that Dr. Leimbach knew could occur as a result of a second operation, but about which he failed to warn the Whites.

White appealed.  On review, the 10th District Court of Appeals reversed the trial court’s judgment and remanded the case for further proceedings.  The court of appeals held that the evidence presented by White at trial had been sufficient to overcome a motion for directed verdict in favor of the doctor,  and stated in its opinion that a plaintiff asserting a claim based on lack of informed consent before surgery is not always required to introduce expert testimony to establish that a doctor had failed to adequately explain the risks of the procedure. Dr. Leimbach sought and was granted Supreme Court review of the 10th District’s ruling.

Attorneys for Dr. Leimbach argue that the state laws governing medical malpractice cases, and prior court decisions interpreting those laws, require that every element of a plaintiff’s claim must be established by expert testimony.  In this case, they assert, the trial court properly granted a directed verdict in favor of the defendant because White did not present any expert evidence to establish that 1) the likelihood of an unsuccessful outcome of a second surgery was significant enough to require pre-surgical discussion, or 2) that White’s post-surgical pain was the result of a complication that Dr. Leimbach knew was likely to occur but that he failed to explain to White before the second operation.

Attorneys for White respond that expert testimony is not required to establish an element of a claim if the defendant’s own admissions establish that element.  In this case, they assert, the trial court  jury heard testimony from Dr. Leimbach himself and from Dr. Leimbach’s expert witnesses during cross-examination that established that: 1) White had not suffered a re-herniation of the disk repaired in his first surgery; 2) that nerve damage caused by Dr. Leimbach’s excision of scar tissue from the first surgery was the “most likely” cause of White’s constant pain after the second operation, and 3) that Dr. Leimbach knew that such an outcome was much more likely after a “do-over” surgery than after the first operation, but did not document any discussion with White about that increased risk prior to the second surgery.  They argue that, while it is possible the trial jury would not have found that evidence sufficient to support White’s lack of informed consent claim, the 10th District  was correct in holding that the evidence was sufficient to defeat Dr. Leimbach’s motion for a directed verdict, and therefore the trial court erred by not allowing the jury to decide the case.

Contacts
Charles H. Cooper Jr., 614.481.6000, for Robert and Mary White.

Martin T. Galvin, 216.687.1311, for Dr. Warren H. Leimbach.

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Is 'Nunc pro Tunc' Correction of Clerical Error in Judgment Entry a Final Order Subject to New Appeal?

State of Ohio v. Stephen M. Lester, Case nos. 2010-1007 and 2010-1372
3rd District Court of Appeals (Auglaize County)

ISSUE: When a trial court fails to include the “means of conviction” in its judgment entry recording the conviction and sentence of a criminal defendant, and that conviction and sentence are upheld on appeal, if the court later makes a nunc pro tunc (now for then) correction in its journal to note that the defendant was convicted in a jury trial, does the entry of that correction constitute a final order in the case from which the defendant may initiate a new appeal of his conviction?

BACKGROUND: A provision of Ohio’s Rules of Criminal Procedure, Crim.R. 32(C), requires that when a trial court records its judgment in a criminal case, the judgment entry “shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence.”   In practical terms, this language requires the court to indicate in its judgment entry whether the defendant entered a plea of guilty or no contest and was convicted without a trial, was found guilty after a jury trial, or was found guilty after a trial before a judge.

In this case, a jury found Stephen Lester guilty on counts of abduction, theft, attempted felonious assault and aggravated menacing in 2006. Lester was sentenced to eight years in prison and advised that he would be subject to five years of postrelease control after completing his prison term.  In its entry recording the judgment, the trial court failed to indicate that Lester had been convicted in a jury trial.  Lester appealed his convictions and sentence. The 3rd District Court of Appeals remanded the case for resentencing because the term of postrelease control imposed by the trial court should have been three years instead of five. Lester was resentenced in 2007 to the same eight years in prison, this time with the correct term of postrelease control. He appealed the new sentence, which was affirmed by the 3rd District.

In 2010, Lester filed a motion to amend the trial court’s 2006 judgment entry because it did not specify the  means of his conviction as required by Crim.R. 32(C).  The trial court made a nunc pro tunc entry in its journal to add the information that Lester had been convicted in a jury trial.  Lester then attempted to initiate a new appeal of his  convictions based on the amended judgment entry.  The 3rd District declined jurisdiction, holding that it had already heard and rejected Lester’s appeal of his convictions and that the nunc pro tunc order amending the judgment entry in his 2006 case was not a final order that entitled him to a new appeal. The court of appeals certified that its denial of jurisdiction in Lester’s case was in conflict with a decision of the 6th District in a similar case.  The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Lester argue that, in order to confer jurisdiction on a court of appeals to review a case, the trial court must first issue a judgment that is legally valid.  In this case, they assert, the 2006 trial court judgment previously reviewed by the 3rd District was invalid, and the 2007 court of appeals ruling upholding that judgment was legally void because the judgment entry did not include the required information detailing the means of Lester’s conviction.  Thus, they contend, the first valid  “final order” of the trial court in Lester’s case that was subject to appellate review was the corrected 2010 judgment entry that included the means of conviction, and the 3rd District erred when it denied jurisdiction to hear Lester’s timely appeal of that judgment.

Attorneys for the Auglaize County prosecutor’s office respond that, by definition, a corrective nunc pro tunc order or journal entry is retroactive to the date on which the original order or entry that is being corrected was made, and cures any defect in the record as if it had been entered on that date. They argue that because the requirement that a judgment entry state the means of the defendant’s conviction is set forth in a procedural rule, rather than mandated by law, a trial court’s failure to include that information in a judgment entry does not render the underlying judgment void or deprive a court of appeals of jurisdiction to review that judgment when the record shows that all parties were fully aware of how the defendant was convicted and all parties acted with the presumption that the trial court judgment under appeal was valid.

While prior court decisions have held that a defendant whose judgment entry did not state a means of conviction is entitled to be resentenced in compliance with Crim.R. 32(C), they contend, those courts have also held that any appeal from a corrective nunc pro tunc entry is strictly limited to the correction itself, and does not empower the defendant to raise new unrelated issues or relitigate issues that were decided in a prior appeal.

NOTE:  The Ohio Attorney General’s office, which entered an amicus curiae (friend of the court) brief in support of the prosecutor’s position, has been granted permission to join in oral argument before the Court and will share the time allotted to the state. The Ohio Prosecuting Attorneys Association has also entered an amicus brief supporting the state. The Ohio Public Defender’s Office has entered an amicus brief supporting the position of Lester.

Contacts
Amy Otley Beckett: 419.739.6785, for the state and Auglaize County prosecutor's office.

Alexandra T. Schimmer, 614.995.2273, for the Ohio Attorney General.

Jon W. Oebker, 216.696.4884, for Stephen Lester.

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Industrial User Group Disputes PUCO Approval of Power Company Plan to Raise Efficiency, Lower Peak Demand

In the Matter of the Application of Columbus Southern Power Company for Approval of its Program Portfolio Plan and Request for Expedited Consideration, Case no. 2010-1533
Appeal from Order of the Public Utilities Commission of Ohio

ISSUE:  Did the Public Utilities Commission of Ohio (PUCO) abuse its discretion or act contrary to law in approving a “program portfolio plan” proposed by Columbus Southern Power Company to comply with 2008 legislation that required the state’s electric utilities to develop and implement strategies to achieve mandated future increases in their customers’ energy efficiency and reductions in power consumption during periods of peak demand?

BACKGROUND: S.B. 221, enacted in 2008, required all electric distribution utility companies doing business in Ohio to draft and submit for PUCO approval a plan setting forth strategies by which the utility’s customers would achieve progressive year-by-year increases in energy efficiency (EE) and year-by-year reductions in peak demand (PDR) for each year beginning in 2009.  The new law authorized utility companies to include in their EE/PDR plans a proposed “revenue decoupling mechanism” whereby the company could recover revenues lost through reduced consumption of power by its customers through a fixed surcharge to customers that was not linked to the amount of power they used.

Columbus Southern Power Company and Ohio Power Company, both of which are subsidiaries of American Electric Power (AEP), submitted their EE/PDR plans for the period 2010-2012 to the commission in November 2009. Along with their plans, the utility companies filed a stipulation indicating that they had consulted with and obtained the prior consent of consumer groups representing residential, commercial and industrial energy users to the plans as submitted. 

Industrial Energy Users-Ohio (IEU), a group representing large industrial users of electric power, did not join the stipulation agreement and filed objections to the AEP companies’ plans.  Following a February 2010 hearing in which IEU participated, the PUCO issued an order approving the AEP companies’ plans as set forth in the stipulation with certain modifications.  IEU entered a motion for a rehearing, asserting multiple objections to the plan as approved. The PUCO denied the motion for rehearing.  IEU has exercised its right to appeal the PUCO’s decision to the Supreme Court.

Attorneys for IEU advance four assignments of error that they say require the Court to invalidate all or part of the PUCO order approving the AEP companies’ plans.  These include claims that the commission did not properly consider the impact of the plans on consumer electric bills, improperly rejected a peak-demand-reduction proposal for mercantile customers that was included in the stipulation and had been agreed to by all parties including IEU, and acted contrary to law when it approved the revenue decoupling formula set forth in the stipulation despite the commission’s admission in its order that AEP had not submitted sufficient evidence of lost distribution revenues resulting from its EE and PDR efforts for the commission to determine whether cost recovery surcharge included in the stipulation was reasonable. 

Attorneys for the PUCO argue that the commission did review and consider the impact of the stipulated plan on consumer rates and was under no obligation to adopt the mercantile peak demand reduction scheme set forth in the stipulation when it found that proposal inconsistent with prior PUCO rulings.

With regard to the revenue decoupling provision included in the AEP plan, the commission asserts that although it would have required additional evidence of the utilities’ current costs of transmission service to support AEP’s lost distribution revenue projections in a litigated case, because this case involved a negotiated agreement that had been reviewed and accepted by representatives of all classes of energy users, the commission acted within its discretion in accepting the parties’ stipulated cost recovery formula as reasonable.

Contacts
Samuel C. Randazzo, 614.469.8000, for Industrial Energy Users - Ohio.

Thomas W. McNamee, 614.466.4396, for the Public Utilities Commission of Ohio.

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Attorney Discipline

Disciplinary Counsel v. David Nittskoff, Case no. 2010-2245
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of South Euclid attorney David Nittskoff be suspended for six months for neglecting the administration of a decedent’s estate and trust, failing to inform a client that his law practice was not covered by malpractice insurance, and failing to cooperate with disciplinary authorities.

The board found that, after being retained to administer the estate and a trust left by a deceased Cleveland business owner, Nittskoff failed to file a federal estate tax return or pay the taxes owed by the estate, resulting in an assessment against the estate of penalties and interest totaling more than $450,000. The board also found that, although a successor trustee of the decedent’s trust sued Nittskoff for malpractice and obtained a civil judgment and lien against him for the amounts of the penalty and interest assessments, the judgment remains unpaid, and Nittskoff failed to return any of the decedent’s legal documents in his possession to the successor trustee.

The Office of Disciplinary Counsel, which prosecuted the charges against Nittskoff before the board, has filed objections to the recommended sanction of a six-month suspension and instead urges the Court to permanently disbar him.  Counsel points out that, other than responding to a subpoena early in the investigation of his case, Nittskoff did not submit an answer to the formal complaint filed against him, respond to multiple requests for information and documents related to his misconduct or appear for a hearing to face the charges brought against him. In light of the significant harm Nittskoff’s  neglect caused to the estate of his deceased client, his failure to satisfy the civil judgment against him and his lack of cooperation in the board’s disciplinary proceedings, counsel urges the court to impose permanent disbarment as the appropriate sanction.

Nittskoff did not file a brief responding the board’s report or Disciplinary Counsel’s objections, and is therefore barred by the Court’s rules of practice from presenting oral argument before the Justices.

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

David Nittskoff, pro se, 216.381.0011.

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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.