Oral Argument Previews
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Tuesday, June 7, 2011
State of Ohio v. Edward Lee Lang, Case no. 2007-1741
30 Minutes Per Side
Dennis J. Dominish v. Nationwide Insurance Company, Case no. 2010-1431
11th District Court of Appeals (Lake County)
State of Ohio v. Christopher Barker, Case no. 2010-1448
6th District Court of Appeals (Lucas County)
Randall Dohme v. Eurand America, Inc., Case no. 2010-1621
2nd District Court of Appeals (Montgomery County)
Dayton Bar Association v. Georgiana I. Parisi, Case no. 2011-0340
Death Penalty
State of Ohio v. Edward Lee Lang, Case no. 2007-1741
30 Minutes Per Side
Edward Lang of Stark County has appealed his convictions and death sentence for the aggravated murders of Jaron Burditte and Marnell Cheek, a female passenger in Burditte’s car, during a drug-related robbery attempt. According to trial testimony, Lang and another man, Antonio Walker, called Burditte on his cell phone to arrange a drug “buy.” When Burditte’s car arrived at the arranged location, Lang got into the back seat with the intent of stealing drugs and money from Burditte, and shot both Burditte and Cheek in the head at point-blank range. After the shooting Burditte’s car jumped the curb and began rolling toward a row of parked cars. Lang and Walker fled the scene without completing the robbery.
- When he was arrested, Lang, who did not testify at trial, told police that he and Walker had both entered Burditte’s car, and that Walker had shot both victims with a gun that belonged to Lang and was found by police in Lang’s possession. At the conclusion of his trial, at which Lang was found guilty of the aggravated murders of both victims and aggravated robbery, the jury recommended a sentence of life imprisonment for the killing of Burditte but recommended the death penalty for the killing of Cheek. The trial court imposed the sentences recommended by the jury.
Attorneys for Lang have advanced 21 allegations of legal and procedural error by the trial court as grounds for reversal of his convictions or reduction of his death sentence to a term of life imprisonment. Among those assignments of error are claims that:
- The trial court should have declared a mistrial after learning that one of the jurors originally seated in the trial had failed to disclose that her mother was married to the brother of victim Marnell Cheek. While that juror was replaced shortly after the trial began, and other jurors told the court she had not discussed the case with them, attorneys for Nash argue that her presence on the jury for any portion of the trial created potential bias and required dismissal of the entire panel.
- DNA evidence and testimony about that evidence presented by the state should not have been admitted because there was not enough genetic material recovered from the murder weapon to conduct complete testing and the state’s expert witness could not identify Lang as the source of that material within a reasonable degree of scientific certainty.
- The trial judge committed reversible error by allowing the state to introduce “victim impact” testimony by family members of the two victims during the sentencing phase of Lang’s trial.
Attorneys for the Stark County prosecutor’s office, arguing on behalf of the state, respond that:
- The reaction of the trial court in questioning and removing a juror on the first day of the trial when it learned of her undisclosed relationship with one of the victims, and the court’s subsequent determination that none of the remaining jurors discussed the case with that juror before she was removed, were sufficient to protect Lang’s fair trial rights.
- The state was not barred from presenting its DNA evidence even though it did not establish Lang as the source of that material with scientific certainty. They say the expert witness accurately testified that the test results excluded Lang’s co-defendant as a potential source of genetic material found on the gun, but that Lang could not be excluded as a potential source. Because Lang’s attorneys could and did challenge the probative value of those results during cross examination of the state’s expert, they say, the jury was properly allowed to consider the inconclusive DNA test results as part of the overall body of evidence in the case.
- Limited victim impact testimony is permitted during the penalty phase of a death penalty case so long as the victims’ family members provide factual information about the victims’ lives and do not testify in an overly emotional manner regarding the impact of their deaths on the witnesses themselves or other members of the victims’ families.
Contacts
Ronald M. Caldwell, 330.451.7869, for the state and Stark County prosecutor’s office.
Jennifer A. Prillo, 514.752.8921, for Edward Lang.
Suit Questions Enforceability of One-Year Policy Deadline For 'Starting Action' Against Insurance Company
Dennis J. Dominish v. Nationwide Insurance Company, Case no. 2010-1431
11
th District Court of Appeals (Lake County)
ISSUE:
- Is language in a homeowners’ insurance policy requiring that “any action” against the insurance company “must be started within one year after the date of loss or damage” ambiguous regarding whether the one-year time limit applies to filing a claim with the insurer or to initiating a lawsuit against the insurance company?
- If an insurance company sends a letter to a policyholder more than one year after the date of the policyholder’s loss or damage in which the company offers to review and possibly adjust an unresolved claim, does that communication constitute a waiver by the insurance company of a one-year limit in the policy for the policyholder to file a lawsuit against the insurer?
BACKGROUND: On July 28, 2006, a tree fell on a house owned by Dennis Dominish of Lake County during a thunderstorm that included high winds. At the time the damage occurred, Dominish’s home was covered by a homeowner’s policy issued by Nationwide Insurance Company. The policy included a limitation clause stating that “any action” by Dominish against Nationwide asserted under the policy must be “started” within one year after the date of the claimed loss or damage.
Dominish filed a claim with Nationwide seeking coverage for damage to the roof, interior and contents of the house. On Sept. 6, 2006, Nationwide sent a letter to Dominish denying coverage for damage to the roof, damage to personal property or any resultant mold damage, and tendering a check for $6,741 as payment for damage to the interior of the house. Dominish did not cash the check. In an accompanying “denial of coverage” letter, Nationwide indicated that the contractor it sent to inspect the damage had concluded that the damage to the roof was caused by deterioration and was not related to the recent storm. The letter also advised Dominish that his policy included a one-year limitation period for beginning an action against the insurer.
Dominish responded to Nationwide’s offer, indicating that he would not accept the proffered check in settlement of his claim and asserting that the damage to his roof and to the interior and contents of his house were storm-related and therefore were losses covered under his homeowner policy. The parties continued to dispute the nature and amount of Dominish’s covered damages over the next several months. On June 6, 2007, Nationwide sent another letter to Dominish reasserting its original position that only limited damages to the interior of his home were covered under its policy and stating that it was enclosing a second check for the same $6,741 the company had offered in its original response and closing Dominish’s claim.
On August 7, 2007, Dominish returned the June 6 letter to Nationwide along with its uncashed and voided check. Dominish enclosed a report prepared by an engineer he had retained indicating that the damage to his roof and resultant damage to the interior and contents of his house were the result of storm damage and estimating repair and restoration costs. In a responsive letter dated August 16, 2007, Nationwide’s claims adjustor, Michael Rahe, indicated that he had contacted Dominish’s engineer seeking to arrange for a joint reinspection of the damaged house in order to “better define” the cause of Dominish’s loss and “the damages caused by the covered cause of loss.” The letter went on to indicate that after a reinspection “another estimate ... may need to be written,” and that the letter indicated “Nationwide’s wish and willingness to investigate the claim further, in an effort to handle to a proper conclusion.” No reinspection was conducted and no agreement was reached between the parties.
In July 2008, Dominish filed suit against Nationwide in the Lake County Court of Common Pleas alleging breach of contract, negligence, breach of fiduciary duty and bad faith denial of his claim. The complaint also sought a declaratory judgment his 2006 losses were covered by the Nationwide policy.
Nationwide moved for summary judgment, asserting that Dominish had failed to file suit against the company within the one-year limitations period in his policy. The trial court granted summary judgment in favor of Nationwide. Dominish appealed. On review, the 11th District Court of Appeals reversed the trial court and reinstated Dominish’s complaint. A 2-1 majority of the appellate panel held that:
a) The limitations language indicating that “any action” against the insurer must be “started” within one year of a loss was ambiguous and unenforceable because a policyholder could reasonably interpret that requirement to be met by initiating an insurance claim rather than filing a lawsuit.
b) Even if the contract language were not ambiguous, the August 16, 2007 letter from Rahe to Dominish, which was written three weeks after the expiration of the one-year limitations period in the policy and indicated the insurer’s continuing willingness to work out a resolution of the dispute, constituted a waiver by Nationwide of its right to enforce the limitations clause.
Nationwide sought and was granted Supreme Court review of the 11th District’s decision.
Attorneys for the insurance company point out that it specifically included in the Sept. 6, 2006 letter sent to Dominish a clear notice that the limitations clause in his policy required that any law suit against the insurer must be filed within one year after the date of his July 28, 2006 loss. They point out that the caption of the limitations clause in Dominish’s policy is “Suit Against Us,” and argue that when the heading and the language of the clause are read together, as they must be, there is no ambiguity that the “action” that must be begun within one year after a loss is a lawsuit. They also assert that because their June 6, 2007 letter to Dominish stated that the company considered his claim closed as of that date, and there was no further communication between the parties prior to the July 28, 2007 expiration of the one-year limitations period, any subsequent actions or statements by the company could not waive that deadline, because it had already expired.
Attorneys for Dominish’s estate (he died in December 2010) emphasize that the 11th District’s decision in this case did not determine whether Dominish was eligible for more insurance coverage than Nationwide was willing to provide him, but merely held that the trial court erred in granting summary judgment to the insurance company. They urge the Court to affirm the 11th District’s holding that, whatever the ultimate outcome of the underlying dispute, the ambiguous language of the limitations clause in Dominish’s policy and Nationwide’s consent to continued negotiation of his claim after the limitations period had passed create material questions about the enforceability of the limitations clause that should be argued at trial and decided by a judge or jury.
Contacts
Ralph F. Dublikar, 330.499.6000, for Nationwide Insurance Company.
David A. McGee, 440.286.9571, for Dennis Dominish.
Does Warning That No-Contest Plea Waives Right to 'Call Witnesses' Meet Requirement of Criminal Rules?
In Court's Colloquy With Defendant Before Accepting Guilty or No-Contest Plea?State of Ohio v. Christopher Barker, Case no. 2010-1448
6th District Court of Appeals (Lucas County)
ISSUE: In conducting the colloquy (dialogue) with a criminal defendant required by Ohio Criminal Rule 11(C)(2)(c) prior to accepting a guilty or no contest plea to a felony, does a trial judge who informs the defendant that his plea will waive his right to “call witnesses to speak on your behalf” satisfy the requirement that the defendant be advised he is giving up the right to “compulsory process of witnesses?”
BACKGROUND: When a defendant enters a plea of guilty or no contest in a felony case, Crim.R. 11(C)(2)(c) requires that the trial judge address the defendant personally and advise him that the plea will result in the waiver of certain constitutional rights: (1) the right to a jury trial; (2) the right to confront his accusers; (3) the right to compulsory process to obtain witnesses (i.e. to have the court issue subpoenas that require defense witnesses to appear in court); (4) the right to require the state to prove his guilt beyond a reasonable doubt; and (5) the privilege against being compelled to give self-incriminating testimony.
In this case, Christopher Barker of Toledo entered no-contest pleas in the Lucas County Court of Common Pleas to three felony counts of engaging in unlawful sexual conduct with a minor. Before accepting those pleas, the judge conducted a dialogue with Barker pursuant to Crim.R. 11(C)(2)(c) to confirm that Barker understood the rights he was giving up. In the portion of that dialogue addressing Barkers’ right to obtain defense witnesses, the judge advised Barker that he was “giving up your right to call witnesses to speak on your behalf ... ”
After completing the colloquy and determining that Barker understood and had voluntarily waived the rights the court reviewed with him, the judge accepted Barker’s no-contest pleas and sentenced him to four years in prison on each count, with the sentences to be served consecutively, for a total prison term of 12 years.
Barker subsequently filed an appeal, asserting that his convictions and sentence should be vacated because the trial court erred in conducting its colloquy under Crim.R. 11(C)(2)(c). Specifically, Barker alleged that the court’s explanation of his right to “call witnesses” did not inform him that he could employ the authority of the court to compel witnesses to appear at a trial. The 6th District Court of Appeals agreed that the court’s advisement regarding compulsory process to obtain witnesses was defective, vacated Barkers convictions, and remanded the case to the trial court for further proceedings.
On behalf of the state, the Lucas County prosecutor’s office sought and was granted Supreme Court review of the 6th District’s ruling.
Attorneys for the state cite a 2008 decision, State v. Veney, in which this Court held that a trial judge can obtain the knowing and intelligent waiver of a defendant’s rights under Crim.R. 11(C)(2)(c) without reciting the language of the rule word for word, so long as the language used by the court actually explained the rights being waived in a way that was “reasonably intelligible” to the defendant. They point out that the word “call” as used in the context of a legal matter means to summon or compel the attendance of a party, as in to “call” a citizen for jury duty; to “call up” a military reservist to active duty; and to “call in” a loan or other financial instrument by demanding its payment.
In this case, they assert, the trial judge’s explanation that Barker was waiving his right to “call witnesses” conveyed the concept that he was giving up the right to compel the appearance of persons to testify at a trial. They argue that those words accurately described the right being waived and, for most defendants, was a more “intelligible” explanation of that right than reciting the actual language of the rule (“compulsory process”) which uses an arcane legal term unfamiliar to most non-attorneys.
Attorneys for Barker urge the Court to affirm the 6th District’s ruling that the language used by the trial judge did not advise Barker of the critical information that, if he went to trial, he could not only introduce testimony by defense witnesses, but could use the power of the court to compel the appearance and testimony of persons who might otherwise evade his efforts to contact them or fail to show up at trial voluntarily. They argue that the standard set by recent Supreme Court decisions including Veney requires “strict compliance” with the requirements of Crim.R. 11(C)(2)(c), and assert that the general language used by the trial judge in his colloquy with Barker did not meet that standard.
NOTE: The Ohio Attorney General’s office has filed an amicus curiae (friend of the court) brief in support of the state’s position, and has been granted permission to participate in oral argument of the case before the Court.
Contacts
Evy M. Jarrett, 419.213.470, for the state and Lucas County Prosecutor’s Office.
Stephen Long, 419.842.1717, for Christopher Barker.
Alexandra Schimmer, 614.995.2273, amicus curiae for Ohio Attorney General.
Is Employee Fired After Talking With Insurer Against Employer's Orders Protected by 'Whistleblower' Law?
Plaintiff Claims Common Law Exception to Employment at Will DoctrineRandall Dohme v. Eurand America, Inc., Case no. 2010-1621
2nd District Court of Appeals (Montgomery County)
ISSUE: Does state and federal case law that bars the retaliatory firing of a worker for reporting workplace safety and environmental hazards apply to a worker who was fired for discussing with an insurance company representative a fire alarm inspection report that was missing from the company’s computer system after the employee was directed by his employer not to engage in discussions with the representative but to direct him to higher management?
BACKGROUND: Randall Dohme was fired from his position as an engineering/maintenance worker at a Dayton-area manufacturing plant operated by Eurand America Inc. for violating an email directive that employees in his department should avoid discussions with an insurance company auditor who was inspecting the facility and refer any questions to specified management representatives.
Dohme filed a wrongful discharge suit against Eurand in the Montgomery County Court of Common Pleas. His complaint claimed that his firing was in retaliation for a series of incidents in which he had raised issues about the plant’s fire safety equipment and procedures that went unaddressed, culminating in the brief conversation he had with an insurance auditor visiting the plant in which Dohme discussed a fire alarm inspection report that was missing from the plant’s computer records.
Eurand entered a motion seeking summary dismissal of Dohme’s suit on the basis that he was an “at will” employee and that he was fired for violating a direct order not to engage in discussions with a private insurance representative, not for reporting alleged safety violations. The trial court granted summary judgment in favor of Eurand, finding that the facts of the case did not present the required elements of a “whistleblower” claim for wrongful discharge.
Dohme appealed. The 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. The appellate panel held that the facts asserted in Dohme’s complaint, if proved, could be sufficient to support a claim that he had been wrongfully fired for actions advancing the public policy of the state that workers should make good-faith efforts to identify and remedy suspected health, safety and environmental hazards in the workplace. Eurand appealed the 2nd District’s decision, and the Supreme Court agreed to hear arguments in the case. [NOTE: The case was argued before the Supreme Court in 2008, but was subsequently remanded to the trial court for the correction of a procedural error. After that remedial step was taken, Dohme again appealed the trial court’s order granting summary judgment in favor of Eurand. In August 2010 the 2nd District adopted and re-entered its prior decision overturning the summary judgment order and reinstating Dohme’s complaint. Eurand again sought and was granted Supreme Court review of the court of appeals ruling.]
Attorneys for Eurand argue that the 2nd District ignored prior court decisions that they say have recognized a limited “whistleblower” exception to the general employment-at-will doctrine only in cases where it was shown that an employee was fired for reporting a specific safety or environmental hazard to the employer itself or to a governmental agency with responsibility for investigating and correcting the alleged hazard. They assert that the conversation that resulted in Dohme’s firing was not an attempt by him to identify or remedy a safety hazard, but focused solely on Dohme’s belief that the missing report had been deleted from the computer system in an attempt to “set him up” for demotion for failing to enter it. They also contend that, even if Dohme’s statements are deemed to have been safety-related, they still would not fall under the whistleblower exception to Ohio’s employment-at-will doctrine because they were addressed to a private insurance company representative, not to Eurand management officials or a government safety agency.
Attorneys for Dohme urge the Court to affirm the 2nd District’s ruling that, viewed in the context of prior reports and complaints Dohme had made to management, his conversation with the insurance auditor regarding a missing fire safety report qualified as an attempt to disclose and seek a remedy for a safety hazard at the plant. They point out that insurance companies play a major role in furthering workplace safety, and urge the Court to adopt the 2nd District’s holding that alerting an insurance auditor about a safety hazard falls within the range of “whistleblower” actions that are protected against retaliatory firing.Contacts
Todd D. Penney, 513.984.2040, for Eurand America Inc.
David M. Duwel, 937.297.1154, for Randall Dohme.
Attorney Discipline
Dayton Bar Association v. Georgiana I. Parisi, Case no. 2011-0340
The Board of Commissioners on Grievances & Discipline has recommended that the license of Dayton attorney Georgianna Parisi be suspended for six months, with the full term of suspension stayed, for engaging in a conflict of interest and charging an excessive fee in two different cases involving elderly clients.
The board found that in one case Parisi violated a state disciplinary rule by simultaneously representing both an elderly woman suffering from cognitive impairment and a niece of that woman, who was seeking appointment as her legal guardian, despite the fact that the interests of those clients might be divergent. In the second case, the board found that Parisi provided competent legal and non-legal services to an elderly client over a three-year period during which she managed most of his daily affairs, but acted improperly in charging for her own services and those of her paralegals at their normal hourly rates despite the disproportion between some of those charges and the routine daily activities being performed on behalf of the client.
Parisi has filed objections to the board’s findings of misconduct and recommended sanction. She argues that there is no established ethical standard that bars an attorney who is representing a mentally impaired client in need of a guardian from also assisting a relative of that person who needs legal help in applying for appointment as guardian. In the case involving the alleged excessive fees, Parisi acknowledges that the charges associated with some routine activities her office performed for the client, such as resolving disputed utility bills and renewing subscriptions, were disproportionate to the financial size of the transactions. She argues, however, that despite her advice, the client insisted on her performance of those tasks for him in order to enable him to continue living outside of a nursing home, and that the client both understood and approved of the fee schedule she had reviewed with him.
Attorneys for the Dayton Bar Association have also filed objections to the board’s report and recommendation. They argue that the stayed license suspension recommended by the board is inconsistent with prior decisions involving attorneys found guilty of similar misconduct, and urge the Court to impose an actual suspension of Parisi’s law license with reinstatement conditioned on a period of supervised probation and mandatory continuing education course work in law office management.
Contacts
Mark A. Tuss, 937.222.8500, for the Dayton Bar Association.
Dianna Anelli, 614.228.7710, for Georgianna Parisi.
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.