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Tuesday, Sept. 20, 2011

Darrell Sampson v. Cuyahoga Metropolitan Housing Authority et al., Case no. 2010-1561
8th District Court of Appeals (Cuyahoga County)

Amber Williams v. Frederick Ormsby, Case no. 2010-1946
9th District Court of Appeals (Medina County)

Disciplinary Counsel v. Edward R. Bunstine, Case no. 2011-0647
Ross County

State of Ohio ex rel. Wayne T. Doner et al. v. Sean D. Logan, Director, Ohio Department of Natural Resources and Ohio Department of Natural Resources, Case no. 2009-1292
Original Action in Mandamus


Is Public Agency Immune from Lawsuit by Employee Based on False Arrest for Alleged Work-Related Theft?

Or Does Immunity Exception for Claims ‘Arising Out of Employment’ Apply?

Darrell Sampson v. Cuyahoga Metropolitan Housing Authority et al., Case no. 2010-1561
8th District Court of Appeals (Cuyahoga County)

ISSUE: Political subdivisions of the state (e.g., cities, counties, townships, school districts) and their employees are generally immune from civil liability for injuries caused by their negligent acts under Ohio’s sovereign immunity statute. However a subsection of the statute, R.C. 2744.09(B), provides that subdivisions are not immune from “civil actions by an employee ... against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.”

In this case, the Court is asked to decide whether the exception to immunity set forth in R.C. 2744.09(B) applies to a lawsuit filed by a public agency employee against his employer for damages arising from the employee’s public arrest before fellow employees, suspension from his job duties and exposure to criminal prosecution and damaging media publicity based on charges of theft of public property that were initiated by the employer but later dismissed as unfounded.

BACKGROUND: In August 2004, Darrell Sampson, who was employed by the Cuyahoga Metropolitan Housing Authority (CMHA) as a plumber, was summoned to a mass meeting of more than 200 agency employees at a CMHA warehouse for which no purpose was stated. During that meeting, leaders of the agency’s policing unit read off the names of Sampson and 12 other employees and announced that those persons were being placed under arrest for theft of public property by means of misusing agency credit cards to make unauthorized gasoline purchases. Sampson and the others whose names were called were handcuffed and searched in the presence of their co-workers, and led away to waiting police vehicles while camera crews from local TV stations, who were waiting outside of the meeting, shot video. That video later aired on local news broadcasts in which the names of the arrested employees were reported.

The arrested employees spent the night in jail before being released the following day without charges. All arrested employees were placed on administrative leave from their positions with CMHA.
In October 2004, Sampson and several other plumbers were indicted on charges of theft, misuse of credit cards and theft in office.

In February 2005, the state dismissed the charges. In November 2005, an arbitration proceeding to determine whether Sampson should be reinstated to his job concluded that the investigation leading to his arrest had not been thorough, and that “the preponderance of the evidence shows no theft of gasoline at all, much less any evidence that (Sampson) was guilty of such theft.”  Sampson returned to work at CMHA in March 2006, but alleged that the position to which was assigned involved different duties than his pre-arrest position, and that he was no longer permitted to retrieve his own equipment or drive agency vehicles. Sampson was subsequently diagnosed with posttraumatic stress disorder.

In 2006, Sampson filed suit against CMHA and three top officers in the agency’s enforcement unit who had planned and carried out the investigation and mass arrest.  His complaint asserted claims of intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process and negligent misidentification.

CMHA moved for summary judgment dismissing Sampson’s claims, arguing that the agency was immune from civil liability under the sovereign immunity statute.  Sampson opposed the summary judgment motion, arguing that his arrest and other CMHA conduct underlying his claims “arose out of the employment relationship” and therefore fell under the exception to immunity for employment-related claims set forth in 2744.09(B). The trial court dismissed the part of the complaint alleging negligent infliction of emotional distress on other grounds, but denied summary judgment on Sampson’s other claims, finding that they arose out of the employment relationship and therefore CMHA was not entitled to immunity.

CMHA and the individual defendants appealed the denial of their claim of immunity.  On review, a three-member panel of the 8th District Court of Appeals affirmed the trial court’s ruling.  Citing conflicting rulings  by other three-judge panels of the 8th District, the court of appeals conducted an en banc session in which all 12 judges participated in a review of the conflicting decisions. A majority of the full court held that CMHA was not entitled to immunity under the facts of this case, and directed the trial court to allow Sampson’s suit to proceed.  CMHA sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for CMHA point to a line of decisions including Blankenship v. Cincinnati Milacron (1982) and Brady v. Safety Kleen Corp. (1991) in which the Supreme Court of Ohio has held that “intentional torts” similar to Sampson’s claim of intentional infliction of emotional distress fall outside of the scope of the employer-employee relationship. They argue that the trial court and 8th District in this case improperly ignored those precedents in holding that the intentional acts of CMHA and its enforcement officers were conduct “arising in the employment relationship” and therefore fell under the exception from immunity in R.C. 2744.09(B).

Attorneys for Sampson respond that Blankenship and Brady did not consider the sovereign immunity statute at issue in this case but rather analyzed the state’s workers’ compensation laws in order to determine whether a condition in an employer’s workplace was so inherently dangerous that it provided grounds for an injured worker to file a private lawsuit against the employer in addition to receiving workers’ compensation benefits.  They argue that the plain language of R.C. 2744.09(B) denies immunity to political subdivisions for any “civil action” brought by an employee “relative to any matter that arises out of the employment relationship.” They point out that the harm Sampson alleges in this case arose directly from the actions of his employer in having him arrested, while he was on duty and attending a meeting called by the employer, for conduct that allegedly took place during his performance of his job duties of driving and  fueling CMHA vehicles.

Contacts
Stephen W. Funk, 330.376.2700, for Cuyahoga Metropolitan Housing Authority.

Nancy C. Schuster, 216.348.1100, for Darrell Sampson.

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Can Resumption of a Couple's Relationship Be Sufficient 'Consideration' to Support an Enforceable Contract?

Amber Williams v. Frederick Ormsby, Case no. 2010-1946
9th District Court of Appeals (Medina County)

ISSUE:  Under Ohio law, can a promise by one partner in a former romantic relationship to move back into a home that the unmarried couple previously shared and return to the relationship serve as sufficient “consideration” to support an enforceable contract?

BACKGROUND:  As part of a divorce from her former spouse, Amber Williams became the sole owner of a home in Medina that was encumbered by a mortgage with an outstanding balance of $310,000. In early 2004, Williams became involved in a romantic relationship with Frederick Ormsby, and in May 2004 Ormsby moved into Williams’ home.  The couple planned to be married in January 2005. 

Ormsby made the mortgage payments on the house from August through December 2004.  He also paid for repairs including a new roof, and paid the property taxes due on the house during that year.  In December, 2004, Ormsby paid off the full balance of the mortgage and Williams signed a quit-claim deed transferring title to the property to Ormsby as sole owner. 

The planned January 2005 wedding did not take place, but the couple continued to live together in the house until early March 2005, when Williams moved out and the couple ended their engagement.  Williams and Ormsby then entered into a contract providing that the house would be sold and the first $324,000 of the sale price would go to Ormsby, with all proceeds beyond that amount going to Williams. The agreement also specified that Ormsby and Williams would share the expenses of maintaining the house until it could be sold.

The couple then attended counseling and attempted to reconcile.  In June 2005, Ormsby and Williams signed another document stating that they planned to marry, that the house was “jointly owned” by both parties and that they were “equal partners” in the property.  Williams moved back into the house and resumed her relationship with Ormsby, but the couple continued to have disagreements and did not marry. After a period of estrangement during which they resided in different portions of the house, Ormsby moved out in April 2008. 

Both parties subsequently filed suit against each other over ownership of the house. Williams claimed a 50 percent ownership interest in the property pursuant to the June 2005 agreement that upon returning to the relationship she became an equal co-owner with Ormsby.  Ormsby sought a declaratory judgment that he remained sole owner of the house under the March 2005 contract and sought damages from Williams for unjust enrichment, breach of contract and several other claims.

The Medina County Court of Common Pleas dismissed Williams’ suit and entered summary judgment in favor of Ormsby. In its decision, the trial court held that the March 2005 contract between the parties was valid and  binding,  and that the June 2005 document signed by the parties was not an enforceable contract because there was no valid consideration in return for Williams’ purported receipt of 50 percent ownership of the property.  Williams appealed.  On review, the 9th District Court of Appeals reversed the trial court’s summary judgment and ordered the trial court to reinstate and conduct proceedings to decide Williams’ claim of equal ownership. The court of appeals specifically found that a person’s agreement to move into a home with another and resume a relationship can constitute consideration sufficient to support an enforceable contract. Ormsby sought and was granted Supreme Court review of the 9th District’s decision.

Attorneys for Ormsby argue that prior Ohio court decisions and legal scholarship including the Restatement of Torts have held that a promise of “love and affection” or participation in a romantic relationship do not constitute consideration for an enforceable contract.  They assert that Ohio and Oregon  court decisions cited by the 9th District in support of its ruling did not address the sufficiency of participating in a romantic relationship as consideration for a contract, and note that a New Jersey decision cited by the court of appeals is not applicable to this case because New Jersey, unlike Ohio, recognizes “palimony” claims by persons who have cohabited with another in exchange for promises of future financial support. They point out that, in contrast with the law of New Jersey, the Ohio legislature acted in 1978 to abolish former “amatory” causes of action and again in 1991 to eliminate “common law” marriages in which property rights were recognized based on prolonged cohabitation by unmarried persons.

Attorneys for Williams urge the Court to affirm the 9th District’s finding that Ormsby freely and in writing  rescinded his sole ownership of the house in favor of joint ownership with Williams in return for Williams’ agreement to move back in with him and resume the couple’s relationship.  They cite court decisions holding that in order to support an enforceable contract, the consideration provided by one party to the other need not be of great financial value or even have financial value, but may instead involve the provision of future services or the sacrifice of nonfinancial interests that are of value to the other party.  In this case, they point out, it was Ormsby and not Williams who drew up the June 2005 agreement in which he unequivocally declared the earlier contract granting him sole ownership of the house to be void and affirmed Williams’ status from that date on as an equal co-owner of  the property.

Contacts
Michael L. Laribee, 330.725.0531, for Frederick Ormsby.

L. Ray Jones, 330.722.1234, for Amber Williams.

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Attorney Discipline

Disciplinary Counsel v. Edward R. Bunstine, Case no. 2011-0647
Ross County

The Board of Commissioners on Grievance & Discipline has recommended that the license of Chillicothe attorney Edward R. Bunstine be suspended for six months for violations of state attorney discipline rules based on his actions related to a criminal investigation by the Ross County sheriff’s office that involved acquaintances of Bunstine.

The board found that Bunstine acted improperly when he contacted a man who had filed a complaint with the Ross County sheriff alleging that a mutual friend of his and Bunstine’s had stolen prescription medication during a recent visit to the complainant’s home. Without being retained to represent any of the parties, Bunstine inserted himself into the investigation by visiting the complaining witness and his wife and obtaining their  signatures on “voluntary statements” that Bunstine drew up indicating that, upon further consideration, they believed the accused may have simply “borrowed” some of the complainant’s medication rather than stealing it, consistent with past occasions on which the accused and the complainant’s wife had “shared” prescription medication with each other.

After taking the statements to the sheriff’s office, and learning that the complainant and his wife had called the sheriff prior to his arrival and recanted portions of their written statements, Bunstine initially refused to turn the statements over to a deputy, and then attempted to retrieve the statements with the admitted intention of destroying them. During subsequent interviews with sheriff’s investigators, he gave differing statements regarding which parties he had been representing, and failed to disclose that he had received $1,000 in cash from the accused until the accused disclosed the payment to officers. Bunstine subsequently entered a no contest plea and was found guilty on  a misdemeanor count of disorderly conduct based on his actions.

He was also prosecuted by the office of Disciplinary Counsel for professional misconduct arising from the incident.  The disciplinary board found that Bunstine’s actions violated the state attorney discipline rules that prohibit 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 law.

Bunstine has entered objections to the board’s findings and recommended sanction. He points out the hearing panel that actually heard testimony in his case did not find that he had acted dishonestly or with an intent to deceive, and recommended only a reprimand.  Disciplinary Counsel has entered answers to Bunstine’s objections, urging the Court to affirm the full board’s findings of misconduct and sanction of an actual suspension from practice.

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

Edward Bunstine pro se, 740.775.5600.

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Does Increased Flooding of Downstream Land After State Installed New Spillway Constitute 'Taking' of Property?

Owners Seek Writ Compelling State to Compensate Them for Loss of Use

State of Ohio ex rel. Wayne T. Doner et al. v. Sean D. Logan, Director, Ohio Department of Natural Resources and Ohio Department of Natural Resources, Case no. 2009-1292
Original Action in Mandamus

ISSUES: 

BACKGROUND:  This case involves a dispute between ODNR and the owners of 81 properties in Mercer County that border Beaver Creek along a 10-mile reach from the western spillway of Grand Lake St. Marys to the merger of Beaver Creek into the Wabash River near the Ohio/Indiana border.

The owners allege that since ODNR replaced a former 39-foot-wide spillway at the western end of the lake with a new 500-foot-wide spillway in 1997, their land has been subject to repetitive flooding that is more frequent, more severe, more long-lasting and more damaging to the land and their ability to use it for agriculture or other purposes than was the case prior to the widening of the spillway.  They assert that despite advance warnings about the consequences of widening the spillway and repeated demands by the owners over a number of years that ODNR take action to alleviate the increased flooding, the department has refused to make any adjustment to the spillway or its lake-level management practices, or to take legal action to appropriate their land and compensate them for
the loss of use when the lake overflows into the Beaver Creek basin.

In 2009 the property owners filed an original action in the Supreme Court of Ohio seeking  a writ of mandamus that would compel the state to appropriate their land and compensate them for the loss of its use under Ohio’s eminent domain laws.

They argue that the testimony of longtime area residents and county officials, and other evidence in the form of still photos and video of the flooded areas, is sufficient to support their claim that the widening of the lake spillway has dramatically increased what was formerly minor and infrequent flooding of their land.  They also assert that their claims are not barred by the four-year statute of limitations for filing lawsuits seeking state appropriation of private land because: 1) their claims do not relate back to the 1997 construction of the new spillway because each new flood event, and each annual decision by ODNR not to change its practices, causes additional erosion, destruction of crops, soil compaction and other harm to their land that creates a new cause of action and re-starts the running of the statute; and 2) prior court decisions have held that it takes 10 years or longer to establish the long-term effects of changes in the hydraulics of a waterway, and therefore  the four-year statute for seeking appropriation based on the 1997 spillway project did not begin to run until 2007, when there was reliable historical data to support or contradict claims that the widening of the spillway is responsible for more frequent and more severe flooding of their land.

Attorneys for ODNR respond that the evidence produced by the claimants is anecdotal rather than scientific, and is contrary to the results of an expert study conducted by the department which found that the 1997 widening of its spillway is not the primary cause of increases in the frequency or severity of downstream flooding during the years since construction was completed. 

They also argue that, contrary to the property owners’ assertion, the only “conduct” by the state that could be the basis for a lawsuit alleging damage to downstream properties is the construction of the wider spillway, a one-time action that was completed in 1997. They assert that the owners were required to file suit seeking appropriation of their land within four years after the completion of the spillway project, or at the latest four years after the first major flooding in the area after the widening of the spillway, which took place in 2003.  Under either standard, they contend, the owners’ 2009 suit was not filed within the applicable statute of limitations and therefore should be dismissed as untimely.

Contacts
Bruce L. Ingram, 614.464.6480, for Wayne Doner and other property owners seeking the writ.

William J. Cole, 614.466.2980, for the Ohio Department of Natural Resources.

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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.