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Wednesday, Dec. 7, 2011

Paula Eastley, Administrator of the Estate of Steven Hieneman v. Paul Holland Volkman, M.D., Denise Huffman, d/b/a Tri-State Health Care, and State Farm Fire and Casualty Company, Case no. 2011-0606
4th District Court of Appeals (Scioto County)

State ex rel. Stacy L. Carna v. Teays Valley Local School, Case no. 2011-0716
4th District Court of Appeals (Pickaway County)

Disciplinary Counsel v. William Matthew Crosby, Case no. 2011-1453
Cuyahoga County


Must Civil Defendant Renew Directed Verdict Motion at Close of All Evidence to Preserve 'Weight of Evidence' Issue on Appeal?

When Directed Verdict Was Sought but Denied at Close of Plaintiff's Evidence?

Paula Eastley, Administrator of the Estate of Steven Hieneman v. Paul Holland Volkman, M.D., Denise Huffman, d/b/a Tri-State Health Care, and State Farm Fire and Casualty Company, Case no. 2011-0606
4th District Court of Appeals (Scioto County)

ISSUE:  When the defendant  in a civil lawsuit has moved the trial court to grant a directed verdict at the close of the plaintiff’s evidence, and the court has denied that motion, if the jury later returns a verdict in favor of the plaintiff, does the defendant waive her right to challenge the verdict on appeal as contrary to the manifest weight of the evidence if she failed to renew her motion for a directed verdict at the close of all evidence, and did not move the trial court to grant either a new trial or judgment notwithstanding the verdict after the verdict was announced?  

BACKGROUND: Paula Eastley filed a wrongful death lawsuit on behalf of the estate of her son, Steven Hieneman, against Dr. Paul Volkman, Tri-State Health Care, a Portsmouth “pain management clinic” at which Volkman practiced, and the non-physician proprietor of Tri-State, Denise Huffman. Eastley’s complaint alleged that Volkman had been negligent in prescribing excessive doses of multiple narcotic pain-killing drugs to Hieneman, resulting in his death as a result of taking multiple doses of those drugs in combination with each other. The complaint also alleged that Huffman was negligent in the operation of the clinic by failing to exercise ordinary care for the safety of its patients.

At trial, after counsel for Eastley had completed presentation of the plaintiff’s case, Huffman moved for a directed verdict dismissing all claims against her on the basis that Eastley had not made a required showing that Huffman (as opposed to Volkman) had been negligent in her dealings with Hieneman. The court overruled that motion, and the defendants presented their case. At the conclusion of all evidence, Huffman did not renew her motion for a directed verdict before the case went to the jury. The jury returned a verdict in favor of the plaintiff and awarded the estate $500,000 judgments against both Volkman and Huffman.

Huffman appealed the trial court’s judgment to the 4th District Court of Appeals, asserting among other arguments that the verdict should be overturned because it was contrary to the manifest weight of the evidence regarding Huffman’s negligence. Two members of the three-member appellate panel agreed with Huffman’s argument regarding the weight of the evidence, and indicated that they would reverse the judgment against her. The third judge, however, dissented, holding that Huffman had waived her right to seek reversal based on the manifest weight of the evidence because she had failed to renew her motion for a directed verdict at the close of all evidence, and had not filed post-verdict motions in the trial court seeking judgment notwithstanding the verdict (JNOV) or in the alternative a new trial. 

Because the Ohio Constitution requires that an appellate court may overturn a jury’s verdict based on the sufficiency or weight of the evidence only if all members of the reviewing panel concur in that judgment, the result of the third judge’s dissent was to deny Huffman’s appeal and leave the judgment against her in place. Huffman sought and was granted Supreme Court review of the dissenting opinion in the 4th District.

Attorneys for Huffman assert that nothing in Ohio statutory law, rules of appellate procedure or case law supports the holding in the 4th District dissent that Huffman waived her right to challenge the jury’s verdict as against the manifest weight of the evidence by failing to file or renew trial court motions for a directed verdict, a new trial, or JNOV.  They point out that R.C. 2321.01, enacted in the 1940s, specifically eliminated a former Ohio requirement that an appeal seeking a new trial based on the weight of trial evidence could only be pursued if the appellant had first moved the trial court for a new trial and that motion was denied. 

They also note that in considering a motion for a directed verdict or JNOV, a trial court must construe all evidence strictly against the moving party, whereas a court of appeals may reverse a jury verdict as against the weight of the evidence without construing that evidence favorably to either side, but merely by finding that the verdict was not supported by some competent, credible evidence.  Because of this difference in the standard of proof, they assert, the court of appeals dissent erred as a matter of law in holding that Huffman could not succeed on appeal based on the weight of the evidence  simply because she had failed to pursue or prevail on trial court motions for new trial or JNOV.

Attorneys for Eastley and her son’s estate cite a line of recent Ohio court decisions involving civil cases in which appeals of  jury verdicts based on the weight of the evidence have been treated as functionally equivalent to the challenges to the legal sufficiency of the evidence that are set forth in trial court motions for a new trial or JNOV.  Because Huffman asserted her evidentiary challenge in an unsuccessful trial court motion for directed verdict, and failed to renew that challenge at the close of evidence or pursue a separate challenge to the sufficiency of the evidence by asking the trial court to grant a new trial or JNOV after the verdict was returned,  they urge the Court to find that Huffman waived her right to reassert that claim on appeal.

Contacts
Thomas M. Spetnagel, 740.774.2142, for Paula Eastley, Administratrix of the Estate of Steven Hieneman.

M. Jason Founds, 614.228.5151, for Denise Huffman d.b.a. Tri-State Health Care.

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May Administrator's Request for Meeting With School Board Precede Completion of District's Evaluation Process?

Under Law That Requires Board to Conduct Requested Meeting Before Denying Renewal

State ex rel. Stacy L. Carna v. Teays Valley Local School, Case no. 2011-0716
4th District Court of Appeals (Pickaway County)

ISSUE: When a public school principal is notified prior to the completion of the statutory performance evaluation process that her contract will not be renewed at the end of its current term, and she requests at the time of that notification a meeting with the board of education prior to the board’s vote on her renewal or non-renewal, does the board’s failure to conduct such a meeting before voting to deny renewal of her contract violate R.C. 3319.02(D)(4), and entitle the principal to automatic reinstatement to her position pursuant to R.C. 3319.02(D)(5)?

BACKGROUND: R.C. 3319.02(D)(4) states that, before a school board takes action to renew or non-renew the contract of a public school administrator, if the administrator requests a meeting with the board, the board “shall grant a meeting in executive session,” at which the board “shall discuss its reasons for considering renewal or nonrenewal of the contract.”  R.C. 3319.02(D)(5) provides that if a school board “fails to provide at the request of the employee a meeting as prescribed in division D(4) of this section, the employee automatically shall be reemployed ...”

Stacey Carna entered into a two-year contract with the Teays Valley Local School District to serve as principal of Ashville Elementary School for the 2006-2007 and 2007-2008 school years. In May 2007, Carna was placed on paid administrative leave for the remaining term of her contract based on allegations that she had tampered with Ohio Achievement Test answer sheets that had been completed by students at the school. In July 2007, Carna was advised by an assistant district superintendent that her contract would not be renewed when it expired in the summer of 2008. At the time of that notification, Carna requested that she be allowed to meet with the district school board prior to any final board action on the nonrenewal of her contract. The board does not dispute that such a request was made.

At a regularly scheduled school board meeting on March 17, 2008, without advance notice to Carna that her contact would be considered at that meeting and without meeting with her in advance to discuss its reasons for nonrenewal, the board voted not to renew Carna’s contract. In November 2008, following an administrative hearing, the Ohio Department of Education found no basis to take any action against Carna’s professional licenses based on its findings that the evidence presented did not demonstrate that any tests were altered, or show that Carna had erased answers or otherwise tampered with test results.

Carna subsequently filed suit against the school district in the Pickaway County Court of Common Pleas. Among other claims, Carna asked the court to issue a writ of mandamus compelling the district to reinstate her in her former position with back pay based on the district’s failure to comply with her request for a meeting with the school board prior to its vote denying renewal of her contract.  The trial court granted summary judgment in favor of the school board, holding that Carna’s July 2007 request for a meeting had been made prematurely, before the district had performed legally-required evaluations of Carna’s work performance during the second year of her contract period, and was therefore not a valid “request” pursuant to R.C. 3319.02(D)(4) that would trigger the automatic reinstatement requirement of R.C. 3319.02(D)(5).

Carna appealed.  On review, the 4th District Court of Appeals affirmed the trial court’s ruling.  The court of appeals held that under the statutory scheme, an employee’s right to request a meeting with the school board arises only after all steps of the evaluation process have been completed and the employee has been sent a notice of the district’s intent to renew or not to renew his or her contract.  Carna sought and was granted Supreme Court review of the 4th District’s decision.

Attorneys for Carna assert that the lower courts erred by misreading R.C. 3319.02(D) to restrict the time period within which an administrator may make an enforceable  “request” for a meeting with a school board.  They argue that the plain language of the statute simply requires that a meeting request be made prior to the date the board votes on renewal of an employee’s contract, and does not set any other requirements regarding the timing of a request, the form in which it must be made, or any specific language that must be included.   

They argue that Carna’s July 2007 request for a meeting with the board after being told that nonrenewal of her contract would be recommended invoked her rights under R.C. 3319.02(D)(4), and the board’s failure to conduct that meeting before it voted on her contract entitles her to automatic reinstatement under R.C. 3319.02(D)(5).

Attorneys for the school board urge the Court to affirm the reasoning of the trial and appellate courts that the language addressing an employee’s right to meet with the board must be read in context with the rest of the statutory scheme regulating the renewal or nonrenewal of school employee contracts. They argue that R.C. 3319.02(D) sets forth a step-by-step process in which each contract employee must be evaluated within set time periods, a final recommendation for renewal or nonrenewal must be made to the board by the district superintendent, and the employee is then offered an opportunity to request a meeting with the board in order to support or oppose that recommendation.

Contacts
Frederick M. Gittes, 614.222.4735, for Stacey L. Carna.

Richard A. Williams, 614.224.0531, for Teays Valley Local Schools.

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Attorney Discipline

Disciplinary Counsel v. William Matthew Crosby, Case no. 2011-1453
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney William M. Crosby be permanently disbarred for multiple acts of professional misconduct including failure to file federal income tax returns or pay federal income tax for the 2001 through 2006 tax years, resulting in his conviction on a felony count of tax evasion.

The board also found that Crosby misappropriated client funds, perpetrated a fraud upon a bankruptcy court, and engaged in illegal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; and conduct prejudicial to the administration of justice in his handling of the settlement proceeds from a lawsuit in which he represented five plaintiffs who had been abused as children by a Catholic priest.

Crosby, whose license was suspended for 24 months in December 2009 for prior acts of misconduct, has also been under an interim suspension since November 2010, when the Court was informed of his felony conviction.

Crosby has filed objections to the disciplinary board’s recommended sanction of disbarment. He argues that the rule violations found by the board in connection with his tax evasion case have not been held to be grounds for disbarment in a number of other cases involving attorneys who failed to file or pay their taxes. With regard to his conduct in the child sexual abuse lawsuit and handling of the settlement proceeds, Crosby asserts that his concealing of the proceeds of his client’s settlement from a bankruptcy court was not done from any selfish motive but rather as a sincere but ill-considered attempt to preserve for the client’s use some portion of money that was compensation for sexual abuse the client suffered as a child, rather than having all of those funds taken away and distributed to creditors for debts he incurred later in life.  In light of the facts that he had suffered a relapse of alcohol addiction at the time of his offenses but is currently in recovery, has already served a jail sentence and other punishment for his criminal conviction, and did not act with a selfish motive in the child abuse case, Crosby urges the Court to impose a two-year license suspension rather than permanent disbarment.

The Office of Disciplinary Counsel, which prosecuted the charges against Crosby before the disciplinary board, has filed an answer to Crosby’s objections urging the Court to impose the recommended sanction of disbarment. Counsel argues that the record shows Crosby engaged in a pervasive multi-year pattern of dishonesty in his dealings with the Internal Revenue Service, his clients,  courts, other attorneys and the disciplinary authorities investigating his misconduct.  They note that in his earlier attorney discipline case, Crosby testified under oath in 2009 that he had not used his law office client trust account to conceal his income from tax authorities, but specifically admitted that he had done exactly that for a period of several years in his pleadings to tax evasion charges a year later.  

Disciplinary Counsel also points out that, in addition to concealing his client’s settlement proceeds from a bankruptcy court, the board of commissioners also found that Crosby signed and cashed the settlement check without his client’s knowledge or permission and lied about doing so in later court testimony, withheld from the settlement proceeds thousands of dollars for claimed litigation “expenses” that were never documented, and made personal use of nearly all of $80,000 of the client’s funds that were supposed to have remained on deposit in his trust account before replacing those funds from the proceeds of an unrelated settlement check.

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

Patrick J. Perotti, 440.352.3391, for William Crosby.

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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.