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Tuesday, August 21, 2012

State of Ohio v. Kyle D. Raber , Case no. 2011-1383
Ninth District Court of Appeals (Wayne County)

Mohamed Bassem Rayess v. Educational Commission for Foreign Medical Graduates, Case no. 2011-1933
Second District Court of Appeals (Montgomery County)

Jeff Holmes v. Crawford Machine, Inc., and State of Ohio, BWC, Case no. 2011-2040
Third District Court of Appeals (Crawford County)

Disciplinary Counsel v. Robert Leon Schwartz, Case no. 2012-0644
Hamilton County


May Court Re-Open Case to Impose Sex Offender Classification After Conviction and Sentence Have Been Journalized?

Where Original Judgment Omitted ‘Adam Walsh’ Classification From Defendant’s Sentence

State of Ohio v. Kyle D. Raber, Case no. 2011-1383
Ninth District Court of Appeals (Wayne County)

ISSUE:  In a criminal case involving a sexually oriented offense, if a trial court enters a judgment of conviction and a sentencing order in its journal without including a requirement that the defendant register as a sex offender, does that judgment entry terminate the court’s subject matter jurisdiction over the case, and bar it from later imposing a registration requirement on the defendant?

BACKGROUND: In 2008, Kyle Raber entered a guilty plea to a third-degree misdemeanor count of sexual imposition.  He was convicted on that count and sentenced to sixty days in jail, a fine and a term of community control.

On December 1, 2008, at the time sentence was pronounced, the trial judge indicated uncertainty regarding whether Raber’s conviction would require him to register with law enforcement as a sex offender under the Ohio Adam Walsh Act (AWA). With the agreement of the Wayne County prosecutor and Raber, the court deferred consideration of the registration issue to allow the parties to research and brief that question. The court then entered a judgment of conviction and sentencing order in its journal, without including any reference to sex offender registration. Neither the state nor Raber objected to the trial court’s action, or filed an appeal of its judgment within the statutory appeal period. Raber served his jail sentence and paid his fine.

The court subsequently notified the state and Raber that it had determined Raber’s conviction would require him to register as a Tier I offender under the AWA if the conduct that resulted in his sexual imposition conviction was non-consensual.  On March 4, 2010 the court conducted a hearing to which Raber entered no objection and at which he presented testimony and cross-examined a state witness. At the conclusion of that hearing, the court determined that Raber’s conduct had been non-consensual, and therefore he must register as a sex offender.  On April 14, 2010, the court held a final  hearing at which it notified Raber of his registration requirements under the AWA, and amended its 2008 journal entry to add the registration requirement.

Raber appealed to the Ninth District Court of Appeals, asserting that the trial court’s March 4 and April 14, 2010 hearings should be nullified and his sex offender registration requirement should be vacated because the trial court had relinquished subject matter jurisdiction over his case on December 1, 2008, when it journalized its original judgment of conviction and sentencing order without including a registration requirement.  The Ninth District rejected Raber’s argument and affirmed the trial court’s action imposing sex offender registration.

Raber sought Supreme Court review of the Ninth District’s ruling. After initially declining to exercise jurisdiction in the case, the Supreme Court reconsidered and agreed to hear arguments.

Attorneys for Raber cite prior court decisions, including the Supreme Court’s 2011 decision in State v. Carlisle, which they say have held that when the judgment of a trial court has been entered in its journal, that judgment is final and effectively terminates the court’s subject matter jurisdiction over the case. Thus, they argue, after the trial court in Raber’s case entered a judgment of conviction and sentencing order in its journal on December 1, 2008, the court lacked jurisdiction to later re-open the case and impose a sex offender registration requirement as additional punishment for his offense. They contend that if the state wished to contest a sentence that did not include sex offender registration, it was the state’s burden to object to the original journal entry or preserve the issue by filing an appeal based on the omission.  Because the state did nothing to contest the 2008 sentencing order within the statutory time limit for doing so, they assert that the original order became a final judgment that the court could not later re-open or change.

The Wayne County prosecutor’s office, arguing on behalf of the state, urges the court to affirm the Ninth District’s holding that when Raber agreed to defer resolution of his sex offender registration status to a later date, he waived any right to challenge the absence of that information from the trial court’s December 2008 sentencing entry.  The state also points out that when Raber was notified of the March 2010 hearing to consider his registration status, he made no objection and fully participated in that proceeding, thus forfeiting any later claim that the trial court lacked continuing jurisdiction over his case.

Contacts
David T. Eager, 330.262.2279, for Kyle Raber.

Jason B. Desiderio, 716.214.1712, for the state and Wayne County prosecutor’s office.

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Do Copies of Medical Exam Brochure, Completed Application and Fee Receipt Constitute a ‘Written Contract?’

Where Lawsuit Asserts Claim For Breach of ‘Written Contract or Promise’

Mohamed Bassem Rayess v. Educational Commission for Foreign Medical Graduates, Case no. 2011-1933
Second District Court of Appeals (Montgomery County)

ISSUE:  In order to invoke the 15-year limitations period (time limit) for a plaintiff to bring a lawsuit based on breach of a written contract or promise, may a plaintiff meet the requirement of producing a copy of the written contract by submitting a combination of documents including  an informational brochure describing a medical test, a copy of the plaintiff’s application to take that test, cancelled checks for the testing fees, and supplemental correspondence between the applicant and the testing authority?

BACKGROUND:  In 1993, Mohamed Bassem Rayess, a graduate of a medical school in Syria who was residing in the U.S. on a student visa, applied to take Part One of the United States Medical Licensing Test in order to qualify for a medical residency in the U.S. The test is administered at regional sites across the country by a non-profit testing and certification agency, the Educational Commission for Foreign Medical Graduates (ECFMG). 

In response to Rayess’ inquiry, ECFMG sent him an application form and an informational brochure that described the test and the testing process. The brochure stated that the test consisted of “four, three-hour books.” Rayess completed and returned the application along with a check for the $400 examination fee, and received from ECFMG a receipt for his fee and a ticket admitting him to the  test to be administered at the University of Cincinnati on September 21 and 22, 1993. Rayess came to the test site and completed the examination, but was delayed in beginning the first section or “book” because of a procedural problem with proctors overseeing the administration of the test.  The parties dispute the amount of time Rayess was given to complete the first section of the test. 

In October 1993, Rayess was notified that he had not achieved a passing grade on the first portion of the examination and would have to retake the entire test, which would not be offered again until June 1994.  Rayess contacted ECFMG, alleging that his failing grade on the first section of the exam was a direct result of the actions of the test proctors who had forced him to complete that portion of the test in less than the three hours promised in its test description brochure. Rayess demanded that ECFMG allow him to retake the test for free, and provide him with tuition and living expenses to re-enroll in the test preparation course that was the basis of his student visa until the next test was conducted.  ECFMG responded that it would allow Rayess to re-take the examination for free in June 1994, but denied his other requests for compensation. 

Rayess did not retake the test, and did not obtain a medical residency in the U.S. or Canada.

In September 2008, just under 15 years after Rayess’ failure of the September 1993 medical licensing test, he filed suit against ECFMG in the Hamilton County Court of Common Pleas alleging that ECFMG had breached a written contract in which it had promised that in exchange for his payment of the $400 testing fee, he would be given three hours to complete each of the four sections of the U.S. Medical Licensing Test. As proof of a written contract, under which legal claims may be brought for 15 years after its execution, Rayess submitted a copy of the ECFMG brochure describing the test, copies of his completed application, canceled check and receipt for the testing fee, the notice he had received confirming his acceptance to take the test and later correspondence between himself and ECFMG addressing the events on the first day of the 1993 test.

In his complaint, Rayess claimed that as a result of ECFMG’s breach of contract, he had been unable to complete the testing process and obtain employment in the U.S. as a physician. He asked the court to award damages not only for the tuition and living expenses ECFMG had refused to pay in 1993, but also for intentional and negligent infliction of emotional distress, and for the loss of income he had suffered over the intervening 15 years as a result of having to obtain less remunerative employment.

After filing an answer to Rayess’ complaint, attorneys for ECFMG entered a motion for judgment on the pleadings in which they argued that Rayess’ claims based on infliction of emotional distress were barred by the four-year statute of limitations (time limit) for asserting such claims. They also asserted that there had never been a legally sufficient written contract between ECFMG and Rayess, and in the absence of a written contract, Rayess’ claims against them were subject to Ohio’s six-year statute of limitations for claims of breach of an oral contract. Since that time limit had long since expired, ECFMG asserted that Rayess’ breach of contract claim must be dismissed as untimely. The trial court agreed and entered judgment on all of Rayess’ claims in favor of ECFMG.

Rayess appealed. On review, the Second District Court of Appeals partially reversed the trial court’s ruling and reinstated Rayess’ breach of written contract claim. The court of appeals held that, when construed most favorably to Rayess as required by the Rules of Civil Procedure, the collection of documents he had produced was sufficient to constitute a written agreement between the parties that invoked the 15-year statute of limitations for claims based on breach of a written contract or promise.

ECFMG sought and was granted Supreme Court review of the Second District’s decision.

Attorneys for ECFMG point to court of appeals decisions holding that in order to demonstrate the existence of a written contract, a plaintiff must produce a single document that clearly demonstrates a “meeting of the minds” of the parties and sets forth the specific terms and conditions each party has agreed to be bound by in exchange for stated consideration from the other party.  They particularly cite the 10th District’s holding in Claxton v. Mains (1986) that to be a written contract an instrument must “clearly define the  ... obligations of the parties without reference to supplemental evidence to establish the terms of the agreement, contract or promise.”

In this case, they say, the ECFMG brochure submitted by Rayess was intended to provide potential examinees with a general description of the test and testing process, not as a recitation of precise or legally binding specifications that the testing agency promised would be followed to the letter.  They contend that if the Second District’s ruling in this case is affirmed, it will open the door for any unsuccessful taker of a state licensing examination to sue the licensing agency years later for breach of contract based on any perceived departure from the language used in a form letter or brochure describing the test.

Attorneys for Rayess urge the court to affirm the Second District’s ruling, which they say merely held that when an applicant is advised in writing that he will have a specified time period within which to complete a professional licensing examination, and produces written evidence that he completed the required application, paid the specified testing fee and appeared at the appointed time and place to take the test, those elements taken together constitute an enforceable written promise or contract between the test-giver and test-taker.

Contacts
Audrey K. Bentz, 440.838.7600, for the Educational Commission for Foreign Medical Graduates.

Mohamed Bassem Rayess, pro se, 937.439.9425.

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May Workers’ Comp Claimant Recover All Fees and Costs of Appeal When One of Multiple Claimed Conditions Approved?

Or Is Recovery Limited To Costs Attributable to the Granted Condition?

Jeff Holmes v. Crawford Machine, Inc., and State of Ohio, BWC, Case no. 2011-2040
Third District Court of Appeals (Crawford County)

ISSUE: When a workers’ compensation claimant appeals to a common pleas court seeking an award of benefits for multiple claimed job-related injuries, and the court finds that the claimant is entitled to benefits for at least one but not all of the claimed conditions, does the applicable state law entitle the claimant to recover all of the  attorney fees and costs he or she incurred in the appeal proceedings, or is the claimant’s recovery limited to fees and costs attributable to the claim(s) for which the court awarded benefits?

BACKGROUND:  A provision of Ohio’s workers’ compensation law, R.C. 4123.512(F), provides that when a claimant seeking benefits is required to pursue an appeal of his or her claim in a common pleas court, the claimant is entitled to reimbursement of attorney fees and other expenses incurred in the appeal process “in the event the claimant’s right to participate or continue to participate in the fund (i.e. to receive benefits) is established upon the final determination of an appeal.”

In this case, Jeff Holmes of Crawford County applied for workers’ compensation benefits for multiple injuries that he claimed to have suffered as a result of receiving an electric shock from a piece of equipment in the course of his employment with Crawford Machine, Inc.  The Bureau of Workers’ Compensation (BWC)  granted his claim for the conditions of electrical shock,  left shoulder strain, low back strain, left rotator cuff tear, left posterior shoulder dislocation, and abrasion of a finger.

After the Industrial Commission refused an appeal of the BWC’s decision, Crawford Equipment exercised its right to appeal the BWC ruling to the Crawford County Court of Common Pleas.

Following a jury trial, the court affirmed the award of benefits for Holmes’ finger abrasion injury, but denied benefits for all of the other conditions asserted in his claim. Holmes subsequently moved the court to order Crawford Machine to reimburse him for the attorney fees and litigation costs, including expert witness fees and travel expenses, that he had incurred during the appeal process.  The court ordered Crawford Equipment to reimburse Holmes for $4,200 in attorney fees and $7,551 in costs, for a total of $11,751.

Crawford Machine appealed the reimbursement order to the Third District Court of Appeals.  On review, the Third District reversed and remanded the case to the trial court, holding that the judge had abused his discretion in granting Holmes reimbursement for attorney fees and expenses that were exclusively related to the six medical conditions that had been disallowed.  In its opinion, the Third District certified that its ruling barring reimbursement of Holmes for costs related to his disallowed conditions was in conflict with a ruling on the same legal issue by the Tenth District in Hollar v. Pleasant Township (2003). The court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Holmes argue that the plain language of R.C. 4123.512(F) requires that the party contesting a BWC decision that granted workers’ compensation benefits to a claimant “shall be taxed” for the claimant’s attorney fees and other litigation costs incurred in the appeal process “in the event the claimant’s right to participate ... in the fund (i.e. receive benefits) is established.”  They point out that many workers’ compensation appeals address multiple claimed medical conditions, and assert that if the legislature had intended to limit recovery to only the costs a claimant incurs in litigating allowed conditions, but not disallowed conditions, it could and would have written the law to make that distinction. Because the law makes no such distinction, and instead simply requires reimbursement if the claimant is found “eligible to participate,” they say, the Third District’s ruling must be reversed because it improperly inserts a limitation into the law that the legislature did not place there.

Attorneys for Crawford Machine point out that a trial court has discretion to award or not award attorney fees and costs to parties in cases before that court.  In this case, they assert, while R.C. 4123.512(F) entitled Holmes to recover some fees and costs because his claim was partially approved, the Third District correctly held that it was an abuse of discretion for the trial judge to order Crawford Machine to reimburse Holmes for all of his litigation costs when six of his seven claimed conditions were disallowed, and virtually all of Holmes’ costs were incurred in connection with the disallowed conditions.

Contacts
Jennifer L. Lawther, 216.289.4740, for Jeff Holmes.

Barbara Knapic, 330.762.7377, for Crawford Machine Inc.

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Attorney Discipline

Disciplinary Counsel v. Robert Leon Schwartz, Case no. 2012-0644
Hamilton County

The Board of Commissioners on Grievances & Discipline has recommended that Cincinnati attorney Robert L. Schwartz be permanently disbarred for professional misconduct that resulted in his convictions on felony counts of mail fraud and filing a false federal income tax return.  Schwartz, whose law license has been under an interim suspension since his convictions were reported to the Supreme Court in 2010, is currently serving a four-year sentence in federal prison.

The disciplinary board found that while serving as executor of the multi-million dollar estate of a deceased client, and as trustee of three trusts established in her will, Schwartz had diverted large sums to his own personal use and had sent a letter to a charity, Hadassah Hospital, concealing the amount of a large bequest the client had directed Schwartz to make to it from her estate. Schwartz subsequently filed a 2007 federal income tax return that omitted large legal fees he had paid himself as executor and trustee of his client’s trusts, funds he had diverted to his personal use from the client’s trusts, and unreported income he had received from legal fees arising from other clients’ personal injury settlements.

The board found that Schwartz had violated the state disciplinary rules that prohibit an attorney from engaging in illegal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; and conduct that reflects adversely on the attorney’s fitness to practice law. A three-member hearing panel recommended that Schwartz be indefinitely suspended pending future good conduct and full restitution. The full disciplinary board agreed with the panel’s findings of fact and conclusions of law, but recommended that the Supreme Court permanently revoke Schwartz’ law license.

Schwartz has filed objections to the board’s recommended sanction of disbarment, arguing that in naming him executor and trustee in her will, his client gave him wide discretion in allocating funds from her estate.  He asserts that he relied on expert outside counsel in drawing up and administering the trust agreements and allocating monies from those trusts to various charitable groups including several in which Schwartz was a principal. He also argues that his failure to disclose the amount of his client’s bequest to Hadassah was not because he wanted to conceal the bequest but because the bequest was to be a percentage of the total estate after taxes, and he had been unable to establish the after-tax value of the estate prior to being removed as executor.

The Office of Disciplinary Counsel, which prosecuted the complaint against Schwartz before the disciplinary board, responds that Schwartz signed an estate tax form deducting a $2.5 million bequest to Hadassah in 2006, but had not disclosed that amount and had made contributions of only $10,000 to the charity prior to discovery of his misconduct in 2008.  Counsel points out that in his plea agreement with federal prosecutors  Schwartz admitted concealing the amount of his client’s bequest to Hadassah and knowingly filing a false tax return, and argues that despite his attempts to explain those admissions away, the court should adopt the board’s recommendation that his admitted misconduct calls for permanent revocation of his law license.

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

Robert L. Schwartz, pro se, no telephone contact information available.

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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.