Oral Argument Previews

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Tuesday, June 11, 2013

Alessandra Riscatti et al. v. Prime Properties Limited Partnership et al., Case no. 2012-1307
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Eric Long, Case no. 2012-1410
First District Court of Appeals (Hamilton County)

Jeffrey Morrow v. Sherri Becker, Case nos. 2012-1674 and 2012-1898
Ninth District Court of Appeals (Medina County)

State of Ohio v. Hersie R. Wesson, Case no. 2009-0739
Summit County Court of Common Pleas


Is Denial of County’s Motion to Dismiss Civil Suit as Untimely Subject to Immediate Appeal Under Immunity Statute?

When County’s Motion Alleges Expiration of  Immunity Law Limitations Period

Alessandra Riscatti et al. v. Prime Properties Limited Partnership et al., Case no. 2012-1307
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a trial court denies a political subdivision’s motion to dismiss a lawsuit against it based on the alleged expiration of the two-year limitations period set forth in Ohio’s governmental immunity statute, does that action “deny the benefit of an alleged immunity” and thus entitle the political subdivision to immediate review of the trial court’s ruling by a court of appeals?

BACKGROUND:  Allessandra Riscatti and multiple other residents of a Parma neighborhood filed a civil lawsuit in 2010 against the current and former owners of a nearby Marathon gas station, alleging that a faulty drainage system installed under the station had for years allowed groundwater contaminated with gasoline and gasoline vapors to invade the public sanitary sewer system serving the area during periods of heavy rain, creating a noxious odor of petroleum in surrounding homes and ultimately resulting in an explosion in the basement of Riscatti’s residence in August 2009.

While the original complaints filed by Riscatti and other homeowners (later consolidated into a single case) did not name Cuyahoga County as a co-defendant, subsequent amendments to their complaints added claims against the county based on alleged negligent oversight and maintenance of the sewer system.

The county filed a motion to dismiss the plaintiffs’ claims against it, asserting among other defenses that area homeowners including Riscatti had been aware of the gasoline smell since as early as 1982, but had failed to investigate or take timely legal action to address the problem. The county argued specifically that the plaintiffs had forfeited their right to assert claims against it for negligent maintenance of the sewer because they had not filed suit within the two-year statute of limitations (time limit) for bringing such claims against a political subdivision set forth in R.C. 2744.04(A), a provision of Ohio’s political subdivision immunity statute.

In August 2011, the trial court denied the county’s motion to dismiss based on the statute of limitations. The county sought immediate review of that ruling by the Eighth District Court of Appeals under R.C. 2744.02(C), a provision of the immunity statute that allows a political subdivision to immediately appeal a trial court ruling that denies the subdivision “the benefit of an alleged immunity” rather than delaying consideration of such a ruling until after the underlying dispute has been fully litigated.

In a 2-1 decision, the Eighth District ruled that it did not have jurisdiction to consider the county’s appeal of the statute of limitations issue because the trial court’s ruling had not “denied the benefit of an alleged immunity” but had merely rejected the county’s claim that the plaintiffs’ complaint was not timely filed.  The county sought and was granted Supreme Court review of the Eighth District’s ruling.

Attorneys for the county argue that the trial court ruling that they attempted to appeal was an order that “denied the benefit of an alleged immunity” because it denied a defense to liability that the county asserted under the immunity statute. While acknowledging that trial court rulings based on other statutes of limitations are generally not appealable until a final order has been issued in the underlying dispute, they assert that the two-year statute of limitations placed within R.C. Chapter 2744 by the legislature is an integral part of a statutory scheme designed to dispose of civil suits involving governmental entities at the earliest time possible, rather than delaying resolution of immunity issues until taxpayers have been billed for months or years of expensive litigation that may be completely unnecessary.  They urge the court to hold that the denial by a trial court of a dispositive statute of limitations defense asserted by a political subdivision under R.C. 2744.04(A) is a ruling that “denies the benefit of an alleged immunity,” and ask the justices to remand this case to the Eighth District with a directive to review the trial court’s ruling on that issue.

Attorneys for the plaintiffs urge the court to affirm the Eighth District’s ruling, which they say correctly held that a defendant’s motion to dismiss based on the alleged expiration of a statute of limitations does not assert the defense of immunity under the political subdivision immunity statute, and a trial court’s denial of such a motion is not subject to immediate appellate review as a “denial of immunity” simply because the defendant making the motion happens to be a government entity rather than a private litigant.

Contacts
Representing Cuyahoga County: Charles E. Hannan, 216.443.7758

Representing Allessandra Riscatti and other homeowners: Drew Legando, 216.522.9000

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Must Court Explicitly Acknowledge Defendant’s Youth When Imposing Life Sentence Without Chance of Parole?

Pursuant to U.S. Supreme Court’s Decision in Miller v. Alabama

State of Ohio v. Eric Long, Case no. 2012-1410
First District Court of Appeals (Hamilton County)

ISSUE: Under the U.S. Supreme Court’s 2012 holding in Miller v. Alabama, does a trial court violate the constitutional prohibition against cruel and unusual punishment if it imposes a sentence of  life imprisonment without the possibility of parole for an aggravated murder committed by a juvenile without explicitly addressing in its sentencing order the youth of the defendant and the presumptions that minors are less culpable for criminal acts and are more amenable to rehabilitation than adults who commit similar offenses?

BACKGROUND: Eric Long of Cincinnati was convicted of two counts of aggravated murder in 2009 after a jury found that Long and two co-defendants had fired multiple shots from three different guns into an SUV traveling along Interstate 75.  Both occupants of the SUV, who had been involved in an altercation with Long and his companions earlier that night, were killed and their vehicle crashed into the highway median and rolled multiple times before coming to a stop.

At the same trial, Long was also convicted on three counts of felonious assault and other weapons-related charges based on a separate incident two weeks before the I-75 shooting in which Long and the same two co-defendants fired at least 28 shots from assault weapons into a house occupied by five persons, wounding two of the occupants.

Long was 17 years old on the dates of both incidents. He was bound over for trial as an adult and found guilty on all counts.

Following a pre-sentence investigation and review of sentencing memoranda submitted to the court by the prosecutor and defense counsel, the trial judge sentenced Long to a term of life imprisonment without the possibility of parole for each of the aggravated murder counts, and imposed additional prison terms for the assault and weapons charges.

Long appealed his convictions and sentence to the First District Court of Appeals. While his appeal was pending, the U.S. Supreme Court ruled in Miller v. Alabama that a state law requiring judges to impose a mandatory sentence of life-without-parole on certain juvenile offenders was unconstitutional  under the Eighth Amendment prohibition against cruel and unusual punishment. In affirming Long’s convictions and the sentences imposed by the trial court, the First District rejected Long’s argument that his sentence was unconstitutional under Miller. Long had argued that nothing in the trial record reflected that the judge had explicitly considered his youth and presumptively reduced culpability before sentencing him to life without parole.

Long sought and was granted Supreme Court review of the First District’s decision.

Attorneys for Long argue that in cases involving crimes committed by minors, the Miller decision imposes an affirmative requirement that trial courts considering a range of sentences that includes life without parole must explicitly acknowledge the youth of the defendant and  the differences between adult and child brain functions, and make on-the-record findings recognizing the presumptions of reduced culpability and greater capacity for rehabilitation that are generally applicable to minors.
In this case, they say, the trial judge’s sentencing order was contrary to Miller because it made no mention of Long’s status as a juvenile when the murders were committed, and did not address the presumptions of reduced culpability and heightened capacity for  rehabilitation before sentencing him to spend the rest of his life in prison without any hope of eventual release.

Long’s position is supported by amicus curiae (friend of the court) briefs filed by the National Association of Criminal Defense Lawyers and the Pennsylvania-based Juvenile Law Center.

Attorneys for the state, including an amicus curiae (friend of the court) brief submitted by the Ohio Attorney General’s office, respond that in Miller the U.S. Supreme Court addressed a sentencing scheme that mandated a sentence of life without parole for certain juvenile offenders, and thereby precluded trial judges from giving any consideration or weight to a youthful defendant’s mental immaturity or amenability to future rehabilitation before imposing such an extreme sentence.

In this case, they point out, the trial court could and did consider the Miller factors that disfavor a sentence of life without parole for a youthful defendant.  They argue that the record shows that the judge observed Long closely during four weeks of trial and carefully reviewed his attorneys’ forceful arguments for leniency based on his youth both during the trial and in their subsequent sentencing memorandum. They contend that, having duly considered Long’s youth as a mitigating factor as required by Miller, the judge stated  in her sentencing entry that based on Long’s total lack of remorse for killing two persons and severely wounding two others, and his clear disregard for the value for human life, she must impose a sentence that would keep him in custody for the rest of his life based on her conclusion that if he ever reentered society “he would kill again.”

Contacts
Representing Eric Long: Stephen P. Hardwick, 614.466.5394

Representing the state and Hamilton County prosecutor’s office: Ronald W. Springman, 513.946.3000

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Are Company Benefits Provided by Employer Includable In Parent’s ‘Income’ For Purposes of Calculating Child Support?

Jeffrey Morrow v. Sherri Becker, Case nos. 2012-1674 and 2012-1898
Ninth District Court of Appeals (Medina County)

ISSUE:  In determining a parent’s “gross income” for purposes of calculating child support, does a domestic relations court abuse its discretion by including as income the value of benefits such as a company car and cellular phone service that are provided to that person by his or her employer if the person receiving the benefits is not self-employed or the proprietor, owner or co-owner of a partnership or closely held business?

BACKGROUND: Jeffrey Morrow and Sherri Becker are the unmarried parents of two children.  In late 2004, the couple separated and Becker initiated an action to establish child support. Morrow was ordered to pay $2,198 per month for child support. 

In 2009 Morrow filed a motion in the Medina County Domestic Relations Court seeking a reduction in his child support obligation based on a claim that his salary as president of the Ohio College of Massotherapy (OCM) had been significantly reduced in order for the school to survive cash flow problems arising from the 2008-2009 economic recession.

After calculating the current incomes of both parents, the trial court concluded that Morrow was not entitled to a reduction in his monthly child support obligation. In determining Morrow’s annual  income, the court included $16,756 worth of non-cash benefits he received from his employer including $9,600 for the use of a company-owned car, $4,356 for company-paid insurance, $1,200 for company-paid cellular phone service, and $1,600 for four company-paid season tickets to Ohio State University football games.

Morrow sought and was granted Supreme Court review of the Ninth District’s ruling with regard to the legality of including employer-paid benefits in calculating a parent’s gross income for child support purposes.

Attorneys for Morrow argue that in defining “gross income” countable for child support purposes in R.C. 3119.01(C)(7), the legislature provided a detailed list of 23 specific sources of income that must be included, but made no mention of employer-paid benefits despite the fact that the use of a company vehicle and/or cell phone is a routine and even a presumptive item included in the compensation “packages” of  tens of thousands of Ohio employees whose job duties require them to travel.  

Contrary to the Ninth District’s conclusion that such items are covered by the statute’s “catch-all” provision for other unnamed “sources of income,” they point out that the legislature did specifically address the use of company vehicles and similar benefits in a later section of the child support statute, R.C. 3119.01(C)(13), and stated in that section that such benefits are countable for child-support purposes as “self-generated income” only if the parent receiving such a benefit is self-employed or is the proprietor, owner, or co-owner of the business entity providing the benefit. 

Reading those two provisions of the law together, they assert that the legislature did not intend courts to include employee benefits such as Morrow’s company-paid car or cell phone service in calculating his income for child support purposes except in the specified circumstance that a parent receiving such a benefit is his or her own employer, and is in effect paying himself or herself in kind rather than in cash.

Attorneys for Becker urge the court to affirm the ruling of the Ninth District, which they say correctly noted that the list of “countable” income sources included in R.C. 3119.01(C)(7) is non-exhaustive, as witnessed by the legislature’s inclusion at the end of that list the catch-all phrase “and all other sources of income.”

They point out that in sub-paragraphs (a) through (f) of that same code section, the legislature identified six specific types of remuneration that courts should not consider in calculating a parent’s child support obligation, and note that employer-paid job benefits are not among those exclusions.  They also argue that the language in R.C. 2119.01(C)(13) requiring that company cars and similar benefits provided to the owner or proprietor of a business must be counted as income for child support purposes does not convey legislative intent to exclude those same kinds of benefits when they are provided to a non-owner.

Contacts
Representing Jeffrey Morrow: John C. Ragner, 330.328.1857

RepresentingSherri Becker: Linda Hoffman, 330.334.1536

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Death Penalty

State of Ohio v. Hersie R. Wesson, Case no. 2009-0739
Summit County Court of Common Pleas

Hersie Wesson of Akron was convicted of aggravated murder and sentenced to death for the February 2008 stabbing death of 81-year-old Emil Varhola and the attempted murder of Varhola’s wife, Mary, during a robbery of the couple’s Akron home. Wesson waived a jury trial and was found guilty by a three-judge panel of aggravated robbery, attempted murder, and two separate counts of aggravated murder: murder during the commission of another violent felony (aggravated robbery), and murder committed while he was under detention (still serving a term of postrelease control for a prior felony conviction).

Wesson has appealed his convictions and sentence to the Supreme Court, advancing 12 claims of legal and procedural error during his trial as grounds for the justices to reverse his convictions and/or reduce his death sentence to a term of life imprisonment.

Among those assignments of error, Wesson’s attorneys argue that:

Arguing for the state, attorneys from the Summit County prosecutor’s office respond that:

Contacts
Representing Hersie Wesson: David L. Doughten, 216.361.1112

Representing the state and Summit County prosecutor’s office: Richard S. Kasay, 330.643.2800

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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.