Columbus Bar Lawyers Quarterly Spring 2017

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LAWYERS

Columbus Bar Spring 2017

QUARTERLY

Spring 2017 Special Edition:

Urban Development

In this issue, Columbus Bar Lawyers Quarterly explores the ins and outs of urban Columbus, the pros and cons of regulations and other developments – from the Tenant Advocacy Project to social media and beyond.

A publication of the Columbus Bar Association • www.cbalaw.org


ColsLaw Quarterly3_2017.pdf

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Being known for experience and expertise begins with seeking these qualities in the professionals you engage. The advances in technology continue to evolve rapidly, but no matter the level of change, it is always the expertise and experience of extraordinary engineers, investigators, researchers and imaging sciences specialists that can join you in the courtroom to reveal the causes of vehicle accidents, product/equipment malfunctions and structural collapses. The recently opened S-E-A 47-acre research campus marries time-tested methodologies with some of the most advanced techniques and groundbreaking innovations available for forensic analysis and product testing. Within the 110,000 sq. ft. of building space are: a vehicle accident simulator, biomechanical labs, candle labs, chemical labs and confidential high-bay testing suites. Outdoors, on the Campus, are: a vehicular test pad, fire-reconstruction facilities, and undulating topography for testing off-highway vehicles and equipment. To support on- or off-site testing, S-E-A has added a drone, 3-D laser scanners and the most advanced Imaging Sciences Practice Group in the industry. The new Campus has capacity to hold client conferences, continuing education presentations, seminars and industry events for up to 300 people. The opening of the new Campus coincides with our expanded national footprint and advancement of regional office capabilities. We invite you to visit our north Columbus location at 7001 Buffalo Parkway. For more information about S-E-A, including “Customized Testing,” call 800-782-6851 or visit our website www.SEAlimited.com.

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Table of

LAWYERS

Contents

QUARTERLY

Spring 2017 President’s Page

4

The Success of Our City, Brigid E. Heid

Bar Insider

6

TAP Project: Serving Columbus’ Underserved Tenants, Dianna Parker Howie

and Sustaining A 10 Creating Diversity Plan: Our Story, Jennifer A. Adair and Kathleen Madden

Better Lawyer

12

Advice for Lawyers: Magistrate Judge Kimberly A. Jolson, Bryan Gramlich

14

Stephanie Hanna Q&A: Why You Should Run for the Columbus Bar Association’s Board of Governors, Jill Bigler

Spring ‘17: Urban Development

24

Central Ohio Needs Affordable Homes, Amy Klaben

28

Regulations as a Positive Force, Janyce C. Katz

30

Regulation Without Representation, Daniel J. Dew

32

The Function of Form-Based Codes, Thomas F. Schmitt

The Social Media Dilemma: Should Lawyers Be “Friends”?, Gina Piacentino

18

Resolve Your Case from the Comfort of Your Home, Veronica M. Cravener

20

Malpractice Advice from Beyond: Shakespeare’s Polonius, Rick E. Marsh

Chair

Janyce Katz

Board Members Scott Bent Jack D’Aurora Jeffrey Eyerman Amy Koorn Melanie Tobias

Life Outside the Law

35

Legion of Lawyers Touring Tuscany, Part 2, Hon. David E. Cain

Editor

38

Cuba’s Legal System Provides Educational Opportunity, Kristin Rosan

Design/Production

42

Lawyers with Artistic License: Lisa L. Sadler, Heather G. Sowald

Points of Practice

16

Columbus Bar Association Editorial Board

Jury Verdicts

44

Civil Jury Trials, Franklin County Common Pleas Court, Monica L. Waller

Kelsey Pohlman

Sarah Curran

Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

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President’s Page

The Success of Our City by Brigid E. Heid The development in downtown Columbus is simply astounding. Nary a corner nor intersection seems free of a crane, construction equipment or sign heralding the next exciting project coming soon to a neighborhood near you. All of this growth, coupled with recent development efforts at the Columbus Commons, Scioto Peninsula and Franklinton, makes it a truly exciting time to live here in “Cbus.” According to the latest report of the “State of Downtown Columbus” by Capital Crossroads, 19 residential projects and 34 commercial improvement projects are currently underway, all inside the Outerbelt.

Smart Columbus

As the largest US city without a light rail, Columbus, not coincidentally, has one of the highest ratios of cars per worker downtown (at 87 percent), creating a huge demand for downtown parking and threatening even more congestion as urban living increases in popularity. Fortunately, city leaders joined with private and non-profit partners to meet these transportation challenges and improve the quality of life in our fair city. I-70 / I-71 is being reconfigured, which is all too obvious when driving through downtown. COTA is also improving routes and technology. And, the City of Columbus beat out 77 other cities to win the Smart City Challenge sponsored by the U.S. Department of Transportation (DOT). The DOT website states, “Columbus was selected as the winner because it put forward an impressive, holistic vision for how technology can help all of the city’s residents to move more easily and to access opportunity.” With nearly $400 million in public and private financing, the City’s goal for Smart Columbus is to “become the nation’s epicenter for intelligent transportation systems” by:

Improving access to jobs through expanded mobility options in major job centers Competing globally through smart logistics Connecting Columbus residents to safe, reliable transportation that can be accessed by all Better connecting our visitors to transportation options, and Developing a more environmentally-sustainable transportation system

The Columbus Bar Association is equally committed to the holistic development of our local bar by connecting our members to the community, their clients and one another through technology and innovation.

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CBA Development

The Columbus Bar Association is equally committed to the holistic development of our local bar by connecting our members to the community, their clients and one another through technology and innovation. With nearly 5,000 members, the CBA has a reputation as a trailblazer for bar associations around the country. Historically, the Association has enjoyed an active, collegial membership, and based on the status of the new lawyers, committees and volunteer members, I am confident that will not change anytime soon. Still, while the City of Columbus projects growth in downtown over the next few decades, not as many of those urban residents and workers will be entering the legal profession as they have in the past. Bar associations across the country are projecting a decline in membership as law school enrollment declines and fewer graduates are finding positions requiring a law degree. The generational tide is shifting and as long-term members retire and become less active in the bar, the CBA is preparing for the possibility of declining membership. Recognizing the Association exists to serve our members, we are working to bring increased value to our members while remaining a vital resource for the Columbus community. •

We are offering enhanced digital publications with features not possible on the printed page. The digital directory has increased the online profiles of our talented members and makes them more accessible to their clients and the community. Although the printed directory as a formal publication may eventually be phased out, printing options will be maintained for those who prefer tactile experiences. CLE programming has been expanded to appeal beyond the legal community and to attract business leaders and citizens at large, from interesting topics on Constitutional Conversations to Civil Rights seminars; we are also videotaping and offering online access.

We’re exploring opportunities to take monthly committee meetings offsite, to locations where our members gather rather than solely being hosted at the CBA. And improved technology in our meeting rooms will soon allow live, remote access for those who cannot make it in-person but are otherwise able to login remotely. A Practice Management Resource Center is being developed for members in private practice interested in finding ways to be more efficient and successful in their practice. Launching later this year, the CBA will present an array of affordable, practical solutions in technology, staffing, client relations and business development, all with the goal of avoiding the need to reinvent the wheel.

A pre-eminent bar association in the fastest growing city in the Midwest, the success of the Columbus Bar Association is intertwined with the success of our City. As my presidency comes to an end and I reflect on the projects underway in our fair city and at the CBA, I am exceedingly confident both the CBA and the City of Columbus are well positioned to remain shining communities for years to come.

Brigid E. Heid, Esq.

Eastman & Smith Ltd. bheid@eastmansmith.com

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Bar Insider

TAP Program

Serving Columbus’ Underserved Tenants bY Dianna Parker Howie

Losing your home and possessions and often your job; being stamped with an eviction record and denied government housing assistance; relocating to degrading housing in poor and dangerous neighborhoods; and suffering from increased material hardship, homelessness, depression, and illness—this is eviction’s fallout. Eviction does not simply drop poor families into a dark valley, a trying yet relatively brief detour on life’s journey. It fundamentally redirects their way, casting them onto a different, and much more difficult, path. Eviction is a cause, not just a condition, of poverty. (Excerpt from Matthew Desmond, Evicted: Poverty and Profit in the American City)

out. Although efficient, this process—made possible because the vast majority of tenants attend their hearings without counsel—reveals a dramatic justice gap facing vulnerable Columbus residents.

Every year, 19,000 evictions are filed in Columbus. On an average morning in Franklin County Municipal Courtroom 11A, dozens of tenants—many flanked by small children—sit in overcrowded rows while waiting for their names to be called. In most cases, a magistrate asks the unrepresented tenant four questions and within two minutes, he or she explains that a “red tag” will be posted at the rental unit, at which point the family will have five days to remove all of their earthly belongings or risk a set-

Addressing the eviction crisis in Columbus has become a community-wide initiative. The newly created Municipal Court Self-Represented Resource Center houses an abundance of informational materials for landlords and tenants, and both the Court’s mediation department and Community Mediation Services (CMS) provide quality eviction mediation services every day. Nonetheless, even with CMS serving more than 850 tenants in 2016, existing resources cannot meet the need. Center staff and

This gap is uniquely wide in Central Ohio. In 2014, Franklin County had one eviction filing for every 9.8 rental households, comparable to New York City, which saw one eviction filing for every 10.1 rental households. While NYC saw one successful eviction set-out per 93 rental households, Franklin County experienced triple that rate at one for every 30 households. This data is alarming because, as Matthew Desmond describes in the opening quote, housing is vital to ensuring stability for low-income individuals. Maintaining consistent shelter has the potential to impact mental health, safety, employment, and even education and custody of children.

The new Legal Aid Society of Columbus (LASC) Tenant Advocacy Project (TAP) launched in March 2017. 6 | Columbus Bar L aw yers Quarterly Spring 2017


mediators are unable to give advice to tenants who may unrealized legal defenses could dramatically impact case outcomes.

legal have that their

Desmond asserts in his book that “[e]stablishing publicly funded legal services for low-income families in housing court would be a cost-effective measure that would prevent homelessness, decrease evictions and give poor families a fair shake.” The Legal Aid Society of Columbus (LASC) allocates staff to its eviction defense work, but the four-person housing team and its Volunteer Resource Center pro bono referral program only made a small dent in evictions in 2016, collectively providing some level of assistance to an average of about three (out of about 75) families facing eviction every day. The good news is that Columbus possesses some uniquely positive attributes: a strong pro bono spirit promoted by the Ohio Supreme Court and implemented by the local bar, an infrastructure and knowledge base housed at LASC and a growing pool of interested stakeholders outside the legal community who are determined to address this problem. Enter the new Legal Aid Society of Columbus (LASC) Tenant Advocacy Project (TAP). With generous financial support from the Ohio State Bar Foundation, The Columbus Foundation and PNC Bank, LASC launched this groundbreaking clinic in March 2017. TAP features two key components: (a) Daily onsite presence at eviction court of a dedicated staff attorney who can analyze cases, advise tenants and mentor

attorney volunteers; and (b) nonattorney volunteers and resource specialists who can help process tenants and connect landlords and tenants with emergency funds that can bring the tenant current in rent and save the tenancy. One of the most important aspects of TAP is its screening, as there is no question that many landlords are dutifully following the law. Cases in which the tenant lacks any defense will be referred for nonTAP mediation services.

19,000

Volunteers will be critical to TAP’s success, and fortunately the Columbus legal community is rising to the challenge. The first six TAP Firm Leaders—Porter Wright, Bricker & Eckler, Squire Patton Boggs, Dinsmore & Shohl, Taft Stettinius and Hollister, and Kegler Brown Hill + Ritter— have stepped to the forefront of the initiative. Additional TAP Supporters, including Vorys, Sater, Seymour & Pease, Thompson Hine, Nationwide Insurance and the Moritz Civil Legal Clinic, will also staff clinics throughout the year. The lists continue to grow, with the goal of creating the largest and most impactful Franklin County pro bono project to date. Through our legal community’s combined efforts to face this challenge, individual attorneys should find the project manageable. Lawyers will provide unbundled legal services in discrete, threehour clinic increments. Limited scope representation, permitted by Ohio Professional Conduct Rule 1.2(C), is ideal for eviction cases, which bifurcate possession and damages claims. TAP volunteers can represent a client exclusively at the eviction hearing, which implicates the tenant’s most

Every year, 19,000 evictions are filed in Columbus.

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Continued from page 7 immediate concern of retaining stable housing. LASC will provide malpractice coverage and training; and as an Ohio Supreme Court-recognized sponsor, we can administer pro bono CLE credit and offer opportunities for corporate status-only and emeritus attorneys. All volunteers will benefit from an onsite LASC housing attorney who will flag legal defenses, review settlement agreements and discuss case strategy. Nonetheless, delving into an unfamiliar practice area can be intimidating, so we asked a few attorneys who have recently handled pro bono eviction referrals to comment on the experience. Reed Sirak, a 2015 graduate and litigation associate at Squire Patton Boggs, describes his first eviction case: “I had zero landlord-tenant experience when I first started volunteering but I knew that the people that the Tenant Advocacy Project serves really need help.

When tenants are represented, their case outcomes are dramatically better.

The attorneys at LASC are incredibly good at educating attorneys about the various legal defenses that exist in these cases and they are always available to answer any questions that you may have.” 2016 law graduate Kevin Ticknor of Porter Wright also just recently completed his first eviction, which he and his co-counsel Jared Klaus won after a contested hearing: “As a first-year attorney, representing a client in an eviction proceeding was a great way to get courtroom experience. While I was unfamiliar with this area of law, I was able to quickly get a workable understanding of landlord-tenant law from the materials provided by LASC.” The project’s scope is too large to rely solely on Firm Leaders like Squire and Porter. Fortunately, smaller firms and sole practitioners are well-suited for evictions. One such attorney, Orsolya Hamar-Hilt of Bloomfield & Kempf, has represented an impressive seven tenants in the past year. The Moritz Civil Law clinic will also help ease the burden by enlisting legal interns who will not only provide vital services but, also learn important practice skills. When tenants are represented, their case outcomes are dramatically better. With attorneys by their sides, clients can stand up to bullying landlords, expose unlawful practices and simply achieve negotiated resolutions that do not suffer from the tenant’s lack of legal knowledge. As more tenants assert their rights, courts can address systematic issues, including dangerous code violations, persistent unauthorized practice of law and egregious retaliatory behavior. Beyond improved outcomes, tenants who have representation are often empowered and deeply appreciative. One of volunteer attorney Barry Epstein’s nine former eviction clients wrote that Barry “helped my family from being very close to homelessness,” and the satisfaction survey from Sirak’s recent client repeatedly referred to him as “Superman.” Another tenant recently summed up the experience of having an attorney as “feeling like I have a voice that will be heard.”

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Not every day in an attorney’s life will be uplifting and fulfilling, but successfully representing a tenant can serve as a reminder of why many of us went to law school: to help people.

Kegler Brown’s Jason Beehler has represented eleven low-income tenants referred by LASC since 2011. He recalls one particularly memorable woman who was being evicted for violating her landlord’s pet policy, even though she had removed the pet: “She really didn’t want to leave her apartment. Her grandkids lived with her, and it was the first time they were doing well in school. We were successful in defeating the eviction, and [the client] told me several times that it was the first time she felt like somebody was willing to fight for her.” Not every day in an attorney’s life will be uplifting and fulfilling, but successfully representing a tenant can serve as a reminder of why many of us went to law school: to help people. To Ticknor “[i]t was a great feeling to know that I had helped keep a family in their home,” and for Hamar-Hilt, it is “immediate gratification.” Fortunately, our supporters already appreciate the importance of TAP. As James Abram explains, “Taft and its Columbus office are committed to ensuring that those who cannot afford access to the legal system in central Ohio are served. Not only are we pleased to participate in this important LASC initiative; but participation permits our attorneys to have a real impact on this under-served population.” If successful, the Tenant Advocacy Project will shrink the justice gap in Columbus so that we no longer lead the state in eviction filings, so that fewer families face the devastating experience of homelessness and so

that someday, an average morning in Courtroom 11A will see empty rows and fewer frightened tenants wondering what steps they need to take to keep their homes. The TAP program will fulfill LASC’s mission of pursuing justice and changing lives, but we cannot do this work alone. To join the program, contact Pro Bono Team Managing Attorney Dianna Howie at dhowie@columbuslegalaid.org.

Dianna Parker Howie, Esq.

The Legal Aid Society of Columbus dparker@columbuslegalaid.org

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Bar Insider

Creating and Sustaining

A Diversity Plan: Our Story by Jennifer A. Adair and Kathleen Madden

Legal organizations of all sizes are looking to create or reinvigorate their diversity plans and initiatives. Historically, the Ohio Attorney General’s Office has placed high value on the diversity of its staff. Today, many individuals who began their legal careers at the Attorney General’s Office (AGO) are notable and accomplished leaders in the legal profession and community. A commitment to diversity remains an essential component of our office’s foundation. In 2011, Mike DeWine took office as Ohio’s Attorney General and he recognized that

the diversity of his staff not only enhanced the delivery of services and protection of Ohio’s families, but was vital to the office’s success. We quickly developed a diversity plan and reinvigorated existing initiatives centering on diversity. In 2016, we built upon the progress made in our original diversity plan and developed a more robust Diversity and Inclusion Plan. Our plan identifies three core diversity and inclusion values, with numerous goals and strategies designed to create a full culture of diversity and inclusion. Our diversity plan defines the objectives of retention, engagement and recruitment as key focus areas for diversity initiatives. Our plan represents the inclusion of the variety of thought, experience and goals from all levels of the organization, and our process focuses heavily on employee input.

Here, we offer a few tips for creating a diversity plan based on our own experiences:

Tip 1 – Always Think Diversity, and Don’t Forget the “Inclusion” Piece

In creating a successful diversity plan, an organization must engage in focused planning and have buyin from all levels of the organization, especially if the organization has multiple layers. An organization should have at least one person dedicated to strategically thinking about what diversity means to the organization. As long as the individual is given access, support and resources to help determine strategy and sustain a diverse culture, job title, level in the organization or full-time/part-time position, work will not matter. If an organization adds diversity planning duties to an existing position, the priority and value of these responsibilities must be commensurate with existing business duties of the employee. In other words, if a law firm partner manages diversity, these new responsibilities should be valued equally and accounted for just as much as legal responsibilities. It is not enough for organizations to constantly think “diversity.” To be a great place to work, employees must feel value in the job they perform and a sense of belonging to something

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greater than oneself. This is where the inclusion piece becomes important. And as our workforce changes, engagement and inclusion of younger generations becomes especially important. Tapping into the desire for engagement and inclusion, we created several employee engagement or “network” groups. Some examples include an African-American employee group, a newer attorney group, a caregiver group, a professional women’s group and a “generations” employee network group. Arguably our most successful and connected group is that of our newer attorneys, although we see high levels of participation and inclusion in all of our engagement groups. Each network group has a member of senior staff that serves as an executive “sponsor” and each is responsible for creating its own programming and activities, with oversight and assistance from human resources. We also have several engagement groups because they increase innovation. For example, we created a Spanish Translation Team of volunteer employees to translate our written publications and materials and to provide a valuable service to Ohio’s Hispanic community. These successes are attributable to our focus on inclusion. For a diversity plan to work, it cannot simply be a program. Diversity must become part of the organizational culture. Everyone in the organization must think about it, be committed to it, and be engaged in it. This commitment is established through leadership, carried out by middle management and adopted by employees.

Diversity strategies that have a direct tie to the organization’s business create innovation, broaden client base or improve client relations, and provide better advice and counsel. Tip 3 – Be Flexible with Measurement Diversity must be flexible in approach, but measureable in outcome. There is no cookie-cutter diversity plan. Strategy must be developed specific to the organizational needs and objectives. Organizations cannot be afraid to start with a strategy and change course after finding a better approach, but the objective itself will not change. Consider again the three key focus areas for the AGO and imagine them on a dial. Turning the dial to an area of need allows our office flexibility to use a specific strategy to address the greatest need, without losing sight of the others or compromising the overall diversity organizational structure. Flexibility is also found in the definitions chosen under our plan. For example, we define “diversity” as all qualities that make an employee unique. While traditional definitions of diversity certainly have their place, diversity of thought and experience also serves our mission. The focus is not on what drives people apart, but what makes them similar and looks beyond simply the diversity you can readily see. While hard data on the diversity of an organization, e.g., EEO data, may be easier to obtain, it is more difficult to measure inclusiveness. Being flexible in measurement methods may be necessary to determine success over time. Creating a diversity and inclusion plan is not easy, but it has produced innovation, stronger ideas and highly engaged employees and professionals at the AGO.

Tip 2 – Make the Business Case

Whether your business is to create profit or provide service, a successful diversity strategy should enhance the mission of the organization. A direct tie to the “business” of the organization not only creates value, but justifies resource allocation and employee support. In our plan, each area of retention, engagement and recruitment is tied to how the organization can better protect Ohio’s families. For example, retention focuses on career growth and advancement opportunities for employees; this focus helps retain employees and encourages excellent public service to Ohioans. Our recruitment efforts center on the premise that all employees affect the recruitment pool coming into the office. From pipeline initiatives to submission of potential candidates, all employees have the ability to create more diversity and strengthen public services.

Jennifer A. Adair, Esq.

Ohio Attorney General’s Office Jennifer.Adair@ohioattorneygeneral.gov

Kathleen Madden, Esq.

Ohio Attorney General’s Office Kathleen.Madden@ohioattorneygeneral.gov

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Advice for Lawyers: Magistrate Judge Kimberly A. Jolson BY Bryan Gramlich Magistrate Judge Kimberly A. Jolson is the United States District Court for the Southern District of Ohio’s newest Magistrate Judge. Judge Jolson is a 2001 undergraduate alumnus of The Ohio State University, summa cum laude with honors, and a 2006 alumnus of the University of Texas Law School where she graduated with honors and served as the Administrative Editor for the Texas Law Review. Judge Jolson began her career in private practice before joining the Ohio Attorney General’s Office as a Deputy Solicitor in the Appeals Section in 2008. Following her stint as a Deputy Solicitor, Judge Jolson clerked for Chief Judge R. Guy Cole, Jr. of the United States Court of Appeals for the Sixth Circuit and served as an Adjunct Professor at the Ohio State University Moritz College of Law, teaching appellate advocacy. Prior to joining the Federal Bench, Judge Jolson returned to private practice, specializing in trial and appellate litigation. Sworn in on February 12, 2016, I asked Judge Jolson for her advice to new lawyers and for those who have the privilege of practicing in her courtroom:

What are some common traits of the best lawyers you have encountered? Pragmatism and flexibility. Every case is different—that’s what’s fun about being a lawyer. The best lawyers can analyze how the pieces of a case fit together and adjust when something doesn’t work quite right, which requires an ability to focus on the bigger picture at all times and adapt to change. Pragmatism and flexibility are important not only in case theories and strategies, but might require, for example,

adjusting a client’s expectations, changing an approach with opposing counsel or shifting an argument previously made to the Court.

How would you describe the Columbus legal community to a new lawyer? Although Columbus has grown significantly, the legal community is still tight-knit and very collegial. That’s good news for new lawyers. You have a number of seasoned attorneys who are accessible. The Columbus legal community also values pro bono work and volunteerism. Pro bono opportunities allowed me to represent a greater variety of clients when I was in private practice, and those representations exposed me to diverse subject matters. The Columbus legal community also has active bar associations and non-profit organizations that benefit greatly from the commitment of our local attorneys. New lawyers should be curious and open-minded, seeking opportunities to learn from others and getting involved in ways that are meaningful to them.

What is typical day like for a federal Magistrate Judge in Columbus? No two days are alike, and all days are busy. The Magistrate Judges in Columbus are fortunate in that the District Court Judges have entrusted them with a great deal of responsibility. On one day that may mean ruling on a motion for leave to amend a complaint, conducting an initial screen on a habeas petition, reviewing and signing a warrant and holding a detention hearing. On another day, that may mean conducting preliminary pretrial conferences or a mediation, resolving a discovery dispute either in a conference or through briefing and advising defendants of their constitutional rights in initial appearances. On yet another day, I may be ruling on a motion for summary judgment in a consent case, issuing a report and recommendation on a Social Security disability benefits

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appeal or reviewing a prisoner civil rights case. My job requires me to be a generalist on a wide array of cases, which has me constantly learning and growing. It’s one of the things I love most about my job.

What should any lawyer practicing in your court know before they enter your courtroom? Know that I see the lawyers and myself as a team whose common mission is to achieve a just result as quickly as possible. I appreciate creativity from lawyers on how to resolve disputes, and I routinely ask for out-of-thebox solutions. For example, I appreciate when counsel is willing to do what’s not necessarily required of them under the Rules but will expedite a case. In addition, always err on the side of candor. If there comes a time when it is possible that the Court has a misunderstanding, set the record straight immediately. You will never regret that decision. Finally, don’t be late. I’m an unreasonable stickler for time.

What is one thing that you know now that you wish you had known when you were a new lawyer?

The Columbus Medical Association Foundation A unique 501(c)(3) partnership of physicians and the community that can assist your clients in fulfilling their charitable interest in the medical and health and wellness arena. For more information on the Foundation, its charitable options and services, contact:

Weldon E. Milbourne 1390 Dublin Road Columbus, Ohio 43215 614.240.7420

wmilbourne@goodhealthcolumbus.org Learn more at www.CMAFOhio.org

There are countless paths to success within the legal field. Not every path is for everyone, and the path that is right for each of us might change at different points in our lives. In private practice, I travelled often. That routine worked for me until I had children. So, I adjusted, and I charted a different path. Those types of decisions are unique, and they are different for everyone. But, in my opinion, two aspects of a career choice are never negotiable: you have to respect yourself, and the people with whom you work must respect you. If respect is missing, move on.

Bryan Gramlich, Esq.

Although Columbus has grown significantly, the legal community is still tight-knit and very collegial. That’s good news for new lawyers.

U.S. District Court, Southern District of Ohio bryangramlich@gmail.com

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Stephanie Hanna Q&A Why You Should Run for the Columbus Bar Association’s Board of Governors BY jill bigler Stephanie Hanna served on the Columbus Bar Association’s Board of Governors from 2012 through 2015. I recently had the opportunity to sit down with Stephanie to discuss her experience as a Board member, the Board’s role in overseeing the activities of the CBA’s various committees and staff, and why her rewarding experience on the Board is one she recommends for other young lawyers. Q: How do you become a Board member? A: There is an election process to join the Board.

A Nominating Committee selects a group of interested individuals (who must be CBA members) and then the CBA membership votes to elect the Board members.

Q: Why did you want to become a Board member? A: Joining the Board was the natural next step in my bar

service journey. I became very active in the CBA’s Minority in the Law Committee and knew I wanted to become more active in leading the CBA and advancing our profession. I enjoy working toward a common goal, promoting our profession and being part of a team, and I knew that serving on the Board was the next step for me. I also knew I could take my experience at the local bar level and leverage it to serve at the statewide level. After being elected to serve on the CBA Board, I was confident enough to run for a seat on the Ohio State Bar Association’s Council of Delegates.

Q: How did you campaign for a seat on the Board? A: First, I learned who was on the Nominating Committee

and let it be known that I was interested in running for a seat on the Board. After learning I was a candidate, I campaigned using postcards explaining why I was

qualified and interested in serving on the Board. I delivered postcards to approximately 2,500 attorneys in Columbus. I also sent an email to all CBA members with similar information and asked my network to pass along information about my candidacy to their networks. It was time consuming and required a great deal of effort, but it was a labor of love. I knew that being a young attorney who was not from Columbus (and did not go to Capital or OSU!), that I would have to work hard to let people know who I was and why I was qualified and ready to serve.

Q: Why should young lawyers consider running for a seat on the Board? A: Joining the Board, and becoming active in any bar

association, is a great way to get your name out there, generate business, and serve our profession in a meaningful way. It’s a wonderful way to meet other attorneys, learn about different practice areas and interact with members of the bar and bench with whom you otherwise would not have the opportunity to interact. It’s a wonderful way to meet other attorneys, learn about different practice areas, and interact with members of the bar and bench with whom you otherwise would not have the opportunity to interact. Do not be deterred by the fact that you are a young lawyer – you absolutely can add value. If you are interested, be brave and go for it!

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Joining the Board, and becoming active in any bar association, is a great way to get your name out there, generate business, and serve our profession in a meaningful way. Q: What advice or tips do you have for a young lawyer wanting to become a Board member? A: Show up. If you are interested in joining the Board, become

active in the CBA. Join and participate in committees, volunteer to take leadership roles and always follow through on projects you agree to take on. If you volunteer to do something, show up and do it, you are 80 percent of the way there. The rest is just right timing. Speak up. Let it be known that you are interested – don’t be bashful about it. The more people that know of your goal, the more people there are to help you achieve it.

Q: How has being a Board member impacted your legal career? A: Serving on the Board has had a great impact on my

legal career. It has afforded me many experiences and opportunities attorneys typically do not have early in their career. The Board gave me a great platform to serve and lead our profession as we navigate through some challenging and exciting times. Being a Board member was also very beneficial to my practice. I was able to refer cases and receive referrals and overall be more knowledgeable about good practitioners in many areas of the law. Lastly, the friendships and personal connections have been invaluable. As many attorneys as there are in Columbus, I am continually amazed at what a small town and bar it really is – it pays to have strong connections.

TRUST & ESTATE

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Q: What was your favorite thing about being a Board member? A: Absolutely the relationships. I was lucky enough to

meet and work with so many wonderful people and formed lifelong friendships through bar service. I’m proud to say I can call somebody at just about every firm or organization in town through a relationship I formed through bar service. For more information on the CBA Board of Governors, please visit www.cbalaw.org or contact the CBA at (614) 221-4112.

Jill Bigler, Esq.

Bricker & Eckler LLP jbigler@bricker.com

15 | Columbus Bar L aw yers Quarterly Spring 2017


Points of Practice

The Social Media Dilemma: Should Lawyers Be “Friends”? by Gina Piacentino It is almost impossible to find any law firms or lawyers that do not have a presence on social media. Twitter, Facebook, Instagram or even LinkedIn (which, to the author, is Facebook for professionals) are utilized to promote awards of firms or associates, highlight large cases or wins, and even attempt to humanize lawyers by updating personal highlights on their families, or even a wedding or bat mitzvah. Lawyers tread a very fine line when it comes to the social media conversation. When I speak with older lawyers, they feel as though they are missing out if they do not participate in some form of marketing on social media. Younger lawyers wonder why I am even asking them this question – of course they are on social media. The bigger question I believe lawyers should be asking: What does it mean for a lawyer to be a “friend” with clients on Facebook?

lay out the duties, ethical codes and obligations of all lawyers in the state of Ohio. Section [5] of the Ohio Rules of Professional Conduct Preamble states: Lawyers play a vital role in the preservation of society. A lawyer’s conduct should conform to the requirements of law, both in professional service to clients and in the lawyer’s business and personal affairs. (emphasis added). Yes, personal affairs. Remember that bakery you visited in the Short North and were tagged, along with forty-seven other people, and, standing behind you in the photo was, accidentally, the client you represent? Quickly you lost the client and your fortyseven friends watched the entire dialogue take place on the internet. Not good. How about that smallbusiness you represent? Those photos of you in South Carolina at your best friend’s

The term friend has lost its value. Oxford Dictionary defines a friend as “ a person whom one knows and with whom one has a bond of mutual affection…..” Merriam Webster provides a more concise definition: “One attached to another by affection or esteem.” Are lawyers and law firms really “friends” with clients? Should they be? The catch for lawyers is even more of an ethical approach. Ideally, you want to work well with your clients. But to be “friends” with them on Facebook changes the entire dialogue, and I think this is something lawyers need to be very cautious of. The Ohio Rules of Professional Conduct, recently amended and effective as of Sept. 20, 2016, carefully 16 | Columbus Bar L aw yers Quarterly Spring 2017


The term friend has lost its value. Oxford Dictionary defines a friend as “ a person whom one knows and with whom one has a bond of mutual affection...” Merriam Webster provides a more concise definition: “One attached to another by affection or esteem.” Are lawyers and law firms really “friends” with clients? Should they be? wedding dancing with Defendant X in a claim you have? You probably should have stopped and thought about where your role of counselor/advocate/ attorney ceased and you violated the ethics rules by grabbing a Corona and doing the mambo with said Defendant X. While these stories may draw laughter and some memories of decisions gone wrong, these were both true stories. And both lawyers were fired and humiliated.

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Lawyers have a high call to duty in the preservation of society, now more so than ever. Perhaps you are saying to yourself, you don’t have any clients as “friends” so this article is not relevant. How about Lawyer W that was “friends” with Susan Smith? Lawyer W went to middle school with Susan Smith, but has not spoken with her in 17 years. Literally. Susan Smith is best friends with a business owner client of Lawyer W. During the judicial campaigns of 2016, Lawyer W highlighted articles and made very biased comments and posts about a candidate that business owner client managed to catch while Susan Smith and business owner were scrolling through her feed. Appropriate? Probably not. Did Lawyer W lose the client? Absolutely. Take a cautious approach to your “friends.” As a lawyer, you abide by several rules and obligations that other professions do not have to consider. More importantly, though, you have chosen this profession because of its sophistication and respect for others and their confidentiality. You have a duty to uphold that sophistication and respect, even if that means losing all 567 friends in order to preserve one client. Take this to heart before you send another “friend” request.

Keith Hock CPA, CFF, MAFF, CVA

Director of Forensic & Dispute Advisory Services khock@gbq.com

230 West St., Suite 700 Columbus, OH 43215

Gina Piacentino, Esq.

The Weldele & Piacentino Law Group Co., LPA gpiacentino@wp-lawgroup.com

17 | Columbus Bar L aw yers Quarterly Spring 2017


Points of Practice

Resolve Your Case from

the Comfort of Your Home by Veronica M. Cravener Picture this: You receive a court summons and complaint notifying you that the City of Columbus Division of Income Tax has filed a Small Claims lawsuit against you for unpaid taxes. You see that the hearing date is coming up fast and it’s during business hours. You want to resolve the matter but you can’t make the trip downtown. Perhaps the day and time of the hearing conflicts with work or school, or presents transportation or childcare challenges. You may be faced with the difficult choice of either missing work to go to court or skipping the court date and facing a default judgment. For some, the burden of coming to court is insurmountable. As a result, many default judgments are entered and many credit scores are ruined.

Enter online negotiation: “With the help of technology we can connect parties together and resolve disputes without anyone stepping foot in court,” says Alex Sanchez, Manager for the Franklin County Municipal Court Small Claims Division and Dispute Resolution Department. The City of Columbus Division of Income Tax, the Small Claims Division and a company called Court Innovations developed an online negotiation platform that connects plaintiffs and defendants together to negotiate mutually satisfactory agreements that resolve cases. The Court’s online negotiation platform improves access to justice and court services. The initial pilot focuses on City Income Tax cases and is provided by the court at no cost to the parties. Defendants receive a notecard along with their summons and complaint which notifies them of the option to resolve their case online, as well as the platform’s website.

For taxpayers who want to work out an arrangement with the City of Columbus prior to their Small Claims court date, online negotiation provides an accessible and easy way to do just that,” says David Jump, Administrative Magistrate for the Franklin County Municipal Court.

18 | Columbus Bar L aw yers Quarterly Spring 2017


the strength of an industry leader familiar with text messaging and online transactions like shopping or mobile banking, and the fact that it’s accessible anywhere 24/7 eliminates the anxiety associated with making a court date. The platform is user-friendly and contains videos and an FAQ section to guide users through the negotiation process.

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“For taxpayers who want to work out an arrangement with the City of Columbus prior to their Small Claims court date, online negotiation provides an accessible and easy way to do just that,” says David Jump, Administrative Magistrate for the Franklin County Municipal Court. Here’s how it works: Defendants access the website— via a computer or mobile device—enter their contact information and then select the type of arrangement they’d like to negotiate. If there is any additional information that they would like the City to consider, they can provide that as well. The City’s attorney can then review proposals, respond to offers and confirm agreements. When the City responds, the online platform sends a notification via text and email to the defendant with a link to the negotiation. Parties can continue to send messages back and forth to each other, much like a text message or email conversation, until either an agreement is reached or the negotiation is terminated by a party. Agreements can be documented and signed via the online platform. If there is no agreement, both sides can proceed to their next court date. Here’s why it works: The negotiation platform allows parties to resolve their case on their own time with a plan that works for them. Many people are already

The results are impressive. A judgment is a matter of public record, so it is something that could be picked up by the credit bureaus and shown on a credit report. For those who are interested in avoiding a judgment, online negotiation gives them one more avenue to reach a resolution that may result in a full dismissal. “We’re really encouraged by online negotiation so far. Communications with citizens via online negotiation are cordial, we’re working out payment arrangements, and those arrangements are being followed,” says Paul Khoury, attorney for the City of Columbus. Online negotiation is not a substitute for a Small Claims trial, and online negotiation may not be appropriate for every case. However, for those who are interested, online negotiation at the Franklin County Municipal Court provides a user-friendly option to resolve this one subset of small claims cases—for now—and perhaps others in the future. Parties that resolve their dispute together with the assistance of the court enjoy a higher level of satisfaction with both the outcome and the court. “Many of the individuals using the platform live and work in the city, so there’s more of a reason to maintain a high level of satisfaction. Online case resolution is a straightforward and cost effective way to resolve disputes and provide access to justice,” said Michael T. Brandt, Administrative Judge for the Franklin County Municipal Court.

Franklin County Municipal Court Small Claims Division and Dispute Resolution Department

smallclaims.fcmcclerk.com • (614) 645-7381

Veronica M. Cravener, Esq.

Franklin County Municipal Court cravenerv@fcmcclerk.com

19 | Columbus Bar L aw yers Quarterly Spring 2017


Points of Practice

Malpractice Advice from Beyond: Shakespeare’s Polonius by rick e. marsh In William Shakespeare’s Hamlet, Act I, Polonius gives advice to his son, Laertes, in which he tells him, “Neither a borrower nor a lender be.” If Polonius were presently a legal malpractice defense lawyer, I am sure he would advise lawyers: “Either a successor counsel or malpractice counsel be.” When a client believes that his lawyer has committed malpractice during the pendency of the case and seeks the advice of successor counsel, the client fires the first lawyer, Lawyer 1, and retains Lawyer 2 (successor counsel). Lawyer 2 concludes the matter, in one form or another, and the issue is whether or not Lawyer 2 can or should become the attorney representing the client in a legal malpractice case against Lawyer 1. In my opinion, Lawyer 2, the successor counsel, should never become the legal malpractice counsel for the client under any circumstances.

Fact Pattern

Mrs. Jones was involved in an automobile accident and had a personal injury claim. She retained Lawyer 1, who filed a lawsuit against the tortfeasor and then proceeded to do next to nothing for two years. The

case was about to be dismissed by the court upon motion of the defendant because Lawyer 1 had not responded to discovery requests, among other things. Whether or not the dismissal would have been with or without prejudice is debatable. Approximately two and a half years after the accident occurred, Mrs. Jones fires Lawyer 1 and hires Lawyer 2. Lawyer 2 filed a Notice of Appearance and obtains the client’s file from Lawyer 1, but does not bring an uninsured/underinsured motorist claim within the three-year period set out in the statute for bringing UM claims, which turns out to be the limitation period set out in the policy of Mrs. Jones, with XYZ Insurance Company. After the three-year period expired, Lawyer 2, having dismissed the original complaint with a right to re-file, now brings a lawsuit against both the tortfeasor and XYZ Insurance Company, the UM carrier for Mrs. Jones. The UM carrier defends the case alleging that the statute of limitations contained in the policy had expired at the time that Lawyer 2 and Mrs. Jones filed her lawsuit against XYZ Insurance Company. Lawyer 2, in addition to being successor counsel, then becomes malpractice counsel for Mrs. Jones and sues Lawyer 1 in a separate lawsuit. Lawyer 1 defends

20 | Columbus Bar L aw yers Quarterly Spring 2017

the case and files a third-party complaint against Lawyer 2, alleging that Lawyer 1 was not negligent because the three-year period had not expired at the time Lawyer 1 was fired by Mrs. Jones and that Lawyer 2 had approximately six months to bring the UM claim in a timely fashion within the three-year period set out in the statute and in Mrs. Jones’ insurance policy. Lawyer 2, representing himself, files a motion to dismiss the third-party complaint.

Practical and Ethical Issues

Does Mrs. Jones really want the third-party complaint to be dismissed? And is it in her best interest? One would think that Mrs. Jones, who wants to settle the case, would like to have as many insurance companies at a settlement conference as possible. If her own counsel’s insurance company would be at the table at a settlement conference, is that not advantageous to Mrs. Jones? How can Lawyer 2 continue to be counsel in the case for Mrs. Jones when it may be to the advantage of Mrs. Jones to have Lawyer 2’s insurance company involved in the case if Lawyer 2 is a party defendant? Does it really make a difference whether Lawyer 2 is a party to this case or a potential defendant, in a contribution action which would later have to be filed by Lawyer 1 against Lawyer 2 in the


If Polonius were presently a legal malpractice defense lawyer, I am sure he would advise lawyers: “Either a successor counsel or malpractice counsel be.” event that there would be a verdict and judgement in favor of Mrs. Jones against Lawyer 1? Anytime Lawyer 2 also becomes malpractice counsel there is a possibility, quite often a distinct one, that Lawyer 2 has made some decision in the handling of the claim for the client which could result in a claim of contribution being made by Lawyer 1. Not only is there such a possibility, but Lawyer 2, as both counsels, may not have the best interests of Mrs. Jones at heart in handling the remaining underlying case. If Lawyer 2 fails to mitigate damages, or anything else that may have reduced the client’s potential recovery, then Lawyer 2, who presumably has a contingent fee contract with regard to the malpractice claim, has put himself or herself in the position of being subject to the argument that what malpractice counsel did as successor counsel was to increase the value of the client’s malpractice claim so that the fee of malpractice counsel, on a contingency basis, would be greater. In another case I’ve handled where the successor counsel was malpractice counsel, successor counsel took over the case after there had been a hearing before a magistrate in a landlord-tenant case. After the magistrate had made a decision, Counsel 1 was fired and Counsel 2 was retained.

Counsel 2, as successor counsel, failed to adequately object to the magistrate’s report and failed to point out that had the prospective tenant (defendant) gone forward with the lease agreement that the landlord (plaintiff) had provided $50,000 for a build out, it would have been a reduction from any liability of the prospective tenant. Both Counsel 1 and Counsel 2 failed to recognize the set off. When the lawsuit was filed by the tenant, Counsel 2 against Counsel 1, a third-party complaint was filed, alleging among other things that successor counsel had failed to get a credit for the $50,000 build out which would have been a set off had the client gone forward with the lease agreement. Counsel for the plaintiff was now a third-party defendant. The argument being made by Counsel 2, as the third-party defendant, permitting the thirdparty complaint, while not dismissing it, leaves Counsel 2 in an untenable position. While that may be true, the argument can easily be made that

Counsel 2 is the person who put himself or herself in the untenable position. Had successor counsel not become malpractice counsel, the ethical situation would not have arisen and the conflict would not be present. Similarly, if the malpractice case is filed by Lawyer 3 against Lawyer 1, there is no argument that can be made by Lawyer 2 when Lawyer 2 is third-partied. A third-party complaint against Lawyer 2 would not create a conflict of interest for Lawyer 2 nor put Lawyer 2 in an ethical dilemma since Lawyer 2 is not the counsel in the malpractice case. I have always advised lawyers who become successor counsel that they put a big bullseye on themselves because if the client is willing to sue one lawyer, the client is willing to sue a second lawyer. I have always

Continued on page 22

21 | Columbus Bar L aw yers Quarterly Spring 2017


Continued from page 21 held the opinion that successor counsel should not become malpractice counsel.

Shakespeare was a pretty smart guy, after all.

The Legal Arguments

The claim that Lawyer 1 has as defendant/third-party plaintiff against Lawyer 2 as third-party defendant, is a claim for contribution. The right to contribution in Ohio is governed by the Ohio Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32. The statute provides that: “If two or more persons are jointly and severally liable in tort for the same injury or loss to personal property… there is a right of contribution among them even though judgement has not been recovered against all or any of them.” Third-party practice in Ohio is governed by Civil Rule 14, which provides for the circumstances when the defendant may bring in a third party: “At any time after commencement of the action a defending party, as third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” This rule also covers the situation where there is a claim for contribution. There are few reported cases in Ohio with regard to the issue of whether or not Lawyer 1, as defendant/thirdparty plaintiff, can successfully file a third-party complaint against Lawyer 2, as third-party defendant. The Court of Appeals, in the case of Costin v. Wick, 1996 Ohio App. LEXIS 233, decided Jan. 24 1996, held that a third-party complaint

was appropriate against Lawyer 2. The court stated: “We cannot see any reason for exempting attorneys from the application of this statute. If the legislature had intended to create an exception for attorneys, it could have done so. Moreover, there are other jurisdictions that allow predecessor attorneys to seek contribution from successor attorneys that worsen the client’s damages.” The court went on to state, “We therefore conclude that Wick’s thirdparty complaint for contribution does state a valid claim and should not have been dismissed.”

If you are successor counsel and you and your client believe that the client’s former lawyer committed malpractice, a lawsuit against the former lawyer should be filed at the conclusion of the legal matter which you are handling and within the time limited for the commencement of such actions. Heed the advice of Polonius and do not become malpractice counsel. It may be advisable to refer your client to potential malpractice counsel at a time when you are still counsel for the client and the case has not yet been concluded. Shakespeare was a pretty smart guy, after all.

The court went on to describe the fact that the contribution statute in Ohio applies not only to joint tortfeasors, but to successive and concurrent tortfeasors as well. The negligence of two or more persons concurring, in point of consequence, produces a single indivisible injury, which creates a right of contribution. A decision rendered by Judge Charles Schneider of the Franklin County Common Pleas Court on Feb. 8, 2010, held that the thirdparty complaint filed against successor counsel who was also the malpractice counsel, was procedurally valid and should not be dismissed. His opinion stated that third-party defendants cited no legal authority, which held that attorneys who represent a party in succession cannot be joint or concurrent tortfeasors. The court declined to follow the holding in another case in Franklin County Common Pleas Court that had ruled to the contrary.

22 | Columbus Bar L aw yers Quarterly Spring 2017

Rick E. Marsh, Esq.

Lane Alton & Horst rmarsh@lanealton.com


Upcoming Events

What’s Happening @ the Bar? For a complete list of events, CLE programs and committee meetings, visit www.cbalaw.org.

SPRING 2017

april

13 april

25 may

4-5 may

11 may

16 may

24 june

8

Constitutional Conversations: Federalism, States’ Rights & the ACA Presented monthly, these events are informal, moderated conversations on modern-day constitutional issues. They are free and open to the public. In April, we’ll explore the interplay of federal and states’ rights in the context of health care and the future of the Affordable Care Act.

The Next Generation Law Firm (3.0 CLE hours) This CLE will explore how to combine youth and experience to create a connected, successful business. Presented by Dan Negroni, Esq., author of Chasing Relevance, you’ll leave this seminar with practical tips on attracting, retaining and engaging your next generation employees and clients.

Bankruptcy Law Institute (Three 3.0 CLE hour modules - mix and match!) Not your father’s BLI! This year’s institute contains three 3.0 hour modules. Mix and match! Plus, this year’s institute is CLE Easy Pass eligible. The third module focuses on the intersection between bankruptcy and domestic law.

Constitutional Conversations: 1st Amendment: Freedoms of Speech, Press & Assembly Our monthly Constitutional Conversations are informal, moderated conversations on modern-day constitutional issues. They are free and open to the public. In May, moderated by an academic and an attorney/journalist, we’ll talk about what our First Amendment rights mean to us today.

Probate Law Institute (6.0 CLE hours) This annual program is a must for the serious probate and estate planning professional. The event includes instruction on probate land sales, recognizing and preventing predatory behavior in probate matters, the intersection of bankruptcy and probate, LGBT issues in probate, and case law update.

Cross Border Legal Issues: Cuba. Emerging Law/Trade/Culture (3.0 CLE hours) From business opportunities to civil rights and culture, this CLE promises to give a fascinating glimpse into the growing area of crossborder practice issues.

Columbus Bar Annual Meeting & Luncheon You are cordially invited to attend the 2017 Columbus Bar Annual Meeting on Thursday, June 8 at noon at the Sheraton Columbus Hotel at Capitol Square. Tickets for the event are $45 per person or $450 per table of ten. Contact: Donna Sweet at (614) 221-4112 or donna@cbalaw.org.

23 | Columbus Bar L aw yers Quarterly Spring 2017


Spring ‘17: Urban Development

Central Ohio Needs

Affordable Homes by Amy klaben

The Need The Columbus Metro region is growing at a phenomenal rate. When the 2050 plan was rolled out a few years ago, the prediction was that our region would grow by 500,000 people by 2050; and now we should reach that number by 2029. With a growing region comes a demand for more housing. From 2000 to 2010, rents rose faster than income and new housing that is being built is mainly highend.1 The result: low-income renters have a difficult time finding affordable homes in central Ohio. To afford an average market rate, two-bedroom apartment at $811 per month, a worker would need to earn $32,440 annually.2 This is more than double the income a single worker can earn working full time on a minimum wage of $8.10/ hour, or $16,848/year. Many jobs in our region pay $10 to $15 per hour, which is not nearly enough to afford a market rate apartment. This results in people paying too much for housing. Households that cannot find a place to live where they pay no more than 30 percent of their income for rent and utilities are considered cost-burdened. In Franklin County, about 89,600 low income renters are cost-burdened. Of those, 47,900 pay more than

50 percent of their income for housing.3 This means that they must make tough choices, like whether to pay rent to have a roof over their heads, buy food, obtain health care, pay for transportation or fill other needs. To put this in perspective, the people we rely on everyday – those who work in retail, banks, law firms, grocery stores, etc. – are in this income range and suffer the multiple consequences of being cost-burdened. To help lower income households access safe, decent housing, the U.S. Department of Housing and Urban Development created the Housing Choice Voucher (HCV) program (fka Section 8). Nationally, about one in four households eligible for this assistance receive it. Locally, there are 17,000 Central Ohioans on the HCV application list. Landlords are not required to accept HCVs as payment for rent, which is a form of discrimination that is still legal. Because landlords are not required to accept HCVs,

a majority of HCVs are found in a limited number of central city Columbus zip codes. In 2015, Columbus ranked the second most economically segregated metro area in the U.S.4 Per the Kirwan Institute for the Study of Race and Ethnicity at OSU, “economic and racial residential segregation has persisted throughout the decades in Franklin County, particularly for African Americans.” Kirwan’s “opportunity analysis” of neighborhood conditions, which measures access to good schools, employment, transit and other indicators of opportunity, reveals alarming disparities: “while one in two Whites and seven in 10 Asians live in areas of high opportunity, only three in 10 Hispanics or Latinos and less than one in 5 African Americans live in areas of high opportunity.”5 A discussion of the need for affordable and workforce housing

A safe, decent and affordable home is critical to economic success and is a stable foundation on which families thrive.

24 | Columbus Bar L aw yers Quarterly Spring 2017


cannot be separated from a discussion of educational opportunities and poverty in central Ohio. Twenty­-five percent of children in central Ohio live in poverty, with most living in high poverty neighborhoods. A recent study in Cleveland found children living in neglected houses and neighborhoods had “estimated literacy scores 15 percent lower than those living in the best housing conditions.”6

The Solution A safe, decent and affordable home is critical to economic success and is a stable foundation on which families thrive.7 Studies show that communities are more prosperous and resilient when opportunity is broadly extended.8 When low-income children live in safe neighborhoods and attend good schools, they are much more likely to go to college, get a better, higher paying job, delay having children and avoid engaging in activities that can land them in prison. Central Ohio’s future economic success depends upon families living in neighborhoods with a high-quality mix of educational, environmental, social, economic and health-related opportunities9 to provide environments that empower household independence, opportunity, mobility and wellness.10 This is the way to end poverty while at the same time ensuring that our economy continues to grow. In addition, studies show that businesses perform better when employees can find affordable living options near their jobs.11 Short commutes allow employers more choices of employees, and happier employees with less stress have more time with their families.

Continued on page 26


We need to create mixed-income neighborhoods with homes that children can afford when they grow up, where seniors can live on fixed incomes and where workers of all incomes can thrive. Continued from page 25 The most effective strategy for lifting families out of poverty is to enable them to move to a completely new neighborhood away from their past lives in areas of concentrated poverty. This strategy stems from a plethora of research over the past 50 years. According to Alex Polikoff, one of the attorneys who filed a lawsuit in Chicago in 1966 to create mixed­ -income housing opportunities, “We know so much about the harm of young kids growing up in severely distressed neighborhoods. If we have a way to enable kids to escape to better life opportunities, it’s immoral not to do that.”12

We can create communities where everyone can succeed through various policy changes. Universal housing vouchers for lower income households would ensure that everyone can obtain housing. Inclusionary housing programs can help alleviate the concentration of poverty in neighborhoods and schools. For example, Montgomery County, Maryland’s long-term inclusionary zoning policy requires many housing developers to set aside 12 to 15 percent of homes for affordable housing resulting in affordable housing being scattered throughout the affluent county. Changes to zoning, building and land-use laws and tax incentives can be used to incentivize developers to

create mixed-income communities. The future of our community depends on it.

How is Central Ohio Addressing These Issues? There are many place-based revitalization projects underway in high-poverty neighborhoods in central Ohio. Nonprofit organizations, corporations, foundations and the City of Columbus have been working together on comprehensive revitalization projects on the south side of Columbus (south of Nationwide Children’s Hospital), Weinland Park (south of OSU) and in King Lincoln (east of downtown). The City is currently focusing its revitalization efforts in Linden (northeast of downtown) and the Hilltop (west of downtown). The developer of an East Franklinton (west of downtown) redevelopment project was recently offered an incentive by the City to include affordable housing in its development. These projects include demolition, renovation and new construction with federal low-income housing tax credits if they receive these awards. Coordinated social service programs are also provided in some areas. The goal for revitalization and housing development must be the creation of income-integrated neighborhoods so families can remain and move up the economic ladder.13 To do this, all area municipalities must start using tools, such as requiring the inclusion of affordable homes and creation of land trusts. These tools would ensure that some housing in a neighborhood that is being created or revitalized is affordable to people at varying income levels. Currently, as neighborhoods improve, rent increases and pushes many existing tenants out of the area. Land trusts and inclusionary zoning are used in many cities across the country, but not in central Ohio. Along with place-based solutions to poverty, there are also people-based solutions. Many cities and states have “source of income” laws that ban landlords from discriminating against renters who get help

26 | Columbus Bar L aw yers Quarterly Spring 2017


covering their rent from the government.14 Central Ohio municipalities do not have this type of ban so most landlords in high-opportunity neighborhoods do not accept residents who participate in the HCV program. This type of law would provide lower-income households the choice of where to live and to be able to live near employment centers.

9 Dolores Acevedo Garcia et al., “The Child Opportunity Index: Improving Collaboration Between Community Development And Public Health,” Health Affairs 33, no. 11 (2014): 1948

There has not been a far reaching lawsuit in central Ohio challenging zoning and fair housing laws. This type of suit could be similar to that in Houston, Texas. The “U.S. Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (TDHCA v. ICP) was a major victory for fair housing—perhaps the greatest since the passage of the Fair Housing Act in 1968. The Justices affirmed the use of “disparate impact” claims to challenge housing policies. These are cases in which a defendant is sued for actions that negatively affect people of color and others protected under the Fair Housing Act without requiring a plaintiff to show a defendant’s discriminatory intent.”15 Although the lower court ultimately dismissed the case, use of disparate impact can now be used in these cases.

13 Barbara Eldredge, Concentrated Poverty is a Much Bigger Problem Than Gentrification, Curbed, April 26, 2016. http://www.curbed. com/2016/4/26/11504180/poverty­neighborhood­affordable­housing­gentrification­ research

Central Ohio is a vibrant, rapidly growing community. To prevent litigation, now is the time for all municipalities throughout the region to lay the foundation for a future where everyone can succeed. We need to create mixedincome neighborhoods with homes that children can afford when they grow up, where seniors can live on fixed incomes and where workers of all incomes can thrive. Thank you to Rachel Garshick Kleit, PhD, The Ohio State University, for her contributions to this article. 1

Jeremy Hill, “Columbus Housing Market Facing an ‘Affordability Problem,’” Columbus Business First, June 29, 2016, http://www.bizjournals.com/columbus/ news/2016/06/29/columbus­apartment­marketfacing­an­affordability .html (accessed January 10, 2017). 2 Affordable Housing Alliance of Central Ohio, What We Do, http://www.ahaco.org/ what­we­do/ 3 Office of Policy Development and Research, U.S. Department of Housing and Urban Development, Comprehensive Housing Affordability Strategy (2009­2013 CHAS Data), https://www.huduser.gov/portal/datasets/cp/CHAS/data_querytool_ chas.html

10 Jens Ludwig et al., “Neighborhood Effects on the Long Term Well Being of Low Income Adults,” Science 337, no. 6101 (2012): 1505 11

The Housing Vaccine, http://www.ahaco.org/news/

12

Alana Semuels. Is Ending Segregation the Key to Ending Poverty?, The Atlantic, Feb. 3, 2015. https://www.theatlantic.com/business/archive/2015/02/is­ending­ segregation­the­key­to­ending­poverty/385002/

14 Emily Badger, A Pervasive Form of Housing Discrimination That’s Still Legal, The Washington Post, August 3, 2016 15 John Henneberger, Fair Housing Case Produces Lasting Changes for Texas and Nation, Sept. 26, 2016 https://texashousers.net/2016/09/26/fair­housing­case­ produces­lasting­changes­for­texas­and­nation/

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KRG Associates hold individual memberships in – Appraisal Institute Society of Industrial & Office Realtors American Society of Real Estate Counselors Certified Commercial Investment Member Institute of Real Estate Management Building Owners & Managers Association

4 Richard Florida and Charlotta Mellander, “Segregated City: The Geography of Economic Segregation in America’s Metros.” Martin Prosperity, February 2015. http://martinprosperity.org/media/Segregated%20City.pdf (accessed January 10, 2017) 5

http://kirwaninstitute.osu.edu/wp­content/uploads/2012/01/brochure_final.pdf

6

Alexia Fernandez Campbel, “How a House Can Shape a Child’s Future,” The Atlantic, June 29, 2016, https://www.theatlantic.com/business/archive/2016/06/ how­ah ­ ouse­can­shape­a­childs­future/489242/ 7

Reed Jordan, March 22, 2016, Urban Institute

8

Inclusive Policy Toolkit, http://www.inclusivepolicy.org

Amy Klaben, Esq.

Strategic Opportunities LLC amyklaben@gmail.com 27 | Columbus Bar L aw yers Quarterly Spring 2017


Spring ‘17: Urban Development

Regulations

as a Positive Force

by Janyce C. Katz Regulations help our economy as well as protect our democratic system and its citizens. This statement may seem radical because we have been hearing for years that regulations strangle our freedom, limit business opportunities and prevent individual innovation. Contrary to the rhetoric, since the executive branch of federal and state governments began creating agencies to focus on specific needs in our society, like protection of our food supply or defense, we have benefited from regulations. Because of the importance of regulations in interpreting ambiguities in statutes, the US Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense developed a twoCouncil, Inc.i prong test that allowed an agency’s reasonable regulatory interpretation to prevail under certain circumstances. The Court built its decision in Chevron on the premise that Congress sometimes explicitly delegated rule-making power to agencies1, because executive agencies have the expertise and accountability to better resolve statutory ambiguities.

However, just as the rational basis standard for statutes promulgated by Congress has been narrowed by more recent court decisions, so, too, has Chevron. Most recently, in Encino Motorcars, LLC v. Nararro et alii the Court added a new test to the Chevron deference – whether the agency followed the proper procedure in filling a gap or ambiguity in a particular statue. Instead of courts slowly narrowing the power to regulate, the ‘drop two to create one regulation’ edict promulgated by the new President during the first days of his administration plus a supportive court may have removed many key regulations before this article is published. Changes to the existing regulations are in motion as this is typediii, mandating we discuss why regulations, laws and the ability to enforce them justly are needed. Joseph William Singer, Bessey Professor of Law at Harvard Law School, in No Freedom Without

Regulationsiv argues that law allocates property, defines the rights of owners and ensures that the property rights of one person do not harm the property or personal rights of another person. In his well-written book, Singer argues that this balance of rights protected by law and regulations well-written and enforced justly on all people creates a social life of economic prosperity. Consider the alternatives to laws and regulations. Singer points to the feudal system of the Middle Ages, one person beholden to one stronger than he as one alternative to a rule of law society. In a world with absolutely no regulations or laws, how would one drive? No traffic lights, no rules, no enforcement against those endangering others, maybe no roads, would cause chaos. The total collapse of housing and other buildings in Haiti a few years

Regulations properly written and enforced protect us and encourage us to use services and businesses, thereby helping the economy.

28 | Columbus Bar L aw yers Quarterly Spring 2017


ago after a hurricane shows the “benefits” of constructing buildings without any regulations. Want that? Another alternative would be laws explicitly stating what is covered, with only what is clearly stated in the law enforced and upheld and no rules clarifying the meaning. If a law says “no vehicles permitted in a park,” a strict interpretation of this law would prohibit an ambulance if someone collapsed on the grass. The statute would need to explicitly say “except for emergency vehicles” in order to let them onto the property.v Besides having to specify everything covered instead of relying on rules, relying only on legislatively passed statutes means it is harder to enact or change a law than it is to promulgate a rule interpreting an existing law. The bill has to come out of committee, be voted on the floor, go to the second house, do the same and be signed by the governor or president, with lobbying to change or kill it going on throughout the bill’s journey. Regulations properly written and enforced protect us and encourage us to use services and businesses, thereby helping the economy. Think about going to a beauty salon. We expect that when we go into such a place, we will come out looking better. We don’t worry about whether the tools were cleaned properly, we assume they were and we assume we will be safe if we use these services. Same with putting our children on a school bus, we assume that the bus’ floor will not have holes in it, that the bus will not store our children, with the bus, in a garage.

sure that they do what they are supposed to do, and to eliminate the confusion where some rules seem to contradict others. While anyone who has worked with rules and regulations knows that some of them may overlap or contradict each other, that doesn’t mean they should be eliminated or set to an arbitrary to go for every one-written standard. Rules, and laws that can be explained by rules, as well as a strong, fair system to enforce them are essential to the functioning of our economic system and to our democratic system. They protect people and businesses. This is why we should think long and hard about their total elimination and even about how we eliminate the overlap and inconsistencies among the rules that do exist. The great “freedom” from regulations and governmental control that some argue we should have, could, in reality, endanger our businesses, our property and our lives. 1

467 U.S. at 844.

i

467 U.S. 837 (1984). The Court in Chevron developed a two-prong legal test for analyzing regulations; prong one essentially asking if the intent of Congress in passing the statute was clear, in which case a regulation is not needed. Prong two, if the statute was not clear, the court must determine if the agency’s construction of the statute is based upon a permissible construction of that statute. The Court built its decision on the premise that Congress sometimes explicitly delegated rule making power to agencies. Anne M. Gorsuch headed the EPA at the time the question about the meaning of a definition in an EPA statute arose.

ii

579 U.S. ____(June 20, 2016).

iii

For example, at the FCC, its new Chairman Ajit Pai is trying to wipe away the net neutrality rules put in place to prevent broadband companies from creating fast and slow lanes on the Internet. Dodd Frank could be gutted, freeing up Wall Street to more “innovative” investment policies like those that brought us the 2008 crises. And, the resignation of Daniel K. Tarullo from the Federal Reserve giving the Republicans four of the seven seats on the Fed’s board could mean that many of the regulations promulgated requiring banks to have higher capital standards and more funding from investors will soon be gone. The Consumer Financial Protection Agency, currently headed by former Ohio Attorney General Richard Cordray, created in the wake of the 2008 financial crises to protect consumers and given extensive rule promulgation power to do so could also be gutted, given the alleged plans of US Congressional Rep. Jeb Hensarling, head of the House Financial Services and others in Congress.

iv

Yale University Press, 2015.

v

Antonin Scalia, Bryan a. Garner, Reading Law The Interpretation of Legal Texts, Thomson West, 2012, raise questions like this and others (is a burrito a sandwich if no sandwiches may be eaten in the room) then, as textualists, try to develop a clear means of interpreting statutes to help lower courts and individuals understand each law.

We assume a bank won’t steal our money. We also assume there are laws and rules to punish the offending entity and person and to try to prevent a reoccurrence of the same problem. This is why we continue to use these services. These simplistic examples are meant to also apply to the much more complex financial instruments used for investments, the mortgages backing not only our personal homes, but also the construction of large buildings. Sure, we should look at regulations and rules, to make

Janyce C. Katz, Esq.

General Innovations and Goods, Inc. janyce.c.katz@gmail.com

29 | Columbus Bar L aw yers Quarterly Spring 2017


Spring ‘17: Urban Development

Regulation

Without Representation by Daniel J. Dew

President Donald Trump said that he would like to wipe out 75 percent of federal regulations.1 He has a lot of work to do if he wants to keep that promise. Through 2015, there were 178,277 pages in the Code of Federal Regulations.2 These are regulations that Congress never debated or voted on, nor were signed by the President. Instead, politically unaccountable bureaucrats implement new rules that have the same force as any statute to impact your life, wallet and freedom. Regulations in a Representative Government

In Federalist 47, James Madison wrote: “When the legislative and executive powers are united in the same person or body…there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” Making substantive policy decisions by regulation is just bad government. A fundamental principle of our republican government is that those who make the laws we live under must face their constituents to retain power. Vague, enabling statutes allows legislators to set forth utopian goals that many will agree with conceptually, without dirtying their hands with the specific policy details.

After the Democratic Congress passed the Affordable Care Act in 2010, voters were able to hold those politicians accountable in that year’s midterm election – Senate Democrats lost six seats and House Democrats lost 63 seats and the majority. Some may point to the rule-making process as a way for concerned citizens to be heard. While it is true that rule-making includes a comment period, there is no guarantee the agency will listen. Lobbyists and special interest groups drown out average citizens. And, many times, regulatory agencies purposefully fail to meet statutory deadlines so special interest groups friendly to the agency can sue for compliance. The agency can then join a settlement agreement with the friendly plaintiff that includes an expedited rule-making process for the purpose of suppressing opposition. The controversial Clean Power Plan was promulgated under such a settlement.5 In the ultimate example of unaccountability, federal agencies often want to be the judge, jury and executioner. In Sackett v. EPA, the EPA claimed the Sackett family did not have a right to appeal an EPA decision to a federal court while the EPA was fining the Sackett family more than $30,000 daily.6 Regardless of a person’s political affiliation or how he or she feels about the EPA and its mission, the lack of due process should be startling to anyone just as it was to the U.S. Supreme Court, which rejected the EPA’s unfair decision in a unanimous 9-0 opinion.

Regulations Slow Economic Growth and Innovation

For example, Congress has given and the Supreme Court has upheld, wrongfully in my opinion, broad directions to executive agencies, such as its direction to OSHA to “set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health.”3

According to the National Association of Manufacturers, federal regulations cost businesses $2.028 trillion in 2012.7 That year the entire U.S. GDP was only $16.16 trillion.8 In addition to the cost of compliance, researchers at the Mercatus Center at George Mason University show that the U.S. economy is $4 trillion smaller than it would have been had regulations stayed at 1980 levels.9

When the EPA makes a rule under the Clean Water Act that greatly increases its jurisdiction – which it did in its new rule defining the “waters of the United States”4 – legislators can simply point their constituents’ ire to the faceless bureaucracy of the EPA rather than take responsibility.

Proponents of regulation often cite public safety as the main concern: citizens need protection from big corporations only seeking to increase their profits. It’s true, big corporations are worried about regulations and their success in the market; that is exactly why they favor regulation. Large

30 | Columbus Bar L aw yers Quarterly Spring 2017


A prominent legal scholar argues the average American breaks several laws daily without even knowing it.

1 http://nypost.com/2017/01/23/trump-im-cutting75-of-regulations-maybe-more/ 2 https://regulatorystudies.columbian.gwu.edu/ reg-stats 3 Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980). 4 https://www.pacificlegal.org/cases/casewotus-1-1407 5 https://www.uschamber.com/report/sue-andsettle-regulating-behind-closed-doors

corporations can afford lobbyists to shape regulations and the compliance attorneys to monitor them – emerging competitors often cannot.

Criminalization by Regulation

Many times, it’s people who need protection from regulation. There are an estimated 300,000 federal regulations with criminal penalties attached.10 The familiar maxim “ignorance of the law is no excuse,” is troubling in an age where no one can begin to know what is prohibited, even in subject areas they encounter every day. A prominent legal scholar argues the average American breaks several laws daily without even knowing it.11 Unfortunately, we have ample examples: Lawrence Lewis saved a military retirement home’s hospice unit from raw sewage by following orders to divert the sewage through another pipe. Despite Mr. Lewis’s noble intent, he was also charged with a felony violation of a Clean Water Act regulation.12

Abner Schoenwetter’s small business imported lobsters from Honduras, but mistakenly used plastic bags instead of cardboard boxes to transport his delicacies. Mr. Schoenwetter’s choice of transparent packaging inadvertently violated the federal Lacy Act and an obscure Honduran regulation. Despite no intention of harming anyone or breaking any laws, he was criminally prosecuted and spent six and a half years in prison for his “crimes” against crustaceans.13 In an overregulated and overcriminalized world, there but for the grace, and limited resources, of prosecutors go I.

6

566 U.S. 120 (2012).

7

http://www.nam.org/Data-and-Reports/Cost-ofFederal-Regulations/Federal-Regulation-ExecutiveSummary.pdf 8 http://www.tradingeconomics.com/united-states/ gdp 9 https://www.mercatus.org/publication/cumulativecost-regulations 10 http://www.heritage.org/crime-and-justice/report/ time-prune-the-tree-the-need-repeal-unnecessarycriminal-laws 11

Harvey A. Silvergate, Three Felonies a Day, (2009).

12

http://dailysignal.com/2013/07/05/diverted-fromthe-straight-and-narrow-path-for-diverting-sewage 13 http://dailysignal.com//2011/08/08/the-worstthing-that-anybody-can-do-to-you-is-take-awayyour-freedom/

Governing by regulation is diametrically opposed to the principle of our representative democracy. Surely our founders, whose mantra of, “no taxation without representation” led them to revolution, would be appalled by the power and lack of accountability of administrative agencies today.

Real Estate Appraisals • Expert Testimony

Thomas R. Horner, MAI

201 Bradenton Avenue • Dublin, OH 43017 Phone: 614-791-0038 Email: info@ohiorealestate.org www.ohiorealestate.org

Daniel J. Dew, Esq.

The Buckeye Institute daniel@buckeyeinstitute.org


Spring ‘17: Urban Development

The Function of

Form-Based Codes by THOMAS F. SCHMItT In my first days of law school, we began property law by learning adverse possession – right after the professor told us we’d never use it again. Literally, at 9:00 a.m. on my first day in an office, one of the firm’s municipal clients was served with an adverse possession lawsuit. I quickly learned there’s a lot more in the real world than we learned in law school, and it’s always changing. Somewhere in those classes, we read about Village of Euclid v. Ambler Realty Co., 272 US 365 (1926) – the seminal U.S. Supreme Court case endorsing a municipality’s ability to exercise its police power through zoning ordinances to regulate the use and development of property. And while that basic framework is approaching a century of use and interpretation, municipalities have always sought different ways to efficiently and effectively regulate land use. Among the “new” methods to emerge, form-based zoning codes have literally changed the landscape for municipalities and developers alike. During a recent lunch with Chris Meyers, of Meyers + Associates Architecture, I found myself discussing some of the benefits and challenges of form based codes – from the municipal side and the builder/architect side.

Named for the municipality in that Supreme Court case, “Euclidean zoning” is the method of regulating based on how land is used. This structural framework solidified its importance when then-Secretary of Commerce Herbert Hoover appointed a New York City lawyer to draft the Standard State Zoning Enabling Act, a model statute published by the Department of Commerce and ultimately used by every state. The 1920s theory allowed cities to avoid nuisances between citizens by directing certain uses to dedicated zones, which also improved health and safety. Municipalities forced dirty factories, noisy mills and smelly pig farms to stay away from quiet residential neighborhoods, clean churches and peaceful schools. Pollution and commercial truck traffic was consequentially separated from the neighborhood streets and playgrounds where families played and enjoyed fresh air. As the world changed, so did those uses: they became more diverse, harder to identify and classify, and other factors helped reduce the nuisance implications on neighboring properties. Nowadays, Ohio suburbs can usually find churches and schools in a trafficcongested retail strip mall or a defunct business space, and industrial buildings converted to gyms, art studios or residential uses. Then there’s the ubiquitous coffee shop and home office made possible by cultural shifts and technological advances that were inconceivable in

Proponents of form-based zoning codes arose from “widespread dissatisfaction with suburban sprawl.” By mandating single-use zones (i.e. residential, commercial and office) and establishing tough setback, parking and low-density requirements, conventional zoning encourages municipalities to spread indefinitely, often without a comprehensive organization. 32 | Columbus Bar L aw yers Quarterly Spring 2017


the 1920s. While all of these are likely permitted uses under those zoning codes, they usually don’t advance the goals of the municipality’s zoning ordinances: ensuring quality development that comports with the community’s desired image and functionality. Often times, developers pushed the boundaries of common discretionary regulatory terms like “compatible” or “high-quality materials,” and their meaning and application would wind up in litigation. In response, a municipality would likely attempt to correct an area’s appearance by changing the permitted and conditional uses, and then further complicate matters by adding multiple review processes and subjective criteria to obtain approval. Amidst the changes in zoning ordinances, some municipalities are turning their focus towards regulating the size and shape of developed land, and placing less regulatory emphasis on the uses occurring thereon. Form-based zoning codes are a regulatory framework that focus more on building metrics such as heights, setbacks, floor heights and fenestration (the amount of windows/doors on an exterior wall), while also using minimums and maximums to regulate what can be built. Form-based zoning codes place far less emphasis on the use, or other less-predictable standards like density or floor-area-ratio, and direct attention to the public realm – the areas the public uses and sees, such as streets, sidewalks and building exteriors. Along with this shift in regulatory focus away from uses, form-based zoning codes strive to simplify the terms and procedures by using graphics, tables and pictures to easily convey the regulation, and emphasizing administrative review and approval. Proponents of form-based zoning codes arose from “widespread dissatisfaction with suburban sprawl.” By mandating single-use zones (i.e. residential, commercial and office) and establishing tough setback, parking and low-density requirements, conventional zoning encourages municipalities to spread indefinitely, often

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without a comprehensive organization. Proponents argue that thanks to technological advances such as modern sewer systems and fire prevention, separating uses has become largely irrelevant. Some go further to argue that Euclidean zoning has exacerbated the problems it sought to avoid. The curvilinear streets and cul-de-sacs of residential neighborhoods slow emergency services that are now spread over larger jurisdictions, the separation of uses leaves residential areas largely vacant during the working day for burglars to strike, and the streets’ character and use naturally lend to increased pedestrian accidents. Families now need to dedicate more time to chauffeuring children between different “use” areas, people are foregoing healthy physical exercise by driving more and walking/biking less and senior citizens are left to care facilities because vehicle-dependence is virtually implied. However, form-based zoning codes can often struggle against the years of practice and precedent behind Euclidian zoning. Developers and architects have spent considerable time learning to read the structure and legalese of most Euclidean zoning codes, and have comfort knowing what can be accomplished and how to get it done. A new formbased zoning code can make it challenging to locate the

Continued on page 34 33 | Columbus Bar L aw yers Quarterly Spring 2017


Continued from page 33 applicable requirements among the charts and graphs that are a hallmark characteristic. Some argue that this can be alleviated using “optional” implementation – using a formbased overlay that incentivizes compliance by providing faster approval processes and increased building options, but complicates landowners who seek to determine which regulations apply. Among legal difficulties, those who draft a form-based zoning code must stretch to rely on decades of case law that have provided great deference to a municipality’s authority and interpretation of time-honored Euclidean zoning terms, phrases and processes. To some extent, form-based zoning codes inherently limit creativity, because they prescribe multiple elements of a building and land that a Euclidean zoning code presumably leaves wide open. Furthermore, one of the key sales pitches of a form-based code is that it provides predictable results, which naturally lends itself to homogony and rigidity. Then comes the challenge of discretionary review: under Euclidean zoning, this has taken the form of a hearing before a planning commission or zoning board. Although these hearings allowed municipalities to preserve control over what is ultimately built, they have also created an unknown element that deters development because of the time and expense involved. They further lend themselves to arbitrary decisions or worse, discrimination based on the user themselves. While the more descriptive nature of form-based codes allows greater safety in administrative reviews (i.e. faster processes with less discretion on each application – concepts that developers and architects seem to appreciate more than anything), they create unease and tension from those who rely on slow process and public comment to vet each user and thus establish some measure of comfort in welcoming them to the neighborhood. While a property owner is not guaranteed to be free from zoning changes, altering the fundamental structure of zoning regulations from use-based to form-based can open the door to new legal challenges directed at the underlying principles and amounts of regulation. By way of example, existing case law provides guidance as to when a zoning regulation rises to the level of an unconstitutional taking of property. The relative unfamiliarity of form-based zoning codes lends itself to new judicial interpretation that may not be as favorable. Ultimately, the way a code’s standards and processes are enforced can create significant legal liability. While all regulations must comport with constitutional guidelines for due process

and clearly articulate expectations, they also cannot be so prescriptive to rise to a prior restraint on expressive activity in derogation of the First Amendment. Among all the pros and cons, two challenges seem the same among either type of code. First, although Euclidean zoning codes are criticized for slower processes and lesspredictable results, these could be mitigated through evaluating and reshaping procedural guidelines and criteria, without shifting to form-based code. Second, although stringent architectural regulations and design guidelines are more often attributed to form-based zoning codes, a community can easily stifle development and create disinteresting uniformity through overregulation under either a use-based or a form-based code. Ultimately, a municipality’s decision to structure zoning regulations on form rather than use depends on the desired function of the restrictions. Where the desired function is to relax control on the uses of property and ensure that anticipated future conforms to the community’s vision, then form-based codes provide municipalities with that framework. i

Woodward, Katherine A., “Form over Use: Form-Based Codes and the Challenge of Existing Development.” 88 Notre Dame L. Rev. 2627 (2013) at 2633, citing Emerson, Chad D., “Making Main Street Legal Again: The SmartCode Solution to Sprawl,” 71 Mo. L. Rev. 637 (2006). Additional citations omitted.

ii

Woodward, at 2628.

iii

Id., citing Geller, Richard S. “The Legality of Form Based Zoning Codes” 26 Journal of Land Use & Environmental Law 35, 38 (Fall 2010).

iv

Woodward, at 2634, citing Emerson, at 654.

v

Geller at 62-65.

vi

Geller at 68-69.

vii

See generally: Barry, John M. “Form-Based Codes: Measured Success Through Both Mandatory and Optional Implementation.” 41 Conn. L. Rev. 305 (November 2008).

viii

Geller at 61.

ix

Woodward, at 2636, citation omitted.

x

Geller at 84.

xi

White, Esq. S. Mark. “Aligning Development Codes With the Law” American Planning Association Zoning Practice, Issue 11, November 2014.

xii

Sitkowski, Esq., Robert J and Joel Russell, Esq., “Form and Substance: What New York Land Use Lawyers Need to Know About Form-Based Land Development Regulations.” New York Zoning Law and Practice Report, Vol. 8, No. 3, September/ October 2007.

xiii

Barry, at 338.

Thomas F. Schmitt, Esq.

Metz Bailey & McLoughlin tschmitt@metzbailey.com


Life Outside the Law

Legion of Lawyers Touring Tuscany

Part 2

BY HON. DAVID E. CAIN Tuscany has more to offer than just beauty and romance. Historic places and characters, stunning architecture and renowned works of art are accompanied by friendly people and culinary pleasures, accessible through an excellent network of expressways, roadways and rails.

The beauty itself has a striking diversity. Our villa overlooked a large lake surrounded by rolling hills that reminded me of Eastern Ohio. Just down the road was the village of Magione with a nice supermarket that could be anywhere in the USA. About 20 miles to the east is the City of Perugia that sits on top of a mountain. And, another 10 miles eastward gets one to Assisi, with another breathtaking mountaintop view. Back roads often wind through acres of sunflowers and hillsides lined with vineyards and olive trees. The mountainous backdrops reminded Mary Ann, my spouse, of the western United States. Then there was the magic and charm of the villa that sat on a gated knoll overlooking Lake Trasimeno off to one side and stretches of farmland on the other. Walking around the grounds one could see a stone-walled well with trellis and vines under flowering trees. A bench, hidden behind a row of pines, was perfect for sitting and watching the sunsets over the lake. There was a ping pong table and bocce ball court beyond some bushes. An inviting swimming pool reached beyond the length of a veranda with a table that seated all 18 of us, which is where we ate most of our meals and spent a rainy day. The villa had two levels, except for an ivy-covered ascending tower that housed our spacious bedroom

Continued on page 36

35 | Columbus Bar L aw yers Quarterly Spring 2017


Continued from page 35 above a curving stairway: worthy of a fairy tale. The bedroom featured a library with novels in English and Italian, a large closet and a long, narrow arching bathroom. The shower had no walls, just curtains (like the others in the villa) and, with a little practice, it could be used without flooding the floor for several feet in every direction. Windows overlooked the swimming pool, the brush-covered slopes and the sprawling lake. A 300 mm lens revealed the shapes of villages on the other side.

The first night, we filled up on salad and bowls of a scrumptious pasta creation only to discover it was the first of three entrees followed by mouth-watering cakes, pies and gelato. We paced ourselves much better after that.

The first floor had a huge split-level living room that could seat all of us at either end, along with Roberto, the owner, who drove up from Rome on check in and departure days. The villa also featured two ample-sized dining rooms, a library that doubled as a pool room and more porches, lounges and sitting rooms than I could count.

from San Luis Obispo, California, were the first to arrive at the villa on the first day of our week-long stay. Tim, Bill and Pete have been friends since their childhood in Mingo Junction, Ohio and they came to Tuscany after touring Barcelona and Rome. “The greatest pleasure is the quiet,” Tim said of life at the villa.

The hostess, Julia Stata, spoke fairly fluent English and demonstrated exquisite culinary skills. The first night, we filled up on salad and bowls of a scrumptious pasta creation only to discover it was the first of three entrees followed by mouth-watering cakes, pies and gelato. We paced ourselves much better after that.

We were the next to arrive with Pete and his wife, Kathie. Having enjoyed the previous week in Rome and points on both the east of west coasts, the four of us took a train from Rome to the small town of Chiusi, less than an hour’s drive from the villa. Next came David and Carolyn Bruns (David recently retired as an EMT in Westerville), John and Cathy Ferroni and Michelle and Hector Morales from Atlanta. They, too, visited Rome on the way. Carolyn, John and Michelle are cousins of Pete who obviously found a way to combine hometown and family reunions. Finally, Magistrate Chris Lippe and her attorney husband, Jerry, arrived with Larry, also an attorney, and Karen Johnson. They had spent several days in Normandy.

Julia’s husband, Florine, and their two young children were hardly visible and went off to work and school each day. Their dream is to establish a bed and breakfast in their homeland in Romania. We wished them well. Pete Boyuk, a Columbus attorney, had lined up the villa, and the whole trip for that matter. Splitting the cost of the villa with eight other couples made it less than half the price of the average hotel room. Tim Bainbridge, attorney and chair of the Ohio Industrial Commission, along with his companion, Pam Murphy, and friends, Bill and Judy Criss

The second day at the villa, we drove in a caravan to the central Italian city of Assisi in Umbria, most famous for being in the birthplace of St. Francis of Assisi who founded the Order of the Franciscans. A small chapel that Francis renovated in an open field now sits in the sanctuary of a

36 | Columbus Bar L aw yers Quarterly Spring 2017


beautiful cathedral in a splendorous valley overlooked by the mountaintop part of the city where churches, museums, shops and restaurants make for a pleasant and exciting visit. One of the churches holds the tomb of St. Francis who is known for quotes like, “Lord, make me an instrument of thy peace. Where there is hatred, let me sow love.” Sadly, uniformed military officers guard the entrances to many of the churches, just as they did in Rome. The next day, we drove on secondary roads about 50 miles west to Siena, home to great artworks and one of the most beautiful plazas in Europe. We parked at the bottom of the mountain and rode an escalator to the city center where we found the Duomo Di Siena, a captivating Gothic and Romanesque cathedral with dark green marble striping the white marble facade and loaded with sculpture and artworks and connected to a tower and museum. A couple blocks from there is the famous woven-brick plaza, the Piazza Del Campo, about the size of four football fields, shell-shaped and gradually descending to the midpoint of the lower side in front of a palace/museum featuring another distinctive tower. Twice a year, the plaza becomes the site of horse races that date back 300 years. Some of us had set aside the following day for Firenze, or Florence as we say in America; just like Roma is Rome; and Napoli is Naples. Pete had reserved tickets for the Galleria dell Accademia, the home of one of the world’s most famous sculptures, Michelangelo’s “David”. At Julia’s suggestion, we took the train from a park-and-ride station in the village of Castiglione del Lago, just a few miles from the villa. That made the 60-mile trip much more enjoyable and we avoided urban traffic and parking problems. It’s a good thing we saved some patience for the mass of humanity we encountered when we got there: a two to three-hour wait outside the Accademia was worthwhile as the number of people inside at any given time was kept reasonably small. And seeing the 13-foot 5-inch tall white marble “David” up close was an unforgettable experience. Michelangelo studied cadavers in his youth and he carved “David” in his late twenties. His mastery of muscles and veins is readily apparent in David’s massive body, naked except for a sling over the left shoulder and a stone in the right hand. His face reflects total concentration as he stares into the distance with a furrowed brow. Michelangelo was born in 1475 and spent most of his life in Rome. He returned to Florence in 1501 when commissioned to carve “David” – originally intended to be in a high location outside the Florence Cathedral, hence it’s large size. Between 1508 and 1512, he went back to Rome to create the amazing frescoes, reflecting scenes from the book of Genesis, that cover the curved ceiling 60 feet above the floor in the Sistine Chapel at the Vatican. Michelangelo was buried in Florence at the age of 89. The Accademia also features works by Lorenzo

Bartolini and Michile Antonio Grandi, along with ancient musical instruments such as Stradivari vialinos and dulcimers and hurdy-gurdies from the 18th Century. Almost every restaurant in Italy had spaghetti and pizza: and it was always good. But another wonderful experience in Florence is Florentine steak. Can’t say why it is different and so good, but I know it when I taste it. The waiter almost had a heart attack when someone asked for salt and pepper and I thought he was going down for sure when someone asked for ketchup. Our last trip from the villa was a short one by car to the village of Deruta, well known for its great pottery shops. We returned to Rome by rail and spent our last night in the Trastevere area, west of the Tiber River, a former Jewish ghetto, an interesting place to walk, shop and eat. Shortly after returning to Columbus, I was in a gym discussing our trip with Produce Vendor Jimmy Sanfillipo, who has visited the country several times. “People ask me where they should go in Italy,” he commented. “I just say ‘yes’.”

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

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Life Outside the Law

Cuba’s Legal System Provides Educational Opportunity BY Kristin Rosan In July of 2015, after being closed for 54 years, the United States reopened its embassy in Cuba. This event was one in a series to come that symbolized a shift in relations between the two nations. Early in 2016, President Obama became the first US president to visit the island since 1928. This resulted in frequent news stories about fewer restrictions that accompanied the restoration of diplomatic relations between the countries. For example, in late 2016, American Airlines started offering non-chartered flights to the island. US banks are on the verge of conducting business in Cuba, paving the way for visitors and tourists from the US to use credit cards as opposed to cash. Restrictions that remain limit US travel to the island for one of only 12 purposes. Likewise, despite the US and Israel abstaining from a UN resolution calling for an end to its economic embargo against Cuba, the US embargo (or blockade as the Cubans refer to it) remains in place.

It was among these changing times, that I, along with a group of colleagues affiliated with the Columbus Bar Association, traveled to Cuba. The purpose was to learn about the Cuban legal system, but of equal interest to me was a close-up glimpse at a culture and society largely unknown to most Americans. Prior to my visit, when I thought of Cuba I thought of Guantanamo Bay and the Cuban Missile Crisis. I paid little attention, and had little interest, in the island’s culture, form of government or laws. Our group was provided a once-in-a-lifetime opportunity to learn about all three, in what, for me, was a lifechanging and eye-opening experience. Although unreasonable to discuss the entire trip in this article, I’d like to share some high points now and invite you to attend a CLE my colleagues and I will provide, through the CBA, on what we learned about the Cuban government, laws, business and culture. The first word I learned was Malecon, I think I was the only one of our group that didn’t know about it. It is the name of the seawall and promenade that extends about five miles along the Havana coast. It is a popular destination for tourists and Cubans alike and is near much redevelopment that is starting to occur in Havana. The hotel for our stay in Havana, the Melia Cohiba, is located along the Malecon and has breathtaking views of both the sea and the Vedado district in Havana. Each morning our day started with a visit to the Union of Cuban Jurists in Havana, where we met Director Dorys Quintana. She would moderate daily speakers about the Cuban legal system, from the structure of the Cuban government, to labor and domestic relations laws. I, like most Americans,

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Each morning our day started with a visit to the Union of Cuban Jurists in Havana, where we met Director Dorys Quintana. She would moderate daily speakers about the Cuban legal system, from the structure of the Cuban government, to labor and domestic relations laws. thought of Fidel Castro as a dictator. Although he may have for all practical purposes functioned as one, I was interested to learn he was the President of the Council of State, Cuba’s governing body consisting of 31 people elected by Cuba’s National Assembly. The National Assembly is comprised of 612 regionally elected members, all of whom are members of the Communist Party of Cuba, and operate essentially as Cuba’s parliament. Although technically the true power rests with the National

Assembly, because the National Assembly only meets periodically, the Council of State handles dayto-day government business. During our sessions we were proudly and repeatedly told that everything in Cuba is free. The government provides housing, monthly vouchers for 21 days of food (you’re responsible for the rest of the month), Continued on page 40

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Continued from page 39 medical care and education (even law school or medical school). Cuba boasts an infant mortality rate that is lower than the US, due in large part to its neighborhood medical program, where doctors go to patients in their neighborhoods. However, these attributes were hard to reconcile with what can no less be described as abject poverty of its citizens among crumbling buildings. Old Havana was both breathtaking and disturbing. Some buildings looked like they’d been bombed,

A New Approach to Senior Living

Wesley Woods at New Albany: Retirement Living with a Conscience Following the success of Wesley Glen, which was founded almost fifty years ago, Wesley Ridge was opened to serve even more community members. Now, with two successful retirement living communities under her command, Peg Carmany is fulfilling a growing community need. The success of Wesley Glen and Wesley Ridge has proven that the people of central Ohio do place great emphasis on wellness in senior living. With this in mind, the Wesley family is growing once again, to expand to New Albany. Wesley Woods at New Albany was thoughtfully developed for older adults, those looking for luxury living, keeping in mind varying degrees of health care available as needs change.

crumbling from years of decay and neglect, coexisting alongside apartments and small shops and cafes. Most apartments don’t have doors, windows or refrigerators, and washers and dryers are luxury items. I asked our guide how people secure their belongings from theft with no windows or doors and his response was that crime isn’t a problem – after all what is there to steal? More interesting yet was to learn Cuban doctors or lawyers earn the equivalent of $50 per month. This is significantly less than Cubans lucky enough to work for one of Cuba’s new private enterprise hotels or restaurants. For Cuban arts, we were treated to the workshop of Cuban artist Jose Fuster, who turned his home and studio into a work of art by placing ceramic pieces in a mosaic on every surface: walls, ceilings, stairs – I mean every surface – of the compound. He also created oversized whimsical figures and applied the same treatment, with a dizzying array of color and texture. His artwork then extended out into his village of Jaimanitas, where neighboring homes are adorned with the same treatment. The result is an astonishing and unforgettable bright spot in an otherwise ordinary and unremarkable Havana suburb.

“We’re leading the way for positive change.” – Peg Carmany, CEO Architecture is similar to the elegant Georgian-style homes found throughout upscale New Albany. Inside, attention to detail shows in carefully selected colors, materials and finishes. The main building is designed to encourage community. Elegant courtyards and patios are available to host outdoor activities. In addition, chef-prepared meals are offered throughout the day to suit any palate and mood.

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Old Havana was both breathtaking and disturbing. Some buildings looked like they’d been bombed, crumbling from years of decay and neglect.

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To me, it was clear that the Cuban people are ready for change, and eager for an end to the embargo and all of the advantages that trading with the US will bring. How quickly and in what form that change will take is anyone’s guess. Through all of the decay and faded colors of the buildings, you could see what was once a prosperous and vibrant city, a hot spot for American movie stars and aristocrats. With the slow introduction of private enterprise to Cuba, I can only hope that the Cuban people benefit economically and achieve a louder voice in their government. If you’d like to learn more about our trip and the opportunities for business in Cuba, join us for a Columbus Bar Association CLE on May 24. Those that attended the trip along with local experts are working to put together an informative and insightful program. We hope to see you there.

Kristin Rosan, Esq.

Madison & Rosan, LLP krosan@madisonrosan.com


Life Outside the Law

Lawyers with Artistic License:

Lisa L. Sadler BY HEATHER G. SOWALD

A chance encounter years ago with Judge Cindy Lazarus, who was on her way to a knitting class, led Lisa Sadler into the art and craft of knitting. Curiosity about this art form encouraged her to join Cindy in classes at the Knitting Nomad in New Albany. Lisa says she knew she was a real knitter when she picked out her first pattern and fiber and began a project of her own choosing. This appellate judge has to use her decisive skills for each new project: for whom and what to create, which pattern to use, what color(s) and in what quantities, which type of fiber and what size and material of needles to use. Lisa often relies on fibers that feel good to her own sight and touch, such as mohair and silk. She frequently chooses to use large wooden knitting needles, resulting in faster project

completion. It is satisfying to her to create a tangible product—the opposite of her daily work of research and writing. Her projects tend to be structural garments, such as sweaters and wraps. Some she keeps for herself, the rest are gifts for friends and family. The projects also result in skeins of leftover yarn, which she donates to her church’s knitting group. This sports enthusiast, the daughter of the Westerville South Wildcats coach, Bill Sadler, admits that many of her knitting projects have been crafted during travel to and from sporting events, whether for her son’s baseball games, or to Indians, Cavs or Steelers games. After graduation from Westerville South High School, she earned her undergraduate degree in Social Work at The Ohio State University, and her Juris Doctor in 1984 from Capital Law School. Lisa then worked successively for the Columbus City Prosecutor, the Columbus City Attorney and as Deputy Chief Legal Counsel for Governor Voinovich. The latter appointed her to the Municipal Court in 1992, and to the Common Pleas Court in 1996. She successfully retained those seats, and since 2003, has been elected to her present seat on the 10th District Court of Appeals. Lisa’s husband, Larry Champlin, is a retired Columbus Police Lieutenant, and their son, Trent, is a senior at Wittenberg. Lisa’s also been a Big Sister to Amy, then 8 when they first met. Amy participated in Lisa and Larry’s wedding, and a few years ago, Lisa officiated at Amy’s own wedding.

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A chance encounter years ago with Judge Cindy Lazarus, who was on her way to a knitting class, led Lisa Sadler into the art and craft of knitting. In addition to her family, work and church, Lisa serves on the Maryhaven Board, heading their Program Committee, and previously sat on the Salvation Army Advisory and Catholic Social Services boards. Lisa has also taken leadership roles in the legal profession including her service as co-chair of the OSBA’s Jury Instructions committee, and service on the Ohio Supreme Court’s Commission on Rules of Practice and Procedure. Lisa enjoys golfing, traveling to Europe with girlfriends and taking relaxing beach vacations with her husband. She looks forward to continuing on the appellate bench, serving on community boards and finding new knitting projects to create for herself and others.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com


Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $47,840.00 ($30,830.00 in Economic Damages; $12,000.00 in Non-Economic Damages; $5,000.00 in Loss of Consortium). Automobile Accident. On February 7, 2012, Plaintiff Nardos Meles was driving westbound on East Broad Street. As she approached the intersection of East Broad Street and Brice Road, Defendant Cheryl Browning, who was eastbound on East Broad Street, turned left in Ms. Meles’ path and the cars collided. Ms. Meles was taken from the scene by ambulance to Mount Carmel East Hospital emergency room. She complained of pain to her chest, lower back and right knee. She was diagnosed with a concussion, chest wall contusion, acute lumbar sprain and right knee contusion. She followed up with her family physician and received physical therapy through May 2012 primarily for lower back and right lower leg pain. She continued to complain of back pain for the next several months leading up to the birth of her child in October 2012.

She sought no additional treatment for lower back or right knee pain until April 2013. In June 2013, she had an MRI of her knee that showed inflammation under the kneecap; she received a steroid injection in July of that year. Thereafter she sought treatment only sporadically; her physicians predicted that she would continue to have ongoing intermittent inflammatory pain in the right knee. After Ms. Meles filed suit, the defense had her examined by neurologist Gerald Steiman, M.D. Dr. Steiman concluded that Ms. Meles suffered a concussion and mild soft-tissue injuries in the automobile accident which required a minimum treatment of two months post-accident. At the time of the accident, Ms. Meles was working at the Starbucks at the airport; she missed 60 weeks from work in total from the date of the accident through April 2013. Her total lost wages for 60 weeks was $20,677.20. However, Ms. Meles conceded that she would have taken maternity leave for 8 weeks within that 60-week span. Medical Specials: $10,546.16. Lost Wages: $20,677.20 (reduced to $17,920.24 with maternity leave). Length of Trial: four days. Last Settlement Demand: $85,000.00 Last Settlement Offer:

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$20,000.00. The parties entered into a high-low agreement before trial. Plaintiff’s Expert: Timothy Duffey (orthopedist). Defendant’s Expert: Gerald Steiman, M.D. (neurologist) Counsel for Plaintiff: Steven Mathless. Counsel for Defendant: Marshall W. Guerin. Judge Stephen L. McIntosh. Case Caption: Nardos Meles, et al. v. Cheryl Browning, et al. Case No. 14-CV-000263 (2015).

Verdict: $9,772.49. Breach of Contract. In 2011, Defendants Kent and Julie Mercker hired Plaintiff Kenneth Forrester to remodel the Merckers’ home. The Merckers paid $347,363.82 for the work, but failed to pay the final invoice of $9,772.49. The Merckers explained that they did not pay the invoice because they believed that they had been overbilled. Mr. Forrester filed suit against the Merckers in Municipal Court for breach of contract demanding $9,772.49 for the outstanding invoice. The Merckers filed a counterclaim against Mr. Forrester for breach of contract. According to the Merckers, Mr. Forrester’s overbilling constituted a material breach of the contract. They claimed over $28,000.00 in


damages for overbilling. Since the Merckers’ counterclaim exceeded the jurisdictional limit of the Municipal Court, the case was transferred to the Common Pleas Court. The jury found in favor of Mr. Forrester and awarded him the $9,772.49 for the final invoice. Experts: None. No meaningful settlement negotiations. Length of Trial: three days. Counsel for Plaintiff: Gilbert J. Gradisar and Jeffrey A. Eyerman. Counsel for Defendants: Michael Hrabcack. Judge Colleen O’Donnell. Case Caption: Kenneth W. Forrester v. Kent Mercker, et al. Case No. 13 CV 6791 (2015). (The judgment was appealed on a posttrial issue regarding the availability of attorney’s fees.)

Defense Verdict. Medical Malpractice. On March 24, 2011 Plaintiff underwent a laparoscopic hysterectomy for removal of her fallopian tubes and ovaries. The procedure was performed by Defendant Michelle Lowe, M.D. During surgery, Dr. Lowe found a thinned area of bladder wall that had to be dissected from the uterus and reinforced with sutures to prevent rupture. She then injected blue dye to confirm that there were no leaks in the repaired bladder. Following the surgery, Plaintiff suffered urinary incontinence. Approximately three months after the surgery, Plaintiff developed a vesicovaginal fistula—an opening between the bladder and vagina. The fistula was surgically repaired. However, Plaintiff continued to have urinary complications and was ultimately diagnosed with a neurogenic bladder. Plaintiff had a complete loss of bladder control and required daily selfcatheterization.

Plaintiff claimed that Dr. Lowe was negligent in her surgical technique and caused a denervation of her bladder and the vesicovaginal fistula. She also claimed that Dr. Lowe was negligent in her management of Plaintiff’s bladder in the post-operative period and should have requested a urology consult sooner. Medical Bills: No information available. Plaintiff’s Experts: Michael S. Baggish, M.D. (gynecology), Susan Smith, D.N. (life care planner), Bruce S. Growick, Ph.D. (vocational expert), David Boyd, Ph.D. (economist). Defendant’s Expert: George M. Flesh, M.D. (urogynecology) No information regarding settlement negotiations was available. Counsel for Plaintiffs: Gordan Evans. Counsel for Defendant Michele Lowe, M.D.: Kevin W. Popham. Judge Richard Sheward. Case No. 12 CV 5173 (2015).

Defense Verdict. Slip and Fall.

J. Devantier and managed by Defendant Myers Real Estate. The home had concrete covered steps at the front entrance. On June 21, 2011, Mr. Kelley was standing on the steps reaching for his mailbox when the steps collapsed and his right leg fell through the concrete up to his knee. He suffered an adductor strain, groin injury and numbness and pain in his right leg radiating into his thigh; he also claimed lost wages. Mr. Kelley asserted that the steps collapsed as a result of defendants’ negligent maintenance and failure to repair the steps. The defendants asserted that the failure of the steps was not foreseeable because they had no notice of a problem with the steps. There was no evidence of weakness in the steps prior to the collapse. Defendants also had no prior experience with the collapse of a concrete structure like these steps. The jury agreed that Defendants had no notice of a defect in the steps prior to their collapse.

Plaintiff Matthew Kelley leased a home owned by Defendant Andrew

Continued on page 46

Franklin County Common Pleas Court 45 | Columbus Bar L aw yers Quarterly Spring 2017


Continued from page 45 Medical Specials: Approximately $4,600.00. Lost Wages: Approximately $600. No information regarding settlement negotiations was available. Length of Trial: three days. Plaintiff’s Experts: James Rutherford, M.D. (orthopedist) and Melita N. Moore, M.D. (sports medicine). Defendant’s Expert: None. Plaintiff’s Counsel: Ronald E. Plymale. Defendant’s Counsel: Timothy J. Ryan. Judge Mark Serrott. Case Caption: Matthew Kelley v. Myers Real Estate, et al. Case No. 13 CV 6074 (2015).

Defense Verdict. Employment. Plaintiff Michael Lucas was employed as a blaster/painter for Defendant DeLille Oxygen Company. On Oct. 18, 2012 Mr. Lucas was painting an empty gas canister and inadvertently opened the canister valve. Within 30 seconds to a minute he began feeling funny. He learned from a co-worker that the canister had contained carbon monoxide; he closed the valve, reported the incident to his manager and went to the hospital to be evaluated. However, he had no symptoms of carbon monoxide by the time he reached the hospital. In February of the following year, Mr. Lucas sought treatment from his family doctor for headaches, difficulty tasting and smelling and occasional nausea. He filed a workers’ compensation claim relating to the carbon monoxide exposure in October of the previous year. His doctor gave him a work excuse for two weeks, but the excuse did not describe the nature of Mr. Lucas’s illness nor reference the carbon monoxide

incident. While off work, he wrote to the president and vice president of DeLille and complained about the cleanliness and safety of the facility and possible OSHA violations; he also raised these concerns with OSHA directly. On February 18, the day before he was to return to work, Mr. Lucas obtained another work excuse for an additional week off work, which he brought into work the same day and gave to his supervisor. The supervisor asked him to call or come in the following day for a meeting and Mr. Lucas failed to do so. Therefore, on February 21, DeLille’s President made the decision to terminate Mr. Lucas’s employment for three days due to “no call/no show.” According to DeLille, at the time of his termination, DeLille’s president was unaware that Mr. Lucas had carbon monoxide exposure in October 2012 or that he had filed a workers’ compensation claim. Mr. Lucas sued DeLille asserting both a workers’ compensation retaliation claim and a claim for wrongful termination in violation of public policy. DeLille asserted that Mr. Lucas was fired for his violation of the attendance policy and that it was not and could not have been in retaliation for filing a workers’ compensation claim because DeLille was not aware of the workers’ compensation claim at the time they fired him. The worker’s compensation retaliation claim was tried to the magistrate and the wrongful termination claim was tried to the jury. Both found in favor of Defendant DeLille. Claimed Economic Damages: Approximately $25,000-$35,000. No information regarding settlement negotiations were available. No experts testified.

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Length of Trial: five days. Plaintiff’s Counsel: Fazeel S. Khan and Romin Iqbal. Defendant’s Counsel Christopher R. Pettit. Magistrate Myron A. Thompson. Case Caption: Michael Lucas v. DeLILLE Oxygen Company. Case No. 13-CV-9221 (2015).

Defense Verdict. Consumer Rights. Plaintiff Mary Rogers took her 2000 Ford Focus to Defendant Monroe Muffler Brake, Inc. (Monro) in September 2012 for new tires and wheel alignment. She returned a few days later for new front brakes, a wheel axle and side spindle on the front passenger side. Approximately five days after Monro replaced the wheel axle, Ms. Rogers’ vehicle made a cracking sound and came to a dead stop in the middle of the road. Ms. Rogers returned the vehicle to Monro where it was determined that the wheel axle had failed; Monro replaced the wheel axle at no charge. A month later, Ms. Rogers’ vehicle slowly lost power and stopped while she was at Easton Town Center. Ms. Rogers took the vehicle to another repair shop where a problem with her vehicle transmission was discovered. Ms. Rogers claimed that Monro initially lead her to believe that it would pay for repairs to her vehicle. However, Monro failed to pay for the repairs and the damage worsened until the vehicle became inoperable without a new transmission. Ms. Rogers sued Monro claiming that Monro violated the Consumer Sales Practices Act by misrepresenting the quality of the repair and making misleading statements that her vehicle was in good working order. Monro


asserted that the problems with Ms. Rogers’ transmission were completely unrelated to the repairs performed by Monro, none of which involved the transmission. Monro attributed the transmission problems to the vehicle’s age and high mileage. In September 2012, the vehicle was 12 years old with 187,530 miles on it. Claimed Economic Damages: $5,867.28. Last Settlement Demand: $65,000.00. Last Settlement Offer: $17,500.00. Length of Trial: four days. Plaintiff’s Expert: Ron Woods (automotive repair). Defendant’s Expert: None. Counsel for Plaintiff: Randy Richardson and Emily J. Lewis. Counsel for Defendant: Paul Bittner and Angela M. Courtwright. Judge Laurel Beatty. Case Caption: Mary Rogers v. Monro Muffler Brake, Inc. Case No. 13 CV 12160 (2016).

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com

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