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The Magazine of the Dayton Bar Association | April 2019 | Vol. 68, No. 8


Bar Briefs DBA Annual

mEETING MAY 31, 2019

Barrister of the Month The Honorable Margaret Quinn pg 6

Real Property

Recent Changes and Cases in Foreclosure Defense pg 8

Mindful Wellness New DBA Health & Wellness Working Group pg 18



Bar Briefs

April 2019 | Vol. 68, No. 8

Dayton Bar Association Board of Trustees 2018 – 2019

David P. Pierce President

Hon. Mary L. Wiseman First Vice President

Fredric L. Young

Second Vice President

Cara W. Powers Secretary

Brandon C. McClain Treasurer

Cassandra L. Andres Rice Member–at–Large

Caroline H. Gentry Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

Brian L. Wildermuth Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy, Executive Director Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.


Dayton Bar Briefs April 2019

Features 4 TRUSTEE'S MESSAGE Maintaining Health & Wellness By Cara W. Powers Esq. 6


By Thomas J. Intili Esq.


REAL PROPERTY Recent Changes and Cases in Foreclosure Defense

By Jonathan F. Hung Esq.

10 GET TO KNOW The Honorable Judge Gerald Parker Jr. By Jamar T. King Esq. 12 DAYTON OPPORTUNITY ZONES

What Are They and Why Should We Care?

By Francesco A. Ferrante Esq.



Fri. May 31st | 6:00pm | Sinclair Community College


Fri. May 10th | 11:30am |The Old Courthouse


Thurs. April 4th | 11:30am | The Old Courthouse


14 2019 DIVERSITY DAY Fri. April 5th | 8:30am - 1:30pm | Sinclair Community College 15 2019 DOMESTIC RELATIONS INSTITUTE Fri. April 12th | 8:30am - 1:30pm | Sinclair Community College 20 2019 CELEBRATION OF LIFE MEMORIAL LUNCHEON Wed. May 15th | 11:30am | Sinclair Community College 937.222.7902

DBA Annual Partners Sponsors of the DBA. Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

Platinum Partners Coolidge Wall Co., LPA www.coollaw.com

Founded in 1853, Coolidge Wall Co., L.P.A. is a premier resource for businesses and individuals. From our historic office in downtown Dayton, we serve clients throughout the Greater Miami Valley area and all over the world. As one of the oldest and most respected law firms in Ohio, we are trusted legal professionals with a history of obtaining results.


www.ficlaw.com With offices in Cincinnati & Dayton

FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

Gold Partner Thompson Hine LLP www.thompsonhine.com

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience. ” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

If you are interested in becoming a DBA Annual Parter, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org

April 2019 Dayton Bar Briefs


Trustee's Message

Maintaining Health & Wellness

By Cara W. Powers Esq. DBA Secretary Premier Health Partners


t’s too much, right? Managing a busy law practice, meeting litigation or other professional deadlines, spending time with your spouse/partner, tending to (young or adult) children, meeting the needs or expectations of your (well or aging) parents, giving time to charitable organizations, eating a healthy diet, exercising, making time for friends and vacations. Whatever the stage of life you’re in today, newly practicing or nearly retiring attorney, it’s all too much! Don’t get me wrong, it doesn’t mean that life isn’t good—it just feels like too much when you’re pulled in so many directions, even if every obligation is one that you enjoy. While I thought life would be less busy as my young children got older, in fact, their many activities are what tossed my personal calendar into a state of chaos. Similarly, those with aging or ill parents find they are as overwhelmed with obligation as they were when their children were very young. Technology helps us and hurts us. If we can’t be physically present in multiple places, we find a way to call or Skype in to meetings so we’re able to meet all the deadlines and expectations. Technology is great until it programs us to say “yes, I can make that work” when the answer should be, “I’m unable to do that.” The struggle for “balance”, as we like to call it, is real. Attorneys want to be engaged


Dayton Bar Briefs April 2019

in the practice of law. We also want to be great parents and partners, as well as contributing members of our communities. We want to give back and advance important causes but what is left of us after a busy day at work and evening commitments? Not much. How do you fit a healthy diet in when you’re eating on the run? Exercise? Forget about it. Where do you find the time for an appointment with your physician to “know your numbers” (cholesterol, weight, blood pressure, BMI)? Maybe you’re a little frightened to know what they will reveal. Can you afford to avoid or ignore these aspects of your health? Of course not. The struggle to maintain one’s health and wellness is common among attorneys and the DBA is keenly aware of the toll it is taking on our membership and profession. The 2017 Strategic Plan created an opportunity for the DBA to address this issue and provide our members with an opportunity to: first, acknowledge the struggle; and second, embrace it by offering some assistance. I’m happy to serve as the Chair of the Health and Wellness Working Group, not because I have all or any of the answers to solve the problem but because I’m excited to explore the issue with people on the same journey as me. Please take the time to read more about

the Health and Wellness Working Group from Susan Wawrose in this month’s issue [See page 18]. I’ve really hit “the jackpot” in terms of committee membership. These colleagues of ours are engaged and have ideas for us. Be sure to watch for opportunities to improve your health and wellness in upcoming issues. We’re on the journey together, my friends. I doubt there are any attorneys who believe they are completely balanced and hitting every mark of health and wellness. If you know one, please send them to our Working Group to share their “lessons learned” because we are all ears! With sincerity, I urge you to take a breath, slow down and give yourself a break. You might not feel “balanced” because sometimes your professional life suffers due to your personal obligations. Similarly, we know our personal lives (including our health and wellness) suffer as a result of the demands of our profession. Maybe the only “balance” we will find is that one aspect of life suffers as much as the other. One thing I know for sure is that exposing our vulnerability and sharing ideas among our colleagues will only help us feel better. I’m hopeful we can prioritize our busy lives to support better health and wellness.


DBA Board Announces New Executive Director Jennifer Otchy T T

he Board of Trustees of the Dayton Bar Association is pleased to announce that effective April 1, 2019 Jennifer Otchy will assume the role of Executive Director for the Dayton Bar Association and DBA Foundation. Jennifer has over 14 years of highly regarded experience with the DBA, having served in a variety of management and leadership roles during her tenure. Jennifer’s most recent role with the DBA has been the Senior Director of Professional Development. Jennifer has represented the DBA and the Foundation locally and nationally, including at the national Conference of Metropolitan Bar Associations and the ABA Bar Leadership Institute. Current Executive Director Sally Dunker notified the Board of Trustees that she would be retiring from her position to spend more time with family. The Board of Trustees appreciates all that Sally has done for the DBA and the DBA Foundation in leading them after long-time Executive Director Bill Wheeler’s retirement. Additionally, Sally has agreed to consider serving as a consultant so that the DBA and the Foundation can continue to benefit from her wisdom and experience. The transition from Sally’s leadership to Jennifer’s leadership is occurring pursuant to a succession plan developed by the DBA Board of Trustees and with the express recommendation and support of Sally. Jennifer has benefitted from Sally’s extensive and gracious mentoring and training in all aspects of association management and leadership. The Board of Trustees is confident that the transition from Sally to Jennifer will occur smoothly with no disruption in the services offered to our members, partners, or the public. Additionally, both Sally and Jennifer will be honored at the DBA’s Annual Meeting scheduled for Friday, May 31, 2019. Please join me and the entire DBA Board of Trustees in congratulating Jennifer Otchy as she begins her new leadership role with the Dayton Bar Association and the DBA Foundation and extending our gratitude for Sally’s excellent service to these vital organizations.

Thank you Sally! Come Celebrate with Jen & Sally at the 2019 Annual Meeting!

By David P. Pierce Esq. DBA President Coolidge Wall Co., LPA

DBA Annual

mEETING MAY 31, 2019


April 2019 Dayton Bar Briefs


Barrister of the Month

The Honorable Margaret M. Quinn II

n Dayton, the practice of law is not infrequently a generational affair. The Baggott and Slicer families spawned three generations of lawyers, the Greer and Hollencamp families four generations. Add the Quinn clan to that group of families that have supplied Dayton with one prominent lawyer after another. Oakwood Municipal Court Judge Margaret M. Quinn is the daughter of the late Stephen R. Quinn, who for many years was an in-house attorney at Delco Products handling contract and employment matters. Judge Quinn is one of four lawyers among her six siblings. Preceding her to the bar were her brother, Michael, a Notre Dame law graduate, and sister, Terry Ann, a graduate of the University of Dayton School of Law. Following her was brother, Patrick, who attended U.D.’s law school after completing his career as a pilot in the United States Navy. Those of you who have represented criminal defendants in our federal court for more than a few years will recall Patrick’s career as an assistant United States attorney. You may also recall Terry Ann’s service as a special agent with the FBI. Now a third generation of Quinn lawyers has emerged, Haley A. Pohlman, a 2017 DePaul law graduate, who works in Columbus as an assistant Franklin County prosecutor. Born at St. Elizabeth’s Hospital in 1955, Peggy Quinn grew up on Mahrt Avenue in Oakwood, a neighborhood some referred to in those days as the “Catholic ghetto.” “Nine people, three bedrooms, one bathroom, it was crowded,” she recalls with a grin. After grammar school at Holy Angels, she attended Julienne High School for two years before transferring to Oakwood High School her junior year. After graduation in 1973, Judge Quinn entered the University of Dayton to study English and history, but throughout her college years she worked at Delco Products cleaning machines and bathrooms. During her junior and senior years at U.D., she worked full-time at Delco Products while maintaining a full-time class schedule. Peggy entered law school at U.D. in the fall of 1977 with classmates who would later become leading Dayton attorneys and judges, including Judges Michael Tucker and Timothy O’Connell, Victor Hodge, D. Jeffrey Ireland and the late Arthur R. Hollencamp. After graduation in 1980, Peggy took a position at Wright Patterson Air Force Base as a contract litigator with the Air Force Logistics Command. After the 3½ years at Wright-Patt, Peggy joined the United States Attorney’s office in Dayton. Over her 24-year career as an assistant United States attorney, Peggy represented the government in a panoply of cases, civil and criminal, including asset forfeitures and white collar criminal prosecutions. It was not long after she joined the U.S. Attorney’s office that her sister, Fran, a registered nurse, introduced Peggy to Ronald Pohlman, M.D., a tall, dark-haired, family practice resident at St. Elizabeth’s


Dayton Bar Briefs April 2019

Medical Center. That introduction led to marriage in 1985. Over the ten years that followed, Ron and Peggy resided in Piqua, where Ron took over a retiring physician’s medical practice. In 1995, they returned to Dayton and settled in Oakwood. Peggy retired from the U.S. Attorney’s office in the spring of 2007, but just in her early 50s, she was not ready for the rocking chair. In 2008, she ran unsuccessfully for a common pleas court judgeship. Thereafter, Peggy took criminal appointments and pro bono cases in both state and federal court. In 2012, she became a full-time magistrate in the Miamisburg Municipal Court, and in November, 2013, she ran to succeed Robert Deddens as judge of the Oakwood Municipal Court. It was an eight-lawyer race from which Peggy emerged the victor. It has been said that municipal courts are the principal’s office for drunks, roughnecks, shoplifters and reckless drivers. Although that characterization describes frequent fliers in those courts, more often municipal court is the place where good people find themselves after some out-of-character episode has aroused law enforcement. Good municipal court judges, like good school principals, must be more than fair and consistent, they must balance tough love with earned praise, and most of all, be adept with people. Judge Quinn fills that role perfectly. Ron and Peggy have five children: Mallory, 31, a registered nurse who has served in the Peace Corp.; Colin, 30, a co-owner of Flanagan’s Pub in Dayton; Haley, 27, who we have already met; Daniel, 26, a second-year medical student at Wright State University; and Margaret Riley, but you can call her Mookie, 20, who is charting her life and career as a student. In her “spare” time, Judge Quinn volunteers with Food for the Journey, a hunger and missionary outreach program of Renewal Ministries, a Catholic non-profit organization. She also provides re-entry assistance to recently released felony prisoners, which in her view, and the few of many jurists, reduces recidivism. In a reflective moment, Justice Ruth Bader Ginsburg once commented that each part of her life provided respite from the other giving her a sense of proportion that persons trained exclusively in law lack. Like Justice Ginsburg, Judge Margaret Quinn’s sense of proportion enhances each of her many public undertakings. She is deeply committed to them all with natural kindness and cheerful sanity. Amidst the families contributing three or more generations of lawyers to the Dayton bar, Judge Quinn’s life and career is distinc- By Thomas J. Intili Esq. DBA Editorial Board tive and more than worthy of our recognition Intili & Groves Co., LPA this month.


Do you know someone who serves the community in a special way? The Liberty Bell Award is presented to a member of the community for their outstanding service to the community and someone who is not an attorney, magistrate or Judge. Nominees may be made by any member of the DBA. All nominations should include biographical information on the nominee and a statement from the nominator supporting the reasons for the nomination. The winner will be announced during the last Chancery Club Luncheon of the 2018-19 season, to be held on May 10th. Nominations should be submitted by Friday, April 12th. Visit this url to nominate! https://www.daybar.org/page/LibertyBellAward


April 2019 Dayton Bar Briefs


Real Property

Recent Changes and Cases in Foreclosure Defense


efending a client seeking to protect their house from foreclosure is an arcane art. Even so, the Ohio Supreme Court has, in recent past, issued opinions regarding foreclosure defense that have had a huge impact on civil practice.1 Recent opinions from the Ohio Supreme Court and the Second District Court of Appeals in this arena have raised touched on issues that affect not only how to defend debtors, but also civil practice as a whole.

Bank of New York Mellon v. Rhiel, Trustee, (Slip Op.) 2018Ohio-5087: This opinion was issued in response to two certified

Wells Fargo Bank, N.A. v. Mears, et al., 2d Dist. No. 27995, 2019-Ohio-242: The plaintiff-lender filed a foreclosure action on

U.S. Home Ownership, LLC v. Young, et al., 2d Dist. No. 27382, 2018-Ohio-1059: The plaintiff-lender obtained a note and

CitiMortgage, Inc. v. Stanley, et al., 2d Dist. No. 2018-CA-13, 2018-Ohio-4229: The plaintiff-lender filed suit to foreclose on the

questions from the Bankruptcy Appellate Panel for the United States Sixth Circuit Court of Appeals: (1) whether a person not identified in a mortgage’s body, but who signs and initials it, is a mortgagor or his or her interest; and (2) whether a mortgage signed and initialed by a person not identified in the mortgage’s body, but whose signature is properly acknowledged, invalid as a matter of law. In this case, the debtors, husband and wife, owned real property subject to a mortgage executed by the same and acknowledged by a notary; however, the wife is not identified in the mortgage. The bankruptcy court found in favor of the lender, whose argument was supported by the Second District Court of Appeals’ opinion in SFJY 2005, LLC v. Ream, 187 Ohio App. 3d 715, 2010-Ohio-1615, 933 N.E. 2d 819; on appeal, the trustee relied on a bankruptcy case, In re Wallace, Bankr. S.D. Ohio. No. 05-24918, 2007 WL 6510864, in which the bankruptcy court suggested that common law should prevail, which requires an instrument to conveyance to include a grantor’s name. The Ohio Supreme Court followed the Second District’s opinion: Ohio’s statutory scheme governing real property conveyance only requires a mortgagor’s signature on the instrument to be valid.

mortgage subject to a loan modification, and sought to foreclosure on the same. In support of its summary judgment motion, the lender submitted the affidavits of two loan officers who claimed, based on a review of business records, that the defendant-borrower received service of a notice to accelerate the loan and executed the loan modification; however, these events pre-dated the plaintiff-lender’s possession of the note at issue. The borrower claimed that the lender failed to meet its burden of proving a genuine issue of material fact regarding whether he received the notice or executed the modification agreement; however, the trial court granted the lender’s motion. On both issues, the Second District reversed: the affiants had personal knowledge of neither the notice’s receipt nor the agreement’s execution, and could not have had personal knowledge of the transaction at issue because it occurred prior to the lender’s possession of the note. 8

By Jonathan F. Hung Esq. Chair: DBA Real Property Green & Green, Lawyers

Dayton Bar Briefs April 2019

a reverse mortgage, to which the defendant-borrower argued that the lender failed to provide a notice of default and a notice to cure. The note and mortgage also included a term requiring approval prior to filing an action on the same from the Secretary of Housing and Urban Development, which the borrower said the lender failed to obtain. In support of its summary judgment motion, the lender filed an affidavit with a letter from NOVAD Management Consulting to the lender, in which NOVAD noted that the lender’s request to foreclose was approved. The trial court granted the motion, finding that such evidence was sufficient to demonstrate that the lender received HUD approval. The Second District reversed: the letter from NOVAD failed to expressly state that HUD had approved of the request, and the affiant failed to provide any evidence indicating NOVAD’s relationship to HUD, if any, which made the affidavit insufficient to establish that the lender received authority from HUD to initiate the foreclosure action. (Compare with Wells Fargo Bank, N.A. v. Herman, et al., 2d Dist. No. 27854, 2018-Ohio-3700 (the defendantborrower failed to timely answer or respond, and failed to raise the lender’s failure to obtain approval as an affirmative defense).)

defendant-borrowers’ property. The borrowers received service, but did not file an answer or otherwise respond; the trial court subsequently granted default judgment against them. The borrowers later filed a motion for relief from judgment in which they argued that they were led to believe that they did not have to file an answer because they were working on a loan modification with the lender in conjunction with the United States Department of Veterans Affairs, which guaranteed

continued on page 9

ENDNOTES: See, e.g., Fed. Home Loan Mort. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012Ohio-5017, 979 N.E.2d 1214 (a plaintiff’s standing must exist at the time its action is filed); Bank of Am., N.A. v. Kuchta, 141 Ohio St. 3d 75, 2014-Ohio-4275, 21 N.E.3d 1040 (a plaintiff’s lack of standing at the time the action is filed must be raised as an affirmative defense, and does not divest a court of subject-matter jurisdiction). 1


REAL PROPERTY: Recent Changes and Cases in Foreclosure Defense continued from page 8 their loan. The trial court denied their motion, and they appealed the decision, arguing that they were entitled to an evidentiary hearing. The Second District affirmed: the borrowers’ belief that they were not required to answer or otherwise respond because they were attempting to negotiate a loan modification does not amount to excusable neglect under Civ. R. 60(B)(1); further, the borrowers’ inexperience with the law also did not make their failure to timely respond excusable neglect. (See, also, National Collegiate Student Loan Trust 2007-2 v. Tigner, 2d Dist. Nos. 27841 and 28035, 2028-Ohio-4442.)

Montgomery Cty. Treas. v. Islamic Center of Peace, Inc., 2d Dist. No. 27986, 2018-Ohio5162: The plaintiff-Treasurer filed suit to foreclose

on her delinquent real property tax lien, to which it joined the defendant-owner, the county recorder, and American Tax Funding, LLC. The owner filed an answer with counterclaims, which were dismissed. American Tax was served but did not serve an answer. The Recorder filed an answer in which it asked for its interest be protected. The trial court granted summary judgment in the Treasurer’s favor, but did not determine the priority of the Treasurer’s or Recorder’s interests. The trial court also failed to determine the amount of the Recorder’s lien. The Second District dismissed the appeal: there was no final, appealable order because the trial court did not determine the amount to which the Recorder may be entitled or the priority of such interest. (See, also, Tax Ease Ohio, LLC v. Wells, et al., 2d Dist. No. 27920, 2018-Ohio-4346.) The Dayton Bar Association’s Real Property Committee meets every second Thursday after work (5:30 P.M.) at Coco’s Bistro to discuss real property litigation and other hot topics regarding real property. Come join us for tales, testimonials, and tall drinks, as well as networking opportunities and discussions of recent case law you may need to advise your clients.


JOIN US ON THIS SPECIAL DATE! Thursday, April 4th The Old Courthouse @ 11:30am Speaker: Sam McLane Arctic Wolf, Chief Technology Services Officer Topic: Cyber Security Caterer: The Deli Call or Email Tyler to RSVP! 937.222.7902 | twright@daybar.org

April 2019 Dayton Bar Briefs


Getting to Know The Honorable Judge Gerald E. Parker Jr. EE

arlier this year, I met up with the Honorable Judge E. Gerald Parker and he graciously allowed me to ask a few questions to get to know him.

Who is Judge Parker?

Judge Parker is the first AfricanAmerican male elected to the Montgomery County Court of Common Pleas. He was sworn-in on January 4, 2019. He began his career in 2007 as an assistant prosecuting attorney in the Montgomery County Prosecutor’s Office. After spending about four years there, Judge Parker became an associate at Dyer, Garofalo, Mann & Schultz L.P.A. Most recently, he served as a magistrate judge in the Montgomery County Juvenile Court. Judge Parker graduated from Georgetown College. There, he earned a Bachelor of Arts degree in English and captained the football team to a national championship. He earned his juris doctor from the Salmon P. Chase College of Law at Northern Kentucky University. Judge Parker is deeply involved in both the Dayton legal community and the community at-large. He is a member of the Dayton and Ohio State Bar Associations, as well as the Ohio Common Pleas Judges Association. He serves on the boards of Building Bridges, Inc., the Dayton Mediation Council, the Salvation Army, and the Judicial Advisory Board of the Monday Community Correctional Institution. In 2018, Parity, Inc. named him one of Dayton’s Top Ten African American Males. He’s also received the WHIO Channel 7 Making a Difference Award. While a juvenile court magistrate, Judge Parker created an after-school “Cross-Fit” type exercise program for at-risk youth. The program aims to build self-esteem and teach core life skills to many of the kids that came before him in juvenile court. 10

Dayton Bar Briefs April 2019

Why did he become a Judge?

Judge Parker believes that judges, unlike any other public servant, are in a unique position to help people find solutions to, not only legal disputes, but to all types of problems including, substance abuse, inadequate housing, unemployment, lack of educational opportunity, and more. He says that there is no such thing as a small case. Every decision he makes on the matters that come before him could potentially have a wide reaching and long lasting impact on someone’s life. He chose to become a steward of such great power because he believes he can wield it appropriately, effectively, and, most importantly, fairly.

What has been the best thing about being a Judge?

At the time of our meeting, Judge Parker had only been on the bench for approximately one month. He was enjoying learning the different roles of each member of his court staff and how they all functioned together to make sure that his courtroom operated smoothly and efficiently. But he said that the best part of the job was seeing the faces of old friends and acquiantances throughout the courthouse. He loves hearing their stories and helping them solve problems.

What advice do you have for younger attorneys?

Judge Parker stressed that other attorneys need to “know who you are.” Accordingly, networking is imperative for young attorneys looking to establish themselves and build a career in this profession. Networking should start early in law school and continue throughout a lawyer’s career. The DBA as well as local community organizations are great platforms for honing networking skills and building the relationships necessary for a rewarding legal career. He also believes that young attorneys should keep their minds open and get experience in several areas of law. Testing a number of different things and exploring different areas early on in a career can help young attorneys discover what they do well. In addition, a wide knowledge base is an indispensable tool for success in this profession.

Why Dayton?

Judge Parker considered starting his career in other cities while he was in law school, but he chose Dayton because it was the “perfect size.” According to his honor, the bar is very collegial and Dayton has an extraordinary number of great attorneys for a city of its size. Unlike other places, most Dayton attorneys are always willing to reach out to and help younger attorneys. It is a place where a young attorney can get great training and experience at an early age.

By Jamar T. King Esq. Co-Chair: DBA Editorial Board Thompson Hine LLP


DAYTON Bar Association

Expand, Explore, Experience YOUR DBA!


HERBERT M. EIKENBARY What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.


How to Apply: If you would like to take advantage of these programs, contact:

Jennifer Otchy DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org

Thursday, April 4th @ 11:30am Chancery Club Luncheon Friday, April 5th @ 9:00am Diversity Day Friday, April 12th @ 8:25am Domestic Relations Institute

MAY 2019 Friday, May 10th @ 11:30am Chancery Club Luncheon Wednesday, May 15th @ 11:30am Celebration of Life Memorial Luncheon Thursday, May 16th @ 9:00am Business Basics Seminar Friday, May 31st @ 6:00pm Annual Meeting

JULY 2019

Thursday, July 11th @ 7pm *Tickets released on June 27th @ DBA DBA Night at the Dragons


Monday, October 21st @ TBA First Monday in October Celebration


April 2019 Dayton Bar Briefs


Dayton Opportunity Zones: What Are They and Why Should We Care?

By Francesco A. Ferrante Esq. Thompson Hine LLP


he following is an abbreviated version of a March 16, 2019 Peek @ the Week email addressing this topic. The lengthier piece discusses (1) Structural Points and Example of Tax Benefits, (2) Length of Time to Hold Investment to Obtain Tax Benefits, (3) Examples of Qualifying Investments, and (4) Mechanics of Capital Gains Investments in Qualified Opportunity Funds. The 2017 Tax Cuts and Jobs Act(the “Act”) introduced a federal income tax program that has received much attention and could be an excellent tool for the development of properties within areas of our community designated as Opportunity Zones (OZs). There are 8,700 OZs identified throughout the United States, but most importantly, 17 OZs have been designated within Montgomery County—all in and around the City of Dayton, with additional areas in Springfield and Middletown. The Ohio Development Services Agency has a convenient interactive map on its web site that illustrates the OZs in our area, which can be searched to find street locations. To attract specific attention to OZs in our community, the City of Dayton has developed a task force to assist with the technical understanding, the connection of possible investors and possible site locations, and a public awareness component. This summary is being presented to bring awareness to those who counsel potentially interested parties. Treasury Secretary Mnuchin has repeatedly stated that OZs will attract $100 billion


Dayton Bar Briefs April 2019

in capital gain investments. These types of statements, along with the announced formation of dozens of Qualified Opportunity Funds (QOFs) to attract capital gain dollars for investment highlight the potential opportunity this program represents for distressed communities. Many DBA members represent businesses and individuals who may be interested in investing in OZs. The attorneys listed at the end of this document recognize that the new tax benefits can be a useful tool for investors to develop OZs and assist our community

Who should be interested in OZs?

• Businesses already located in OZs that plan to expand. • Projects within an OZ that seek equity investments. • Individuals and businesses that have or are expecting to cash out of capital gain investments and are interested in OZ development. The reason for the investment can be for a possible solid return, for civic minded reasons, or both. • Investment funds to be formed to accumulate capital gains dollars from investors to be used towards OZ projects. • Lenders who will provide additional financing for OZ development and want to understand how OZ tax requirements impact lending terms.

What tax benefits are available for qualifying OZ investments?

The Act provides federal income tax benefits to taxpayers who invest their capital gains from the sale of properties into OZ projects and, in exchange, receive an equity interest through a qualifying structure. The potential tax benefits apply to the (1) capital gain amounts invested in OZ projects and (2) tax free future appreciation of the OZ investment. The main points are: 1. For capital gains that are timely and properly invested through a QOF structure, the tax on such capital gain is deferred through no later than 2026. 2. If the equity interest in the QOF received for the invested capital gain is held for at least 7 years (but with a 2026 hard stop), 15% of the deferred capital gain is excluded from the applicable tax in 2026. If the equity interest in the QOF is held for at least 5 years (but with a 2026 hard stop), a maximum 10% of the deferred capital gain is excluded from the applicable tax in 2026 or when sold, if earlier. 3. If the equity interest in the QOF is held for 10 years or more, any taxable amount on the sale of such QOF interest is tax free. Accordingly, appreciation in the value of the QOF assets are tax free. In the right circumstances, this can be a powerful incentive for investors.

continued on page 13 937.222.7902

Dayton Opportunity Zones: What Are They and Why Should We Care? continued from page 12

Coming your way!

Are there risks associated with OZ investments?

Any investment entails risks, and investments in a financially distressed area can be particularly risky. Some of the risks associated with OZ investments include:

1. Tax Rate Risk--Taxation of the capital gain amount used in OZ investments is de-

ferred and subject to tax no later than 2026. Tax rates are subject to change from time to time, and the tax rates in effect in the future year will apply to determine the tax cost relating to the deferred gain. An increase of approximately 5 percentage points from the current tax rates would eliminate the tax benefit associated with the deferred capital gain and related income exclusion, depending on the discount rate used. However, the benefit associated with post-investment tax free appreciation would continue to be available.


DBA Dues Renewal

While purely speculative at this point, the hope is that lobbying efforts would push for transitional relief from any increased tax rates that would be applicable to the deferred gain for prior OZ investments.

2. Liquidity in 2026 to Pay Income Taxes on Deferred Capital Gains. Because most

of OZ investments will be held past the 2026 year, consideration needs to be given to having liquidity in 2026 to pay the tax on the deferred gain. There is a hard stop on the tax deferral with respect to the invested capital gain in 2026, even though the taxpayer continues to hold the OZ investment.

Deadline July 1st

3. Economic Risk—As with any investment, the potential future appreciation of the de-

velopment can be an important driver. If the investment does not significantly appreciate in value (or even loses value), the tax benefit of tax free appreciation has limited value. Robert Curry, Thompson Hine *Francesco Ferrante, Thompson Hine Stephen Herbert, Coolidge Wall Shannon Martin, Bricker & Eckler Sam Warwar, Coolidge Wall

Bob.Curry@ThompsonHine.com Francesco.Ferrante@ThompsonHine.com herbert@coollaw.com smartin@bricker.com Warwar@coollaw.com

*Frank led the drafting of this publication and thanks the other listed attorneys for their review, cooperation, and willingness to participate in the circulation of this information. View the following link to read this article in its entirety: https://bit.ly/2Y1QHmm

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

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April 2019 Dayton Bar Briefs


continuing legal education Monday, April 1 | 1:00-4:15pm (video replay)

The Rules of Evidence: Character and Impeachment 3.0 General Hrs DBA Member $105 NonMember $150 Passport Holder $0

Friday, April 5 | 8:30-1:15pm

2019 Diversity Day

3.0 General Hrs DBA Member Seminar Only $105 DBA Member Lunch Only $30 DBA Member Both $125 Passport $30 NonMember Seminar Only $140 NonMember Lunch Only $35 NonMember Both $165 Table (8) $240 *Call 222-7902 to reserve Friday, April 12 | 8:25-3:15pm

2019 Domestic Relations Institute 6.0 Hrs | 5.0 General Hrs; 1.0 Professional Conduct Hr DBA Member before 4/5: $215 After 4/5: $240 NonMember before 4/5: $300 After 4/5: 325 Passport Holder $30

Wednesday April 17 | 8:45-4:30pm (video replay) Annual Elder Law Update 5.0 General Hrs, 1.0 Professional Conduct Hr DBA Member $215 NonMember $300 Passport Holder $0

Overcoming Unspoken Biases Beyond Just Conversation Friday, April 5, 2019 Seminar 8:30am-11:45am | Luncheon Noon-1:15pm Sinclair Community College, Bldg 12

8:30AM - 11:45am Seminar Agenda:

The Diversity Committee will present a half-day CLE addressing current issues in Diversity and Inclusion in the Legal Realm regarding Education, American Disabilities Act and Immigration Law.

Thursday, April 25 | 8:30-4:15pm (video replay) Juvenile Court Attorney Certification Training Seminar 6.25 General Hrs DBA Member $215 NonMember $300 Passport Holder $0 Monday, April 29 | 1:00-4:15pm (video replay) Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs DBA Member $105 NonMember $150 Passport Holder $0 Wednesday, May 1 | 1:00-4:15pm (video replay) The Anatomy of a Will Contest 3.0 General Hrs DBA Member $105 NonMember $150 Passport Holder $0

Topics: Overcoming Unconscious Bias: Going Beyond Just Conversations Diversity and Education Panel & the American Disabilities Act Immigration Law and Policy

Presenters: Sheila Eason, SPHR, SHRM-SCP, HR Consultant Robert Cohen Esq., Porter, Wright, Morris + Arthur LLP Professor Charlie Russo, University of Dayton School of Law Professor Jeannette Cox, University of Dayton School of Law

Noon – 1:15pm Diversity Luncheon: Keynote Speaker: Michael E. Carter Chief Diversity Officer, Sinclair Community College Topic: Diversity Best Practices to Achieve Real Diversity

Thursday, May 16 | 9:00-12:15pm Business Law Basics: Business Contracts and LLCs 3.0 General Hrs | 3.0 NLT hours* Presenter: Zachary B. White, Coolidge Wall Co., L.P.A. DBA Member $105 NonMember $150 Passport Holder $0 NLT/Paralegal Member $55 *New Lawyer Training credit pending with the Supreme Court of Ohio 14

Dayton Bar Briefs April 2019


Friday, April 12, 2019

6.0 CLE Hrs

Sinclair Community College

2019 DBA Annual

Domestic Relations Institute Friday, April 12, 2019 | 8:25am -3:45pm 6.0 CLE Hrs | 5.0 General Hrs, 1.0 Prof Conduct Hr Sinclair Community College, Building 12 EARLY BIRD RATE Register by April 5th! M $215 | NM $300 | PP $30 After April 5th: M $240 | NM $325 | PP $30 *Materials will be available in electronic format. **Printed Materials are $30, with sales ending April 2nd.

Agenda: 8:25am Welcome 8:30-9:30 am Judge’s Round Table Discussion Judge Denise L. Cross and Judge Timothy D. Wood, Montgomery County Judge Jeffrey T. Kirby, Warren County Magistrate Cynthia G. Martin, Greene County

9:30-10:30am Real Estate Appraisals: Standards, Objections, Confidentiality Issues Robin Holznecht, Licensed Certified General Appraiser

10:30-10:45am Break 10:45-11:45am Practitioner’s Guide to OPERS Ellen Leach, Associate Counsel for OPERS

11:45-12:30pm Lunch (provided) 12:30-1:30pm Changing Child Support Legislation: What are the effects of H.B. 366? Natasha Plumly, Senior Staff Attorney, SEOLS

1:30-2:30 pm Case Law Update Magistrate Elaine Stoermer, Montgomery County

2:30-2:45pm Break 2:45-3:45pm Professional Responsibility: Recent Ethical Violations (1.0 Hr Prof Conduct)


After April 5th Member $240 NonMember $325 Passport $30

Register by April 5th ! Members $215 NonMember $300 Passport $30

Printed Materials $30 order by April 2nd (Select this option if you would like printed materials.) *Electronic materials will be available at no cost.

Register Seminar#125 www.daybar.org/cle 937.222.7902 Dayton Bar Association

109 N. Main St., Ste. 600, Dayton, OH 45402

Diane K. DePascale Esq., DePascale Law Office

3:45pm Adjourn www.daybar.org

April 2019 Dayton Bar Briefs


continuing legal education Business Law Basics:

Forming Limited Liability Companies and Preparing Common Business Contracts

Thursday, May 16th 9:00-12:15am 3.0 CLE Hrs | *3.0 NLT Hrs Credit pending with the Supreme Court of Ohio Presenter: Zachary B. White, Coolidge Wall Co., L.P.A. DBA Member $105 NonMember $150 Passport Holder $0 NLT/Paralegal Member $55

Spring into action!

Earn CLE Anytime, Anywhere. Take up to

12 hours of self study credit.

A great variety of programs to choose from. Online CLE programming allows you to take CLE courses on a wide variety of topics, any time of the day, any day of the week!


About the Seminar: When a client approaches an attorney with a new business plan or idea, it can be a very exciting time for both the client and the attorney. Learn best practices in preparing common business contracts and forming LLCs as well as common terminology that business lawyers should understand. Aimed at non-business lawyers and new lawyers, this presentation will provide you with the legal fundamentals of these key practice areas.

to register visit:




Dayton Bar Briefs April 2019

Don't miss these special DBA events

May 31st 2019 DBA Annual Meeting June 7th Criminal Law Certification July 11th DBA Night with the Dragons


Local Law Related Events

2019 Paralegal Day Celebration Platinum Sponsor $250

Thursday, April 18, 2019 11:30am-1:00pm Sinclair Community College, Bldg 7 includes: ten tickets to the event $100 tax deduction

Gold Sponsor $150

includes: five tickets to the event $75 tax deduction


Celebration Thursday, April 18, 2019 11:30 am - 1:00 pm Sinclair College Building 7, room 7-006 ABC 444 W. Third Street Dayton, Ohio 45402

Silver Sponsor $75

includes: two tickets to the event $45 tax deduction

All sponsors will have their firm’s logo or the individual’s name in the event program.

Greene County Court: Train Your Boss Seminar Individual Ticket $15

Parking available for everyone in the student lots.

Save the Date! May 3, 2019 8:30am - 12:00pm *Lunch Provided*

Payment accepted via check payable to: Sinclair Foundation - Paralegal Day

It’s time to celebrate the Paralegal profession! Please join us at Sinclair for lunch, a silent auction, keynote speaker, and the awarding of the 2019 Paralegal of the Year award.

Mailed to: Sinclair College Paralegal Program Building 5-141, 444 W. Third Street Dayton, Ohio 45402

Pay Online: www.sinclair.edu/giving/paralegal-day

Nominate an Outstanding Paralegal on your staff for the Paralegal of the Year Award! To nominate, go to: www.sinclair.edu/giving/paralegal-day Deadline for submissions is March 23, 2019


April 2019 Dayton Bar Briefs


*New Feature Column


Mindful Wellness

he Dayton Bar Association has formed a new Health and Wellness Working Group. Members of the group, chaired by Cara Powers, Vice President & Deputy Chief Legal Officer at Premier Health, represent area law offices and corporate counsel, the DBA leadership, and the University of Dayton School of Law. They are: John Clough, shareholder at Pickrel, Schaeffer & Ebeling; Joanna Garcia, an attorney with Wilmer Hale’s DiscoverySolutions team; Erin Rhinehart, partner at Faruki PLL; Jennifer Otchy and Sally Dunker at the DBA, and Susan Wawrose, professor at the University of Dayton School of Law.

Why Well-Being? Why Now?

The idea of the Health and Wellness Working Group arose during the DBA’s most recent Strategic Planning Process. The group’s formation also follows on the heels of the 2017 report “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” (the Report) drafted by the National Task Force on Lawyer Well-Being.1 The National Task Force Report is a call to action. It recognizes many members of the legal profession suffer from serious mental health or substance use issues and and even more experience a “profound ambivalence” about their work.2 The Report also connects well-being to professional competence, asserting: To be a good lawyer, one has to be a healthy lawyer.3 It provides detailed recommendations for action by all stakeholders, including the judiciary, legal employers, law schools, bar associations, regulators, and professional liability insurance carriers. In his 2018 end-of-year message, ABA President Bob Carlson identified the goal of advancing lawyer well-being as an ongoing organizational priority and recognized the Report as a significant contribution towards this end. He also noted that under the leadership of his predecessor, Hilarie Bass, the ABA’s House of Delegates adopted Resolution 105, which urges those who work with lawyers to consider the recommendations in the Report.4 With the adoption of this resolution, it is now ABA policy to “support[ ] the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges and law students . . . .”5 Carlson concluded his December 2018 message by calling on all members of the legal profession to play a role in promoting well-being: The legal profession is at a crossroads. Our members, our colleagues, our friends are suffering. It is our duty as lawyers and human beings to help. So . . . keep in mind others who may need help. Get involved, talk to your firm and colleagues, start a well-being program and join the ABA in helping lawyers through these problems.6 The National Task Force Report has initiated a lively national conversation and generated multiple initiatives around well-being in the legal profession. With the formation of the Health and Wellness Working Group, the DBA joins this conversation and hopes to bring the momentum and resources surrounding attorney and law student well-being to the Dayton legal community for the benefit of DBA members. Dayton Bar Association President, David Pierce, explains: “By improving our members’ health, they will be better able to serve their clients and to represent our profession in their interactions with the community as a whole.” Pierce adds, “There is no doubt that 18

Dayton Bar Briefs April 2019

The goal of this new working group is to do all that we can to provide our members with the tools they need to improve their physical and mental well-being.

-DBA President, David Pierce

morally this is the right type of member benefit to provide to our colleagues.”

What Can DBA Members Expect from the Working Group?

Working Group Chair, Cara Powers, has set a wonderful tone for moving forward. As her Trustee’s Message on page 4 of this edition suggests, we hope to encourage more candid conversation among DBA members about lawyers and well-being and to foster a culture of wellness in the Dayton legal community. We’ll start this spring with a free health-screening and follow with a member survey to learn about DBA member interests and suggestions. In 2019-20, we plan to offer innovative programming related to well-being in the legal profession, including CLE programs and Chancery Club luncheons. Look for us also in the Bar Briefs, where we’ll have a regular column to let you know about new developments and resources in the area of attorney well-being as well as practical tips—just for legal professionals—for integrating wellness into your life. The Working Group is excited about its charge, and we look forward to hearing your thoughts and ideas as we move forward with this timely and important initiative. By Susan C. Wawrose Esq. University of Dayton School of Law ENDNOTES:

National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017), http://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf. The National Task Force consists of representatives from a broad range of entities within and outside the American Bar Association. 2 Id. at 7. 3 Id. at 1, 8-9. 4 Bob Carlson, President’s Message: December 2018, It’s Time to Promote Our Health: ABA Mobilizes to Advance Well-Being in the Legal Profession, ABA News, https:// www.americanbar.org/news/abanews/aba-news-archives/2018/12/presidents-messagedec2018/. 5 ABA House of Delegates, Resolution 105 (Feb. 5, 2018), https://www.americanbar. org/content/dam/aba/images/abanews/mym2018res/105.pdf. 6 Carlson, supra, n. 4. 937.222.7902 1

Dayton Bar Association Leadership Development Program


It’s time to inspire! Put those natural born leadership qualities to use. Take this opportunity to engage with key stakeholders in the Dayton legal community.


Grow your network within the legal community and become a catalyst for positive leadership.


Now is the time to lead! Get prepared for your next big step, personal or professional, with cutting-edge leadership development and training.

DBA Leadership Development Program Application Deadline is May 10, 2019 Ready for Take Off!

The Dayton Bar Association Leadership Development Program is accepting application NOW for the Class of 2019-2020. By participating in the Program you will Expand your networking within the legal community, Explore leadership opportunities, and Experience the benefits of DBA Membership, all crucial elements in your future professional and personal success!

Program Details

The Leadership Development Program is designed for DBA Members who have been practicing less that 5 years. Monthly activities, events and sessions will run September through June and connect you with issues, essential training, and key leaders of the community. Lawyers will be accepted based upon an interest in the DBA, interest in future leadership positions at the DBA, good standing within the legal community and an interest in community service.

Previous Leadership Development Program Grads are Current Leaders!

“colleagues The Class provided me with a forum to make new friends among my new-lawyer as well as networking opportunities with experienced attorneys serving

the Bar. The speakers and class topics provided me with insight and skills I needed to create a foundation for being a lawyer-leader in my community. - Cassandra Andres Rice Esq. Gottschlich & Portune LLP DBA LD Class of 2013-14’

You're next Apply Today

click here th Deadline May 10

“opportunity The DBA Leadership Development Class provided me with a meaningful to identify ways to grow as both a lawyer and a community leader

through thoughtful discussions with local judges, thought leaders, and business professionals. People look to lawyers for wisdom and insight. The DBA Leadership Development Class offered me the tools and relationships to refine those qualities while making a difference in both my practice and our community. - Zachary S. Heck Esq.

Taft Stettinius & Hollister LLP DBA LD Class of 2017-18’


April 2019 Dayton Bar Briefs


Celebration of Life

Memorial Luncheon Wednesday, May 15th 11:30am Sinclair Community College

Remembering the lives of our fellow members of the legal community who passed away since May 2018. DBA Members

C. Mark Kingseed Esq. The Honorable Nick Kuntz Jr. Elizabeth R. Gorman Esq. Michael H. Holz Esq. Non Members

Barry S. Galen Esq. Therese “Teri� Geiger Michael D. Matlock Esq. Raymond J. Dundes Esq. Hans Soltau Esq. Call to Reserve Your Table of (8) $280.00 - Please give a list of those to be seated at your table. Registration for (1) $35.00 Visit daybar.org/event/dbamemorialluncheon or Call 937.222.7902 20

Dayton Bar Briefs April 2019


The Importance of Resilience By Scott R. Mote, Esq., Executive Director of the Ohio Lawyers Assistance Program


s a lawyer, you are faced with many circumstances that require you to be resilient--the ability to bounce back to “normal” after a setback. For example, a resilient attorney accepts criticism and learns from it; a lawyer who has low resilience takes criticism personally and challenges feedback. “On a percentile scale which ranges from zero to 100%, the average for this trait [resilience] among the public is the 50th percentile; among lawyers, the average is the 30th percentile. Even more telling is the distribution–90% of the lawyers we test score below the 50th percentile!”1 Unfortunately, most of us are not born resilient. The good news is that you can learn this important trait.

Breaking down your thoughts this way helps you see that your thinking is irrational. In the example, the lawyer thinks he is “terrible” only because he did not receive a perfect score on his annual review. This leads him to self-doubt, which then leads to stress. When analyzing the thoughts, you begin to realize that 1) no one is perfect; 2) one “less-than-perfect” review does not make you a terrible lawyer (think about all of your accomplishments as an attorney) and 3) getting a perfect score on a review is not a normal occurrence for any employee. If you received a perfect score, you would not be able to improve, and we all have room for improvement!

How do you know if you are resilient?

You know the saying “Misery loves company.” People take comfort in knowing that others are unhappy, too. You can often see this in offices where employees huddle together and talk about who is treated the worst, who is paid the least, how unfair the practices are, etc. Resilient people do their best to surround themselves with positive people. If you are resilient, you choose to spend time with friends, acquaintances and colleagues who lift you up and help you become a better person.

You are aware of your thinking.

If you are resilient, you know how to control your thoughts. Imagine this scenario: You spend weeks on a project that takes extra time away from your family and other personal responsibilities, yet your boss still criticizes your work. How do you respond? What are the thoughts that are going through your mind at that moment? You might think, “I’m terrible at my job. I spent extra time on this project, neglecting my family, only to be criticized. I can’t do anything right.” You might immediately get defensive and start an argument with your supervisor. A resilient person knows how to control negative thoughts and react in a professional manner. You might disagree with some of the critiques, but you know how to share your opinion without getting upset or confrontational. You realize that it is beneficial for other people to review your work so that they can offer alternative opinions or correct some of the technicalities. You learn from it. You are resilient. If you are one of the many lawyers who has trouble controlling your thoughts, try the ABC Technique of Irrational Beliefs developed by Dr. Albert Ellis to help you determine why your thought process is off-track. Let’s break down this example of a negative reaction to criticism: “I received a less-than-perfect annual review; I am a terrible lawyer.” • Activating event: an event that leads to some type of high emotional response or negative dysfunctional thinking. In this example, “the less-than-perfect review” is the activating event. • Belief: The negative thoughts that occurred to you. “I am a terrible lawyer.” • Consequence: The negative feelings and dysfunctional behaviors that ensued. “I doubt myself as a lawyer, and now I am stressed.”

You surround yourself with positive people.

You know that you are not perfect.

As you review your tasks for the day, you realize that you scheduled two different meetings at the same time. You might think: “How could I be so careless?” Resilient people know that they will make mistakes. A resilient person will problem-solve to determine how to reschedule one of the meetings.

Resilience is a “must-have”

Terri Mottershead, Director of Professional Development with DLA Piper LLP in San Francisco, California, says “In the new normal, it is critical that law firms place [resilience] high on the list of ‘must haves’ in their leadership job descriptions and support its development in emerging leaders.”2 As the legal world continues to change and evolve, so should you. Being resilient is a good trait to have if you want to be an effective lawyer leader. If you find yourself stressed, anxious, or overwhelmed, seek help. The Ohio Lawyers Assistance Program helps lawyers, judges and law students manage life's stresses. OLAP has saved lives, careers, marriages and families. All inquiries are confidential. (800) 348-4343 / ohiolap.org

ENDNOTES: “Resilience and Lawyer Negativity” by Dr. Larry Richard, https://www.lawyerbrainblog.com/2012/09/resilience-and-lawyer-negativity/ 2 “Five Mindsets That Undercut Your Ability to Think Like a Leader,” by Paula Davis-Laack, Law Practice Today, www.lawpracticetoday.org/article/5-mindsets-undercut-ability-think-leader/ 1


April 2019 Dayton Bar Briefs


Becoming a Fellow of the Dayton Bar Foundation(DBF) T

he Dayton Bar Foundation (“DBF”) is the philanthropic organization of the Greater Dayton Legal Community. The DBF’s primary mission is to improve the legal profession; to expand access to legal services, promote equal access to justice; and to foster respect for the law through community education and related endeavors. Over the past 15 years the DBF has contributed over $370,000 in charitable grants throughout our community to support essential community programs that further the mission and goals of the DBF. The DBF could not fulfill its mission without the critical work and support of its Foundation Fellows. Each year a new class of Foundation Fellows join in the work of the DBF to significantly advance its mission and important work. The Foundation Fellow designation is an honor bestowed on a select and distinguished group of Dayton Bar Association Members who demonstrate integrity, character and professional excellence. Foundation Fellows are

nominated by their peers and their credentials are reviewed and vetted by the Foundation Fellow Committee, and then presented to the DBF Board of Trustees for approval. To merit the Foundation Fellow designation, a nominee must be a member of the DBA who demonstrates integrity, leadership, character and professional excellence. If the DBF Board of Trustees approves a nominee, he or she will receive an invitation to become a Foundation Fellow. Foundation Fellows receive special access to programs and events, and they are recognized for their leadership and stewardship to the DBF. By accepting the invitation to become a Fellow, a nominee agrees to join in the work to significantly advance the mission and goals of the DBF. Foundation Fellows volunteer their time and special skills to the various Foundation Committees, and they exhibit leadership by donating financially to the Foundation Endowment which in turn provides key grant funding for numerous programs that positively

impact our community by increasing equal access to justice, expanding education and workforce development and generally supporting important not-for-profit community groups. We invite all DBA members to support the DBF by nominating themselves and/or other qualified individuals to receive the honor of the Fellow designation. Nominations should be submitted to Andrew Storar (astorar@ pselaw.com), Chair of the Foundation Fellow Committee, or Jennifer Otchy (jotchy@daybar. org), Executive Director of the DBF. We look forward to hearing from you. Thank you for your commitment to the mission of the DBF.

By Richard Perna Professor, University of Dayton School of Law & President, Dayton Bar Foundation

Thank You DBA Foundation Fellows!

Contact Chris for any necessary changes to this list: calbrektson@daybar.org *Indicates Deceased **Indicates Non Member Hon. Dennis J. Adkins Charles F. Allbery III Debra B. Armanini Adam C. Armstrong (Pending) Theresa A. Baker Jonathon L. Beck Cheryll A. Bennett Erik R. Blaine Amy R. Blair Susan Blasik-Miller Robert A. Bostick Karen D. Bradley Joan B. Brenner Hon. James A. Brogan *Hon. James F. Cannon Hon. Anthony Capizzi Mag. Robert L. Caspar Jr. Mark R. Chilson Hon. William A. Clark Brooks A. Compton Christopher F. Cowan Jeffrey T. Cox Dale E. Creech Jr. (Ret.) F. Ann Crossman Mag. John A. Cumming Robert M. Curry Hon. Steven K. Dankof Sr. Wayne H. Dawson Larry J Denny *Peter J. Donahue Hon. Mary E. Donovan Daryl R. Douple Hon. Frederick W. Dressel 22

Dayton Bar Briefs April 2019

Trisha M. Duff James A. Dyer Christopher B. Epley Lauren Kay Epperley Lee C. Falke *Robert N. Farquhar Charles J. Faruki Mag. Gina A. Feller Hon. Patrick J. Foley Gary L. Froelich Hon. Jeffrey E. Froelich *Richard L. Furry Mag. Joseph S. Gallagher Charles F. Geidner Caroline H. Gentry Hon. Barbara P. Gorman Thomas M. Green David C. Greer **Lawrence J. Greger Ted Gudorf Dennis E. Gump Christine M. Haaker Robert J. Hadley Aaron Paul Hartley R. Mark Henry J. Stephen Herbert J. Michael Herr Ralph E. Heyman Victor A. Hodge Louis I. Hoffman *Nicholas C. Hollenkamp Hon. Mary Katherine Huffman Hon. Guy R. Humphrey D. Jeffrey Ireland David E. Izor

Thomas E. Jenks **William A. Jividen Joseph Steven Justice Keith R. Kearney Ronald Keener Anne P. Keeton James W. Kelleher Thomas W. Kendo Jr. Hon. John W. Kessler Scott A. King Thomas A. Knoth James G. Kordik John R. Koverman Jr. Leo F. Krebs Hon. Michael W. Krumholtz Laurence A. Lasky *Kennedy Legler Dennis A. Lieberman Hon. James F. Long L. Anthony Lush Jane M. Lynch Michelle M. Maciorowski Barry W. Mancz Dianne F. Marx Craig T. Matthews Hon. Alice O. McCollum **Hon. Frances E. McGee Jeffrey R. McQuiston Hon. John M. Meagher Alan F. Meckstroth Hon. Michael R. Merz David P. Mesaros Mag. Arvin S. Miller lll Michael B. Miller *Hon. Robert L. Moore

Ronald E. Mount Jeffrey A. Mullins James T. Neef Hon. Michael J. Newman Bruce I. Nicholson Victoria L. Nilles **Thomas R. Noland Hon. Timothy N. O'Connell Hon. Thomas M. O'Diam Stephen Patrick O'Keefe Alvarene N. Owens Richard P. Perna **Hon. John S. Pickrel John D. Poley *Hon. Connie Price Testerman Lynn M. Reynolds Walter Reynolds Bonnie Beaman Rice Hon. Walter Herbert Rice H. Pete Rife **Hon. Adele M. Riley Jon Paul Rion John H. Rion Paul B. Roderer Paul B. Roderer Jr. William A. Rogers Jr. Marshall D. Ruchman John M. Ruffolo Marybeth W. Rutledge Edwin L. Ryan Jr. Beth W. Schaeffer Gary C. Schaengold Jon M. Sebaly Todd D. Severt Edward L. Shank

Carl D. Sherrets *Charles D. Shook Jeffrey B. Shulman Hon. Gregory F. Singer Hon. Richard S. Skelton Ralph A. Skilken Jr. Charles W. Slicer Sr. Jeffrey D. Slyman Edward M. Smith Brian A. Sommers Mary K.C. Soter Paul H. Spaeth Andrew C. Storar Nicholas E. Subashi **Hon. David G. Sunderland **Robert Surdyk Jeffrey A. Swillinger Bridget A. Tracy Louis E. Tracy Hon. Michael L. Tucker H. Charles Wagner Christopher A. Walker *Hugh E. Wall III Brian D. Weaver D K Wehner (Ret.) Gary J. Weston Thomas P. Whelley ll Merle F. Wilberding Brian L. Wildermuth David P. Williamson Hon. William H. Wolff Jr. **Michael L. Wright *Steven E. Yuhas Patricia A. Zimmer


Help us Build our Foundation Your generous gift will make a difference! The Dayton Bar Association Foundation is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBA Foundation to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. Your contributions have funded DBA Foundation grants to support:

Greater Dayton Volunteer Lawyers Project (GDVLP) Advocates for Basic Legal Equality (ABLE) Legal Aid of Western Ohio (LAWO) Life Essentials Guardianship Program Law & Leadership Institute Wills for Heroes ====================================


Thank You!


To: Dayton Bar Association Foundation, 600 Performance Place, 109 N. Main St., Dayton OH 45402-1129 I am pleased to support the Dayton Bar Association Foundation with a gift of:

 $50 




Other $_________

Name: _____________________________________________ (As you wish it to appear on our records) Firm: ______________________________________________

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Please notify: __________________________________________________________________________________________________________________________ Address: ______________________________________________________________________________________________________________________________ www.daybar.org

April 2019 Dayton Bar Briefs


members on the move GUDORF LAW GROUP, LLC is pleased to announce the following: For more info contact Ted Gudorf 937.898.5583 tgudorf@GudorfLaw.com



The American Bar Association recently reported that nearly 70% of adult Americans have not done basic estate planning, which includes planning for both a mental disability and death. One local attorney has decided to do something about this sobering statistic. Board Certified Attorney Ted Gudorf of Clayton, Ohio has published a book entitled, “The Estate Planning Guide” to help people discover the advantages and strategies to create the best estate plan. “The purpose of the book is to explain how an up-to-date estate plan can benefit you during your life, and your loved ones you leave behind. Estate planning is not just about the legal documents. It’s putting in place a solid legal, tax and financial program to take care of your needs if and when you are not able to take care of your needs yourself. A good plan starts with a conversation about your goals and concerns. It covers who will be in charge of your affairs in the event you can’t be.” The Estate Planning Guide is available at the offices of Gudorf Law Group and online at amazon.com. Gudorf Law Group, LLC has also hired attorney Andrew T. White, J.D., to oversee its Probate and Trust Administration Department. A licensed Ohio attorney for nearly 20 years, Andrew has extensive experience in estate and trust administration. He has been a frequent lecturer on estate topics, throughout Ohio. White graduated from the Cincinnati College of Law in 2001 where he was a member of its Law Review and VITA Program. In addition to his legal background, Andrew has served as an airplane flight and ground instructor, teaching fundamentals of aerodynamics, flight controls, weather, and regulations governing aircraft operation within the national airspace system in both classroom and private settings. He became a pilot in 2003. Andrew also lends his legal knowledge to volunteer and community activities supporting the local arts and fundraising for charities, including area food banks. The law firm of Lennen Law LLC is proud to announce that Kevin L. Lennen has decided to join his son, Kyle J. Lennen, in the practice of law. He is admitted in Ohio as well as the U.S. District Court for the Southern District of Ohio. Kevin's practice is primarily focused on criminal defense and family law matters.



Pickrel, Schaeffer & Ebeling Co., LPA. is pleased to announce that on January 29, 2019, Attorney Michael Sandner was honored by the National Association of the Remodeling Industry (NARI) as the recipient of the “Skip” Lowe Memorial Award. The award was presented to Michael at the Chapter’s Annual Contractor of the Year Awards dinner in recognition of his long-standing service, and his commitment to insuring that the remodelers are always made aware and kept abreast of legal issues affecting their work and industry. NARI is a not-for-profit trade association dedicated exclusively to serving the professional remodeling industry and to serve as an ally to area homeowners. Mike has been with the firm for 25 years and is current President of Pickrel, Schaeffer and Ebeling and a shareholder in the Firm’s Litigation Department. He concentrates his practice in the areas of commercial, construction, consumer and civil litigation. For more information about PS&E please call (937) 223-1130 or visit us online at www.pselaw.com. Carl D. Sherrets, owner of Sherrets Law Offices, LLC in Kettering, has once again been selected for inclusion in Ohio Super Lawyers. This is Carl’s eighth year in a row to be recognized as a Super Lawyer in Ohio Super Lawyers magazine, and he has been recognized as an AV Preeminent rated attorney by Martindale Hubble since 2002. Carl is an OSBA Board Certified Estate Planning & Probate Specialist as well as being an Adjunct Professor at the University of Dayton School of Law teaching Wills, Trusts and Estates for the past twelve years.


MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted online: www.daybar.org/MembersOnTheMove and are subject to editing. These accouncements are printed as space is available. DBA ADVERTISING: For advertising in the Dayton Bar Briefs or any other DBA Publication- Discount rates are available! Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org 24

Dayton Bar Briefs April 2019


classifieds Have you joined a DBA Committee? Join Today and Lend YOUR Voice to the Conversation!

April 2019 Committee Meeting Dates Mon. April 1 @ 4:00pm CANCELED - Juvenile Law

Tues. April 9 @ 5:30pm Civil Trial Practice

Tues. April 2 @ Noon Young Lawyers Division (YLD)

Wed. April 10 @ Noon Appellate Court Practice

Tues. April 2 @ Noon CANCELED -Diversity Issues *Please attend 2019 Diversity Day 4/5

Wed. April 10 @ Noon Federal Practice

Wed. April 3 @ 4pm CANCELED - Estate Planning Trust & Probate Thurs. April 4 @ 11:30am Public Service & Congeniality

Thurs. April 11 @ Noon CANCELED - Domestic Relations *Please attend 2019 Domestic Relations Seminar 4/12 Thurs. April 11 @ 5:30pm @ Coco's Bistro Real Property

Thurs. April 4 @ Noon Workers Comp & Social Security Wed. April 17 @ Noon Criminal Law & It's Enforcement Tues. April 9 @ Noon Thurs. April 25 @ Noon Labor & Employment Law Law & Technology

for more meetings details, visit:


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law-related organizations Dayton Bar Foundation

Help Build Our Foundation. T T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO) - Law & Leadership Institute

Write, Call or Email: Jennifer Otchy, Executive Director Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org

- Wills for Heroes

University of Dayton School of Law


Dayton Bar Briefs April 2019


Greater Dayton Volunteer Lawyers Project

GDVLP Pro Bono Volunteers Find Creative Solutions to Help A Client in Need! JJ

ohn Musto, an attorney with the City of Dayton Law Department, enjoys volunteering to assist low-income individuals with legal programs they are facing with consumer issues. John doesn’t always use legal solutions to solve the client’s problem, though. Sometimes he gets creative to find the right approach for the situation at hand. Recently, John took an assignment to assist Ardella Willison, an 83-year-old disabled widow who was unsuccessful in reasoning with AT&T regarding charges for DirecTV services. Ms. Willison had moved from her home in Dayton to senior housing in Xenia that does not allow satellite TV. Payments for services continued to be withdrawn from her account, even though she was no longer using the service but it took some time before her caretaker discovered the charges. “I mean $3,000 has a large impact on anyone – but you look at a disabled senior citizen on a fixed income and this has a large impact on her,” said John. John took two steps to move this dispute towards resolution. First, he assisted Ms. Willison in filing a complaint through the Ohio Attorney General’s Office and sent a demand letter to AT&T. Last year, the Ohio Attorney General’s Office received more than 1,000 complaints about cable and satellite TV services, including more than 100 from consumers in the service area covered by the Greater Dayton Volunteer Lawyers Project. John also contacted Cornelius (“Cory”) Frolik, a Staff Writer at the Dayton Daily News. AT&T agreed to issue a refund to Ms. Willison after being contacted by the Dayton Daily News. Mr. Frolik’s article was published on January 28th. The effective combination of a complaint through the Ohio Attorney General’s Office and the forthcoming article from the Dayton Daily News provided great incentive for AT&T to settle this matter amicably. Contact from the Dayton Daily News provided motivation to reach a resolution sooner rather than later. The GDVLP is grateful to John for taking on this matter and providing assistance to Ms. Willison. His creativity in problem solving led to a great result for his client, and one that was reached quickly and without protracted litigation or other legal maneuvering. Would you like to assist individuals like Ms. Willison? The GDVLP needs volunteers to help others like her resolve consumer disputes. If you are interested in volunteering like John, please contact GDVLP’s Executive Director Kelly Henrici at (937) 4613857 or kelly@gdvlp.org.


John C. Musto Esq. City of Dayton Law Dept

Ms. Ardella Willison

April 2019 Dayton Bar Briefs


109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED


Profile for Dayton Bar Association

April 2019 Dayton Bar Briefs Magazine  

The official publication of the DBA.

April 2019 Dayton Bar Briefs Magazine  

The official publication of the DBA.