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The Magazine of the Dayton Bar Association |January 2019 | Vol. 68, No. 5


Bar Briefs

Barrister of the Month A. Mark Segreti Esq. pg 6

DBA Rising Star Michelle Thompson Sundgaard Esq. pg 12

Paralegal Committee By Letter or By Spirit: Battling Domestic Violence pg 18



Bar Briefs

January 2019 | Vol. 68, No. 5

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

Features 4 TRUSTEE'S MESSAGE Whats It's About By Brian L. Wildermuth Esq. 6


By Jamar T. King Esq.

10 CIVIL TRIAL PRACTICE A View from the Bench

By The Honorable Steven K. Dankof

12 DBA RISING STAR: MICHELLE THOMPSON SUNDGAARD ESQ. By Nadia A. Klarr Esq. 18 PARALEGAL By Letter or By Spirit: Battling Domestic Violence

By Sharalie Albanese


Federal Preemption: Law Practice Lessons from the Railroad

By The Honorable Erik R. Blaine


Brian L. Wildermuth Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Sally Dunker, 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 Sally Dunker, 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 January 2019


2018 DBA HOLIDAY LUNCHEON By Kristina E. Curry Esq.

Upcoming Events 7 THE CHANCERY CLUB LUNCHEON IS BACK! Fri. February 1st | Doors open at 11:30am | The Old Courthouse 11 2019 ROBERT FARQUHAR MOCK TRIAL COMPETITION Fri. January 18th | Noon - 5:00pm | Montgomery County Courthouse 11 SPECIAL DBA TSA PRE-CHECK EVENT Tues. & Wed. February 5 & 6, 2019 | 9:00am 5:00pm | DBA Offices 15 2ND ANNUAL DBA VOLUNTEER DAY Sat. January 19th | Doors open 11:30am | The FoodBank Dayton


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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____________________________________________ Phone: ____________________________________________

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in memory of

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

January 2019 Dayton Bar Briefs



What It's About By Brian L. Wildermuth Esq. DBA Immediate Past President Subashi & Wildermuth


lmost four years ago, when I took office as Second Vice President, I was introduced to the concept of “member value.” How does a bar association provide its members a return on the dues dollar? I had not previously thought about bar association membership in a quid pro quo way. For good or ill, I remain old-fashioned in my reasons for being a DBA member. But, that may be a topic for another day. Today’s topic is value and two recent events that exemplify what, in my view, our Association is all about. First, on November 9th, the DBA hosted the 26th Annual Bench Bar Conference, with over 160 judges and attorneys in attendance. The CLE was excellent, but it was not the true calling card. I attended the conference, and will continue to do so, for the collegiality, camaraderie, and connection to the legal community it fosters. Relationships are important in any endeavor, and that is especially true in our profession. Conflict is inherent. Stress can seem unavoidable. But, knowing your adversary, having a relationship with him/her, makes a difference. We should strive to disagree


Dayton Bar Briefs January 2019

without being disagreeable, and we should limit our battles to the issues that are truly important. Getting to know your opponent makes those things more likely, and the Bench Bar Conference provides a forum. At this year’s conference, I caught up with many attorneys I seldom see, including an old friend and colleague who was a fellow new associate back in 1996. I talked with an attorney whom I encounter on the opposite side of cases. While we may not see the merits of our cases the same way, we share common ground when it comes to fixing Ohio State’s football team. Finally, I talked with two judges regarding a recent decision, how they approached it, and their reasoning. The discussions were invaluable. Where else can this happen? The next Bench Bar Conference is set for November 8, 2019. I encourage all of you to hold the date and plan to arrive early. The first cup of coffee is on me. A second recent event of note was held on November 15, 2018. John Ruffolo, Tabitha Justice, Jeff Hazlett, and Mark Tuss presented on legal ethics, the functioning of the

grievance committees, and recent attorney misconduct decisions. It was, without exaggeration, the best CLE seminar I have attended in years. As I have gotten older (and my attention span seems to have shortened), I have become intolerant of boring CLE. Also, virtual seminars and webcasts miss the mark – they are not what CLE is supposed to be. The presentation on November 15th (live and in person) was far from boring. It was informative, entertaining, interactive, and leavened with humor. It held my attention for three hours – no easy feat. Perhaps best of all, over thirty members attended and participated. We talked, learned together, and may have even shared a gratuitous joke at the expense of a neighboring state. The Dayton Bar Association is a community -- one to which we, as lawyers, should want to belong. I hope you see the value, as I do, and I hope to see you at a future event. Happy holidays!


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.

Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton

Faruki Ireland Cox Rhinehart & Dusing P.L.L. 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: Sally Dunker DBA Executive Director sdunker@daybar.org 937.222.7902 www.daybar.org

January 2019 Dayton Bar Briefs



A. Mark Segreti Esq. A A

. Mark Segreti Mark grew up in Canfield, Ohio. As a young child, he fell in love with American history. That love only grew as he got older. It led him to major in history and political science when he arrived on the campus of Wittenberg University. There, he was a stellar student in the classroom and a star athlete on the football field. Playing running back and wide receiver, he helped lead the Tigers to an undefeated season and a small college division national championship during his tenure. Although Mark enjoyed competing on the gridiron, a career in the professional ranks was not in the cards for him. He starting exploring the possibility of law school while at Wittenberg at the suggestion of an advisor. He eventually landed at and graduated from the Ohio State University Mortiz College of Law. While in law school, he was active with the local YMCA and a member of the Army Reserves ROTC. Jones Day gave Mark his first opportunity in the legal industry. They hired him as a summer associate while he was in law school. But after his graduation, Mark opted to begin his career at another big law firm – Porter Wright. He practiced in the firm’s real estate development group for three years before deciding that he wanted to try something new. He found his way to the environmental enforcement section of the Office of the Ohio Attorney General (“AG”). At the time, the world of environmental law was still in its formative stages, and his work at the AG’s office allowed him to be at the forefront of the then developing area of law. He was involved with numerous enforcement actions during that period of time, allowing him to hone his trial skills. Mark went on to work in a variety of different capacities and settings after leaving the AG’s office. He’s represented nearly every type of client, from environmental advocacy groups to large corporations, including the railroad in the 1986 Miamisburg Train Derailment Case. And for three years, he was a full-time law professor teaching civil procedure at the Samford University Cumberland School of Law. Utilizing the skills and knowledge he acquired early on at the AG’s office, Mark continued practicing environmental law throughout his career. He’s also done a substantial amount of work in the area of employment law. For example, he worked on one of the first cases in which harassment on the job was recognized as actionable under Title VII. And, on the flip side, Mark was also fortunate enough to defend an executive accused of sexual misconduct in one of the first jury trials of that issue in this area. But some of his most fulfilling work has come while representing and fighting on behalf of “regular people.” Shortly after he left the AG’s office, Mark and a friend started a two-person environmental law firm. Mark described it as “just two guys trying to save the world.” And with limited resources, he and his partner did just that – save the worlds of their clients. They successfully pursued claims of all types on behalf clients that had been wronged by the government and large businesses. Later, Mark secured a very satisfying monetary award for a hard-working young couple who were seriously injured when sideswiped on their motorcycle. It was a long fight to the finish because the law changed and the Second District Court of Appeals rejected the case against the insurance company. Fortunately, the Supreme Court of Ohio granted a motion for summary reversal and he was able to successfully mediate the damages. After numerous surgeries, the young couple was also able to have a child. The case took an enormous amount of time, and Mark’s wife even had to help keep track of the medical bills, yet it was rewarding nonetheless. On another occasion, Mark was fortunate enough to help place three infants for adoption with parents unable to have children. That experience, in and of itself, was memorable to Mark, but it became even more gratifying a few decades later when Mark was able to attend their weddings and see how the joy had continued for their parents.

continued on page 7 6

Dayton Bar Briefs January 2019


BARRISTER OF THE MONTH: A. Mark Segreti Esq. continued from page 6 Mark is currently a staff attorney for the Hon. Judge S. Skelton. The two hit it off at a Bench Bar Conference shortly after Judge Skelton was elected, and they have been working together ever since. Through it all, Mark’s wife, Peggy, has been right there by his side. The couple have three children – Krista, Alison, and Anthony. Mark and Peggy are also the proud grandparents of seven grandchildren. He enjoys spending time with them whenever he can. In his free time, Mark enjoys working out, particularly running and using his exercise bike. He is also a voracious reader. He still loves learning about our nation’s history. Lately, he’s been particularly interested in learning about the Reconstruction Era, reading everything about the topic that he can get his hands on. When asked if he had any tips for having a long and successful career and life, he responded, “Priorities!” According to Mark, no matter what you have going on professionally, you have to remember that your family comes first. Their happiness and well-being should always be at the top of your mind. He also emphasized that the most successful


lawyers always remember that their primary responsibility is to help their clients and the public. This year’s Barrister of the Month has had a long and storied career that we all could learn from. From college football national champion to bet-the-company litigator to environmental justice warrior, Mark Segreti has done it all. Literally.


The Chancery Club Luncheon

Friday, February 1, 2019 The Old Courthouse Doors open at 11:30am Caterer: Franco’s Italian Restorante

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

UDSL Professor Dennis J. Turner will be speaking on his new book, "What Did You Do in The War, Sister?" Call or Email Tyler to RSVP! 937.222.7902 | twright@daybar.org

January 2019 Dayton Bar Briefs



2018 dba

Holiday Luncheon


he Annual Dayton Bar Association Holiday Luncheon was held at Sinclair College on Friday, December 14, 2018. The luncheon is held to honor members of the legal community who devote their time and resources to the Greater Dayton Volunteer Lawyer’s Assistance Program and other legal organizations that work to provide pro bono civil legal services to benefit persons with limited financial resources throughout the year. The annual luncheon also recognizes lawyers who have achieved 25 years of practice, members of the Dayton Bar Association’s “100% Club”, Honorary Sustaining Members and Sustaining Members of the DBA. This year’s sponsors were Platinum sponsors Coolidge Wall and Faruki, Ireland, Cox, Rhinehart & Dusing, and Gold sponsor Thompson Hine. David Pierce, DBA President delivered the program Welcome and Opening followed by the DBA’s recognition of this year’s 25-Year Honorees by Sally Dunker, DBA Executive Director: Susan Brenner, Anthony F. Comunale, Kristine E. Comunale, Norma Moran Dickens, Richard D. Donenfeld, R. Mark Henry, Joseph C. Hoskins, Cynthia 25 Year Honorees: A. Karns, Deborah R. Kirschman David Pierce, DBA President Klopsch, Rajshree Malhotra, M. and M. Shannon Martin Shannon Martin, Gerald L. McDonald, Erin B. Moore, David P. Pierce, Charles F. Shane, Magistrate Nicholas P. Sylvain, and George L. Wenz III. Congratulations to our 25-Year Honorees! Richard Perna, the Dayton Bar Association Foundation President and Past DBA President (2014-2015) provided his thanks and the Foundation’s annual solicitation message. The Foundation Attendees: supports a wide variety of Rick Perna, DBAF President good works and charitable William "Bud" Seall activities on behalf of the greater Dayton legal community. In support of the Foundation's mission, the Board of Trustees look for opportunities to promote the legal profession, to increase access to justice and do good works in our community in the name of the Dayton Bar Association. This is accomplished through the award of grants to worthy organizations and law-related projects. Kelly A. Henrici, Executive Director of the Greater Dayton Volunteer Lawyers Program, provided a VLP update and Guest Speaker Introduction. Kelly announced that donated hours so far this year was just under 4,000. Using a per hour rate of $175, the value of services donated in 2018 already exceeds $700,000. In 2018 there were 31


Dayton Bar Briefs January 2019

Keynote Speaker:

Karin VanZant, Vice President of Integrated Community Partnerships CareSource CareSource first time volunteers who logged 250 of those hours. Some 2018 highlights include VLP’s collaboration with Artemis Center, working to combat domestic violence, VLP’s collaboration with Daybreak in partnership with Wilmer Hale to seal criminal records to help get more individuals gainfully employed, and VLP’s collaboration with CareSource to take services to the neighborhoods that need them the most. For 2019, VLP is already “scoping out” how to help implement Ohio’s H.B. 336, which provides amnesty to certain individuals for driver’s license reinstatement fees. Kelly thanked the Dayton Legal Heritage Foundation for their generous sponsorship of the luncheon, the VLP Board members, with special thanks to Lindsey Posey, current VLP board president, for her leadership and for being instrumental in VLP’s efforts to move VLP technology forward, and the Dayton Bar Association Foundation for “keeping a roof over our heads” and the DBA staff for making the VLP feel like part of their team. Kelly also extended her gratitude for the wonderful attorneys and staff at Legal Aid of Western Ohio and Advocates for Basic Legal Equality, especially to the Legal Aid Line team, spending their days talking to community members to determine which organization can provide the best level of service for the situation at hand. This year’s “Unsung Heroes” awards went to Anne Shale, who has been a VLP volunteer since 2003, taking mostly contested divorce matters and the law firm of Pickrel, Schaeffer & Ebeling. In March

Thank you Sponsors! Platinum Partner

Gold Partner


DBA SPECIAL EVENTS: 2018 Holiday Luncheon continued from page 6 of 2017, Anne Shale retired from Holzfaster, Cecil, McKnight & Mues. Upon retiring, she contacted the VLP to let them know she was very interested in continuing her volunteer efforts, and since then she has continuously had multiple divorce clinics open and has traveled to Greene, Clark and Montgomery Counties, providing assistance to roughly 40 individuals in that time. The second Unsung Heroes Award to Pickrel, Schaeffer & Ebeling for its attorneys’ assistance with consumer, employment, homeownership, divorce, immigration, non-profit assistance, and litigation matters. Firm President Michael Sandner accepted the award on behalf of the Firm. Kelly also thanked the Eichelberger Foundation for underwriting VLP’s ability to say thank you to the volunteers with some very cool swag available on each table. Next, Lindsey Posey, VLP Board President, took the podium to introduce guest speaker Karin Vanzant. Karin VanZant is the Vice President of Integrated Community Partnerships at CareSource. Since joining CareSource in 2015, Karin has overseen the process of integrating the social determinants of health into CareSource’s’ population health model. Social determinants of health are conditions in the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks. She is considered a national expert on poverty, has given a TEDx talk on the subject and has delivered testimony to the Ways and Means Committee on welfare reforms. Prior to joining CareSource, Karin VanZant was the co-founder and Executive Director of Think Tank, Inc. For ten years as this organization’s leader, Karin assisted the team to live out the mission of equipping and facilitating collaboration among people and organizations seeking ways to promote greater connectedness and a more thriving community. Prior to starting Think Tank, Karin VanZant served in various leadership capacities in the nonprofit sector through the Community Action Network – at the local level and as a member of the Ohio Association of Community Action Agencies. Karin VanZant has a MPA in Public Administration and a BA in Social Work from Wright State University. Karin teaches at Antioch Midwest University and Wright State University on a variety of subjects including US Hunger and Poverty. She lives in Springfield with her husband and her son. Karin began her talk announcing that she had not prepared a speech but rather had wanted to “speak from the heart.” Karin talked about the many programs that CareSource makes available in order to promote transitioning from subsidized living to working and even someday owning a home. This can involve helping an individual with driver’s license reinstatement lost due to unpaid child support, enabling the individual to return to productive work. CareSource partners with many existing workforce development agencies to help families break free from the cycle of poverty. Karin’s message included the necessity of continuing to improve upon coordination of the system, finding ways to promote changes in policy that incentivize work and do not necessarily cut off benefits abruptly upon re-employment in order to give individuals and families a better chance of emerging from subsidized living. For many such individuals with their families, they are the first generation to do so and may also be the first generation in their entire family to consider the possibility of owning a home. Karin talked about how sealing criminal records, arranging for guardianships, and helping to resolve issues with child support on either side can mean all the difference when an individual is contemplating a return to the workforce. If you haven’t volunteered legal services with the VLP in a while, or are interested in what kinds of opportunities there are for you to help for the first time, please contact the VLP directly at gdvlp@gdvlp.org or at (937) 461-3857. Thank you to all who made the 2018 DBA Holiday Luncheon another great year of visiting with friends and honoring those who dedicate time to pro bono legal work!

Michelle Thompson Sundgaard D. Jeff Ireland The Honorable Jeffrey E. Froelich

Lindsey Posey, Karin VanZant, Kelly Henrici

Recorder Brandon McClain, DBA Board of Trustees and Kelly Henrici


Louis Tracy & Bridget Tracy

By Kristina E. Curry Esq. Co-Chair DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA www.daybar.org

Visit Us on Facebook to View More Photos From This Event! @DaytonBarAssociation

January 2019 Dayton Bar Briefs



A View From the Bench G G

reetings, Brothers and Sisters of the Bar. Time for another missive from your servant, the kindly Judge Dankof, and the DBA Civil Trial Practice Committee. This past December 4, 2018, the Committee presented its annual seminar for the unwary and those needing last-minute CLE. I served as the moderator for the seminar which essentially took attendees from pretrial discovery through the nervous moments as we sit alone in a local watering hole, awaiting a call from the bailiff to advise “we have a verdict”. It was my distinct honor to lob questions to our august panel of actual trial lawyers: Pat Allen and Wil Allen, Tom Green, John Haviland and Judge Krumholtz, his ownself. All kidding aside, I admire these lawyers greatly based upon my toils both with and against them in my former life as a trial lawyer. What I gleaned from our seminar, and the thoughtful comments of these lawyers on topics ranging from pretrial discovery, motion practice, the final pretrial conference, jury selection, opening statement, direct and cross examination, constructing meaningful jury instructions and finally closing argument, was their embrace of the over-arching values of unrelenting thought, preparation, and most importantly “knowing your audience”, especially the trial judge assigned to your case.


Dayton Bar Briefs January 2019

To a person, each trial lawyer repeatedly returned to the theme of not fearing to inquire of the assigned judge about their predilections regarding every aspect of pretrial and trial. For example, on the subject of jury selection , each of the presenters understood that voir dire was the first opportunity to inculcate the jury as to their case and its themes and thus the need to understand exactly what the trial judge would and would not permit during the process. Simple enough, right? And yet Judge Krumholtz and I can vouch for the sad reality that virtually no lawyer in our respective courts ever takes the time to inquire before jury selection actually commences what we will and will not permit. Indeed, were lawyers to so inquire ahead of ring announcer Michael Buffer intoning “Let’s get ready to rumble!”, and learning that the judge is generally against a tack you wish to take in jury selection, you might even have the opportunity to persuade the trial judge to your point of view and wish. In parting, then, let me underscore my fervent plea that you never cease thinking about and preparing your case, including inculcating the judge every step along the way. And should the judge be unmoved, politely make your record and move on. You can’t win ‘em all.

By The Honorable Steven K. Dankof Co-Chair Civil Trial Practice Committee Montgomery Cty Common Pleas Court Lastly, thanks to John, Pat, Tom and Wil, and my dear friend Mike for what proved, if I do say so myself, was a worthwhile opportunity to commune with our fellow trial lawyers, the finest of all breeds. ENDNOTES: And haven’t I been even more so since my mindfulness training in Santa Fe? 2 I know many of you wonder aloud how, in the name of all that’s holy, did Judge Krumholtz and I wind up as co-chairs of the Committee? For that you may thank Judge Wiseman who pressed us into service. 3 Plaintiffs lawyers – that honorable company of men and women representing real people with real problems. 4 A wonderful lawyer who walks both side of the street with equal aplomb and skill. 5 An artful medical negligence defense lawyer who, as I am forced to admit, beat my brains out before a jury some several years ago. 6 As my hillbilly family from Iowa might say…. 7 Yes, Virginia, trial lawyers actually work with each other and the Court to fashion meaningful and correct jury instructions. 8 The blackest of the trial arts. 9 Which is to say the Bailiff saying “all rise” on the morning of trial seconds before jury selection begins…. 10 Imagine that! 11 Including citations to salient case and statutory authority. Now there’s a concept! 1



DBA Robert N. Farquhar District Mock Trial Competition 2019

Friday, January 18, 2019 | Noon - 5pm Montgomery County Courthouse Contact: Chris Albrektson calbrektson@daybar.org

2019 Trial Details: The 2019 case, State of Buckeye v. Quinn Woolf, challenges students to consider an individual’s right to privacy in our increasingly technological world.

save the date! february 5 & 6

DBA TSA PrePÂŽEvent DBA TSA Pre-Check Event February 5 & 6, 2019 8:30am - 5:00pm DBA Offices

Don't miss this opportunity for you and your family to skip those long security lines and enjoy your business or personal family travel plans. This event is open to all members, non-members, friends and family. Cost is $85. The DBA will also have a photographer on site, to take your photo for your business needs and future DBA Publications. *Be on the lookout for special registration link on our website:



January 2019 Dayton Bar Briefs



DBA Rising Star Michelle Thompson Sundgaard Esq. "L

ife’s most persistent and urgent question is, ‘What are you doing for others?’” – Martin Luther King Jr.1 This month’s Rising Star of the Bar – Michelle Thompson Sundgaard – perfectly and humbly embodies this great charge. When she’s not in a courtroom or counseling a client, she will most likely be found volunteering her time, talents, and enthusiastic creativity to advancing any of the several worthwhile endeavors in the Dayton community to which she is committed. Dedication to serving others began for Michelle when she was a young schoolgirl growing up in Chicago. Her family resided (and continues to reside) in the Southside of Chicago. Her mom, Rose, worked as a clerk for the Cook County Circuit Court, and her grandfather would frequently take Michelle into the courtrooms while the pair waited for her mom to finish the workday. While only six or seven years young at the time, Michelle knew that the lawyers and judges she observed were pillars of her community. She observed a sense of pride coming from the lawyers and judges in the room, and their confidence and assertiveness in the courtroom drew her in and sparked her curiosity for the law. She remembers, “I always noticed the gratitude glowing from the clients, and as a child, it was noticeable that the clients truly depended on the lawyers to help them.” It was those first introductory moments in the courtroom with her grandfather that planted the seed of service in Michelle. And “ever since those days,” Michelle recalled, “I worked toward becoming a lawyer.” Michelle’s passion for philanthropy and leadership only grew as she continued her studies. She attended Mother McAuley Liberal Arts High School on the Southside of Chicago, where she was involved in student council, model U.N., and various other volunteer organizations. From there, Michelle travelled across the Midwest to attend Arizona State University, where she studied English. Following her brother’s footsteps as an alum of ASU, Michelle immediately planted roots and found ways to service her newly-found community. While at ASU, Michelle led the charge to recolonize the Delta Xi Chapter of Alpha Gamma Delta, where, not surprisingly, she took the role of Philanthropy Coordinator. She was also a member of the Arizona Students Association and lobbied for affordable education in Arizona. Michelle was also active in the Student Government Association. After two years at ASU, Michelle transferred to Saint Xavier University in Chicago, which is on the same campus as her high school stomping grounds. While attending Saint Xavier, Michelle was Vice President of Financial Affairs. Like everything she does, Michelle jumped into the position full force, and identified ways to enhance the efficiency and effectiveness of her alma mater’s student government initiatives by transitioning the Student Government Association (SGA) to Saint Xavier Council (SXC), which combined the efforts of multiple organizations into an all-encompassing student government organization. She drafted the Constitution for SXC and assisted in its launch prior to graduation. She was also a member of the SXU Mock Trial Team, which would prove to serve her well later in law school. As though reorganizing the entire student government structure were not enough, Michelle still made time for volunteerism and served many organizations within the community before graduating magna cum laude with a Bachelors of Arts degree in English. After graduating from Saint Xavier in 2013, Michelle moved to Dayton to attend the University of Dayton School of Law. She continued the trend and immediately immersed herself in the Dayton community. During the summer after her first year of law school, she interned for Chief Magistrate Judge Sharon L. Ovington for the United States District Court for the Southern District of Ohio. While there, she was also a law continued on page 13 ENDNOTES: Martin Luther King Jr., Strength to Love, Three Dimensions of a Complete Life 67, 72 (Harper & Row 1963).



Dayton Bar Briefs January 2019


DBA RISING STAR: MICHELLE THOMPSON SUNDGAARD ESQ. continued from page 12 clerk for Cincinnati Insurance Company, and assisted with insurance defense and subrogation. While still clerking for Cincinnati Insurance, she externed for the General Counsel at the University of Dayton, where she gained valuable experience in a number of practice areas outside of litigation. As a litigator now, she attributes her experience working with the General Counsel at UD as “invaluable.” While still interning, she began working as a law clerk for Pickrel, Shaeffer and Ebeling, LPA, where she continues to work now as a third-year associate. Michelle was also a member of Inn of Court and was very active in the DBA, particularly with the Greater Dayton Volunteer Lawyer’s Project and Wills for Heroes. In addition to building relationships with the local bench and bar through her work experience, Michelle was also very active in Keller Hall. During law school, she was on the Mock Trial Team and won the Mike O’Loughlin Best Advocate Award for the Dennis Turner Mock Trial Competition. She was a staff writer for the UDSL Law Review, and it should come as no surprise that she was also the President of the Volunteer Student Lawyers Project. Her role with the Volunteer Student Lawyers Project was especially important to her because she “had the ability to ensure that UDSL students understood the importance of pro bono services and volunteering in and outside of the legal community.” She also had the opportunity to raise money every year for a scholarship program for law students interning for public interest positions during the summer. Michelle’s service to the Dayton Community was not contained within the halls of Keller Hall or amongst her colleagues in the local bar. She also served local organizations, such as the Goodwill Easter Seals, Miami Valley and Habitat for Humanity. She graduated with the University of Dayton Pro Bono Award and received the Lisa A. Kloppenberg Outstanding Leadership Award for her work in community service and leadership. Michelle graduated from UDSL in 2016, having received numerous awards, including receiving CALI Excellence for the Future Awards in Family Law Capstone and Interviewing, Counseling & Negotiation. Many of the endeavors that began in law school transitioned with Michelle as she began her career as an attorney at Pickrel, Shaeffer and Ebeling, LPA. She practices primarily civil litigation, handling matters which include insurance defense, business litigation, real estate litigation, personal


injury, and appellate practice. She is active in many networking organizations, which allows her to be a center of influence for her clients. Michelle remains incredibly passionate about philanthropy and pro bono services. She sits on four working boards: the Dayton Children’s Hospital’s Women’s Board; the Disability Foundation; the Dayton History Bell Board; and the UDSL Alumni Association Board. She also sits on the Business Advisory Council for Goodwill Easter Seals Miami Valley. For Michelle, however, board work is just one way to serve the community. She also continues to volunteer through the Volunteer Lawyers Project by taking pro bono cases, and she continues to volunteer for Wills for Heroes and Wills for Vets. She is also a volunteer for many different charitable organizations in the community on a regular basis. Michelle has also made an effort to give back to the law school by coaching the UDSL Mock Trial Team, as well as the University of Dayton’s undergraduate Mock Trial Team. Michelle’s philanthropy has not gone unnoticed. She was recently accepted into the Ohio State Bar Association’s Leadership Academy, and in the Spring, will also be receiving the Ohio State Bar Foundation’s 40 Under 40 Award for Community Service for District 2. To Michelle, helping her clients “and helping them through the difficulties of litigation” is very important to her. She

credits the support she has received from her family, friends, and Pickrel, Schaeffer & Ebeling for kindling her desire to help and serve others. Michelle’s parents, Scott and Rose, and her siblings, John, Mike, and Gina, have stood beside her through all of life’s challenges. And although she has made Dayton her home, Michelle certainly misses her family and friends in Chicago, as well as her adorable niece and nephew – Emma and Roman – and she makes time to visit routinely. Aside from spending time with her family and friends, and standing alongside her clients through the litigation process, she cites volunteering as the thing she is most passionate about in life. Michelle deeply believes that where one has the means, time, and ability, it is important to give back to the community in any way possible. Michelle is an exceptional example to all of us in the local bar, and she reminds us to answer “Life’s most persistent and urgent question . . . ‘What are you doing for others?’”

By Nadia A. Klarr Esq. Chair DBA Editorial Board Taft Stettinius & Hollister LLP

DAYTON Bar Association


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:

Sally Dunker DBA Executive Director Dayton Bar Association 109 N. Main St., Suite 600 Dayton, OH 45402-1129 sdunker@daybar.org | 937.222.7902 | www.daybar.org January 2019 Dayton Bar Briefs


2018-19 100% club firms he 100% Club is a special category of membership that demonstrates T a commitment to the legal profession and our community. 100% Club Firms are those in which all attorney’s are DBA members. All firms and legal

organizations with two or more attorneys are invited to join the Club! Contact Chris at calbrektson@daybar.org for more information or to correct any listing that does or does not appear.

Ask us how you can join the club! Firms with 70+ Members

Firms with 5-9 Members


Firms with 30-39 Members

Coolidge Wall Co., LPA Montgomery Cty Public Defender’s Ofc

Firms with 20-29 Members

Montgomery Cty Common Pleas Court Pickrel Schaeffer & Ebeling Co., LPA Sebaly Shillito + Dyer

Firms with 10-19 Members

Auman Mahan & Furry, LPA Bieser Greer & Landis, LLP Faruki Ireland Cox Rhinehart & Dusing P.L.L. Faulkner Garmhausen Keister & Shenk Freund, Freeze & Arnold A Legal Professional Association Horenstein Nicholson & Blumenthal, LPA Montgomery Cty Domestic Relations Court Rogers & Greenberg, LLP Second District Court of Appeals

Altick & Corwin Co., LPA Brannon & Associates City of Dayton Prosecutor’s Ofc Dayton Municipal Court Dayton Power & Light Company Douple Beyoglides Hansen Claypool Kovich Lipowicz & LaMusga ES Gallon & Associates Gottschlich & Portune, LLP Green & Green, Lawyers Gudorf Law Group, LLC Hochman & Plunkett Co., LPA Kirkland & Sommers Co, LPA Legal Aid of Western Ohio McNamee & McNamee, PLL Subashi & Wildermuth Surdyk Dowd & Turner Co., LPA Montgomery Cty Probate Court

Firms with 2-4 Members Albert & Krochmal The Attkisson Law Firm, LLC Baldwin Valley Law, LLC Boucher & Boucher Co., LPA Bradley & Associates Bricker & Eckler, LLP Bruns Connell Vollmar & Armstrong, LLC Chappars Law Office Cincinnati Insurance Company Community Action Partnership Cowan & Hilgeman Crown Equipment Corp. David A. Chicarelli Co., LPA


Dayton Bar Briefs January 2019

Denny Law Offices Dysinger & Patry, LLC Elliott, Faulkner & Webber Esler & VanderSchaaff Co., LPA Ferguson Law Office, LLC Fox and Associates Co., L.P.A. Gammell Ross & Hoshor, LLC Law Office of Gump Deal & Hirth Hedrick & Jordan Co., LPA Hochwalt & Schiff, LLC Holzfaster Cecil McKnight & Mues, LPA Intili & Groves Co., LPA

Jablinski Roberts & Gall, LPA Jackson Lewis, P.C. Jacox Meckstroth & Jenkins Ronald D. Keener Co., LPA Kendo Dulaney Law Leppla Associates, Ltd. Martin Folino, LPA Mesaros Law Office Stephen D. Miles Miller Walker & Brush, LLP Montgomery Cty Municipal Court, Eastern & Western Divisions Myers & Frayne Co., LPA O’Diam & Stecker Law Group, Inc.

Pyper & Nordstrom, LLC Roberson Law Roderer Law Office, LLC Sherrets Law Offices, LLC John D. Smith Co., LPA Stachler & Harmon Attorneys at Law Stamps and Stamps Law Offices of Ira H. Thomsen Thorson Switala Mondock & Snead, LLP Tracy & Tracy Co., LPA Treherne Law Office Young & Alexander Co., LPA



Saturday, January 19, 2019 | 9:00-12:00pm The Foodbank Dayton 56 Armor Pl., Dayton, OH 45417 We’re fighting hunger with The Foodbank! The Foodbank brings food, comfort and hope to hungry families in the Dayton area. Each week, The Foodbank distributes 1,400 Good-to-Go Backpacks to children who are at risk for going hungry over the weekend.

We need you. The Foodbank serves more than 100 programs annually, distributing over 9 million pounds of food. With your contribution, additional families can be fed and more people can learn about The Foodbank’s mission to end hunger. Help lead the fight against hunger! *All volunteers must be at least 14 years of age.

Last Year was a blast!!!

To Sign-Up or For More Information Contact:

Chris Albrektson, DBA Assistant Executive Director, LRS Director calbrektson@daybar.org | 937.222.7902 www.daybar.org

January 2019 Dayton Bar Briefs


continuing legal education DBA Estate Planning, Trust, Probate Law Committee present:

Tax Minimization under the Tax Cuts and Jobs Act

Ethics Case Law Review and New Advisory Opinions

Wednesday, January 30, 2019 | 1:00pm - 4:15pm 3.0 Professional Conduct CLE Hrs M $105 | NM $150 | P$0 Speakers: John Ruffolo, DBA Bar Counsel Tabitha Justice, Subashi & Wildermuth AGENDA: Mark A. Tuss, Law Offices of Mark A. Tuss Individual taxpayers Jeff Hazlett, DBA Ethics and Grievance Committee Wednesday, January 9, 2019 | 4:00pm - 5:00pm 1.0 General Hr M $25 | NM $45 | P $0 Presenter: Sam Hemmeter, CPA

New brackets – smooth income between working/retirement years IRA stretch planning – still works New standard deduction –“bunching” itemized deduction to maximize Education planning – 529 plans and college tuition credits

Law firm owners - small business income tax deduction Permanent tax saving! Free deduction Examples Above the phase-out? Other planning techniques to maximize Use it as a shelter for Roth conversions Other ideas Estate tax and Estate/Trust income tax changes Estate tax exemption – sunset in 2026 Planning for elderly clients – GRAT Other planning Income taxation of trusts/estates – changes and planning

AGENDA: During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees. Legal Basis: Under Article IV, Section 2(B) of the Ohio Constitution, the Supreme Court of Ohio has original jurisdiction regarding the admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. [Article IV, Section 2(B)(1)(g)] Common Ethics Violations: Consistent with its constitutional powers, the Supreme Court of Ohio adopted the Ohio Rules of Professional Conduct, effective February 1, 2007, superseding and replacing the Ohio Code of Professional Responsibility. Topics will include: 1. Yearly summary of Ohio Disciplinary Cases 2. New Advisory Opinions Review

DBA Workers’ Compensation & Social Security Committee present:

Social Security Update

Thursday, January 17, 2019 | Noon – 1:00pm 1.0 General Hr M $25 | NM $45 | P $0 Presenter: Theresa Busher, Public Affairs Specialist, Social Security Administration Dayton Office AGENDA: This one-hour CLE will offer a current update on policy, Rules and Procedures in the Cincinnati-Dayton hearing region, from Public Affairs Specialist Theresa Busher of the Social Security Administration. Ms. Busher will update us on hearing policy and procedure at the Social Security Administration Office of Disability Adjudication and Review (formerly known as the Office of Hearings and Appeals). She will also discuss case development, vocational issues, and similar and related topics along with the agency’s ongoing efforts at improving efficiency in technology, order-writing, and other areas.

Earn CLE Anytime, Anywhere.

Topics will include: I. Social Security Update 1. Overview of the disability determination process 2. Dayton Office of Hearing Operations statistics 3. General Social Security updates 4. Questions

Take up to

12 hours of DBA Law and Technology Committee present:

How Cryptocurrency and Digital Monies Could Impact Your Legal Practice Wednesday, January 23, 2019 | Noon - 1:00pm 1.0 General Hr M $25 | NM $45 | P $0 Presenter: Andrew Rossow AGENDA: - Our Age of Collectibles and Asset Management - Digital Asset Management - How Can Blockchain Technology and Crypto Impact Your Legal Practice - 6 Mistaken Beliefs About Cryptocurrency - What Can You Do?


Dayton Bar Briefs January 2019

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!




January 2019 Dayton Bar Briefs



By Letter or By Spirit: Battling Domestic Violence


wife comes home late and is met by her angry husband. He questions her about why she is late to which she responds she worked late. The husband does not believe her and becomes violent. He slaps her in the face causing her lip to bleed. She is crying and he is yelling vile names at her while pushing her against the wall. She is able to grab her phone to call the police who arrive to find her bruised and bleeding. They arrest her husband. Another couple live in an apartment building and their yelling during an argument prompts a neighbor to call the police. When the police arrive, there is a scratch with blood on the husband’s arm. When they inquire as to how the scratch happened, the husband says the wife scratched him with her ring by accident when she turned from him to go to their bedroom. The police arrest the wife. In comparison of the two cases, the police in the first case could clearly assess that the husband intentionally caused his wife physical harm; however, in the second case, the wife’s intent is not so easily evaluated. The husband states it was an accident and he has no other


Dayton Bar Briefs January 2019

cuts or bruises on his body. By assessing both cases by the letter of the law, there is no distinction between the two. However, by assessing each incident by the spirit of the law, the two are very different. This raises the question of whether adherence by the letter of the law or by the spirit of the law would best address the domestic violence problem that plagues our communities. In the first case, this is the first time the wife has reported the abuse. Pursuant to the domestic violence statute, R.C. 2919.25(A), the husband committed domestic violence as he intended to physically harm his wife, which is a first-degree misdemeanor. The court has discretion to sentence the husband to anger management or another appropriate program in an attempt to end the abusive behavior. In addition, a protection order against the offender may be imposed upon the victim’s motion. However, “the criminal protection order will expire when the case is resolved or dismissed.” There is no mandatory prison sentence. The second case is much different. The wife scratched her husband with her ring by

By Sharalie Albanese Chair DBA Paralegal Committee

accident during an argument. The wife did not intend to harm her husband. In such a case, the responding officers should assess whether the incident is truly domestic violence. However, in the instant case, the police act by the letter of the law and, pursuant to R.C. 2919.25(B), arrest the wife for domestic violence. As domestic violence is caused by flawed human behavior and is unique to every situation, the assessment of each situation must be unique, as well. Each human being reads the same statute and that statute speaks to each human being in different ways. It is for this reason that the spirit of the law should also be considered when assessing a domestic violence situation as the laws exist to protect, not only physical wellbeing, but also quality of life. To combat domestic violence, each situation requires evaluation using practicality and the letter of the law. Did the person knowingly and intentionally inflict harm or cause another person to fear for their wellbecontinued on page 19


PARALEGAL: By Letter or By Spirit: Battling Domestic Violence continued from page 18 ing? If the answer is “yes”, pursuant to R.C. 2935.03(B), police are required to arrest the offending person. In the first case, the husband’s actions warrant arrest. He knowingly caused his wife harm. However, in the second case, did arresting the wife justly contribute to the wellbeing of her husband? By arresting the wife, the wellbeing of both the husband and wife are potentially threatened as areas of their life could suffer adverse consequences, such as the loss of a job. What if another argument prompts a neighbor to again call the police and the wife is again arrested? The second and subsequent offenses carry much harsher penalties than do the first. The second domestic violence offense is a felony of the fourth degree, which carries a six-month prison term. The third offense is a third-degree felony carrying a penalty of six months in prison or “nine, twelve, eighteen, twenty-four, thirty, or thirty-six months” in

prison. The judgments made upon the first incident could have lasting and harmful consequences. In considering such consequences, the second case involves an unintentional scratch. There is no clear evidence domestic violence has occurred. By arresting the wife, she now has her first domestic violence charge. If, as suggested previously, another call is made to police and the wife is again arrested, she would now be charged with a fourth degree felony. Such questionable charges not only seriously impact the wife, but also impact true domestic violence victims as the resources required to help real victims are weakened. True domestic violence victims are negatively impacted, not only by lack of available resources to help them to cope with and recover from domestic violence, but also the lack of resources available in the prevention of domestic violence. This is evident as, according to the Ohio Department of Health, there are no funds currently available for prevention of domestic violence. Therefore, it is crucial that those arrested are true offenders, which affords actual victims the necessary resources for prevention as well as recovery.

Domestic violence is not one size fits all. To be effective our law enforcement officers must be allowed to use discretion and common sense. When a situation is deemed true domestic violence, legal professionals need to evaluate the specific dangers of each situation and impose penalties that will protect the victim. Employing the spirit of the law allows evaluation of the distinct nature of each situation while applying the letter of the law offers structure to such evaluation. In doing so, the rightful focus of the law becomes the true victims of domestic violence. ENDNOTES: R.C. 2919.25(D)(2) R. C. 2919.26 Motion for and hearing on protection order 3 “Domestic Violence Is A Crime in Ohio Information to Help Plan for Your Safety” https://www.mcohio.org/DV_Victim_ Resource_Information_Sheet_2017.pdf 4 R.C. 2919.25(D)(3) 5 R.C. 2919.25(D)(6)(d) 6 R.C. 2929.14 (A)(3)(b) 7 “Domestic Violence is a Public Health Issue” 1 2

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

Professional Investigative and Legal Support Services Firm

 Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577


January 2019 Dayton Bar Briefs



An Update from the Dayton Municipal Court

TO: Property Owners and Plaintiffs’ Attorneys RE: Delay of Service Due to Safety/Security Issues Regarding Eviction Process

This advisory is an effort to inform property owners and attorneys about service issues in eviction cases. As you are aware, the Court must serve a summons, which acts as legal notice to the defendant that a Forcible Entry and Detainer Complaint has been filed and the eviction process has started. The summons must be served at least seven (7) days before the trial date. The Bailiffs will either personally deliver or post the summons in a conspicuous place on the premises. If there is not proper service, the Court does not have jurisdiction over the eviction action. Lack of service or improper service not only delays the trial date for the first cause for eviction, it is also a defense to the eviction action. Service is just as important after the first cause in the eviction action is adjudicated and the plaintiff requests the Court issue a Writ of Execution. The Bailiff has up to ten (10) days after receipt of the Writ of Execution to execute the Writ (move out). Proper and complete service to defendants on Forcible Entry and Detainer actions and Writs of Execution is becoming more difficult due to Plaintiffs’ failure to provide information. Common problems encountered by the Court Bailiff which result in no service or delayed service are: LOCKED BUILDINGS WITH NO LOCK BOX PRESENT OR NO CODE PROVIDED. INACCURATE ADDRESS. ADDRESS OF BUILDING AFFIXED ON THE PROPERTY IS NOT VISIBLE, IS MISSING OR UNCLEAR. MULTI UNIT BUILDINGS WHERE THE APARTMENT OR UNIT NUMBER IS NOT VISIBLE,

* Please help the Court help you by ensuring that necessary information is disclosed. Take the time to provide detailed information and warnings so that proper and timely service can be achieved. If there are any questions regarding your specific filing(s) and the information provided, please contact the Bailiff‘s Office at (937)333-4325. Thank You, Deirdre E. Logan, Administrative Judge




Dayton Bar Briefs January 2019


2018-19 sustaining members he DBA would like to acknowledge the contributions made by the Sustaining Members for the 2018-2019 T fiscal year as of the date this Bar Briefs is published. With voluntarily payments over and above normal dues, Sustaining Members are essential to the work of the DBA. The funds provided by their memberships allow continued support of programs and services that benefit members, the Greater Dayton community, and the legal profession.

Honorary Sustaining Members

Once deemed an Honorary Member of the Association, the member is exempt from the payment of dues. However, there are those who take their honorary status in title only and continue to support the Association with contributions. We wish to thank and recognize the following exemplary members:

The Honorable William A. Clark Wayne H. Dawson Esq. Patrick A. Flanagan Esq. James P. Hickey Esq. The Honorable John M. Meagher The Honorable Walter Herbert Rice

Thank You Sustaining Members!

Sustaining Members Hon. Dennis J. Adkins Deborah J. Adler Charles F. Allbery III James T. Ambrose Debra B. Armanini Kevin W. Attkisson Gary W. Auman Michelle D. Bach Theresa A. Baker Marty A. Beyer Harry G. Beyoglides Jr. R. Scott Blackburn Erik R. Blaine Amy R. Blair Amelia N. Blankenship Susan Blasik-Miller Robert M. Blue Richard A. Boucher Glenn L. Bower Karen D. Bradley Dwight D. Brannon Joan B. Brenner Matthew D. Bruder Ryan Lee Brunk Ronald L. Burdge Sam G. Caras Frederick J. Caspar Mag. Robert L. Caspar Jr. William O. Cass Jr. Mark R. Chilson Charles A. Claypool Christopher H. Cloud John M. Cloud Brooks A. Compton Christopher R. Conard W. Michael Conway Shannon L. Costello www.daybar.org

Christopher F. Cowan Jeffrey T. Cox Sandra L. Cromwell, Paralegal F. Ann Crossman Edie England Crump Mag. John A. Cumming Robert M. Curry James D. Dennis Larry J Denny Richard G. Denny Martina M. Dillon Stephanie D. Dobson Marilyn R. Donoff Daryl R. Douple Jenna M. Downey Hon. Frederick W. Dressel Trisha M. Duff Michael E. Dyer William B. Elliott Macklin E. Everly Gregory M. Ewers Terence L. Fague Charles J. Faruki Jonathan E. Faulkner Francesco A. Ferrante Kristin A. Finch James L. Finefrock Marc L. Fleischauer Canice J. Fogarty Martin A. Foos Stephen V. Freeze Neil F. Freund Patricia J. Friesinger Gary L. Froelich R. Brent Gambill Carmine M. Garofalo Charles F. Geidner

Caroline H. Gentry Daniel J. Gentry Carl G. Goraleski Hon. Barbara P. Gorman Gary W. Gottschlich Jennifer R. Grewe David B. Grieshop Jonas J. Gruenberg Ted Gudorf Dennis E. Gump Christine M. Haaker Hon. Michael T. Hall Chad D. Hansen Jennifer Hann Harrison Aaron Paul Hartley James K. Hemenway Lawrence W. Henke lll R. Mark Henry Hon. James A. Hensley Jr. J. Stephen Herbert Chip Herin III J. Michael Herr Stanley A. Hirtle Jonathan Hollingsworth Carol J. Holm Hon. Mary Katherine Huffman Kenneth J. Ignozzi Thomas J. Intili D. Jeffrey Ireland David E. Izor Matthew R. Jenkins Keith R. Kearney Ronald D. Keener Thomas W. Kendo Jr. Scott A. King James R. Kirkland

Javan A. Kline Thomas A. Knoth Julia C. Kolber Channing M. Kordik James G. Kordik David C. Korte Edward M. Kress Hon. Michael W. Krumholtz Konrad Kuczak Judith A. LaMusga Hon. Dennis J. Langer Thomas W. Langevin Laurence A. Lasky Erin Marie Laurito Michael G. Leesman William J. Leibold Dennis A. Lieberman Richard A. F. Lipowicz Joshua R. Lounsbury L. Anthony Lush Michelle M. Maciorowski Barry W. Mancz Douglas A. Mann Laura G. Mariani David W. Marquis M. Todd Marsh Laura J. Martin Patrick Martin Dianne F. Marx Craig T. Matthews Gwen M. Mattison Ronald J. Maurer Mag. Kristi A. McCartney Kaila L. McClellan Stephen M. McHugh Hon. Michael R. Merz Adam R. Mesaros

David P. Mesaros Stephen D. Miles Michael B. Miller John R. Mohr Markus L. Moll Brian A. Muenchenbach Bruce I. Nicholson Victoria L. Nilles Wayne P. Novick Hon. Timothy N. O’Connell Stephen P. O’Keefe Timothy G. Pepper Nathaniel S. Peterson David P. Pierce Hon. James D. Piergies John D. Poley Vincent P. Popp Robert E. Portune Cara W. Powers Thomas G. Rauch Lynn M. Reynolds Edward N. Rizer Paul B. Roderer Jr. John M. Ruffolo Marybeth W. Rutledge Jason J. Saldanha B. Joseph Schaeff Seth W. Schanher Steven P. Schmidt Alfred W. Schneble III Richard A. Schwartz William H. Seall Carl D. Sherrets Hon. Gregory F. Singer Hon. Richard S. Skelton Ralph A. Skilken Jr. John A. Smalley

Bradley C. Smith Edward M. Smith John D. Smith R. Todd Smith Brian A. Sommers Mary K.C. Soter Christina M. Spencer Lu Ann Stanley Mark E. Stone Jeffrey A. Swillinger Thomas B. Talbot Jr. Richard A. Talda Jennifer D. Theibert Ira H. Thomsen Louis E. Tracy Merideth A. Trott Hon. Michael L. Tucker Mark A. Tuss Timothy N. Tye Paul M. Ulrich Michelle S. Vollmar H. Charles Wagner Geoffrey P. Walker Robert C. Walter Sam Warwar Brian D. Weaver Amy R. Webster RP, CP, Paralegal Martha M. Welch, Paralegal George L. Wenz lll Ellen C. Weprin Cynthia L. Westwood Thomas P. Whelley ll Merle F. Wilberding Jeffrey A. Winwood Hon. Mary L. Wiseman Barbara A. Zappe, Paralegal Patricia A. Zimmer

January 2019 Dayton Bar Briefs



Federal Preemption:

Law Practice Lessons from the Railroad By Hon. Erik R. Blaine Montgomery County Common Pleas Court


railroad appropriation case sounds like the beginning of a repressed memory from law school. Well, every day is a school day… I have had the distinct privilege to hear over 1,500 cases, including over 25 trials and scores of motions as Judge. Of the civil cases, the “Railroad Case” is the stand-out. Like being called on in class to answer a hypothetical…in civil procedure. It was not only Civil Procedure, it was the first day of Civil Procedure. The call of the question was subject matter jurisdiction – did the state court have subject matter jurisdiction over the common law claims against the railroad, or had federal railroad law effectively preempted the state law claims and placed exclusive jurisdiction in the hands of the federal Surface Transport Board? In the absence of a patent and unambiguous lack of jurisdiction, a court of general subject-matter jurisdiction has the ability to determine the bounds of its own jurisdiction. City of Girard v. Youngstown Belt Ry. Co., 134 Ohio St.3d 79, 2012-Ohio-5370, 979 N.E.2d 1273, ¶16. That said, Congress has expressly conferred exclusive subject matter jurisdiction on various boards and agencies, such as the Surface Transport Board, over the regulation of highly specialized industries like the railroad transportation. See 49 U.S.C. §10501. Whenever approaching a case involving a unique and often regulated industry, a thorough analysis of whether state law claims are preempted is a wise use of time. Using the Railroad Case as an example, the STB has exclusive jurisdiction over cases involving: (1) transportation by rail carriers, and the remedies provided in this part [49 U.S.C.S. §§10101 et seq.] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment,


Dayton Bar Briefs January 2019

or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State… 49 U.S.C §10501(b). The ICCTA defines “transportation” to include: (A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and (B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property. 49 U.S.C 10102(9)(A) and (B). The Ohio Supreme Court has interpreted federal preemption in railroad cases somewhat narrowly, opining that “Congress narrowly tailored the ICCTA preemption provision to displace only ‘regulation,’ i.e. those state laws that may reasonably be said to have the effect of ‘manag[ing]’ or ‘govern[ing]’ rail transportation…while permitting the continued application of laws having a more remote or incidental effect on rail transportation.” City of Girard, 2012-Ohio-5370, ¶23. If the matter is not clearly preempted, the claim may still be preempted under the fact-specific as-applied preemption test. For railroad claims, a claim would be subject to as-applied preemption if the action “would have the effect of preventing or unreasonably interfering with railroad transportation.” City of Girard, ¶28. The presumption is against preemption. Keep in mind that it is the party arguing preemption, the party defending against the claim, who bears the burden of persuasion in this mixed factual and legal analysis. The cases where claims were not preempted share a hidden common link – the remedy would not keep the trains from running. In

continued on page 23


FROM THE JUDGES DESK: Federal Preemption: Law Practice Lessons from the Railroad continued from page 22 one example, the STB found that a property owner’s action requesting $20,000 for land the railroad was using could be interpreted as an inverse condemnation claim, which would not be preempted. Lange, STB Finance Docket No. 35037, 2008 STB LEXIS 45, at 10-12. “An award of just compensation for an alleged taking of the property – assuming such compensation has not already been paid – would not unreasonably interfere with rail operations and would not be preempted.” Id. at 12. In such a case, a monetary award would maintain the status quo with respect to railroad operations. Similarly, an appropriation case was not preempted where the disputed property contained no active or abandoned tracks, no portion of rights-of-way of any rail lines, no permanent structures, and was undeveloped as whole. City of Girard, at ¶30. The Court noted that the only fact possibly showing interference with railway transportation was the railway company’s use of three to four acres of property for staging and storing materials. Id. at ¶31. But the staging and storage needs were not directly tied to specific area, meaning that the outcome of the appropriations claim would not impact the fundamental operation of trains moving from place to place so the claim was not preempted. Id. In preempted cases, the remedy sought would in function be similar to adding a new governmental regulation on the railroad. See Suchon v. Wis. Cent., Ltd., W.D. Wisconsin No. 04-C-0379-C, 2005 U.S. Dist. LEXIS 4343 (February 23, 2005). As one court described, “[State] regulation can be as effectively exerted through an award of damages as through some form of preventing relief.” Smith v. CSX Tranp., Inc., 247 F.Supp.3d 952, 956 (N.D. Illinois, 2017).


In contrast to City of Girard, a claim was preempted where the disputed staging and storage occurred on the railroad tracks themselves, thereby functionally preventing the use of certain tracks for transportation. Norfolk S. Ry. v. Goldthwaite, 176 So. 3d 1209 (2015), cert. denied by Goldthwaite v. Norfolk S. Ry. Co., 136 S.Ct. 67, 193 L.Ed. 2d 31 (2015)(see also City of Wilwaukie – Petition for Declaratory Order, STB Financial Docket No. 35625, 2013 STB LEXIS 100 at 11-12, opining that the storage of rail maintenance equipment may constitute part of transportation by rail carrier if it is integrally related to the provision of interstate rail service). A property owner’s trespass claim had the effect of interfering with a railroad company’s rail operations when the alleged harm arose from the company’s use of the disputed property for rail maintenance, snow removal, access to switching lead tracks and switches, and for conductors to walk alongside trains while performing switching duties. Lange, STB Finance Docket No. 35037, 2008 STB LEXIS 45, at 4, 8-9. Claims alleging that excessive railway vibrations had damaged neighboring properties were preempted because the noise and vibrations are direct by-products of rail transportation and any remedy that placed limits on the noise and vibrations would directly impact rail transportation. Cannon, 2005-Ohio-99, ¶1-8. The court further stated that awards of damages under the state tort claims may qualify as state “regulation” when applied to restrict or burden a rail carrier’s operations. Id. ¶23. The lesson in the Railroad Case was less about the ins and outs of federal preemption, but more about how truly important the facts of a case can be. When we joined the profession, we graduated from law school to fact school. Each day we encounter cases that challenge us to explore situations wholly foreign to us and understand them well enough to go beyond merely connecting the facts to otherwise sterile law, but to describe them in a coherent and moving way. Every day is a new opportunity to do that. .

January 2019 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

Help Build Our Foundation. T T

he DBA 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. 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 - Wills for Heroes

To obtain more information about the Dayton Bar Association Foundation

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

University of Dayton School of Law


Dayton Bar Briefs January 2019


Greater Dayton Volunteer Lawyers Project

A Message from WilmerHale By Jennifer Ciszewski Esq. WilmerHale


ilmerHale upholds a strong tradition of providing a variety of pro bono legal to our communities. John Pickering, one of our founders, helped establish the ABA Law Firm Pro Bono Project, leading to the development of the Law Firm Pro Bono Challenge. WilmerHale was the challenge’s first charter signatory, which now includes more than 160 signatories. A signatory commits a percentage of its total billable hours on an annual basis towards pro bono services. In Dayton, we demonstrate our commitment to pro bono legal service by partnering with the Greater Dayton Volunteer Lawyers Project to host legal resource clinics. At our clinics, we provide legal information to help low-income individuals understand court forms related to post-divorce decrees, such as modifications for child custody and support. We also host clinics to educate individuals seeking to seal criminal records.


Each month, the locations, days, and times of our clinics vary to best serve the most people. We also offer Skype clinics to individuals in rural communities. No two interactions are quite the same, but generally we meet with individuals to discuss their situations and what they hope to achieve. We provide information and try to help individuals understand applicable laws. We direct them to the proper forms to address the relevant issues. The paperwork is printed, signed, and notarized so it may be submitted to the court. We also discuss the rest of the process to help prepare individuals to self-represent in court. Our goal is for individuals to leave feeling confident in their abilities to submit filings and address the court pro se in the related proceedings. If we cannot help individuals within the scope of our clinic, we discuss the potential options they might take independently or with counsel.

Our attorney volunteers greatly value the time spent serving individuals in this way. Participation at these monthly clinics means interaction with individuals in our community beyond our everyday practice and an opportunity to refine our communication skills. It is gratifying to help individuals improve their lives when they face traumatic or vulnerable situations. It is especially heartening to hear appreciation from someone that feels informed and empowered to submit his or her own forms and confident to self-represent in court. When individuals leave the clinics with renewed hopes for their futures, we know we have served them well. The GDVLP partners with pro bono attorneys and other volunteers to offer legal assistance to low-income individuals in civil case areas. For more info contact: Kelly Henrici, GDVLP Executive Director kelly@gdvlp.org | 937.461.3857 Or visit: www.gdvlp.org

January 2019 Dayton Bar Briefs


members on the move



MILLER, WALKER & BRUSH, LLP, is excited to welcome Jessica Andress as an associate attorney. Jessica recently worked as a civil litigation attorney in Cincinnati. Jessica has gained substantial legal experience through her judicial clerkship in the Montgomery County Court of Common Pleas, an externship with a reputable civil litigation firm in Dayton, and a clerkship for the Montgomery County Support Enforcement Agency.Jessica graduated Cum Laude from the University of Dayton School of Law 2017. In concert with her studies, Jessica participated in several associations and clubs through her UDSL roles as Chief Justice of the Moot Court Board, Staff Writer of the Law Review, Secretary of the Federal Bar Association, Secretary of the Woman’s Caucus, Research and Teaching Assistant, and Dean’s Fellow.Jessica is licensed to practice in Ohio, Indiana, and the United States District Court for the Southern District of Ohio. She is a member of the Ohio, Dayton, Cincinnati, Indiana, and Federal Bar Associations.

PICKREL SCHAEFFER & EBELING CO., LPA is pleased to announce that John E. Clough has been selected by his peers for inclusion into the 2019 edition of The Best Lawyers in America, in the area of Trusts and Estates. First published in 1983, Best Lawyers is based on an exhaustive annual peer-review survey comprising of more than 6.7 million evaluations by top attorneys. John E. Clough, is a shareholder with the firm with the Probate and Estate Planning Department. He is licensed to practice law in the states of Ohio and New York. He received his Juris Doctor from the University of Dayton School of Law, his Masters of Law in Tax from Capital University Law School and has been practicing law for over 20 years. John is the firm’s Executive Vice-President – Finance and Corporate Treasurer.

COOLIDGE WALL CO., L.P.A. is pleased to announce:








Six of its attorneys have been selected by their peers for inclusion in 2019 Ohio Super Lawyers : - Michelle D. Bach (Workers’ Compensation) - Christopher R. Conard (General Litigation) - Marc L. Fleischauer (Employment & Labor) - David C. Korte (Workers’ Compensation) - Stephen M. McHugh (State/Local/Municipal Law) - David P. Pierce (Business Litigation). ®

Jennifer Grewe has been selected as a 2019 Ohio Rising Star®, a Super Lawyers recognition given to qualified attorneys in practice for fewer than 10 years or under the age of 40. Tammy McIntosh has been promoted to a paralegal in the firm’s Estate Planning and Tax Department. Tammy’s new responsibilities include estate administration. In this role, she helps determine what assets are required to go through probate and proceeds with the probate court procedure as needed. In addition, she meets regularly to help clients manage and execute their estate planning needs. Tammy has been with the firm for three years and has more than 20 years of experience in the legal field. Lastly, COOLIDGE WALL CO., L.P.A. has received first-tier metropolitan ranking in 10 practice areas by U.S. News & World Report and Best Lawyers in the 2019 “Best Law Firms” list. The 10 areas for which the firm received Tier 1 ranking are Banking and Finance Law; Commercial Litigation; Corporate Law; Employment Law – Management; Labor Law – Management; Litigation - Labor & Employment; Litigation – Real Estate; Tax Law and Workers’ Compensation Law – Employers. To be eligible for a ranking, a firm must have at least one lawyer listed in The Best Lawyers in America®. Coolidge Wall had 20 lawyers listed in 2019 Best Lawyers.

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 26

Dayton Bar Briefs January 2019


classifieds D. Jeffrey Ireland, FARUKI IRELAND COX RHINEHART & DUSING PLL (FARUKI+) Partner, and his wife, Ellen, were selected as recipients for the 2018 Outstanding Volunteer Fundraiser Award. The Outstanding Volunteer Fundraiser Award is given by the Association of Fundraising Professionals, Greater Dayton Region to a special individual or family that demonstrates outstanding skills in coordinating and motivating groups of donors and volunteers for fundraising projects for the benefit of charitable institutions. The recipient must have demonstrated exceptional leadership skills in coordinating groups of donors and volunteers for major fundraising projects for more than one nonprofit organization. The Irelands were collaboratively nominated by Karla Garrett Harshaw, Regional Director of Development of Advocates for Basic Legal Equity, Inc and ABLE, LAWO, Friends of Levitt Pavilion Dayton, DBA, The Dayton Foundation, Salvation Army - Dayton Kroc Center, Teach for America and the Dayton Early College Academy.






TAFT STETTINIUS & HOLLISTER LLP is pleased to announce that 51 attorneys in Taft’s Ohio offices were selected for inclusion in Ohio Super Lawyers 2019, included from the Dayton office were: - Jennifer Hann Harrison (Workers’ Compensation) - Fred Ungerman ( Employment and Labor) Additionally, 18 attorneys in Taft’s Ohio offices were selected for inclusion in Ohio Rising Stars 2019. Honorees included: - Scot Ganow (Technology Transactions) - Zachary Heck (Technology Transactions) - Nadia Klarr (General Litigation) - Valerie M. Talkers (Business Litigation). This is the first year Ganow, Heck, and Klarr have been recognized.

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Eikenbary Trust..................................................13 OBLIC.....................................................back cover Ferneding Insurance..........................................10 R.L. Emmons & Associates................................19 LCNB Bank.............................................................7 Rogers McNay Insurance......................................25 National Processing Solution...........................23 Trisha M. Duff - Mediations...................................18 OLAP.....................................................................19


FORENSIC CLINICAL PSYCHOLOGIST James Daniel Barna, Ph.D., J.D. 47-years experience 2nd opinions Expert rebuttal witness jamesdanielbarna.com All Courts (937) 236-0085 LOCAL COURT RULES D ay to n M u n i c i p a l Co u r t h a s p ro p o s e d changes to the Local Court Rules. Please visit the Dayton Municipal Court at http://www. daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules. MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com MEDIATION/ARBITRATION JOHN M. MEAGHER, Judge (Retired) Still accepting invitations to Serve as a mediator or arbitrator My fees are adjustable to length of service, number of parties, etc. No charge for travel Call (937) 604-4840 Jmeagher2@gmail.com *1995-present: 2,100+ mediations 50+ Arbitrations OFFICE SPACE AVAILABLE Three offices available in Kettering, ranging from 90SF to 135SF. Rent starts at $270/month for the smaller unfurnished office, slightly more for the furnished and larger offices. Rent includes all utilities, internet, access to the waiting area and conference room. Email Sean@seanmmccauleylaw.com for more details. OFFICE SPACE FOR LEASE Professional office space for lease on South Dixie, south of Dorothy Lane. Great location, convenient parking, large conference room, generous lease terms, other amenities. Offices are about 120 sq ft in size, starting at $400.00 per month. Contact Greg at (937) 294-2468 x205 or greg@ranac.com. POSITION AVAILABLE General practice firm with emphasis on business, litigation, estate planning and elder law has an opening for an attorney. Independent caseload and client interaction. Applicant should be hard working and have excellent writing skills. Medicaid planning experience desired, but is not required. Send resume and writing samples to: Simon Patry, Dysinger & Patry, LLC, 249 S. Garber Drive, Tipp City, Ohio 45371 or spatry@dysingerlaw.com. STUNNING OFFICE SPACE AVAILABLE Local law firm looking to share existing office space. Class A, 4 offices with 2 conference rooms. Phone and internet included, collaboration on Administrative resources available. Fairfield Commons, second floor. Contact Holly Potter 614.737.2900

January 2019 Dayton Bar Briefs


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


Profile for Dayton Bar Association

January 2019 Dayton Bar Briefs Magazine  

January 2019 Dayton Bar Briefs Magazine