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The Magazine of the Dayton Bar Association |MAY 2016 | Vol. 65, No. 9


Bar Briefs

The DBA requests the pleasure of your company for socializing, dining and celebration in honor of Our Members at the...


Meeting Friday June 10, 2016 Sinclair Community College, Bldg 12 Hors d’oeuvres & Cocktails 6:30pm Dinner & Meeting 7:30pm


Bar Briefs


May 2016 | Vol. 65, No.9

Features 4 dba execUtive’s desk Get to Know YOUR Bar Association - A Quick Review By Bill Wheeler, DBA Executive Director

Dayton Bar Association Board of Trustees 2015 – 2016

Kermit F. Lowery



Susan D. Solle

First Vice President

Brian L. Wildermuth Second Vice President

Barbara J. Doseck Secretary

Christopher B. Epley Treasurer

Dale E. Creech Jr. Member–at–Large

Lynnette Dinkler Member–at–Large

Merle F. Wilberding Member–at–Large

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

William B. Wheeler, 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 William B. Wheeler, Executive Director Shayla M. Eggleton, Coordinator Publications & Design Phone: 937.222.7902 Fax: 937.222.1308

the dba’s premier event of the year: 2016 annual meeting


leadership development program

By Robert L. Guehl Esq.

Registration & Sponsorship Available NOW!

Nominations Now Being Accepted

from the judges desk Alternatives to Incarceration

By Hon. Barbara P. Gorman


barristers’ bowl


chancery club luncheon + liberty bell awards


women in law forum reception


5 for the kids walk fitness run


mark your calendar

Friday, June 24th | 6:30pm | Poelking Lanes, Kingsridge Dr.

Friday, May 13th | Doors open at 11:30am | The Old Courthouse

Tuesday, May 17th | 5:30-7:30pm | DBA Seminar Room

Friday, May 27th | 7:00pm | Brixx Ice Co.

Departments 20 Continuing Legal education 25 may 2016 Committee meetings 39 Classifieds & Marketplace

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 May 2016


A Panda Walks Into A Bar - “Eats, Shoots and Leaves” - Revisited

upcoming events 5 celebration of life memorial luncheon Wednesday, May 25th | Doors open at 11:30am | Sinclair College, Bldg 12

Richard P. Perna


condo law



By Jamar T. King Esq.


Julia J. Martin

Barrister of the Month: gary w. gottschlich esq.






DBA ANNuAL pArTNErS 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 Eichelberger Foundation Estabrook Charitable Trust Faruki Ireland & Cox P.L.L. jack w. and sally d. eichelberger Foundation

Eichelberger, longtime Oakwood residents to enhance the legal profession, the arts and the Greater Dayton community through the awarding of grants. Jack Eichelberger was a well-known Dayton attorney and real estate investor. Trustees: Dave Greer, Gary Froelich and Neal Zimmers.

Sponsor of: • Chancery Club Luncheons • New Admittee/Member Reception • First Monday in October Celebration • DBA and UD Law Student Events

• Women in Law Forum

estabrook charitable trust

Administered by Porter Wright Morris & Arthur LLP | Bruce Snyder - Trustee

Annual Grants to the DBA (This support makes these events affordable for all members): • Bench Bar Conference • Diversity Day • Annual Meeting

Faruki ireland & cox p.l.l. www.fi claw.com with offi ces in cincinnati & dayton

Faruki Ireland & Cox 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 thompson hine llp www.thompsonhine.com

Established in 1911, Thompson Hine is a business law firm dedicated to providing superior client service. The firm has been recognized for ten consecutive years as a top law firm in the country for client service excellence in The BTI Client Service A-Team: Survey of Law Firm Client Service Performance. With offices in Atlanta, Cincinnati, Cleveland, Columbus, Dayton, New York and Washington, D.C., Thompson Hine serves a premier business worldwide.

Contact Bill Wheeler at bwheeler@daybar.org or 937.222.7902 for information about becoming a Annual Partner.


May 2016 Dayton Bar Briefs


executive’s desk

Get to Know YOUR Bar Association – A Quick Review

By Bill Wheeler Executive Director Dayton Bar Association

Raising the Bar of the Legal Profession! Education - Ethics & Professionalism Collegiality - Developing Strategic Relationships


he Dayton Bar Association has been at the center of the local legal community for more than 130 years and serves as the focal point for the legal profession in the Greater Dayton area. In addition to offering a wide array of resources to the legal profession, on behalf of our members, the DBA provides information and a host of public services for the benefit of the community in which we live and work. Representing a broad cross section of the legal community, the Board of Trustees continually strives to enhance the Professional, Economic and Personal Value of the DBA membership. Membership dues account for 26% of the annual DBA budget, however, this critical member support enables the Association to create non-dues revenue to support the many other important programs, services and resources offered to DBA members. DBA operations are divided into seven areas of concentration:


Provides a headquarters office and base of operations management administrative functions for the DBA Foundation, Inn of Court and the Bench-Bar-Media Forum, Women In Law Forum and other initiatives. Maintains a dynamic database of information regarding regional legal professionals. Conducts annual member events including; 50 Year Honoree Luncheon, Holiday Luncheon, Diversity Day Luncheon, Memorial Luncheon and the Annual Meeting.

Continuing Legal Education (CLE)

Discounted Member PricingProvides significant savings over For-Profit providers and State Bar Associations. Creates and delivers more than 130 seminars annually. Offers Online CLE programming in cooperation with our colleagues of the Ohio Metro Bar Associations. Conducts the Annual Bench Bar Conference and other annual programs including certification seminars. Even greater savings with a 12hr or Unlimited Passports


To enhance the professional value of DBA membership, the DBA offers more than 30 substantive law, service-related and administrative committees. Including; Young Lawyers Division, Certified Grievance Committee and the Eikenbary Advisory Committee.

Lawyer Referral Service

Annually, the DBA receives 12,000 phone calls from the public looking for a referral to a DBA member attorney. Panel members are listed in a wide variety of areas of law to which callers are referred. The DBA utilizes numerous advertising/promotional avenues to create public awareness of the Referral Service.


To complement the service for telephone referrals, the DBA the launched an online attorney search resource for the public to find DBA member attorneys on the internet www.DaytonFindalawyer.org. As a greater number of clients are using the internet to search for legal representation, the site offers detailed information in a friendly format for clients to compare attorney profiles to select a lawyer that fits their specific needs and criteria.

Notary Public Service

For more than 50 years, the DBA has been the official provider of Notary Public commissions in Montgomery County and conducts the application and testing function for those desiring to be a notary. DBA member attorneys may obtain a lifetime notary commission (no test required) for only $35

Personnel Placement Service

As a member service, the DBA provides a personnel placement service to assist with temporary or full time placement for legal support staff, paralegals and other non-attorney positions. Interviews, tests and evaluates all candidates prior to providing resumes for open positions. Save the expense of costly classified advertisements – the DBA provides select candidates for firm review. No fees unless candidate is hired Applicant and firm staff skill assessment testing available in a wide range of competency modules.

YOUR DBA continually strives to provide a Return on Investment (ROI) of your membership dollar and to serve all segments of our legal community. We thank you for your continued support as a DBA Member and invite you to...



Dayton Bar Briefs May 2016


The Dayton Bar Association

Celebration of Life Memorial Luncheon

Wednesday, May 25, 2016 Sinclair Community College, Bldg 12 11:30am–Doors Open | Noon–Lunch | 12:30pm–Program Cost: $30.00

To celebrate the lives of our fellow members who have passed since Spring 2015.

Gwendolyn D. Coles Esq. William E. Cromer Esq. Prof. Dennis Greene Ret. Colonel Carroll E. Hunt William A. Krebs Esq. Winfield E. Kinney III Esq. Joseph G. Nauman Esq. Hon. Robert L. Nolan Hon. Walter A. Porter Steven E. Yuhas Esq. Celebration of Life Memorial Luncheon • Wednesday, May 25, 2016 To:

DAYTON BAR ASSOCIATION 600 Performance Place 109 N. Main St. Dayton OH 45402-1129

Please reserve _____ place(s) at $30.00 each.............. Total $______ Table (8)______at $240.00............................................ Total $______ -Please enclose a list of those attending-

Phone: 937.222.7902 Fax: 937.222.1308 NAME

Check # Enclosed: Charge my: VISA MC AmEx Discover

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Signature PHONE www.daybar.org

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Barrister of the month

Gary W. Gottschlich Esq. T

here he was on Capitol Hill, in an office nearly the size of a courtroom, seated next to his client and across from a powerful Congressman barraging him with questions as quickly as bullets shooting from an assault rifle. Most would have wilted under the pressure like an old piece of lettuce left out in the July sun, but not this guy. Perhaps it was the training that he received years earlier during his service in the Army. Perhaps it was the confidence and mettle that he gained from his years in the Montgomery County Prosecutor’s Office taking down rapists and murderers. Whatever it was, he didn’t drop one bead of sweat. He took on each and every question until the Congressman was thoroughly convinced that his client, a large multinational corporation, had not engaged in any predatory conduct that harmed American businesses. That type of steady composure under fire is but one hallmark of one of Dayton’s greatest attorneys and the May 2016 Barrister of the Month, Gary Gottschlich.

If you ask around town, you’ll quickly find out that Mr. Gottschlich is not only one of the Dayton bar’s most respected lawyers, but also one of the Dayton community’s biggest champions. He is a former president of the Rotary Club of Dayton, and he is still a very active member to this day. He is currently the secretary of the Oregon District Business Association. Additionally, Mr. Gottschlich, a lifelong resident of Dayton, has participated in several other community organizations throughout the city. In furtherance of his commitment to give back to the profession that has given him so much, Mr. Gottschlich has contributed his time and talents to bar associations of all levels. For several years, he was an active member of the American Bar Association’s trial evidence committee. He was a founding member of the Ohio State Bar Association’s litigation section. He also served on the OSBA’s litigation section’s Board of Governors and chaired that section’s national symposiums. And the Dayton Bar Association wouldn’t be quite the pillar of the local legal community that it is today without some of the contributions of Mr. Gottschlich. He has done work for many of the DBA’s committees and interests groups throughout his career. He is particularly proud of his time on the DBA’s former judicial endorsement committee. That committee’s efforts laid the ground work for the current judicial polling system used to evaluate the qualifications of candidates running for the bench. In 1997, Mr. Gottschlich and his partner, Robert E. “Buzz” Portune, started the firm of Gottschlich & Portune, LLP. After a stint in a downtown office building, the proud native Daytonian moved the firm to one of Dayton’s most iconic architectural landmarks—the old Armory Building—right on the western edge of the Oregon Historic District. The firm specializes in commercial & business law, probate & estate law, medical malpractice, and personal injury. The firm was successful from its inception, and Mr. Gottschlich and Mr. Portune currently employ four other attorneys. Mr. Gottschlich has had a well-traveled career and his resume prior to starting Gottschlich & Portune, LLP reads like a Who’s Who among the Dayton area’s most prestigious and reputable firms. He has worked in nearly every type of legal environment, including for some of the city’s largest firms. But it was most likely his early years as an assistant prosecutor working under the great Lee C. Falke that prepared him most for that fateful day on Capitol Hill where he put on one of the best performances of his career. Mr. Gottschlich graduated of Chaminade High School. After high school, he studied economics at the University of Dayton. He earned his J.D. from Notre Dame Law School. He also spent time studying comparative law at University College London. ers y w a Mr. Gottschlich was a member of the United States Army while in school and during L y Legac ential the early part of his career. ’s d A fi B n o D c e a Th Mr. Gottschlich enjoys spending time with his wife, Sharon. They have three adult ntact on tance in a o c o t le is b s a s sons, David, Andrew and Thomas, so far, one grandchild. He is an avid sailor and skier. il a e and are ava c n a id An ever steady professional and a paragon of virtue, the Dayton legal community is u w g s of la a e r a basis for blessed to have Mr. Gottschlich. f o er

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Dayton Bar Briefs May 2016

By Jamar T. King Esq. DBA Editorial Board Thompson Hine LLP 937.222.7902

Having an Offsite Meeting? Consider the DBA Facilities

Additional Member Benefit Low rates Beverage service available Call to reserve space today! 937.222.7902 The DBA offices are equipped with a variety of meeting and conference rooms for use by our members, law firms, businesses and organizations. Our facilities will accommodate groups as large as 75 people, depending upon set up requirements, and can be reserved with just a phone call. Consider the DBA for all your meeting needs: Depositions, Mediations & Arbitrations, Training, Client Meetings, Firm Events, Retreats and more. Located adjacent to the Schuster Performing Arts Center, the DBA is a convenient walk from the business district and a short drive from anywhere in the Miami Valley.


May 2016 Dayton Bar Briefs


condo law

A Panda Walks Into A Bar “Eats, Shoots and Leaves1” Revisited By Robert L. Guehl Esq. DBA Member


he 2004 statutory amendments to Ohio Condominium Law, O.R.C. 5311.081(A)(1) dealt with mandated funding for capital improvements reserves and whether that mandate may be waived annually, among other issues. The problem that inspired the 2004 changes regarding condominium reserves was explained by a leading Ohio law firm that limits their practice to Condominium & Homeowner Associations2: The history of Ohio condominiums has been plagued by “special assessments”... Pressure on boards to keep maintenance fees low too often resulted in bare bones budgets with only basic necessities being paid. Many associations failed to build up savings, known as “reserves,” for large future expenses ... Because the costs of long-term replacement projects were not included in association budgets, condominiums across Ohio experienced devastating budget shortfalls.... Ohio condominium owners faced large special assessment bills with little or no time to pay... often resulting in foreclosures and always resulting in ownership dissatisfaction.3


In 2004 the Ohio Legislature amended O.R.C. 5311.081(A)(1) to read: Duties and authority of [Condo] association and board... (1) Adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments, provided that the amount set aside annually for reserves shall not be less than ten per cent of the budget for that year unless the reserve requirement is waived annually by the unit owners exercising not less than a majority of the voting power of the unit owners association.4


The 2004 statutory amendments refer to financial “reserves” but give little guidance beyond the language in the sub-paragraph. Standards for funding capital “reserves’ in condominiums have been defined by the International Capital Budgeting Institute: Reserve studies are long term capital major repair and replacement budgets that are the financial reflection of the long term maintenance plan... 4. It is considered fiscally prudent to provide for regular periodic interim funding to a separate reserve fund to accumulate the monies necessary for the estimated future expenditures...5 Kaman & Cusimano detail the standard of care set by the statute: Condominium living suffered from the tendency not to budget long-term, but instead to special assess owners for major repair projects... we have a state mandated standard of budgeting, that is, budgeting “...for... reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments.”6 [emphasis added]


Similar to directives by Kaman & Cusimano7, Criterium (a company that specializes in performing reserve studies for condominiums) adds a few commas and misstates the statutory requirement for waiver of full reserve funding8: Ohio House Bill 135 Summary: On July 20, 2004, Ohio enacted Ohio Revised Code Section 5311.081(A)(1) that indicates: 1) "unless otherwise provided in the declaration or bylaws," the board must adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations, without the necessity of


Dayton Bar Briefs May 2016

special assessments, 2) provided that the amount set aside annually shall not be less than ten percent (10%) of the budget for that year, 3) unless the reserve requirement is waived annually by the unit owners exercising not less than a majority of the voting power of the unit owners' association. The actual language and grammar in O.R.C. 5311.081(A)(1) gives a different perspective on the availability of an annual vote by condominium owners to waive the reserve requirements. Compare the statutory language regarding funding of reserves for a “Planned Community” under Revised Code Chapter 5312; both condos and “plannned communities” may be governed by homeowners’ associations, but they are controlled by separate chapters in the Ohio Revised Code:

§ 5312.06(A) Powers of [Ohio Planned Community] owner's association: (1) Annually adopt and amend an estimated budget for revenues and expenditures. Any budget shall include reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments, unless the owners, exercising not less than a majority of the voting power of the owners association, waive the reserve requirement annually...

There is no provision in ORC § 5312.06 limiting waiver by majority of owners in a “Planned Community” if an annual reserve budge is less than 10% of the operating budget. ORC § 5312.06 allows waiver of reserve requirement for any reason on annual basis, and does not include any language similar to “provided that the amount set aside annually for reserves shall not be less than ten percent of the budget for that year unless...” The omitted language is significant. The condominium reserve statute was passed in 2004, while the broader homeowners association statute was passed in 2010, indicating that the legislature knew (or reasonably can be assumed to have

continued on page 29


DBA News DBA Officers Participate in ABA Bar Leadership Institute


oining over 300 other emerging leaders of lawyer organizations from across the country at the American Bar Association’s Bar Leadership Institute (BLI), March 11-13 were Susan D. Solle, President-Elect and Brian D. Wildermuth, Second Vice President of the DBA. The BLI takes place annually in Chicago. It offers incoming officials of local and state bars, special focus lawyer organizations and bar foundations the opportunity to confer with ABA officials, bar leader colleagues, executive staff and other experts on the operation of such associations. Solle and Wildermuth joined ABA President William C. Hubbard of Columbia, SC, and ABA President-Elect Paulette Brown of Morristown, NJ in sessions on bar leadership, governance and communications.


May 2016 Dayton Bar Briefs


supreme court advisory opinion

Opinion 2016-2 Withdraws Advisory Opinion 1990-1

>View More of this Opinion by visiting our homepage at www.daybar.org and click the link under “DBA News”. 10 Dayton Bar Briefs May 2016



BARRISTERS’ BOWL Charity Event Friday, June 24, 2016 @ 6:30pm

REGISTER ONLINE! www.daybar.org

Location: Poelking Lanes

8871 Kingsridge Dr.

Costs: $25 per person

$100 for a team of 5

Contact: Melissa Koppenhoefer

All Proceeds Benefit Local Non-Profit:

melissamarie.kopp@gmail.com 513.260.1825


May 2016 Dayton Bar Briefs



Upcoming May Chancery Club Luncheon & Liberty Bell Awards Ceremony The DBA invites you to join us as we honor the 2016 Liberty Bell Award recipient during the May Chancery Club Luncheon to be held at the Old Courthouse on Friday, May 13th. Space is limited so please RSVP!

Liber ty Bell Awards Program Friday, May 13th | Doors open at 11:30am | RSVP to Chris: calbrektson@daybar.org this is YOUR chance to come out and support an outstanding member of the community!

12 Dayton Bar Briefs May 2016


ethics news

Ohio Ethics Guide: Client File Retention On March 18, 2016 the Board of Professional Conduct issued the Ethics Guide: Client File Retention. This Guide answers questions such as: • “What do I do with client files that are closed and dormant?” • “How long should the lawyer retain a client file? • What documents in the file are required to be maintained by the lawyer? • Which contents of the file belong to the client? • Can the contents of the file be electronically scanned and then destroyed? • What do the Rules of Professional Conduct require? For answers to these questions and more check out the Ethics Guide: Client File Retention, go to our homepage at www.daybar.org and click the link under “DBA News”.

Whether you seek a headshot for Linked In or the job search, coverage of a special event or marketing promotion for your firm or company, Julie is the photographer for you!

book your session today! www.daybar.org

May 2016 Dayton Bar Briefs



The DBA Holds it’s 31st Wills for Heroes Event!

By Chris Albrektson Wills for Heroes Coordinator DBA Asst. Exec. Dir.


n April 2, 2016, Dayton Bar Association volunteers participated in the 29th Wills for Heroes Event held by the DBA. On that day, 21 sets of documents were written bringing the total to 1121 sets written in the last 7 years. As with every event, the first responders and their spouses were very grateful that a group of attorneys would give up a beautiful Saturday to sit in a training room and help them create the documents they needed to have done in order to protect their families. As with all events, there was something special about this one, of the 13 volunteers, five were first time volunteers. This shows the commitment of our members to this program. In case you did not know, the Dayton Bar Association was the first Bar in Ohio to hold a Wills for Heroes event and today, we are the only Bar to hold this event. As I’ve said before, that is something we should all be proud of. As with many of our events, some of our volunteers aren’t DBA members. The reason is they aren’t attorneys, paralegals, law students, etc. They are family members of our members who come out to help just to show their support of this program. A special thank you goes out to Sara Sperry, Christopher and CJ Albrektson. I am always grateful for their help and dedication to this program. Our next event will be on June 4th at the Montgomery County Sheriffs Regional Training Center. If you’ve like to volunteer or have any questions about the program, please let me know. I would like to thank the following who helped at this event.

THANK YOU VOLUNTEERS! Erik Blaine, Esq. Michael Mills, Esq. Jessica Brockman, Esq. David Smith, Esq. Brian Buttery Eli Sperry, Esq. Kat Czachor Patricia Starling John Cunningham, Esq. Nicholas Subashi, Esq. Lauren Eilenfeld

Michelle Sundgaard Lauren Epperley, Esq. Christopher Walker, Esq. Brian Gravunder, Esq. Brian Wiggins, Esq. Marcie Hunnicutt, Esq. Katie Williams Kermit Lowery, Esq. Patricia A. Zimmer, Esq. V. Gayle Miller, Esq.

UR R FOR O ! E E T N VOLU NG EVENTS I . UPCOM is for details t Chr Contac

A gathering for DBA Members BOTH Women & Men

Join us at the next series:

Women in LAw Forum Reception Tuesday, May 17, 2016 | 5:30-7:30pm Dayton Bar Association; 109 N. Main St., Ste. 600 Speaker: Tori Reynolds of Speakeasy Yoga Tori will speak on the topic “Stress Reduction”

Space is limited! Please RSVP to: Lori Luebben lluebben@daybar.org 937.222.7902

14 Dayton Bar Briefs May 2016



GreatValue ! Value


When clients come looking...


Sign up for DaytonLawyerFinder.org today

-5 page online profile -2 areas of law -only $99/month -worldwide online presence -for<1billable hr/month

For more information contact:

Bill Wheeler, bwheeler@daybar.org Chris Albrektson, calbrektson@daybar.org


May 2016 Dayton Bar Briefs


local law events

Paralegal Profession Honored Wednesday, April 13th | 11:30-1:00pm | Sinclair Bldg 7


2016 Paralegal Day Sponsors:

rofessional paralegals, paralegal students, as well as lawyers and judges from the Miami Valley filled the Sinclair College Tartan Marketplace banquet room on Wednesday, April 13, to mark the regionâ&#x20AC;&#x2122;s celebration of Paralegal Day. The paralegal profession is one of the fastest growing professions in America, with strong salary expectations, according to federal labor statistics. Paralegals are credited with lowering the cost of legal services for clients. Montgomery County Clerk of Courts Gregory Brush served as emcee of the event. Christine Retherford, Sinclair graduate and OSBA Certified Paralegal, served as the keynote speaker. The highlight of the event was the presentation of the Paralegal of the Year Award. Jennifer Burkitt, a Paralegal with Roberson Law, was selected as the 2016 recipient of the Paralegal of the Year Award. Jennifer has been the lead paralegal in charge of the probate department at Roberson Law for the past fifteen years. She was selected as this yearâ&#x20AC;&#x2122;s winner due to her expertise, compassion, and dedication to her work. Law firms in the Dayton region as well as Sinclair College provide support for the Paralegal Day event.

Roberson Law Porter, Wright, Morris & Arthur by means of the Estabrook Charitable Trust Dayton Bar Association Dayton Municipal Court Freund, Freeze, and Arnold Legal Tally Funding Advocates for Basic Legal Equality Legal Aid of Western Ohio Altick & Corwin Sebaly, Shillito & Dyer Gary Froelich Joyce Young

By Jenna L. Beck Esq. Chair/Associate Professor Paralegal, Law, and Real Estate Sinclair Community College

16 Dayton Bar Briefs May 2016


ce 188 3

DA Y o ass The

cia tion



in ls s a f or L e n gal Professio

Take the ADVANTAGE of the Value! DBA Membership DAYTON

Fastcase + Unlimited FREE Legal Research Access through Fastcase

cle seminars + Annual Bench Bar Conference Reduced Member Rate + CLE Reduced Rates for Members (based on12 hrs/yr)







chancery club luncheons

pictorial bar briefs legal Magazine directory +Printed & Online

+ Held monthly at the Old Courthouse FREE thanks to the generosity of the Eichelberger Foundation

+ Printed and Online versions FREE to Members

versions FREE to Members

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+ Greater Savings with CLE Passports + Member Savings for Online Programs + Annual Savings May Exceed Dues





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DaytonFindALawyer Online Search Site Enables clients to find you! (Members Only) Lawyer Referral Service Grow Your Practice Client Referrals




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Pinnacle Providers Program Discounts on Products & Services

Personnel Placement Service Low Fees to Members

Networking & Collegiality Professional & Social Events

Substantive & Service Committees Developing Strategic Relationships Professional Growth


May 2016 Dayton Bar Briefs


We request the pleasure of your company for socializing, dining and celebration in honor of Our Members at the...

Dayton Bar Association


Celebrating Our Legacy Of Excellence

Meeting Friday, June Tenth

Hors dâ&#x20AC;&#x2122;oeuvres & Cocktails 6:30pm Dinner & Meeting 7:30pm

Sinclair Community College, Bldg 12 444 west third street

The courtesy of a response is requested by Friday, June Third Please make dinner reservations for

@ $35.00_______________________$__________

Please make dinner reservations for Please make dinner reservations for

table(s) of 8 @ $280.00____________$__________ table(s) of 10 @ $350.00___________$__________

Please attach a list of attendees

Total: $___________

Payment: Check #_____________ Credit Card (see below) NAME VISA MC AmEx Discover




18 Dayton Bar Briefs May 2016

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Re: Dayton Bar Association 2016 Annual Meeting Dear DBA Member: I would like to invite you to join fellow members and guests for the DBA’s premier event of the year. The 2016 Annual Meeting Our Legacy of Excellence, will be held at Sinclair College, Bldg 12 on the evening of Friday, June 10, 2016. Along with the election and installation of new officers, we will thank Kermit F. Lowery Esq. for his direction and leadership over the last year as well as welcome incoming President, Susan D. Solle Esq. Recognition will also be given to those who have contributed to this year’s success. This will also be your chance to connect with friends and colleagues you may only see once or twice a year. As always, the DBA would like to thank you for your continued support of YOUR Association. I look forward to having you join us for this year’s Annual Meeting. Very Truly Yours,

As the DBA’s Premier Event of the Year, sponsorships help ensure the Annual Meeting is an evening to remember and affordable for all. All sponsors are recognized throughout the evening on a 10-foot-tall scrolling screen, in the printed program and in two issues of the Bar Briefs magazine (printed and electronic versions)! Thank you for your consideration.

DBA Annual Meeting Sponsorship • Friday, June 10, 2016 • Sinclair College, Bldg. 12 Sponsorship deadline is Monday, May 23, 2016 To:

DAYTON BAR ASSOCIATION 600 Performance Place 109 N. Main St. Dayton OH 45402-1129

I would like to support the DBA and promote my firm through Annual Meeting sponsorship at the following level:

Phone: 937.222.7902 Fax: 937.222.1308 NAME

Platinum Level


Gold Level


Silver Level


Bronze Level

$ 500

Patron Level


Check # Enclosed: Charge my: VISA MC AmEx Discover

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May 2016 Dayton Bar Briefs


daybar.org/cle Demystifying Legal Malpractice Insurance #110

Joint Task Force GITMO: The Story Behind the Headlines – Guantanamo Bay, Cuba #112

Mon. May 2 | 12:00-2:30pm | 2.5 CLE hrs Prof. Conduct M $105 | NM $150 | PP $0 Presenter: Gretchen K. Mote, J.D., Director of Loss Prevention Ohio Bar Liability Insurance

Wed. May 18 | 9:00-12:15pm | 3.0 CLE hrs M $105 | NM $150 | PP $0 *Seminar handouts will be provided in electronic format.

Hear from Task Force and Commissions lawyers who were there! Learn more about the background and current happenings in the Guantanamo Bay, Cuba situation as well as insight into military law. Featuring a Most Distinguished Group of Panel Members Justice Steven David Indiana Supreme Court Served in the United States Army Judge Advocate General’s Corps, including two post 9-11 mobilizations in Iraq and Guantanamo Bay, Cuba. Served as trial counsel, defense counsel, Military Judge and Commander.

DBA Estate Planning Trust & Probate Committee presents:

Wed. May 11 | 4:00-5:00pm | 1.0 CLE hr CommM $25 | M $35 | NM $45 *Seminar handouts will be provided in electronic format.

The May 11 meeting/CLE will be an Update of Estate Issues: 1) Issues regarding the anti-lapse statute 2) Conduit trust language for a Trust; and 3) Status of Medical Orders for Life-Sustaining Treatment (MOLST) legislation.

The Rules of Evidence #111 Fri. May 13 | 8:30-11:45am –Prior to DBA Chancery Club! | 3.0 CLE hrs M $105 | NM $150 | PP $0 Presenter: Hon. Mary Kate Huffman Montgomery County Common Pleas Court Location: The Old Courthouse, corner of 3rd and Main Street *Seminar handouts will be provided in electronic format.

Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be the first of a two-part series reviewing and analyzing each Rule of Evidence in detail. This session will focus on the scope of the rules of evidence, the rule of completeness, judicial notice, privileges, relevance, character evidence, evidence relating to habit and routine, the admissibility of prior convictions and the admissibility of original and duplicate documents.

New Lawyer Training Core Components: Professionalism, Client Funds and Law Office Management (video) #107 Tues. May 17 | 1:00-4:15pm 3.0 CLE hrs NLT Credit incl. 1.0 Prof., 1.0 Client Funds., 1.0 Law Office 3.0 CLE hrs incl. 1.0 Prof. Conduct M $105 | NM $150 | PP $0 *Seminar handouts will be provided in electronic format.

This program is tailored to satisfy the new subject matter requirements for newly admitted attorneys; however, all can benefit from the materials covered. -Professionalism | Gary J. Leppla Esq. Leppla Associates, Ltd. -Law Practice Management | Chad E. Burton Esq., CuroLegal, Burton Law LLC -Client Fund Management | John M. Ruffolo Esq. Partner of Ruffolo, Stone & Dressel and DBA Bar Counsel

20 Dayton Bar Briefs May 2016



Estate Blog: Update on Estate Issues #115




Kermit F. Lowery Esq. DBA President-Elect Vice President and Assistant General Counsel -LexisNexis Served in the United States Army Judge Advocate General’s Corps including a mobilization as Habeas Corpus Counsel with the Joint Task Force-Guantanamo. Retired Colonel, United States Army. Dale Vitale Section Chief Ohio AG’s Environmental Law Group Principal Assistant Attorney General, Health Care Fraud Section Served in the United States Army Judge Advocate General’s Corps as trial counsel, senior defense counsel and Team Leader, including a mobilization as Habeas Corpus Counsel with the Joint Task ForceGuantanamo.

Criminal Law Certification #113 Thurs. May 19 | 8:00-3:45pm | 6.25 CLE hrs M $220 | NM $310 | PP $0 NLT (< 2 yrs) Mbr $110 NLT (<2 yrs) Nonmbr $155 *Seminar handouts will be provided in electronic format.

Agenda -Intro to the Mont. Cty. Common Pleas Felony Appointment -List Montgomery County “Lingo” 101 -Preliminary Hearings, Pre-Indictment Disposition, Arraignment, Bond Review -First Meeting with Client, Client Control -Discovery, Plea Negotiations, Pre-Trial Conferences -Pre-trial Motions and Hearings -Investigation & Trial Preparation -Dispositions: ILC, Diversion, CCS, Sentencing -Notice of Appeals and Fees -Probation

DBA Workers’ Comp. & Social Security Committee presents:

Social Security Update: The Local Office Perspective #116 Thurs. May 19 | 12:00–1:00pm | 1.0 CLE hr CommM $25 | M $35 | NM $45 Speaker: Theresa Busher, Public Affairs Specialist Social Security Administration Dayton Office




Promoting Excellence in the Legal Profession

CLE Passports

The DBA is excited to offer to members the DBA CLE Passport again this year. The Passport offers you convenience and savings by allowing you to pre-pay for CLE hours at deeply-discounted rates. Once you purchase your passport, you can easily apply your hours to eligible programs through June 30, 2017. As a DBA member, you save 30% or more on CLE programs.

Start Saving Big On CLE!

Two convenient money saving options: $

295 12-Hour


525 Unlimited



-Ask about additional discounts for 100% Club Members -Online CLE excluded -See website for complete list of Terms & Conditions -Contact CLE Director Jennifer Otchy with questions 937.222.7902 or jotchy@daybar.org

PASSPORT SALES END SEPTEMBER 30, 2016 www.daybar.org

May 2016 Dayton Bar Briefs


daybar.org/cle Recap 2016 DBA Diversity Day

From top to bottom: Chair Barbara Doseck Esq., Keynote Speaker David Singleton and Chair Angelina Jackson Esq. Chair Barbara Doseck Esq., Speaker Tim Young and Chair Angelina Jackson Esq.

Working Together to Promote Access to Justice

Chair Barbara Doseck Esq., Speaker Justice Judith French and Chair Angelina Jackson Esq. Chair Barbara Doseck Esq., James Calhoun Esq., Mag. Brandon McClain and Chair Angelina Jackson Esq.

Friday, April 8th | 8:30-11:45am


n April 8th of this year, I enjoyed the pleasure of joining Dayton Bar Association Diversity Issues Committee Chair Barbara Doseck, numerous state and federal judges from our region, and over 85 attendees at the 2016 Diversity Day. The themes of this year's annual meeting were appropriately "Collaboration" and "Growth." I am happy to report that your Dayton Bar Association is leading the way in developing collaborative efforts intended to grow competent and effective pro-bono volunteers. Beginning with opening remarks from Ohio Supreme Court Justice Judith French and the Ohio Public Defender Timothy Young, we learned of the dramatic need for pro-bono volunteers in order to afford our citizenry access to civil justice. Of particular importance was Justice French’s demonstration that a limited few can dramatically change the way we treat pro-bono service. In fact, it was only a modest task force that promulgated the continuing legal education credit that we as attorneys now receive for pro-bono service. Justice French’s parting message was to lend a helping hand. Limited representation is better than no representation at all. If we have the ability to help those in need with an insular issue associated with a larger case, we should not hesitate to lend such assistance. Following the impressive opening remarks, Diversity Day continued to impress with a panel discussion from Kermit Lowery (Vice President and Assistant General Counsel of LexisNexis), Kelly Henrici (Executive Director of the Volunteer Lawyer Project), Thaddeaus Hoffmeister (Assistant Dean and Professor at The University of Dayton School of Law), and Ellis Jacobs (Attorney with Advocates for Basic Legal Equity). This panel discussed what the Dayton community can do to advance access to civil justice by collaborating with the various organizations within our community to disseminate information and link those in need with competent counsel. This session closed with seminar participants brainstorming on how they might coordinate access to civil justice through our courts, bar associations, and civil organizations throughout our community. Finally, attendees received the luncheon/closing remarks of David Singleton. Mr. Singleton is the Executive Director of the Ohio Justice and Policy Center, a non-partisan, nonprofit, public interest law office based in Cincinnati whose purpose is to reform Ohio's justice system. A Harvard Law School graduate, Mr. Singleton received a Skadden Fellowship to work at the Legal Action Center for the Homeless in New York City, where he practiced for three years. These years were pivotal for Mr. Singleton because they formed his strong belief that we should run towards (not away from) difficult cases involving indigent clients. Fundamentally, we owe it to our communities, our society, and the practice of law to help those in need and suffering the rigors of extreme poverty. Mr. Singleton’s comments were inspirational and a perfect close to an exemplary Diversity Day. Put simply, the Dayton Bar Association’s diversity initiative is in good hands. However, a strong diversity initiative will always need your consummate support and assistance. On behalf of the Dayton Bar Association’s Diversity Issues Committee, thank you for your support and we look forwarding to working with you in 2016!

thank you sponsors! by means of The Estabrook Charitable Trust

By Glen R. McMurry Esq. Diversity Committee Dungan & LeFevre Co., LPA 22 Dayton Bar Briefs May 2016


Watch your clientele grow and Spring into action this May! Join the DBA LRS Panel

take the advantage of the 15 for 12 months promotion Join the DBA LRS Panel in May and receive 2 additional, FREE months of DBA membership advantages!

Have ?â&#x20AC;&#x2122;s Contact: Chris Albrektson Director, Lawyer Referral Service 937.222.7902 calbrektson@daybar.org





s someone who was newly admitted to the Dayton Bar Association in 1962, I should have felt out of place at the recent New Admittee Reception in the Bar Offices. Happily I felt right at home and refreshed by the energy and intelligence of those who are coming on board to replace, as time goes by, those whose prime is passing. While it’s a tough time to be entering a crowded and changing profession, there are obviously an impressive number of young lawyers who embrace change and can handle a tough world from which no one emerges alive. It was my good fortune to meet new faces and share cold beer and conversation with them. Despite foreign wars, terrorists, and bloviating political candidates, it appears that – as always – the present will pass seamlessly into the future.

By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis, LLP

24 Dayton Bar Briefs May 2016


dba committees

Grow personally and professionally through committee participation! Log on to view “Interest Groups”


member info updates ATTORNEYS ALLNUTT, Daniel R. Casper & Casper, LLC Admitted to Ohio Bar: 11/09

O’BRIEN, Daniel J. Dyer Garofalo Mann & Schultz Admitted to Ohio Bar: 11/09

BACK, Christina J. AmeriCorps Notra Dame Admitted to Ohio Bar: 11/15

RIVERA-CEREZO, Enrique G. Law Office of Joseph C. Lucas & Assoc., LLC Admitted to Ohio Bar: 11/09

COATS, Wanda Reed Business Information Admitted to Ohio Bar: 11/80

SIEKMAN, Rachel D. Dyer Garofalo Mann & Schultz Admitted to Ohio Bar: 11/13

COLBERT, Valerie L. Montgomery County Probate Admitted to Ohio Bar: 11/01

SWICK, Steven W. Dungan & LeFevre Co, LPA Admitted to Ohio Bar: 11/15

FERGUSON, Emily M. Dyer Garofalo Mann & Schultz Admitted to Ohio Bar: 11/15


LAND, Robert R. Care Source Admitted to Ohio Bar: 11/16

HOFFER, Tyler J. STARLING, Patricia A.

LENNEN, Kyle J. Rion Rion & Rion LPA Admitted to Ohio Bar: 11/09

MAY 2016 COMMITTEE MEETINGS Small Firm/Solo Office w/ CLE

Mon. May 2 @ Noon - 2:30*

Juvenile Law @ Juvenile Court

Mon. May 2 @ 4:00pm

Diversity Issues Young Lawyers Division

Wed. May 4 @ Noon

Federal Practice

Mon. May 9 @ Noon

Civil Trial Practice & ADR

Tues. May 10 @ Noon

Labor & Employment

Tues. May 10 @ Noon

Appellate Court Practice

Wed. May 11 @ Noon

Environmental Law

Wed. May 10 @ Noon

Estate Planning Trust DATE CHANGE w/CLE

Wed. May 11 @ 4:00pm

Domestic Relations Law @ DR Ct. Judge Woods Ct. Rm.

Thurs. May 12 @ Noon

Real Property

Thurs. May 12 @ Noon

Public & Member Services @ The Old Courthouse Paralegal

Fri. May 13 @ 11:00am

Workers’ Comp and Social Security

105 Riverside Drive, Dayton, OH 45405 • Fax: (937) 278–1337 Tel: (937) 278–8201 • www.rogersmcnay.com


Tues. May 17 @ Noon

Criminal Law & Its Enforcement

Wed. May 18 @ Noon

Corporate Counsel @ Bravo Italian Restaurant

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Tues. May 3 @ Noon

Thurs. May 19 @ Noon

Thurs. May 26 @ 4:30pm

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May 2016 Dayton Bar Briefs


NOMINATIONS NOW BEING ACCEPTED Dayton Bar Association Leadership Development Program


he DBA is again accepting nominations for the Leadership Development Program Class of 2016. The program is designed to develop future interest and leadership in the Dayton Bar Association, to engage lawyers early in their career and to gain a deeper understanding of the benefits of membership. In addition, the Leadership Development Program will provide a networking opportunity by introducing new lawyers to key stakeholders in the Dayton legal community. Eligibility Criteria and Selection Process The New Lawyer Leadership Program will be available to 10 to 15 lawyers who have been practicing less than 5 years. The participants in the program will be selected by nominations that will be solicited from lawyers, law firms, judges, public offices such as Prosecutorâ&#x20AC;&#x2122;s Office and Public Defenderâ&#x20AC;&#x2122;s Office, Legal Aid and corporations. Self-nominations will also be accepted.

Lawyers will be selected from those nominated on the basis of: interest in the bar association, as demonstrated by current membership and committee activities; interest in future leadership positions within the bar association; good standing within the legal community; interest in non-legal community service and/or diversity;

Meetings/Programs The Second Vice President will be the Board Sponsor of the group planning and implementing the program and will be assisted by a Chairperson, who will be selected from the Dayton Bar Association Membership. The group will meet once a month from September to June. Meetings generally will last 1 1/2 hours and will feature key stakeholders in the Dayton legal community, with a wine and cheese reception to follow. At the June 10th Annual Meeting of the DBA, program participants will be introduced. Following the program completion, the graduates will be encouraged to volunteer in one of the bar committees.

NOMINATION DEADLINE: Friday, May 20, 2016 (Please see nomination form on next page)

26 Dayton Bar Briefs May 2016


New Lawyer Leadership Program Nomination / Application Form NOMINATION DEADLINE: Friday, May 20, 2016 Nominations are solicited from lawyers, law firms, judges, public offices such as Prosecutor's Office and Public Defender's Office, Legal Aid and corporations. Self-nominations will also be accepted. Nominees must be practicing for less than five years. Name: ___________________________________________________________________ Employer: ________________________________________________________________ Address: _________________________________________________________________ Phone No.:________________________________________________________________ Fax No.: __________________________________________________________________ Email: ___________________________________________________________________ Year Admitted to the Ohio Bar: ______________________________________________ Primary Practice Area(s):____________________________________________________ Explain your/the nominee's bar association involvement (local, state, and national):

Explain your/the nominee's other community involvement:

Why would you/the nominee be a good fit for the New Lawyer Leadership Program? Signature: ______________________________________Date:__________________________

Please return completed application to: William Wheeler, DBA New Lawyer Leadership Program, 109 N. Main St., Ste. 600, Dayton, OH 45402-1153 or bwheeler@daybar.org www.daybar.org

May 2016 Dayton Bar Briefs


5 for the kids registration


28 Dayton Bar Briefs May 2016



continued from page 8 known) what it was doing when it changed the language in the later statute. Punctuation is important in analysis of the statute. Grammar locks in the “intent” of the legislature, and a court may not otherwise interpret the “real” meaning of the legislation. If there are multiple possibilities to interpret what should be accomplished according to a statute, one of which is defined by the grammar used and is not otherwise absurd, a court may not merely say that the intent of the legislature must be different without any other basis for such decision. Had the legislature inserted a comma after “year” and before “unless”, then the waiver vote might well apply to the general reserve funding requirement. See, Vill. of W. Jefferson v. Cammelleri, 2015 Ohio 2463 (Ohio App., 2015) [court must read words and phrases in context and construe them in accordance with rules of grammar and common usage; interpretation of ordinance where a comma was inadvertently omitted between the phrase "motor vehicle" and the word "camper."] Interpreting O.R.C. 5311.081(A)(1) in accordance with normal grammar rules does not lead to an absurd result, as mandatory funding of appropriate capital reserves without the ability to waive annually is a rational approach to the problem. If not mandatory, then an association could conceivably perpetuate the problem by continuing to underfund reserves, kicking the financial can down the road, as Kaman & Cusimano warn.9 If anything, the interpretation put forth to allow annual waiver of reserves is the absurd result.


The rare situation where a condo association budgets for reserves in an amount less than ten percent of its operating budget could conceivably occur when there is an excess in reserves, an unlikely scenario when projecting a reserve budget over a thirty-year period. In the absence of such a situation, there is an absolute obligation (“shall” generally means “mandatory”) for a condo association board to budget reserves “adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments”. “Compliance with the law means avoiding liability. The easiest way for the board to avoid liability is to obtain a professional reserve study; immediately share the results of the reserve study with all owners and either: 1) adopt a budget that is in accordance with the reserve study recommendations or 2) obtain a majority vote of the ownership waiving the reserves requirement for that particular year10.” Contrary to Kaman & Cusimano’s implication that an annual vote to waive the reserve requirement is always available, analysis by counsel for the Ohio Valley Chapter of the Community Association Institute is consistent with this article’s interpretation of the statutory grammar: [ July 21, 2004, interpreting 5311.081(A)(1)] 7.The Association, through the Board, must adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments. The amount set aside annually for reserves must not be less than ten percent (10%) of the budget for that year unless the reserve requirement is waived

annually by the owners exercising at least a majority of the voting power of the Association.11


Condominium Boards must follow the explicit language and grammar of the reserve funding statute which requires: 1) a condominium association board to adopt a reserve budget without the necessity of special assessments, and 2) any waiver of such mandate by annual majority vote of unit owners is available only when reserve funding is under the threshold of ten percent of operating funds.

Endnotes: Lynne Truss, “Eats, Shoots & Leaves.” London: Profile Books, 2004 ISBN 1-86197-612-7. 2 http://ohiocondolaw.com/the-firm/ 3 http://www.ohiocondolaw.com/articles/ budgets_new_reserve_req.htm 4 http://codes.ohio.gov/orc/5311.081v1 verbatim 1

International Capital Budgeting Institute Professional Reserve Study Standard, shttp:// www.capitalbudgeting.org/index.php/8standards/6-generally-accepted-reservestudy-standards 6 http://www.ohiocondolaw.com/articles/budgets_ new_reserve_req.htm 7 Id. 8 Criterium statement of requirement: http:// ohioreservestudies.com/Ohio%20House%20 Bill135.htm 9 http://www.ohiocondolaw.com/articles/budgets_ new_reserve_req.htm 10 id., ohiocondolaw 11 http://www.caiohiovalley.org/ page/10391~29197/Summary-of-HouseBill-135 5

May 2016 Dayton Bar Briefs



Top Floor Looks Top Drawer – Fifth Floor of the County Courthouse Gets Refurbished By Hon. Jeffrey E. Froelich Second District Court of Appeals


s the fiftieth anniversary of the opening of the Montgomery County Courts Building at 41 North Perry Street is observed in April, 2016, it seems to be an appropriate time to take note of the recent changes on its fifth floor. Since the opening of the building in 1966, both the Second District Court of Appeals and the Law Library have been located on the top floor. Since 1992, they have been its sole occupants.

By Joanne R. Beal Montgomery County Law Library

Recently, both entities have undertaken remodeling projects and visitors will see a change in appearance as soon as they step off of the elevators. The small, “menu board” directory, reminiscent of its mid-century installation, has been replaced by stately and more contemporary signage directing one’s attention to the location of the Court of Appeals, Second Appellate District, its Courtroom, and the Montgomery County Law Library. An image of the counties included in the Second District adorns the marble wall next to the Court’s entrance. In the main hallway, soft seating has been added and large, color photos of each county courthouse in the district are displayed. The existence of the Law Library predates this Courts Building by nearly one hundred years. Formed in April, 1868, the Law Library moved from its first location in an office building to a room adjoining the old superior court in 1871, and ever since has been assigned space in each subsequent courts building. At the time of the 1966 opening of the existing Montgomery County Courts Building, the Law Library occupied nearly the entire fifth floor. Throughout the years, each time less space has been designated for library use, its physical arrangement has been redesigned in order to retain an efficient and service-oriented framework for the retention of legal research materials and the delivery of information in a variety of formats. This latest “repurposing” was aided by a grant from the Dayton Legal Heritage Foundation. The growth and stability of electronic access to legal resources has permitted a recent, significant change in the appearance of the Law Library. A section of tall shelving has been removed which has created a larger and more open reading room. Lower, counter-height shelving, additional soft seating areas and tablet chairs now provide more comfortable locations for the use of personal electronic devices and casual browsing. Although the Law Library is available for public use at no charge, for an annual membership of only fifty dollars, attorneys have the additional benefits of: -unlimited access to Lexis and Westlaw and other research sources -electronic dissemination of requested documents -database training sessions for CLE credit -use of closed door carrels -access to meeting rooms for consultations, client conferences, or depositions -assistance of trained reference librarians The Montgomery County Law Library continues to build on historic strengths to enhance services, maintain a research environment, and develop programs that will support its users and the justice system today and in the future.

30 Dayton Bar Briefs May 2016



Peanut Butter and JUSTICE

The Challenge is winding down and will end on May 31st but the competition is heating up! Which Bar committee will win the first BAR HUNGER Trophy?!

By Bonnie Beaman Rice Bar Hunger Initiative

• Our goal is to collect a total of 5,000+ pounds! • How much can we collect in the remaining 31 days? • With one month remaining on The Challenge, please help us meet our goal!

Kudos and thanks to our friends at Thompson Hine’s Dayton office who, with an incredible generosity of spirit, supported our “Bar Hunger” campaign and collected 294 pounds of peanut butter! Competitive to the core, the office got in the swing of things with Jonathan Hawkins extending an offer to match the “next 20 jars” and, not to be outdone, Jessica Salisbury-Copper countered with her own match challenge.

Thank You Thompson Hine! From left to right in the photo: Jessica Salisbury-Copper, Jonathan Hawkins and Wray Blattner - Photo by Kat Menker


May 2016 Dayton Bar Briefs



Alternatives to Incarceration D

uring the period between 1982 and 2007, the number of Americans incarcerated in prisons and jails increased a staggering 274%. The United States also witnessed a dramatic increase in the number of persons on community supervision during this time period, largely because of the collective belief that communitybased supervision could alleviate prison overcrowding and increasing incarceration costs. Researchers, however, have determined that the increase in the community-supervised population is correlated with a subsequent increase in revocation rates, thus producing evidence that offenders revoked from community supervision comprise a significant portion of the incarcerated population. Recent statistics reveal that the percentage of parolees re-incarcerated after release currently stands at 32%. Although these rates have decreased since 2008, it is apparent that community re-entry continues to remain a difficult transition for offenders. As such, state criminal justice systems are faced with a difficult challenge: to obtain a decrease in the inmate population and an increase in rehabilitation efforts for communitysupervised offenders while operating within fiscal limitations. Alternatives to incarceration have become a popular approach to deal with such a challenge and for good reason: they promise to reduce offender incarceration and recidivism while maintaining public safety and limiting state expenditures. Although many types of alternatives to incarceration exist (e.g., house arrest, halfway houses, electronic monitoring, drug courts, and diversion), one particular alternative that has gained notable attention over the last two decades is the Day Reporting Center. Day Reporting Centers (DRCs) are facilities that offer offenders rehabilitative programming and daily supervision. Offenders assigned to DRCs generally report during daytime hours and return home after daily programming is complete. Unlike other alternatives to incarceration, DRCs provide offenders

32 Dayton Bar Briefs May 2016

By Hon. Barbara P. Gorman Montgomery Cty Common Pleas Court

with practical reentry programming while providing state criminal justice systems the opportunity to monitor and supervise offenders as they remain living within the community. Thus, DRCs are perceived to be cost-effective ways to manage offenders who are under community supervision. The Montgomery County Common Pleas Court-General Division is opening a Day Reporting Program on the grounds of the Bennett J. Cooper Complex. This program will be operated by the Adult Probation Department and is designed to address the re-entry population (ex-offenders, probationers, parolees, homeless, etc.) and the community need for access to social services. It is also in close proximity to the Secure Transitional Offender Program (STOP), which is the Courtâ&#x20AC;&#x2122;s residential drug and alcohol intervention program for male and female offenders. STOP provides programming and services for male and female offenders that are on probation supervision to the Court. STOP is utilized as a cost effective alternative to incarceration and was implemented to assist in reducing crowding in the Montgomery County Jail and the Ohio Department of Rehabilitation and Correction. The Court sanctions offenders to STOP in lieu of a 180 day sentence to the jail or a prison sentence. The Day Reporting Program will provide the Judge with yet another sentencing option for up to 180 days. The offender would be required to attend the program a minimum of 30 days, unless otherwise specified by the Judge. The Day Reporting Program will be an on-site cognitive restructuring program designed to change an offender's adverse thinking patterns, provide education and job training to enable long-term employment, and hold unemployed offenders continued on page 33


from the judges desk:

continued from page 32

accountable during the day. The Day Reporting Program’s activities will reduce offender re-arrest, assist offenders in successful reentry by providing needed services, and increase public safety by holding offenders accountable. These goals will be achieved by providing skill-based learning opportunities, educational and vocational training, and intensive community supervision. An offender could be ordered to report to the Day Reporting Program to address any number of need areas, including: substance abuse, mental health, primary medical care, employment, education, medical insurance, Medically Assisted Treatment (MAT), drug/ alcohol use monitoring, and housing to name a few. The Court submitted a 2016 Innovation Grant application sponsored by the Supreme Court of Ohio to secure funding to implement a literacy curriculum. The Innovation Grant would also enhance the accountability of offenders through daily reporting, community service, urinalysis testing, case management and access to transportation assistance. The Day Reporting Program has the following outcome goals:

To maintain a collaborative effort with Montgomery County Common Pleas Court, Montgomery County Sheriff ’s Office, Cornerstone Project, Wright State University—Boonshoft School of Medicine, Eastway, Samaritan Behavioral Health, Goodwill Industries, MonDay CBCF, ODRC, Re-Entry, Sinclair, Montgomery County Job and Family Services, Pub lic Health Dayton and Montgomery County, Greater Dayton Regional Transit Authority (RTA) and the Volunteers of America (VOA-McMahon Hall residential facility) to name a few, that would assist offenders being released from incarceration or residential programs; To enhance the reliability of the Ohio Risk Assessment System (ORAS), which is utilized for the determination of risk and placement; To reduce the population in the Montgomery County Jail by providing the Court with a local sentencing alternative; To reduce the number of offenders going to prison by providing them with a personalized intervention plan and urinalysis testing; To provide the area’s homeless offender population a place to report during the day that would further their ability to become self-sufficient; and To provide transportation assistance to offenders in need.

services to at least half of the graduates who are in need of wrap-around services. For example, each offender in the program will be held accountable through case management and urinalysis testing. Other services to be provided to offenders who will be monitored through the Day Reporting Program will be the provision of access to transportation assistance through Dayton Regional Transit Authority (bus tokens), and the program will also provide individualized education assistance through a contracted literacy provider. It is expected that the supervisory and wrap-a-round services that will be provided by the Day Reporting Program will help reduce the number of community control violator commitments and will further reduce the number of Felony 3, 4, and 5 offenders committed to prison. The Montgomery County Common Pleas Court-General Division cannot continue to rely on the jail and prison as its main sanctions for non-violent offenders. To improve public safety, the Day Reporting Program will be a multi-agency, multi-service facility to begin the process of building positive relationships with our community.

A primary goal of the Court’s Day Reporting Program will be to provide supervision to at least 200 offenders during the first year of operation. STOP currently graduates approximately 700 offenders annually. The Day Reporting Program will provide additional www.daybar.org

May 2016 Dayton Bar Briefs


Find Out What Fastcase is All About!

Fastcase research and free online webinars:


Unlimited free legal research for DBA members. Log in: www.daybar.org Put that book down! Welcome to the 21st century with legal research powered by analytics. Courtesy of @Fastcase and the DBA.

Fastcase Tip:

You are already a member of Fastcase (via the DBA), so why not take a moment to learn how to use it? Learn about everything from getting started to the more advanced features, such as Forecite and multi-jurisdictional searches. Visit www.fastcase.com/support and click on “Documentation and Downloads”. The guides offer something for everyone, from beginners to Fastcase veterans. Don’t know your login? Contact: Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902

34 Dayton Bar Briefs May 2016

more details on next page


FREE Help for Your Practice Thru the DBA & Fastcase Unlimited FREE legal research for DBA members.Log in at www.daybar.org

Fastcase reasearch and free online webinars available: www.daybar.org

Fastcase Tips:

Boycott endless scrolling! Make legal research faster + smarter with Fastcase’s analytics and Interactive Timeline. The legal corpus is so large that is inconceivable to search it with anything less than the most advanced tools. The Dayton Bar provides you with state-of-theart tools for free via Fastcase. With Fastcase’s “Interactive Timeline” feature, you can see - at a glance- how relevant each case is to you search, how many times it was cited by other cases in your search, and even which cases outside of your search were cited. With this member benefit, there is no more need for endless scrolling - important cases are obvious right away.

Don’t pay for all that printing. With your Fastcase membership through the Dayton Bar you can print for free! Dramatically cut down your printing time (and cost) with batch printing: -Just move the documents you want to the que, review them, and press print. -No charge. No URL. No ads. Other services charge upwards of $20 to print cases. -These fees come straight out of your bottom line, your client’s wallet, or both. Make the smart (and affordable) choice: free printing is just a click away.

GET STARTED at www.daybar.org | Use your DBA login and password to access Fastcase Don’t know your login? Contact Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902 www.daybar.org

May 2016 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

The DBA Foundation Board of Trustees


The 1,700 members of the Dayton Bar Association for their support of the Foundation Which provides grant funding to worthy law-related organizations and projects in our community. As the philanthropic arm of the local legal community, the Foundation is dedicated to supporting those organizations who directly assist the disadvantaged gain access to our justice system. In so doing, the community is served and the public perception of the legal profession is improved. To obtain more information about the Dayton Bar Association Foundation

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

Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases. Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)

Please return this form to VLP: By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402 By Fax: to (937) 461-4731 By Phone: (937) 461-3857 By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:_ _____________________________________________ Preferred County for Pro Bono Service:_ ____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same. 36 Dayton Bar Briefs May 2016


Thurgood Marshall Law Society How to Contact TMLS: President Robert Gresham 937-222-7477 rgresham@ yourohiolegalhelp.com

Vice-President Gerald Parker 937-223-8888 gparker@dgmslaw.com

Secretary Natasha Newberry 937-225-4253 newberryn@mcohio.org

Treasurer Ciara Parks 937-225-5768 parksc@mcohio.org

Send any email questions or concerns regarding TMLS to: thurgoodmarshalllawsocietydayton@yahoo.com

JOIN US Groups: Thurgood Marshall Law SocietyDayton


LIKE US Thurgood Marshall Law SocietyDayton

University of Dayton School of Law


May 2016 Dayton Bar Briefs


members on the move Freund, Freeze & Arnold, LPA is pleased to announce that attorney, Shannon K. Bockelman, has been named one of the Dayton BOCKELMAN Business Journal’s 2016 “40 Under 40” award winners. This awards will honor the Dayton region’s up and coming leaders with a special dinner and awards program. Bockelman focuses her practice on civil litigation with a concentration in commercial and business litigation, medical malpractice, nursing home, and professional liability defense. In addition to her work, she devotes her time to the GDVLP, working with the START program counseling female inmates at the Montgomery County Jail and she was recently selected to participate in the Ohio Women’s Bar Association Leadership Institute. The American College of Real Estate Lawyers has named UD Law Professor James Geoffrey Durham a fellow for his outstanding legal ability, DURHAM experience, and high standards of professional and ethical conduct in the field of real estate law. There are only 960 fellows nationwide and just 29 in Ohio. Durham will participate in national programs advancing the field of real estate law. Durham, is the director of faculty research and practiced or taught law for 40 years. He serves on the governing council of the 22,000-member Real Property, Trust and Estate Law Section of the ABA; chaired the Ohio Supreme Court’s Commission on Certification of Attorneys as Specialists, and helped write a treatise on Ohio real property law and a law school textbook for use in advanced real estate transactions classes. Taft Stettinius & Hollister LLP attorney Victoria L. Nilles has been elected to serve as first vice chair of the Girl Scouts of

NILLES 38 Dayton Bar Briefs May 2016

Western Ohio for a two-year term. Victoria is a resident of Oakwood. Pickrel, Schaeffer & Ebeling, Co. LPA is pleased to announce that firm shareholder, Alan Schaeffer has been selected by his peers for inclusion into the SCHAEFFER 2016 edition of The Best Lawyers in America. Best Lawyers is based on an exhaustive annual peer-review survey comprising of more than 6.7 million evaluations by top attorneys. Lawyers are not required or allowed to pay a fee to be listed. Alan concentrates his practice in the areas of construction, environmental, land use planning, zoning, real estate and municipal law. Pickrel, Schaeffer, and Ebeling is also proud to announce that Eli T. Sperry has been selected as a Dayton Business Journal “40 under SPERRY 40” winner. Winners are selected based on three main criteria: business leadership, community leadership, and career path. Eli is an associate in the Probate and Estate Planning department. His goal with all clients is to provide the best advice from all different perspectives including tax, business, legal and long term care options. Eli is an active participant in the Will for Heroes program and he provides pro bono legal services as part of the GDVLP. Eli recently received the 2015 Law Day Award. He also spends time participating and volunteering with local organizations including Artemis Center, Downtown YMCA, Crayons to Classrooms and Life Essentials. The partners of Dungan & LeFevre Co., L.P.A. are pleased to announce that Steven W. Swick has joined the firm as an Associate Attorney. He SWICK will be working in the firm’s Troy office and will concentrate his practice in the areas of Real Estate and Income Tax.

mark your calendar Upcoming Chancery Club Luncheon(s): Fri. May 13 - Liberty Bell Award Recipient Recognized Doors will open at 11:30am SEATING IS LIMITED! RSVP: calbrektson@daybar.org Law Day Fri. May 6 | The Old Courthouse | Time: TBA

YLD Events: Get Behind the Bar YLD v. Mature Lawyers Fri. May 6 | Brixx Ice Co. | 5:30pm Celebration of Life Memorial Luncheon Wed. May 25 | Sinclair College | Doors open at 11:30am 5K for the Kids Race Fri. May 27 | Brixx Ice Co. | 7:00pm Wills for Heroes Sat. June 4 | Montgomery Cty Sheriff, Regional Training Ctr 6722 Webster St., Vandalia, OH 45414 *Entrance is on Wyse Rd. past the Bark Park.* Training: 8:30am ; Appts. 10:00-3:00pm Annual Meeting Fri. June 10 | Sinclair College | Doors open at 6:00pm Barristers Bowl Fri. June 24 | Poelking Lanes | 6:30pm Dayton Dragons Game Wed. July 27 | Fifth Third Field | 6:00pm *Tickets distributed July 20 at 8:00am

advertiser index

Adam Krumholz Esq............................15 ComDoc Inc............................................13 Dayton Commercial Reality................34 Eikenbary Trust.....................................34 Ferneding Insurance............................31 J. Steve Justice - Mediations...............16 Julie Walling Photography..................13 Law Enforcement Experts...................39 LCNB Bank.............................................12 National Processing Solutions............24 OBLIC.......................................back cover Pohlman & Talmage CPAs...................33 R.L. Emmons & Associates..................39 Rogers McNay Insurance.....................25 Tally Funding.........................................34 Trisha M. Duff - Mediations...................9 Thomas P. Whelley II............................32


classifieds Professional case review, testimony, and policy analysis Over 60 years of Law Enforcement experience!


Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 4-10 years of legal experience for an associate position in our corporate law department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, and a strong work ethic. The candidate should demonstrate appropriate substantive knowledge of and interest in general corporate law, mergers and acquisitions, and real estate transactions. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Daniel J. Gentry Esq., Professional Development Committee Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to gentry@coollaw.com, with “Associate Application” in the subject line.


Coolidge Wall Co., L.P.A., a full service Dayton firm since 1853, seeks a highly motivated and qualified paralegal to work within our corporate and real estate departments. The ideal candidate will have excellent academic credentials, 4+ years of experience, and be knowledgeable regarding all aspects of corporate and real estate practice, including purchase and sale transactions. Please send resume, school transcript, references and any letters of recommendation to: Michelle D. Bach Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@coollaw.com.

MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 572-3185 judgewolff@woh.rr.com

• Police Procedure & Administrative Negligence • Use of force & Defensive Tactics • Training • In custody death and handcuffing • Stops and Approaches • Intermediate weapons and firearms


Larry Faulkner (937) 478-2866 Bill Parsons (937)673-3698

Office Available Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 2241427.

OFFICE SPACE 101Southmoor Circle, NW (Stroop and Far Hills). Three offices available at $550/ month/office. Furnished or unfurnished. Take one two or three offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, dry basement file storage and Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

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

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LOCAL COURT RULES Dayton Municipal Court has proposed 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.


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DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

May 2016 Dayton Bar Briefs


Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED


Profile for Dayton Bar Association

Dayton Bar Briefs May 2016  

Dayton Bar Briefs May 2016