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The Magazine of the Dayton Bar Association | September 2019 | Vol. 69, No. 1


Bar Briefs

Barrister of the Month Magistrate Elaine Stoermer pg 6

Ohio Legislation

Major Changes in the World of Notary Publics pg 8

Mindful Wellness

Please! Not Another Work Life Balance Article pg 10



Bar Briefs

September 2019 | Vol. 69, No. 1

Dayton Bar Association Board of Trustees 2019 – 2020

Hon. Mary L. Wiseman President

Fredric L. Young First Vice President

Merle F. Wilberding Second Vice President

Caroline H. Gentry Secretary

Brandon C. McClain Treasurer

By The Honorable Mary L. Wiseman




By Michelle M. Thompson

OHIO LEGISLATION Major Changes in the World of Notary Publics

By Fredric L. Young

10 MINDFUL WELLNESS Please, Not Another "Work-Life Balance" Article

By Erin E. Rhinehart


12 HELENKA By Lindsey C. Posey

Anne P. Keeton


Rebecca M. Gentry


Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

David P. Pierce

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

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


Features 4 PRESIDENTS MESSAGE: An Exciting Year Ahead Planned for the DBA and Its Members

Dayton Bar Briefs September 2019

“Unanticipated Consequences”: U.S. Supreme Court “Knicks” State Appropriation Proceedings Prior to Filing Fifth Amendment Takings Claims in Federal Court

By Michael D. Rice


Law School Memories: Celebrating 45 Years of the University of Dayton School of Law

By Professor Emeritus Dennis J. Turner

20 FROM THE JUDGES DESK Ohio Supreme Court Expands Application of Damage Caps and Limits the Saving Statute

By The Honorable Timothy N. O'Connell

Departments 14 CONTINUING LEGAL EDUCATION 19 SEPTEMBER 2019 SECTION MEETING DATES 25 CLASSIFIEDS Upcoming Events 5 50 YEAR HONOREE CELEBRATION Thurs. October 17th | Sinclair Community College Bldg 12 | Doors open 11:30am 7




Wed. November 20th | 4:00pm *Refreshments & Discussion "To Kill a Mockingbird" by Harper Lee

Wed. October 21st | University of Dayton School of Law Guest Speaker: The Honorable Jane Kelly, Eighth Circuit Court of Appeals


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 FARUKI+

www.ficlaw.com With offices in Cincinnati & Dayton

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

Gold Partner Thompson Hine LLP www.thompsonhine.com

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

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

September 2019 Dayton Bar Briefs


President's Message

An Exciting Year Ahead Planned for the DBA and Its Members S

Popcorn,Pizza & A@Movie the CourT Friday, October 25th @ 11:30am RSVP to Tyler: twright@daybar.org Join us as Judge Wiseman welcomes all to her courtroom to watch the 1993 cinematic classic “My Cousin Vinny.” Two New Yorkers are accused of murder in rural Alabama while on their way back to college, and one of their cousins-an inexperienced, loudmouth lawyer not accustomed to Southern rules and manners--comes in to defend them. 4

Dayton Bar Briefs September 2019

By The Honorable Mary L. Wiseman DBA President Montgomery County Court of Common Pleas

eptember kicks off the busiest time for the DBA, as its section and project chairs and co-chairs begin planning and staging meetings, CLE events, Bar Briefs articles, and other activities designed to benefit DBA members. On the DBA’s monthly calendar of events for the upcoming year, you will see a broad spectrum of opportunities to learn, network, and enhance your practice. As that activity unfolds, DBA members will see that each month carries a general theme or point of emphasis. In September, the focus will be on wellness for attorneys and others in the legal profession. Our profession is stressful and that reality is reflected in our physical and mental health. Stress, overworking, and the neglect of physical and mental health needs leads those in the legal profession to high rates of career dissatisfaction, mental health issues, substance abuse, and physical illness. Hence, it is vital to educate, train, and encourage lawyers, paralegals, and legal assistants to engage in good self-care, both mentally and physically. To coincide with October’s celebration of National Celebrate Pro Bono week, the topical focus that month will be on pro bono, community involvement, and philanthropy. Then 2019 will wrap up with the themes of practice basics in November and year end reviews/new legal developments in December. The January theme will be on technology, a topic that continues to grow in complexity and importance for attorneys. In February, which is the DBA’s Member Appreciation Month, the DBA aspires to tackle the tough but increasingly relevant topic of law firm and law office security, addressing in particular how to appropriately respond to violence or threats of violence by clients, former clients, disgruntled employees, or others. As March will bring us the first signs of spring, the topical focus will take a lighter touch by addressing the law of entertainment and/or “vices”, such as gambling, alcohol sales, or issues arising from the legalization of medical marijuana. Coinciding with the DBA’s Annual Diversity Day held each April, the programming in April will emphasize the importance of diversity, equity and inclusion in the law. Finally, the year’s activity will wind down with a month of May programming aimed at professionalism, ethics and civility. Not every section meeting, event, or CLE will carry these themes, but many will so that these important topics can receive a diverse and large range of programming. In addition to this alignment of broad topics, opportunities for shear fun and camaraderie will be hosted by the DBA. Those opportunities will include an occasional Friday lunchtime movie with pizza and popcorn at the courthouse, a book club, and more. As the DBA drives these and other initiatives forward to fully implement its strategic plan, it will continually seek member input and suggestions, tailoring its programming and work to best suit the needs and wants of DBA members. I, the Board of Trustees, and the fantastic DBA staff look forward to an exciting, educational, and rewarding year ahead!



Honoree Luncheon Thursday, October 17, 2019 | Doors open 11:30am Sinclair Community College, Building 12 RSVP (1) $35 | Table (8) $280 Register! Online daybar.org/honoreeluncheon Call 937.222.7902

Congratulations 2019 Honorees:

Richard Austin

Thomas G. Rawers www.daybar.org

David M. Deutsch

Eric Silverberg

Dennis E. Gump

Ronald D. Keener

Brian D. Weaver

James R. Kirkland

Merle F. Wilberding September 2019 Dayton Bar Briefs


Barrister of the Month

Magistrate Elaine Stoermer “B

ut there is one way in this country in which all men are created equal- there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution gentlemen, is a court. It can be the Supreme Court of the United States or the humblest JP court in the land, or this honourable court which you serve. Our courts have their faults as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal” ~Harper Lee, To Kill a Mockingbird


ike many before her and many after her, To Kill a Mockingbird solidified her interest in the law. However, it was the play Inherit the Wind that sparked this interest. “Your Honor, this entire trial is unorthodox. If the interests of Right and Justice will be served, I will take the stand.” (II, II, 377-78). She read this play as a young seventh grader, and after reading and watching To Kill a Mockingbird, the interests of right and justice lit the path to become a great leveler. September’s Barrister of the Month is Magistrate Elaine Stoermer, with the Montgomery County Domestic Relations Court. As a senior in high school, she moved to Centerville with her parents and attended Alter High School, graduating in 1972. Thereafter, she attended Miami University in Oxford, Ohio, obtaining her B.S. in Political Science and Economics in 1975. She then became a Dayton Flyer and graduated from the University of Dayton School of Law in 1981. Magistrate Stoermer practiced law from 1981 until 1995 specializing in domestic relations litigation. During that time, she became a part-time magistrate for the Montgomery County Juvenile Court in 1992, and she has been a full time magistrate with the Montgomery County Domestic Relations Court since 1995, where she is also the GAL Coordinator. As she continues to guide the path of right and justice in Dayton, she is a very active member of the Dayton Bar Association. Not only has she contributed articles to the DBA’s Bar Brief ’s magazine for the DR Corner, she has presented at DBA seminars and meetings. 6

Dayton Bar Briefs September 2019

She is also an active member of the DR Section of the DBA. Her involvement in the bar does not end there. Magistrate Stoermer is also a member of the Ohio State Bar Association, the Ohio Association of Magistrates, and the Stanley Z. Greenberg Family Law Forum, where she has also presented during seminars and meetings. Magistrate Stoermer’s legal path is just one direction on her path surrounding the Miami Valley. After beginning her career as a full time Magistrate, she commuted to work on her bicycle, logging many miles riding the bike paths in the area. She did this until she obtained her Pembroke Welsh Corgi puppy – a puppy that could make even the meanest in our profession melt. If you have practiced in her Court or have been in her Chambers, you will have the opportunity to see pictures of her Corgis. If you pay close attention, you may also learn of her affinity to the color purple. It just so happens that the color purple is often associated with royalty, and the Queen of England also has Corgis. Although this is just a likely coincidence, the color also means passion, vitality, and fulfillment – characteristics that describe Magistrate Stoermer on each path of her life and career. Her full time Magistrate position did not stop Magistrate Stoermer from leading her Corgis along another path. She started training, competing, and instructing in several “canine” venues, including obedience, rally, tracking, and nosework. She is a member of two local dog clubs. Currently, she is busy training and trialing with her current Pembroke Welsh

Corgi in nosework and scent work. Her passions in life do not fall short with just the law and corgis. Now, it is not confirmed that this was the best day of her life, but a day that she will never forget is November 2, 2016. Game 7 of the 2016 World Series. The Chicago Cubs came back from a 3-1 series. Home field advantage seemed to be working for the Cleveland Indians. That is, however, until a rain delay changed the drought for the better team. In the tenth inning, the Cubs scored two runs and held the Indians to only one run – winning the 2016 World Series! Magistrate Stoermer could not believe what she was seeing, but she knew all was right and just in the world. It brought her back to the play that sprouted her interest in the law – Inherit the Wind. The Indians seemed bright, shiny, and perfect that day, but the Cubs made everyone look behind their eye-black face paint for the truth.1 “All shine, and no substance! … [W]henever you see something bright, shining, perfectseeming—all gold, with purple spots—look behind the paint! And if it’s a lie—show it up for what it really is!”

By Michelle M. Thompson DBA Editorial Board Ulmer & Berne LLP


Readers, this is your spot!

The DBA launches our first ever book club this fall. Join us as we meet quarterly for enlightening discussion, comradery and snacks. Participants can come and go as they please – no requirement to read every book or attend every discussion. This year, the DBA will be engaging members with a cross section of literary classics, law-related themes and societal issues. The November DBA Book Club selection: To Kill a Mockingbird by Harper Lee Bring your copy of the book, your opinions, thoughts, and perspectives to the DBA Offices on November 20th. The DBA wants to make this the experience you’ve been hoping for. Drinks and eats provided. You get to decide how you want to enjoy the book club experience!

To Kill a Mockingbird by Harper Lee November 20, 2019 | 4:00pm | DBA Offices 2019-20 DBA Book Club Meetings: January: Devil in the Grove by Gilbert King

March: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance

May: Book Club Selection


September 2019 Dayton Bar Briefs


Legislation Changes

Major Changes in the World of Notary Publics By Fredric L. Young Co-Chair Judges Section on Notaries Public Green & Green Lawyers


otaries public are an important part of our legal system. They play a critical role in depositions, presentation of affidavits, transfers of property, financial documentation, and the list goes on. The processes for obtaining and monitoring commissions for notaries public in Ohio have been largely unchanged for decades, but those processes often differed county by county, until S.B. 263 (also identified as the Notary Public Modernization Act) was signed by Governor John Kasich on December 18, 2018. The commissioning process has been centralized, notaries public face more stringent reporting requirements, and a new concept, online notarization, is now permitted. Before S.B. 263, the process for obtaining a notary commission varied by county. In Montgomery County, applicants reviewed the notary public “textbook� and took the notary public test at the Dayton Bar Association offices. Carol Blevins ran that process for years, and upon her retirement, Lori Luebben capably took the reins. After the testing was complete, members of the Judges Committee on Notaries Public alternated grading the tests. Graded tests were quickly returned and those who passed and were otherwise of good moral character were certified by one of our Common Pleas Court Judges. Then off to the Secretary of State the certifications would go so we could add more proud notaries public to the ranks. Also, most attorneys reading this learned around the time they took the oath that they had the high honor of being a notary for the rest of their careers by filling out a form, paying a fee, and buying the stamp,


Dayton Bar Briefs September 2019

stamp pad and crimper (mine are still with me today). Our Committee also reviewed and investigated complaints against notaries public, often working with local law enforcement, interviewing witnesses and notaries, and holding hearings to determine if violations occurred. While most notaries public take their duties seriously, as in every endeavor a few do not, and their negligent or intentional conduct can create harm and havoc to others. Through the years, our Committee pulled the ticket of several notaries public who did not understand their obligations or who found their commissions could be a shortterm profitable tool in criminal activities. This has been the process for decades. But like many things, change was inevitable. A movement grew seeking consolidation of this process and other changes to modernize the notary public system, including a major new development, the commissioning of e-notaries. These changes are encompassed in S.B. 263. The changes are extensive, and I offer only the briefest of summaries in this article. While many would consider the major change is the addition of online notary services, lawyers will want to know how the new statutory scheme affects them. Attorneys who already had standard notary commissions before September 20, 2019, will keep them with no other requirements as long as they are licensed to practice in Ohio. To ensure your commission is properly registered, please check the notary section of the Ohio Secretary of State Website.

continued on page 9


Major Changes in the World of Notary Publics continued from page 8

Beginning September 20, 2019, nonattorney notaries will be required to complete an education course and pass a test on notary law and procedures. Also after that date, new attorneys and attorneys who had not yet obtained a notary commission and who seek standard “wet stamp� notary commissions after the effective date of the statute will not be required to take or pass a test, but they will be required to complete the notary education course. While nonattorneys hold a five year term, attorneys will still hold their commission for as long as they practice law in the State of Ohio, unless the commission is otherwise revoked. Also, nonattorneys will have to complete a criminal background check at their own cost as part of the application process. Notaries public will have an obligation of self-reporting guilty or no-contest pleas or convictions to certain qualifying offenses. The Secretary of State can revoke commissions, even those of attorneys, for qualifying offenses. Another major change is the adoption of procedures for online notarizations. Notaries with standard commissions can elect to pursue online notary commissions. They will be required to participate in additional education courses and take and pass additional tests. Five year terms apply to both attorneys and nonattorneys for the online

notary commissions. Flexibility for the notary public and the document signer is the intended goal of the online notary process. Now documents can be notarized remotely using a two-way audio/video communication system with electronic software that places the official notary seal and signature on the document. Documents notarized online in this manner are considered original documents, and any notarial act except certifying a deposition can be performed as an online notarization. The new law centralizes the oversight of all notaries public activities with the Ohio Secretary of State including testing, commissions and enforcement. The Dayton Bar Association has joined with the bar associations from Akron, Toledo, Cincinnati and Cleveland and the Ohio State Bar Association to create a separate business entity, Ohio Notary Services, LLC, that will offer education and testing programs for standard commissions. Ohio Notary Services, LLC, will be the only source for education and testing for e-notary commissions. The website for the group is: www.becomeanohionotary.com Registration through this site will begin September 20, 2019. You and your staff members who are or want to become notaries can still reach out to the Dayton Bar Association for class

registration and questions. The Dayton Bar Association will continue to be a major force in the education and commissioning of notaries public, both of the standard commissions and the new e-notary commissions. This brief summary is intended as a broad overview and an incentive to review the many changes now coming to the notary public world. The Ohio Legislative Service Commission also provides an excellent Bill Analysis available online which describes these changes in more detail if the actual text of the bill seems too exciting for an evening read.

Catch the Video Replay of dba cle:

Notary S.B. 263

9/11 @ 9am

9/17 @ 2pm

9/12 @ 9am

9/18 @ 9am

About First Monday in October:

Each October, the DBA and the University of Dayton School of Law collaborate in celebration of the First Monday in October, which marks the beginning of the United States Supreme Court's term. The purpose of the celebration is to increase awareness among students, attorneys and the public about the Supreme Court's significance. This event is held on Monday, October 21st, yes, we know, this isn't the "First Monday", however we ask that you join us for lunch and program in the Mathias Heck Courtroom in Keller Hall. The Honorable Jane Kelly of the Eighth District Court of Appeals will be this years speaker.

About Judge Kelly:

On April 24, 2013, the Senate unanimously confirmed Jane Kelly to the United States Court of Appeals for the Eighth Circuit by a vote of 96-0. Judge Kelly has brought much-needed gender and professional diversity to the court, which has jurisdiction over seven states: North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas. She is only the second woman ever to sit on the Eighth Circuit. Furthermore, as a former career Federal Defender, Judge Kelly has added an important perspective on criminal justice to the Eighth Circuit.

RSVP daybar.org/events/firstmondayoctober www.daybar.org

September 2019 Dayton Bar Briefs


Health & Wellness

Mindful Wellness


Not Another "Work-Life Balance" Article By Erin E. Rhinehart FARUKI+


en and women are finally catching on to the cruel joke that is “work-life balance.” You simply cannot be all things to all people at all times. Balance is an unattainable goal. Yet, we feel like failures when we cannot attain it. It is time to get real. Reality is unbalanced. It is messy, busy, distracting, and exhausting. It is also challenging, exciting, loving, and rewarding. The truth is you can have a satisfying career and a fulfilling life – regardless whether that life includes children, a significant other, travel, or time for yourself to do whatever it is that you enjoy. Just don’t expect it to be pretty all the time. Redefining expectations is essential. As lawyers, we are taught to manage clients’ expectations; but, we often fail to manage our own. So, what are some realistic expectations?

Recognize that there is no such thing as balance.

Let’s get real. There is no such thing as balance.  At least not balance in the sense that everything, 100% of the time, is in complete equipoise.  Balance is a personal decision.  To find and maintain any sense of sanity, the idea (and ideal) of balance must be tossed aside. As lawyers, we are expected to put our clients first, and be available 24/7.  As parents, spouses, siblings, sons, and daughters, we are expected to put our family first, and be available 24/7.  This leaves us little room for much else.  This is the impossible dream for which we all strive, to be everything to everyone all the time – and to do it flawlessly no less.  We set ourselves up to fail.  It is time to redefine balance.  10

Dayton Bar Briefs September 2019

This is the best part. Balance can mean whatever you want it to mean – and only you get to judge whether you have it or not. For many, redefining balance is a process. Just when you think you may have found it, it disappears as quickly as it arrived. Don’t get discouraged. Figure out what is important to you, prioritize, and execute. Lather.Rinse.Repeat.

Be proactive.

While it is important to recognize, and appreciate, that men and women struggle with these issues, their responses and reactions can be very different. Often, men are ashamed to ask for less, and women are afraid to ask for more. Once you figure out what it is that you want, ask for it. Having it “all” (whatever that may mean to you) requires you to take action – at work and at home. Your clients, partners, and supervisors are unlikely to walk into your office to suggest that you take a flextime approach to work because you are struggling to manage all of your responsibilities. They are unlikely to do this because they are managing their own personal and professional challenges – not because they are tyrannical dictators who lack compassion. You must take ownership of your career because no one else will.

Set boundaries.

“No” is a complete sentence. Learning to set boundaries is important. As a young lawyer, this may be more difficult. But, as you develop and progress in your career, you can gain the trust and confidence of your partners, executives, and other superiors, which

will allow you to gain more control over your time and choices. (So long as you speak up.) It never gets easy to say no; but, it does become a more viable option. And, you will find that you are better equipped to evaluate which opportunities to decline and which opportunities are worth the extra hours.

Practice gratitude.

Stop beating yourself up over what you don’t have, failed to achieve, or can’t attain. You have come a long way. If you are reading this article, it is very likely that you have graduated law school, passed the bar exam, secured employment, have been promoted, and are being proactive about your career. Not too shabby, my friend. Do you have a family who loves and supports you? Do you have friends to laugh with, go for a run with, or just vent to after a long day? Did you ask to take that deposition – and then nail it? Did your client thank you for helping her? Did your kids give you a hug before you ran out the door this morning? Those are all pretty great accomplishments. Set aside five minutes every day to look back and focus on what went right that day. We are all so hyper-focused on the negative (because that’s our job as lawyers, right?) that we forget to be grateful for all of the positive things in our lives. Happiness is a choice – choose to be happy.

continued on page 11


MINDFUL WELLNESS: Please, Not Another Work-Life Balance Article continued from page 10 Embrace the crazy.

Mental and physical wellness is essential to the successful practice of law. Period. Full stop. No eye rolls or judgment. The new normal is here; and, the DBA’s Health and Wellness Section is committed to ensuring that law students, lawyers, and other legal professionals make wellness a priority, and can accomplish that priority with as little struggle as possible. Alexander Hamilton wrote, “I never expect to see a perfect work from imperfect man.” The Federalist No. 85. We are all imperfect. We are all unbalanced. Enjoy it, learn from it, embrace it. Prior versions of this article, and a related piece, have been featured in TYL, the official publication of the American Bar Association's Young Lawyers Division, the Ohio Women's Bar Association's Newsletter, and Be Leaderly.


upcoming Chancery Club Luncheons Join us monthly on our new date - Thursdays! These luncheons will be held at The Old Courthouse. Great speakers & topics, delicious catered lunch, networking & discussions! The DBA would like to thank the Eichelberger Foundation for its generosity with sponsoring these luncheons.

2019-20 Chancery Club Luncheon Dates:

September rd5th October 3 th November 7nd January 2 th February th6 March 5nd April 2 May TBA

September 2019 Dayton Bar Briefs


In Memoriam


t is a difficult task to reduce the life of one person into a few paragraphs on a page. It is even more difficult to do so for the life of a Dayton legend. As the President of the Greater Dayton Volunteer Lawyers Project (GDVLP), this heavy burden falls to me. She was literally a Dayton legal rock star, and like Cher or Prince, most of us in Dayton knew her by just her first name – Helenka. Helenka Marculewicz was so well known and well respected in part because of her tenure as the founding Executive Director of the GDVLP. Helenka served as the GDVLP’s Executive Director for 25 years. The GDVLP provides pro bono legal representation to low-income individuals in civil case areas. She dedicated herself to this mission, growing GDVLP from a small and modestly-funded local organization into a nationally-recognized, regional pro bono institution. Helenka was successful in this endeavor because she was compassionate, empathetic, and believed that access to justice is a universal right for everyone, regardless of socio-economic status. Yet she was also organized, efficient, and able to successfully encourage, cajole, and corral numerous volunteer attorneys, many of whom had irregular or inconsistent experience in providing pro bono legal services. She blended these roles to the point she was able to keep hundreds, if not thousands, of people in their homes and helped resolve numerous legal issues of low-income individuals in areas of domestic relations, landlord/tenant, expungements, bankruptcies, and debtor-creditor issues. Her development of the GDVLP helped Dayton attorneys fulfill their ethical obligation to provide pro bono services by providing meaningful and enjoyable volunteer experiences. Helenka was recognized both locally and nationally for her exceptional leadership and commitment to access to justice issues. Locally, she received the Dayton Bar Association’s Liberty Bell Ward, the Advocates for Basic Legal Equality (ABLE) and Legal Aid of Western Ohio (LAWO) Distinguished Service Award, and the University of Dayton School of Law’s Walter H. Rice Honorary Alumni Award. Nationally, she was the founder of the National Association of Pro Bono Professionals and served as its inaugural and longstanding President. In his memorable introductory speech at the GDVLP’s 25th anniversary celebration, Judge Walter Rice, GDVLP Emeritus Board Member, described Helenka as “the face of justice – in our community and beyond.” When talking to others about Helenka’s influence, the common refrain was, “Helenka taught me so much.” She left a mark on everyone she encountered. Friend and former GDVLP Board Member Sarah Brown described Helenka as someone who met the world as she found it – willing to engage in serious topics in a way that left the participants energized by the conversation, even if a greater understanding of the other position was all that resulted. “Helenka could defend her position but was also willing to listen to the opposite opinion. She taught me to 12

Dayton Bar Briefs September 2019

be humble about my opinions, and she was also not afraid to admit she had changed her mind about certain things.” It was this fearless attitude that brought Helenka success on behalf of the GDVLP and the other public service efforts she participated in. It became hard to say no to someone who so positively and persistently requested assistance. Kathy Miller, GDVLP paralegal who worked with Helenka for many years, was quick to acknowledge Helenka taught her much about pro bono law, the legal profession, and working with volunteers. But Kathy noted that Helenka’s biggest lesson had nothing to do with work or the GDVLP. According to Kathy, after Helenka’s partner, Jean, was diagnosed with lung cancer several years ago, Helenka told her in her most serious voice, “If you want to do something, go somewhere, write a book, learn a language, whatever… don’t wait, do it! Go have fun and enjoy life. If you wait for some other time that time may have slipped by.” Helenka’s advice prompted Kathy and her husband to stop debating and go to Europe for their 25th wedding anniversary. Helenka followed the advice she gave to others. While I was completing my Equal Justice Works AmeriCorps fellowship at LAWO in 2008, I attended the American Bar Association’s Equal Justice Conference in Minneapolis, Minnesota. Helenka, in attendance representing the GDVLP, recruited a group of pro bono professionals from Ohio to spend the evening at a polka bar. I will never forget the joy and happiness Helenka demonstrated that night—beverage in hand, singing at the top of her lungs to polka music in the background, surrounded by friends who shared her passion for justice. This ability to blend hard work and joyful engagement is a model I strive to mirror. Helenka loved sailing, cooking, playing golf, as well as playing (and winning) at trivia. She was also an animal lover, taking great joy in the company of her dogs. Soon after moving from Dayton to Florida, her new local community was just as quick to recognize her leadership abilities. She was drafted to be the Board president of her local homeowner’s association, and then shortly after that, she was chosen as president of her golf group. Step-daughter Jessica Hardie said, “People turned to Helenka because she was steady, she listened, and she was fair.” Helenka Marculewicz passed away on Tuesday, June 18, 2019. As Irving Berlin said, the “song is ended, but the melody lingers on.” Thank you, Helenka, for your dedication to the GDVLP, your impact on the Dayton community, and for showing us how to live life to the fullest.

By Lindsey C. Posey Social Security Administration, Office of Hearing Operations GDVLP Board President


Special Events The DBA Women in Law series invites DBA Members BOTH Women and Men to share important topics and information. Join us for the first discussion with refreshments to follow!

visit daybar.org/event/meanlawyers to rsvp!

Dayton Dragons Stadium Naturalization


n August 21, 2019, United States Magistrate Southern District of Ohio Judge Michael J. Newman was honored to be the presiding Judge over the naturalization at Dayton Dragons stadium. Twenty new U.S. citizens were naturalized to commemorate Constitution Day & Citizenship Day and in recognition of the Dragons's 20th anniversary in Dayton. Judge Newman is pictured above with the new citizens and Judge Thomas Rose, U.S. District Court for the Southern District of Ohio; Richard Nagel, Clerk of Courts; and James Tosto, Clerk's Office Naturalization Coordinator.


September 2019 Dayton Bar Briefs


Continuing Legal Education SEPTEMBER



Thursday, September 12th | 1:00 - 4:15pm (video replay) Ethics Case Law Review and New Advisory Opinions 3.0 General Hrs Member $105 | NonMember $150 | Passport Holder $0

Friday, November 8th | 8:30 - 4:00pm 27th Annual DBA Bench Bar Conference Fair Elections VS Social Media @ Sinclair Community College Building 12 5.75 General Hrs, 1.0 Professional Conduct Hr EARLY BIRD SPECIAL Register before October 16th: Member $175 | NonMember $275 | Passport $30 After October 16th : Member $215 | Nonmember $300 | Passport $30

Wednesday, December 11th | 1:00 - 4:15pm Judge Langer's Criminal Law Update @ Sinclair Community College Building 12 3.0 General Hrs Member $105 | NonMember $150 | Passport Holder $0

Wednesday, September 18th | 1:00 - 3:15pm Auto Accident Primer 101: The Nuts and Bolts of What You Need to Know 2.0 General Hrs Member $65 | NonMember $90 | Passport Holder $0 Speaker: William J. Price Elk and Elk Co. Thursday, September 19th | 9:00 - 12:15pm Well-Being Skills for the Effective Lawyer *Location Changed: DBA Offices 3.0 General Hrs or 3.0 NLT Hrs Member $105 | NonMember $150 | Passport Holder $0 Speaker: Debra S. Austin, J.D., Ph.D. Professor of the Practice University of Denver Sturm College of Law Friday, September 20th | 9:00 - 4:45pm (video replay) Juvenile Court Attorney Certification Training Seminar 6.25 General Hrs Member $215 | NonMember $300 | Passport Holder $0 Wednesday, September 25th | 1:00 - 2:00pm The Second Amendment: Its History and Modern Judicial Analysis 1.0 General Hr Member $25 | NonMember $45 | Passport Holder $0

OCTOBER Friday, October 4th | 9:00 - 12:15pm Appointed Appellate Counsel Seminar 3.0 General Hrs or 3.0 NLT Hrs Member $105 | NonMember $150 | Passport Holder $0 Tuesday, October 29th | 8:45 - 4:30pm Annual Elder Law Update @ Sinclair Community College Building 12 5.0 General Hrs, 1.0 Professional Conduct Hr Member $215 | NonMember $150 | Passport Holder $30


Dayton Bar Briefs September 2019

Thursday, November 14th | 9:00 - 12:15pm Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs Member $105 | NonMember $150 | Passport Holder $0 Speaker: John M. Ruffolo, DBA Bar Counsel Other speakers TBA Friday, November 22nd | 9:00 - 3:45pm Criminal Law Certification 6.0 General Hrs Member $215 | NonMember $300 | Passport Holder $0

Friday, December 20th | 9:00 - 12:15pm Ethics Case Law Review and New Advisory Opinions 3.0 Professional Conduct Hrs Member $105 | NonMember $150 | Passport Holder $0 Speaker: John M. Ruffolo, DBA Bar Counsel Friday, December 20th | 1:00 - 4:15pm 27th Annual Intellectual Property for General and Corporate Practitioners 2.0 General Hrs, 1.0 Professional Conduct Hr Member $105 | NonMember $150 | Passport Holder $0

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Friday, November 8, 2019

5.75 CLE Hrs

Sinclair Community College

27th Annual dba Bench bar conference

Fair Elections vs.

2019 Bench Bar Chairs: The Honorable Anthony Capizzi Montgomery County Juvenile Court

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Thompson Hine LLP

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Register Online: daybar.org/events/2019benchbar September 2019 Dayton Bar Briefs


“Unanticipated Consequences”:

U.S. Supreme Court “Knicks” State Appropriation Proceedings Prior to Filing Fifth Amendment Takings Claims in Federal Court By Michael D. Rice Surdyk | Dowd | Turner


n Ohio, a party who alleged a physical or regulatory Fifth Amendment taking of property was first required to file a mandamus action in state court to compel public authorities involved to institute appropriation proceedings.1 Recognized as “inverse condemnation” in other states, this procedure was held to be “reasonable, certain, and adequate” to seek just compensation before filing a takings claim in federal court.2 Known as “Williamson County” after the 1985 U.S. Supreme Court decision Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the law was that a takings claim was not ripe in federal court until mandamus was finalized and the property owner had been denied just compensation.3 Hence, federal courts lacked subject matter jurisdiction over such claims.4 That was until June 21, 2019, when the U.S. Supreme Court in Knick v. Township of Scott Pennsylvania overturned Williamson County.5 In Knick, the petitioner owned real property in Scott Township, Pennsylvania where a small “backyard burial” graveyard was located.6 In 2012, the Township passed an ordinance requiring “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.”7 In 2013, a Township officer


Dayton Bar Briefs September 2019

notified the petitioner that she was violating the ordinance by failing to keep her cemetery open. The petitioner first filed a lawsuit in Pennsylvania state court for declaratory and injunctive relief. In response, the Township agreed to stay enforcement of the ordinance during the state court proceedings. However, from the Township’s stay, the state court dismissed the petitioner’s claims since she could not demonstrate the irreparable harm required for her claims. The petitioner then filed a 42 U.S.C. § 1983 action in district court and alleged that the Township ordinance violated the Takings Clause of the Fifth Amendment. The district court dismissed the petitioner’s claim under Williamson County because she had not first pursued an inverse condemnation action in state court. On appeal, the Third Circuit Court of Appeals affirmed, from which the U.S. Supreme Court granted certiorari. In its 5-4 decision, on behalf of the majority, Chief Justice Roberts recognized the “unanticipated consequences” of Williamson County.8 For example, in citing to its 2005 decision in San Remo Hotel, L.P. v. City and County of San Francisco, California, the majority recognized that under Williamson County, a plaintiff who first brought a takings claim in state

court with the intent to reserve a later Fifth Amendment takings claim would be barred from doing so under the full faith and credit statute if the state claim was unsuccessful.9 The majority characterized San Remo’s circumstances and its analysis under Williamson County as an unanticipated “Catch-22” and “prelusion trap.”10

continued on page 17

ENDNOTES: Ohio Rev. Code §§ 163.01–163.62; see also Silver v. Franklin Tp. Bd. of Zoning Appeals, 966 F.2d 1031, 1035 (6th Cir. 1992). Coles v. Granville, 448 F.3d 853, 861, 865 (6th Cir. 2006). 3 Williamson County Regional Planning Com'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 199-200, 105 S.Ct. 3108 (1985). 4 Bigelow v. Mich. Dep't of Natural Res., 970 F.2d 154, 157 (6th Cir.1992). 5 Knick v. Township of Scott Pennsylvania, 139 S.Ct. 2162 (2019). 6 Id. at 2168 7 Id. 8 Id. at 2169, 2174. 9 Id. at 2169, citing San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 125 S.Ct. 2491 (2005); see also 28 U.S.C. § 1738. 10 Id. at 2167. 1



“Unanticipated Consequences” continued from page 16 The majority further reviewed its previous decisions to demonstrate Williamson County’s inconsistency, its “neglect[,]” and effect on “Fifth Amendment precedents.”11 For example, in citing to First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, a decision decided two years after Williamson County, the majority described First English as the Court “return[ing] to the understanding that the Fifth Amendment right to compensation automatically arises at the time the government takes property without paying for it” and that such a right is “irrevocable.”12 The majority further reviewed its 1984 decision in Ruckelshaus v. Monsanto Company and 1981 decision in Parratt v. Taylor, both of which were relied on in Williamson County, to find that the Court in Williamson County “was simply confused” and relied on “poor reasoning.”13 In disregarding stare decisis, and further citing to the intent of the Framers and a brief history of takings litigation, the majority concluded that a government violates the Takings Clause at the moment it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under 42 U.S.C. § 1983, without delay, regardless of available posttaking remedies. But the majority opinion did not end there. The majority characterized that Williamson County “was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”14 The majority further styled the effect of Williamson County as having “shaky foundations” that was “in search of a justification for over 30 years.”15 And in further attempting to soothe anticipated concerns from its decision, the majority noted that “[o]ur holding that uncompensated takings violate the Fifth Amendment will not expose governments to new liability; it will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court.”16 On behalf of the dissent, Justice Kagan found that the majority’s opinion “has no basis in the Takings Clause” and that “[i]ts consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts.”17 The dissent prefaced its opinion with Takings Clause dictum: that a person is free from a taking only when the government fails to provide just compensation. The dissent acknowledged that there exists no universal prohibition for a government taking, and that the Takings Clause uniquely conditions that www.daybar.org

a taking may occur as long as the government fairly pays the property owner. The dissent further relied on its 1890 decision in Cherokee Nation v. Southern Kansas Railway Company and 1912 decision in Crozier v. Krupp A.G. to invalidate the majority’s portrayal of contemporaneous takings and compensation.18 The dissent elaborated that “[a]ll that Williamson County did was to put the period on an already-completed sentence about when a takings claim arises[,]” and that the majority’s decision “smashes a hundredplus years of legal rulings to smithereens.”19 The dissent further advised that “maybe the majority should take the hint: [w]hen a theory requires declaring precedent after precedent after precedent wrong, that’s a sign the theory itself may be wrong.”20 The dissent specifically noted that overruling Williamson County will have two damaging consequences. First, it will turn well-meant government officials into lawbreakers since it regularly is not known in advance whether applying an ordinance or practice will affect a taking. And second, it undermines important principles of judicial federalism by channeling a massive set of cases into federal court that belong in state court in the first instance. As Justice Kagan aptly identified, the majority opinion “makes federal courts a principal player in local and state land-use disputes.”21 Indeed, the decision in Knick bolsters the rights for property owners and developers by opening the floodgates to federal takings claims to be pursued in the first instance in federal court. Although Knick does not alter the standards in which federal courts review such claims, like backyard burials, reviews of a vast array of local government ordinances and practices will become an everyday practice in federal court. The additional benefits for property owners and developers to have a federal court review an alleged taking in the first instance are unknown. And while unanticipated consequences will likely endure from Knick, it is almost certain that state appropriation proceedings will be bypassed and local governments will see a marked increase

in the number of takings cases being filed in the first instance in federal court. ENDNOTES: Id. at 2171. Id. at 2171-72, citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378 (1987). 13 Id. at 2173-75, citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862 (1984); see also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981). 14 Id. at 2178. 15 Id. 16 Id. at 2179. 17 Id. at 2181. 18 Id. at 2182, citing Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965 (1890); see also Crozier v. Krupp A.G., 224 U.S. 290, 32 S.Ct. 488 (1912). 19 Id. at 2183. 20 Id. at 2186. 21 Id. at 2189. 11 12

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September 2019 Dayton Bar Briefs



Law School Memories:

Celebrating 45 Years of the University of Dayton School of Law

By Professor Emeritus Dennis J. Turner University of Dayton School of Law dennisjturner.com


ith the approach of the University of Dayton School of Law’s 45th Anniversary, and because I am the only member of the original magnificent seven faculty members still alive, I have been asked to conjure up some memorable moments from those halcyon days of yore while my memory is still reasonably intact. I had the privilege of teaching the first law school class, Legal Methods, at 9:00am in the only classroom in the school (Classroom #1, like there actually was a Classroom #2 somewhere). It was a retrofitted room that had previously been used for storing books in the basement of the Roesch Library. There were 90 sweating students crammed into the room and one nervous professor. Fortunately, the tension in the room was eased by the late arrival of Bill who was trying his best to be unobtrusive, tip-toeing to the only empty seat in the room. There was a reason the seat was unoccupied. It had a broken leg. Undeterred, Bill eased himself into the chair only to have it loudly crash to the floor. Auspicious beginning. Another advantage of teaching the first class of the day was discovered by those in the later classes. The ventilation system was designed for housing racks of books, not ninety perspiring bodies. By the afternoon the classroom had the air of a drawer full of dirty socks. In our second year, we had a bumper crop of first year students which meant we had to shoehorn 100 students into classroom #1. I still taught the first class, Come celebrate 45years of the Civil Procedure, and I University of Dayton School of Law devised a plan to reduce during Law Alumni Weekend the size of the class to more manageable numbers. I on Sept. 13-14! knew that in the first few weeks about 10 students Register: your.udayton.edu/lawreunion2019 would drop-out, so I thought I would speed-up 18

Dayton Bar Briefs September 2019

the exit process. I walked into class and without introducing myself began distributing Bluebooks. Several students laughed and asked if I was giving a test, to which I replied, “Yes.” I then tested them on their reading assignment for the first class, Pennoyer v. Neff. By the end of the week six students had decided law school was not for them. During the early years of the law school our students took a very proprietary interest in how the law school was run. In fact, students served as voting members on most committees and they were not bashful about advocating for the policy changes they wanted. Once I was served with an official looking document “inviting” me to appear before the Student Bar Association to explain why I was “against student rights.” I no longer remember the cause for the SBA President’s concern. It was probably something like me not supporting their petition to eliminate the use of the Socratic method in the classroom.

continued on page 19


UDSL: Law School Memories Celebrating 45 Years continued from page 18 I had thought the “Star Chamber” had been abolished for hundreds of years, but I responded to the summons like a Civ Pro professor, moving for the dismissal of the summons on grounds of Misjoinder and/or Non-Joinder of Parties. As an addendum, I assured the President if I would happen to discover anyone who opposed students’ rights, I would forward that information to the SBA. I would like to think that I played a small, if unorthodox, part in the law school obtaining ABA accreditation. For some reason, perhaps because he had seen me hammer nails without bending them, Dean Braun appointed me as the faculty liaison with the contractor who was renovating Albert Emanuel Hall. The plan was to expand our nascent law school from being just a one-room law school into a full-service operation. Consequently, when the five-man ABA site inspection team arrived to determine if we had an adequate facility, it was my job to escort them through Albert Emmanuel and explain how the structure would be converted from being the location of the Fine Arts Department into a functioning law school. I was really laying it on thick about how beautiful and functional the building would be. I especially wanted to show them the space for the faculty library and conference room. I threw open the double doors with some flair only to find an art class in there. They were working on sketching the human form with a live model to give them a better perspective. I have never seen heads swivel faster. I left the doors open while I provided the team with some details about how the room would be converted into the faculty library. I like to think that my tour of the facilities et. al. had some small part in UDSL getting its full ABA accreditation. After 43 years of teaching at UDSL, I published my first book of historical fiction, What Did You Do in the War, Sister? How Belgian Nuns Defied and Deceived the Nazis in World War Two. As a result, my life has gone down a whole new path. Ironically, my own attempt at writing a fictional memoir has made me realize that the stories from UDSL’s early years prove the adage, “Facts are often stranger than fiction.” Reminiscing about those first years of the law school has been a nostalgia trip for me and I now have a much greater appreciation for the cast of characters, faculty and students, who were so critical in providing the foundation for the high-quality law school UDSL has become. I like to think that I contributed to UDSL’s advancement by being the first faculty member to adopt high tech in the classroom, i.e. using an overhead projector to show my Civ Pro hypotheticals on a wall. I was fortunate to coach the first UDSL Mock Trial Team that blew away all the other law schools in the regional round of the National Mock Trial Competition and began the UDSL tradition of fielding dozens of winning mock trial and moot court teams. My luck continued when I was named the first Director of the Legal Profession Program and hired outstanding instructors who made it a model for other law schools. So many good things have happened over the years at UDSL, and I am so grateful for having had the opportunity be a part of its growth and the joy of teaching many of the school’s outstanding students. www.daybar.org

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September 2019 Section Meeting Dates Wednesday, September 4 @ Noon

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Wednesday, September 4 @ 4pm

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Thursday, September 12 @ Noon

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Wednesday, September 18 @ Noon

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Thursday, September 19 @ Noon

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Thursday, September 12 @ Noon Offsite: Judge Woods CourtRoom

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Thursday, September 19 @ 5pm

Civil Trial Practice & ADR Thursday, September 26 @ 4:30pm Offsite: Bravo Italian Resturant

Corporate Counsel

Thursday, September 26 @ 5pm

Women in the Law

MEAN LAWYERS: How to Recognize one, deal with one, and not become one.

September 2019 Dayton Bar Briefs


From the Judges Desk

By The Honorable Timothy N. O'Connell Montgomery County Common Pleas Court


Ohio Supreme Court Expands Application of Damage Caps and Limits the Saving Statute

ttorneys have maintained substantial sensitivity to two rules for the last several decades. The first rule attorneys are sensitive to is the statute of limitations and amendments to that the savings statute. Certainly, that is required to avoid malpractice. Second, of great interest in the last number of years is the damages caps. It has greatly affected the practice of personal injury law. Within the last six to eight months, the Ohio Supreme Court has issued decisions on these two subjects. With regard to the Ohio savings statute, the Ohio Supreme Court held this past August that if an action was commenced in another state, in either a state or federal court, and failed otherwise than upon the merits, and the statute of limitations of such action had expired, the Ohio savings statute, R.C. 2305.19, did not apply to permit commencement of a new action within one year. Portee v. Cleveland Clinic Foundation, 155 Ohio St.3d 1, 2018Ohio-3263, 118 N.E.3d 214. In December 2018, the Ohio Supreme Court decided that the caps on damages set forth in R.C. 2315.18(B)(2) applied to defamation actions. Wayt v. DHSC, LLC, 155 Ohio St.3d 401, 2018-Ohio-4822, 122 N.E.3d 92. These holdings are important, but what is also important is how the Judges analyzed the cases. It is interesting and fascinating how the Judges can come to different statutory construction results, even if they are ostensibly applying established principles of statutory construction, and legislative intent analysis. In the savings statute case (“Portee”), the Judges applied common law and analysis of legislative intent to reach a conclusion. The majority relied on a longstanding case decided in 1972 and subsequent legislative 20

Dayton Bar Briefs September 2019

action amending the savings statute. That legislation passed in 2004 and in 2010. The dissenter relied heavily on the subsequent legislation with respect to the savings statute. Portee was a 6-1 decision. The majority concluded that a suit had to be commenced in Ohio for the Ohio savings statute to apply. The case involved a medical malpractice claim against Cleveland Clinic. The plaintiffs had instituted the action in the United States District Court for the Southern District of Indiana in 2013. In July 2014, the Federal Court dismissed the case for lack of personal jurisdiction. In July 2015, the plaintiffs, Portees, filed an identical medical malpractice case against Cleveland Clinic in the Cuyahoga County Common Pleas Court. Cleveland Clinic moved for summary judgment asserting the one year statute of limitations in R.C. 2305.13 for medical malpractice actions barred the action and that the Ohio savings statute did not apply to save it because the original action had been commenced in another state. The trial court concluded the action was untimely and granted the motion for summary judgment. The Court of Appeals reversed the judgment of the trial court and remanded the case for further proceedings concluding the savings statute did apply. The majority relied on the case of Howard v. Allen, 30 Ohio St.2d 130, 283 N.E.2d 167 (1972). Howard provided that an original action commenced in another state could not be refiled in Ohio because the savings statute only applies to actions originally commenced in Ohio within the period of the statute of limitations. The majority said the General Assembly has amended the savings statute twice since the Howard case was decided. The majority concluded the amendments did not abrogate

the decision in Howard. The amendment in 2004 does not contain language demonstrating a legislative intent to expand the application of the saving statute, R.C. 2305.19, to actions that are originally commenced outside of Ohio. The majority went on to say that when the General Assembly later went on to amend the statute effective in 2010, it made no changes to R.C. 2305.19(A). The Court of Appeals, in reversing, relied on three cases that were decided on somewhat similar facts and two of which were decided after Howard. The majority was not persuaded by the application of these cases to change the rule in Howard. It distinguished the two cases that were decided after Howard. The majority disregarded the first case because it predated Howard. The other two cases were found distinguishable because one involved class actions and the other involved the statute of limitations in workers’ compensation cases. The court found the policy reasons for the decisions in those cases were not implicated in this medical malpractice action. In dissent, Justice Kennedy examined and emphasized legislative history as well. She felt that the 2004 amendment to the savings statute was material and essentially disagreed with the majority’s conclusion that there was no legislative intent to expand the application of R.C. 2305.19. Justice Kennedy emphasized the change in the initial sentence of 2004 version of the statute, “any action,” is the wording instead of the phrase, “an action.” She then employed the rule from R.C. 1.47(B) that provides, “[i] n enacting a statute, it is presumed that

continued on page 21


FROM THE JUDGES DESK: Ohio Supreme Court Expands Application of Damage Caps continued from page 20 . . . [t]he entire statute is intended to be effective.” She went on to write, “further, R.C. 1.54 states ‘a statute which is reenacted or amended is to be a continuation of the prior statute and not a new enactment, so far as it is the same as the prior statute.’” Justice Kennedy argued that by changing the word “any” for “an” the General Assembly intended to broaden the scope of the statute. Justice Kennedy confronted the argument of the common law authority, that is, the Howard case, by arguing that Howard no longer withstands scrutiny primarily because the General Assembly enacted the borrowing statute in 2005.


The damage caps are applicable to defamation actions. The court’s determination rested on common law, legislative history, and statutory construction. The majority in this 5-2 decision found that R.C. 2315.18 caps the damages awarded for defamation. The majority cited the rule that the court is not to look at legislative intent to determine the meaning of the statue, if the statute is unambiguous. The history of Senate Bill 80 (“S.B. 80”), the caps legislation, indicated an intention to balance the rights of those injured by negative behavior and need to eradicate frivolous lawsuits that costs jobs. The majority felt that applied to conduct that was misconduct or wrongful acts. The majority would not add the word “negligence” to the definition of “tort actions,” provided in statute. The majority indicated it was the duty of the court to give effect to the words used in the statute, not to delete words used or to insert words


not used. Wayt v. DHSC, LLC, 155 Ohio St.3d 401, 12. The statute is not limited to negligence actions. The damages caps case, Wayt, involved an employment situation. Wayt was a nurse employed by Affinity Medical. Affinity Medical terminated Wayt’s employment after an investigation that followed an accusation that Wayt had neglected her duties and falsified a medical report. Following Wayt’s dismissal, the head of nursing at Affinity Medical sent a complaint to the Ohio Board of Nursing that included an accusation that Wayt had engaged in patient neglect. Some additional documentation was sent to the board that detailed Wayt’s alleged improper conduct. Following her termination, Wayt applied for multiple nursing positions. She had only two interviews and did not obtain a permanent nursing position. The National Nurses Organizing Committee, a union and professional organization for registered nurses, filed charges against defendant Affinity Medical before the NLRB, claiming the hospital refused to bargain with the union and that Wayt had been terminated because of her involvement with the union. After an Administrative Law Judge issued a report favorable to the union, the NLRB successfully petitioned the United States District Court for the Northern District of Ohio for injunctive relief that included an order that Wayt be reinstated to her prior position at Affinity. The court also ordered Affinity Medical to retract the report to the Nursing Board. Wayt did return to her position, but an Affinity Medical employee allegedly stated,

in front of several nurses, that the court order did not mean that Wayt deserved to regain her position or that she was a good nurse. Wayt filed a complaint in the Stark County Court of Common Pleas allegedly that Affinity Medical and its employee had defamed her. At trial, the jury found that Wayt had been defamed and awarded her $800,000 in compensatory damages and $750,000 in punitive damages. The trial court ruled that the statutory caps on compensatory and punitive damages did not apply to injuries to reputation. Affinity Medical filed an appeal. Affinity Medical argued that the caps on damages applied. The Court of Appeals overruled Affinity Medical’s assignment of error related to caps on damages. The Ohio Supreme Court reversed 5-2. The majority’s prime reason for reversal was that under the plain language of R.C. 2315.18(A)(7), defamation is a “civil action for damages for injury or loss to a person.” Thus, defamation is a “personal injury.” In a 1928 case, the Ohio Supreme Court determined that slander is a personal injury. The majority ruled that the legislature is presumed to have full knowledge of prior judicial decisions. Accordingly, the legislature is presumed to have full knowledge of the court’s decision in the 1928 case. The legislature used the term “injury” in the caps statute and slander, a form of defamation, is a personal injury by law. Therefore, caps apply to defamation. The majority opinion was that the caps statute, R.C. 2315.18, use of general phrases, such

continued on page 23

September 2019 Dayton Bar Briefs



Dayton Bar Briefs September 2019


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Contact Tyler to Join the DBA Inn of Court: twright@daybar.org | 937.222.7902 www.daybar.org

FROM THE JUDGES DESK: Ohio Supreme Court Expands Application of Damage Caps continued from page 21 as the phrase “loss to person,” encompasses physical injuries to a person as well as injuries to a person’s reputation. Wayt v. DHSC, LLC, 155 Ohio St.3d 401, 406-407. Chief Justice O’Connor wrote the dissent, in which Justice O’Donnell concurred. This dissent stressed the difference between the terms “personal injury” and “injury to person.” Chief Justice O’Connor felt that the caps statute essentially uses the term “injury to person.” She argues that “injury to person” occurs when the harm is identifiable to a person’s body. Damages to a person’s reputation is separate from his or her body. So injury to person is capped, but personal injury is not. A personal injury could include loss of reputation. Reputation loss and injury to person are two separate harms. The dissent argues the 1928 case, Smith v. Buck, 119 Ohio St. 101 (1928), addresses only “personal injury” and does not squarely support that the majority’s position that defamation is an injury to a person. The second syllabus paragraph in Buck, can be construed to stand for the proposition that a personal injury includes injury to person as well as injury by libel and slander. The law at issue in Buck does not contain the language, “injury to person,” the holding does not define that term and cannot determine the outcome of the case at bar. Further, if the General Assembly was focused on the Buck case when it drafted R.C. 2315.18, then it could have used the term “personal injury” when it described torts to which the caps applied in an effort to combine an injury to person and injury to reputation, it did not. Id. at 411. Chief Justice O’Connor asserts that the plain language of the statute does not cap damages for people who are defamed. This writer finds this very interesting that Justices of the court applying the same law and statutes arrive at opposite conclusions. One might validly say that this is what makes law so interesting. Both of these cases involved decisions that were not favorable to the plaintiffs. However, the two dissenters in the damages caps case were in the majority in the savings statute case. The lone dissenter in the savings statute case was in the majority in the damages caps case. I would propose that a pro-defense orientation, alone, does not explain the opinions. It also does not seem that strict construction, judicial activism, or respect for stare decises explain the results. Perhaps, it is a combination of all these things plus personalities of seven different individuals that is responsible. September 2019 Dayton Bar Briefs


Members On The Move Coolidge Wall Co., L.P.A. is pleased to announce that 19 of its attorneys were recently selected by their peers for inclusion in The Best Lawyers in America® 2020 edition. Corporate Counsel magazine called Best Lawyers "the most respected referral list of attorneys in practice." In addition to the Best Lawyers in America inclusion, Marc L. Fleischauer, chair of the firm’s Labor and Employment Department, was named the Best Lawyers® 2020 Employment Law – Management “Lawyer of the Year” in Dayton. Coolidge attorneys selected for inclusion in 2020 Best Lawyers in America® are: • Michelle D. Bach Workers’ Compensation Law – Employers • R. Scott Blackburn Trusts and Estates • Glenn L. Bower Corporate Law • Christopher R. Conard Commercial Litigation Bach • Shannon L. Costello Litigation-Real Estate and Real Estate Law • Terence L. Fague Commercial Litigation and Litigation-Labor and Employment • Kristin A. Finch Real Estate Law • Marc L. Fleischauer *Lawyer of the Year: Employment Law-Management and Costello Labor Law Management • Jonas J. Gruenberg Corporate Law and Real Estate Law • Chad D. Hansen Tax Law • J. Stephen Herbert Real Estate Law and Banking and Finance Law • David C. Korte Workers’ Compensation Law-Employers Gruenberg • David P. Pierce Commercial Litigation and Litigation-Labor and Employment • Richard A. Schwartz Corporate Law • William H. Seall Real Estate Law • Richard A. Talda Commercial Litigation Pierce • Sam Warwar Corporate Law, Tax Law, and Litigation and Controversy-Tax • Merle F. Wilberding Corporate Law, Real Estate Law, and Litigation-Real Estate • Jeffrey A. Winwood Trusts and Estates ___________________________


Dinsmore & Shohl LLP is pleased to announce 19 attorneys in the Dayton office were recently selected by their peers for inclusion in the 2020 edition of The Best Lawyers in America®. Additionally, 3 of Dinsmore's Dayton attorney's, James F. Gottman; Timothy D. Hoffman and Thomas P. Whelley II., were recently named Best Lawyers® 2020 “Lawyer of the Year.” 19 Dayton attorneys selected as Best Lawyers in America: • James E. Beyer Patent Law • Richard A. Broock Corporate Law • Frederick J. Caspar Corporate Law; Litigation - Trusts and Estates; Litigation and Controversy – Tax; Tax Law; Trusts and Estates • Richard J. Chernesky Corporate Law; Litigation - Mergers and Acquisitions; Mergers and Acquisitions Law • Thomas L. Czechowski Commercial Litigation; Litigation – Construction; Litigation - Labor and Employment • Kimberly Gambrel Copyright Law; Patent Law; Trademark Law • James F. Gottman Copyright Law; *Lawyer of the Year: Patent Law; Trademark Law • Timothy W. Hagan Patent Law • Ralph E. Heyman Corporate Law; International Mergers & Acquisitions; Tax Law; Trusts and Estates • Timothy D. Hoffman *Lawyer of the Year: Environmental Law; Litigation – Environmental • Edward M. Kress Corporate Law; Litigation - Real Estate; Real Estate Law • William J. Leibold Antitrust Law; Corporate Law; Litigation – Antitrust • Matthew A. Molloy Patent Law • Lisa S. Pierce Corporate Law • B. Joseph Schaeff Copyright Law; Litigation - Intellectual Property; Trademark Law • Merideth A. Trott Real Estate Law • Thomas P. Whelley II Commercial Litigation; Employment & Labor Law – Management; *Lawyer of the Year: Litigation - Labor and Employment; Litigation - Mergers and Acquisitions • David R. Wickham Litigation Trusts and Estates; Trusts and Estates • Philip A. Zukowsky Tax Law

Blackburn Bower


















Czechowski Gambrel











Whelley II Wickham



Dinsmore’s Best Lawyers® 2020 “Lawyers of the Year” in Dayton: • James F. Gottman Patent Law • Timothy D. Hoffman Environmental Law • Thomas P. Whelley II Litigation – Labor and Employment ___________________________

The Ohio State Bar Foundation (OSBF) is pleased to announce Cynthia Kincaid has joined its ranks as the new Director of Development and Public Relations. Kincaid comes to the Foundation from the Ohio State Bar Association, where she was Chief Marketing Officer. In that capacity, she led the design development, marketing strategy and operational processes for the marketing and communications department. ___________________________ Taft Stettinius & Hollister LLP welcomes Zachary Arnold as an attorney in its growing Litigation practice group. Arnold joins Taft in its Dayton location. Arnold counsels non-profits, private companies and individuals in matters involving civil litigation. He has experience in contract dispute resolution, business torts, personal injury and landlord tenant disputes. Before joining Arnold Taft, Arnold was an attorney at a general practice law firm in Ohio, where he advised clients on matters related to civil litigation, business transactional needs and estate planning. Arnold also has experience in non-profit and for-profit entity formation, dissolution, corporate governance compliance, real estate, probate practice.

DAYTON Bar Association



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.

classifieds 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. MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com NUMISMATIC CONSULTATION AND APPRAISAL SERVICES Does your client have a collection of coins, currency, exonumia, precious metals or other money related items? Numismatic appraisals our specialty. Consultation on the orderly disposition and liquidation of numismatic assets. coinbuyers@pm.me www.coinologist.com PARALEGAL/LEGAL ASSISTANT SOUGHT Are you an excellent communicator? Do you have significant experience with handling domestic relations cases? We have a rare opening at Holzfaster, Cecil, McKnight & Mues for a top notch legal assistant. We are flexible whether full or part time position based on qualifications. Please email your resume to Chip Mues at LawDayton@gmail.com.

ad index Daily Court Reporter.........................17 Hon. Dennis Langer - Mediations...21 Eikenbary Trust..................................25 Ferneding Insurance...........................8

Apply: Jennifer Otchy,DBA Executive Director

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

LCNB Bank..........................................11 National Processing Solutions.........7 OBLIC...................................back cover R.L. Emmons & Associates...............17 Rogers McNay Insurance..................27 Trisha M. Duff - Mediations..............16


September 2019 Dayton Bar Briefs


Law-Related Organizations Dayton Bar Foundation

Help Build Our Foundation. T T

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

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Life Essentials Guardianship Program

- Legal Aid of Western Ohio (LAWO)

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

- Law & Leadership Institute - Wills for Heroes

University of Dayton School of Law


Dayton Bar Briefs September 2019


Greater Dayton Volunteer Lawyer Project

Volunteering. Not Just for Attorneys. By Kathleen Miller GDVLP


he Greater Dayton Volunteer Lawyers Project (GDVLP) has a long history of providing innovative ways for attorneys to fulfill their pro bono expectation. An attorney can volunteer for a clinic in a number of different areas of the law – probate, employment, juvenile pro se, bankruptcy, divorce, etc. We are so very grateful for the thousands of hours that attorneys have donated in the past but, as anyone who has worked a clinic knows there are generally plenty of non-attorneys that help as well. We have been fortunate to engage many college students, law school students, paralegal students and working paralegals as the work forces of those clinics. GDVLP has always made it a priority to be extremely diligent in capturing all the hours that have been donated. However, we have uncovered one area where we believe hours are not being reported or many did not know they could/should be reported. GDVLP places some cases one on one


with attorneys. Many times this comes about as a result of a clinic or the circumstances of the case is such that one on one representation is really the only way the best outcome can be achieved. Those cases tend to be handled in the attorney’s office with the help of his/her support staff, namely paralegals. The hours worked by those individuals are an integral part in the resolutions of these client’s issues and should be well documented. They are also the easiest to overlook. There are a number of reasons those hours should count. The first is that it is the right thing to do and credit should go where credit is deserved. GDVLP is forever grateful to those who give of themselves for our clients. Further, some paralegals in the Miami Valley are certified by organizations that require a certain amount of CLE time to maintain their certification. Paralegals, as well as, attorneys are able to claim their pro bono hours for free CLE credit through the State

of Ohio. Finally, GDVLP has a number of grants that take into consideration the hours a paralegal places into a case. The reporting of these hours allows us to meet the requirements of our grants and can help us to seek additional funding through those sources or through other funding sources. Submitting those hours allows us to report accurately to the funding source the time it took for the case to complete and how much people power it took. So be sure the next time you complete your closing form for GDVLP you ask your paralegal how many hours they have in on this matter. You can easily add the number to the closing form and GDVLP will make sure that individual is thanked and credited with the time they contributed. (Coffee coupons all around for a job well done). We greatly appreciate each and every individual who gives of their time and talent to provide free legal assistant to the disadvantaged of the Miami Valley. Thank you!!!

September 2019 Dayton Bar Briefs


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


Profile for Dayton Bar Association

September 2019 Dayton Bar Briefs Magazine  

September 2019 Dayton Bar Briefs Magazine