The Magazine of the Dayton Bar Association | SUMMER 2017 | Vol. 66, No. 11
2 0 Pictorial Legal 17 Directory
Raising the bar of the legal profession
Summer 2017 | Vol. 66, No. 11
Dayton Bar Association Board of Trustees 2016 – 2017
Susan D. Solle President
Brian L. Wildermuth First Vice President
David P. Pierce
Second Vice President
BARRISTER OF THE MONTH: MAGISTRATE JOSEPH S. GALLAGHER
By Zachary S. Heck Esq.
INN OF COURT
FEDERAL PRACTICE COMMITTEE
The Carl D. Kessler Inn of Court
By Gretchen M. Treherne Esq.
Barbara J. Doseck
By Zachary S. Heck Esq.
Jonathon L. Beck
RISING STAR: CHAD E. BURTON ESQ.
LABOR & EMPLOYMENT COMMITTEE
Lynnette Dinkler Member–at–Large
Angelina N. Jackson Member–at–Large
Hon. Timothy N. O’Connell Member–at–Large
SCOTUS Decision Changes Landscape for Patent Litigants
By Edward M. Smith Esq.
SCOTUS Overturns Circuit Courts’ Interpretation of ERISA Church Plan Exemption for
By Kristina E. Curry Esq.
Merle F. Wilberding
RECAPPING THE 2017 ANNUAL MEETING
Kermit F. Lowery
FROM THE JUDGES DESK
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
By Mary KC Soter Esq.
Often Ignored Victim Remedy
By Hon. Timothy N. O’Connell
CONTINUING LEGAL EDUCATION + 2017-18 PASSPORT SALES END SOON!
CLASSIFIEDS & MARKETPLACE
UPCOMING EVENTS 5
THE CHANCERY CLUB LUNCHEON The Old Courthouse | Doors open at 11:30am | Seating is limited you must RSVP
*There are no luncheons in December or January
William B. Wheeler, Executive Director Shayla M. Eggleton, Publications Manager Phone: 937.222.7902 Fax: 937.222.1308
2017-18 SAVE THE DATES
The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.
WILLS FOR HEROES
Dayton Bar Briefs Summer 2017
Important dates you don't want to miss
Sat. September 30th | Training 8:30am; Appointments 10:00-2:00pm Charles I. Lathrem Senior Center; 2900 Glengarry Dr., Dayton, OH 45420
i ls S for Legal Professiona
oci atio n
R ASSO CIA T N IO
N BA TO AY
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
Eichelberger Foundation Estabrook Charitable Trust
Faruki Ireland Cox Rhinehart & Dusing 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 Rhinehart & Dusing P.L.L. www.ficlaw.com With offices in Cincinnati & Dayton
Faruki Ireland Cox Rhinehart & Dusing P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.
Gold Partner Thompson Hine LLP
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 email@example.com or 937.222.7902 for information about becoming a Annual Partner. www.daybar.org
Summer 2017 Dayton Bar Briefs
2017-2018 DBA Board of Trustees
Brian L. Wildermuth President Phone: 427-8800 Fax: 427-8816 firstname.lastname@example.org
Cassandra L. Andres Rice Member-at-Large Phone: 913-0200 Fax: 824-2818 email@example.com
David P. Pierce First Vice-President Phone: 449-5543 Fax: 223-6705 firstname.lastname@example.org
Angelina N. Jackson Member-at-Large Phone: 225-5438 Fax: 225-3449 email@example.com
Hon. Mary L. Wiseman Second-Vice President Phone: 225-4384 Fax: 824-7999
Cara W. Powers Secretary Phone: 499-9720 Fax: 499-9726
Hon. Timothy N. Oâ€™Connell Member-at-Large Phone: 225-4416 Fax: 824-7998 firstname.lastname@example.org
John M. Ruffolo Bar Counsel, ex officio Phone: 434-3556 Fax: 436-0008 email@example.com
Fredric L. Young Member-at-Large Phone: 224-3333 Fax: 224-4311 firstname.lastname@example.org
Jonathon L. Beck Treasurer Phone: 224-9291 Fax: 224-8977 email@example.com
Susan d. solle Immediate Past President Phone: 463-4929 Fax: 449-2836 firstname.lastname@example.org
William B. Wheeler Executive Director, ex officio Phone: 222-7902 Fax: 222-1308 email@example.com
Promoting Excellence in the Legal Profession
The Chancery Club
Mark Your Calendars to RSVP for these 2017-18 Chancery Club Luncheons. The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.
Contact Chris Today to RSVP! firstname.lastname@example.org | 937.222.7902
The Old Courthouse Doors open at 11:30am *There are no luncheons in December or January Friday, September 15, 2017 Friday, October 13, 2017
Summer 2017 Dayton Bar Briefs
BARRISTER OF THE MONTH
Magistrate Joseph S. Gallagher
n matters of grave importance, style, not sincerity, is the vital thing.” Gwendolyn’s words from Oscar Wilde’s The Importance of Being Earnest are designed to make us question the very point of the 1895 play. After all, if style is the “vital thing,” then what exactly is the importance of being earnest? Barrister of the Month Magistrate Joseph Gallagher counts this as one of his favorite quotations, and his appreciation for good writing has carried with him throughout his time in the legal profession. The oldest of seven children, Mag. Gallagher credits his childhood with setting him on a path to success. His father, a chemist, instilled in all of the Gallagher children an appreciation for the value of a quality education. It paid off: the Gallagher kids grew up to be nurses, teachers, business professionals, advertising specialists, and even a magistrate. During his sophomore year at Troy High School, the soon-to-be Mag. Gallagher had a teacher that grew to be a mentor. English teacher Frank Prouty challenged his students to appreciate the importance of the humanities. Mag. Gallagher remembers his first day of class, when Mr. Prouty walked into the classroom and asked if anyone knew the name of the author who had just received the Nobel Prize for Literature. Mag. Gallagher had, by happenstance, read about it shortly before class, and responded with the correct answer: Samuel Becket. Mr. Prouty then began to explain the importance of
Dayton Bar Briefs Summer 2017
appreciating good writing. From that moment forward, Mag. Gallagher absorbed the lessons from Mr. Prouty’s class like a sponge. “He taught me how English, history, art, music, and politics are all interconnected and I loved all of it,” Mag. Gallagher explained. Mag. Gallagher took that love of the humanities with him to the Ohio State University, where he received his Bachelor of Arts in Journalism. Mag. Gallagher decided to study journalism because it presented the perfect combination of writing talent with the skill of asking important questions and digging for answers. Mag. Gallagher learned these skills and then applied them to his study of law at the University of Akron School of Law, where he graduated with his JD in 1977. From there, Mag. Gallagher moved to Pennsylvania where he worked for Laurel Legal Services. Mag. Gallagher provided legal representation to many of the area’s low-income citizens. But Mag. Gallagher got the itch to return to Ohio, and soon joined the ranks of attorneys at UAW Legal Services Plan in Cincinnati. During his eighteen years with UAW Legal Services Plan, Mag. Gallagher had the opportunity to serve as Vice President of the union organizing the lawyers. During this time, Mag. Gallagher had opportunities to participate directly in labor negotiations with UAW. Mag. Gallagher remembers this time as an incredible experience, because he was able to witness first-hand the wheels of change as he pushed for the rights of his
fellow unionized lawyers. Recognizing that such negotiations often prioritize style over sincerity, Mag. Gallagher learned that often first impressions are not what they appear at the bargaining table. Resolve, creativity, and intellect are all required when bargaining for the rights of those in your community. As a result, Mag. Gallagher learned a great deal about bringing style and sincerity to advocacy. In 1999, Joe earned the opportunity to join the Dayton legal community as a magistrate at the Montgomery County Probate Court. As a magistrate, he is responsible for presiding over hearings, reviewing forms for completeness and accuracy, outreach, ordering mental illness screenings, and making guardianship determinations. He is also responsible for meeting with the attorneys on both sides of a dispute that come before him in an effort to bring about the best result for all involved. Finally, Mag. Gallagher has been responsible for working with the Probate Division to bring full electronic filing to the probate courts in Montgomery County. Mag. Gallagher takes pride in the fact that Montgomery County’s Probate Court was one of the first probate courts to lead the way in bringing full e-filing into an area of law that is form-driven. He is confident that we will be 100% e-filing sooner rather than later.
continued on page 7
BARRISTER OF THE MONTH: MAG. JOSEPH S. GALLAGHER continued from page 6
Outside of the courtroom, Magistrate Gallagher continues to advocate for members of the greater community through diversity inclusion. He serves as a member the Ohio State Bar Association’s Advisory Committee on Diversity Initiatives. Through his role on the Advisory Committee, Mag. Gallagher works with the OSBA to promote and effectuate inclusion of diversity in the practice of law. Recently, Mag. Gallagher has advocated for greater diversity inclusion in the OSBA’s photographic advertisements, as well as promotion of legal updates affecting the LGBT community in OSBA electronic reports. Magistrate Gallagher met his husband, Mike Krieger, in 1979, and they have been together ever since. The two married last year, and Magistrate Gallagher reflected that he feels proud to have been “present at the revolution” and to see the advancement of rights and protections afforded to the LGBT community. His experiences, in both advocating for and living “the revolution,” has taught him invaluable lessons for presiding over cases that come before him. As Magistrate Gallagher explained, “probate is where it’s at: death, trusts, mental illness, guardianships and more. All of it brings to heart the implications that the law has on families. You must always remember that you are working with a family going through a terrible experience.” As a result, Mag. Gallagher recognizes the importance of empathy. “When people come into this court, they come in sorrow, pain, and distress. It is important for me to always remember that this is a family I am working with, and so it is critical for me to be as fair as I can be with the decisions I make.” In both style and sincerity, Mag. Gallagher stands as both an exemplary administrator of justice, and advocate for the community.
Ohio Lawyers Assistance Program OLAP The Ohio Lawyers Assistance Program is a private, non-profit organization dedicated to helping Ohio's judges, attorneys and law students obtain treatment for substance abuse, chemical dependency, addiction, and mental illness. Services offered through OLAP: - Confidential advice about individual problems - Help arranging and implementing formal interventions - Help in deciding between outpatient, inpatient, and other treatment programs - Monitoring and aftercare services
If you or a colleague you know need help, contact OLAP. Your confidentiality, the confidentiality of anyone about whom you express concerns will be protected. OLAP Toll-Free Helpline is open 24/7 800.348.4343 www.ohiolap.org
By Zachary S. Heck Esq. DBA Editorial Board Faruki Ireland Cox Rhinehart & Dusing P.L.L. www.daybar.org
Summer 2017 Dayton Bar Briefs
INN OF COURT
The Carl D. Kessler Inn of Court II
n the Dayton legal community, the Carl D. Kessler Inn of Court is a vibrant community of lawyers and judges from all levels and backgrounds who share a passion for learning and comradery. Several esteemed member of the Dayton Bar formed The Card D. Kessler Inn of Court (the “Inn”) approximately 25 years ago. It is modeled after the American Inns of Court, which was founded in the late 1970s by Chief Justice Warren Burger and some of his colleagues with the purpose of promoting excellence, civility, professionalism, and ethical awareness. While the English Inns of Court provided inspiration for the American Inns of Court, the American versions have been modified it to fit the particular needs of the American legal system. (For more information on the American Inns of Court, see https://home.innsofcourt. org.) The Inn was originally started to improve trial advocacy, but with disappearing trials and efforts to include more members in diversified fields, the focus today is more on litigation practice in general. The Inn fosters interaction between judges, experienced lawyers, and newer members of the bar by distributing members among teams that are responsible for presenting a CLE program during the year. Through monthly meetings, members are able to build and strengthen professional relationships, discuss interesting and relevant legal issues, and share experiences and advice. Each meeting consists of social time, followed by dinner and a program that general focuses on practical legal skills and emphasizes professionalism in the practice of law. Programming seeks to provide knowledge about the latest legal topics, the honing of advocacy skills, and principles and techniques to be used in daily practice. Depending on the nature of the topic, programs can be presented in various innovative formats, including panel discussions, skits, videos, and game shows. A varied sampling of topics covered over the past few years includes: how to present an opening and closing argument; dynamic story telling; amendments to the rules of civil procedure; how to handle difficult clients; effective legal communications; administrative proceedings; mediation; appellate errors; jury selection; legal writing; conducting discovery; privacy law; and substantive law topics. The various members of the Inn provide a mix of ideas, skills, theories, experiences, perspectives, and passion. Many programs encourage
Dayton Bar Briefs Summer 2017
By Gretchen M. Treherne Esq. President of Inn of Court Jackson Lewis, P.C. discussion by all Inn members. In doing so, the Inn also provides a valuable opportunity for mentoring. By creating an environment for idea exchange and open discussion, the Inn allows for new lawyers to learn from more senior members of the legal community, and also allows for more seasoned lawyers and judges to expand their understanding of new approaches and technologies. Members treasure the input from judges on the “dos and don’ts” of litigation practice. Additionally, the Inn presents a unique chance for people to collegially interact and “break bread” with individuals who might ordinarily be their adversaries or competitors, which assists in breaking down barriers within the profession. In a recent survey of Inn members, members revealed that they appreciated the opportunity to socialize with other lawyers and judges on a regular, recurring basis. In a world that has become more difficult for lawyers to branch outside their firm environments -- especially when technology tends to keep people in their offices – the socialization aspect is important. In the coming year, the Inn plans on providing programming that includes “a blend of cutting edge new topics and basics of trial practice,” as suggested by one member. The Inn, which is associated with the Dayton Bar Association, allows people to feel a part of the greater legal community. The Inn, which currently has a little over 100 members, welcomes attorneys from across the bar, ranging from solo practitioner to law firm associates and partners, as well as public services attorneys, government attorneys, in-house counsel, and law school graduates. Likewise, judges from all of the various courts (municipal, state, federal, and specialty courts) are encouraged to participate. The Carl D. Kessler Inn of Court meets from September through May on the fourth Tuesday of the month. Meetings are generally held at Sinclair Community College. To be considered for membership in the Inn, interested attorneys must be nominated by a current member. Nominations should be in writing and submitted to the current President of the Inn for consideration by the organization’s Executive Committee. If you are interested in becoming a member of the Inn, please contact Gretchen Treherne, President.
Summer 2017 Dayton Bar Briefs
SCOTUS Decision Changes Landscape for Patent Litigants
n Monday, May 22, 2017, the United States Supreme Court restricted the field of locations where patent infringement suits can be filed. In TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court held that a law authorizing patent suits to be filed in the judicial district where "the defendant resides" was not superseded by amendments to the general federal law on venue. Instead, the definition of "residence" in the federal statute about patent venue (first adopted in 1897), refers only to the state of incorporation for a U.S. company. The Supreme Court's decision overturned a series of decisions by the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit, a Washington, D.C.-based court, which specializes in patents, had permitted a broader definition of residence that allowed patent suits to be brought virtually anywhere in the country. In this case, Kraft Food Groups sued TC Heartland for patent infringement in Delaware federal court. TC Heartland, which is incorporated and headquartered in Indiana, argued that the case should be transferred to federal court in the Southern District of Indiana. The Federal Circuit, on appeal, held that the case could be brought in Delaware, because TC Heartland was subject to personal jurisdiction in Delaware. The Federal Circuit reasoned that the general federal law on venue gives the term "reside" a relatively broad meaning, which allows federal suits to be filed wherever a corporation may be subject to personal jurisdiction. In other words, because TC Heartland conducts a "substantial amount of business" in Delaware, it can face suit in federal court in Delaware. The Supreme Court reversed and held that "reside" is subject to a much narrower interpretation. Justice Clarence Thomas, writing for the Court in an 8-0 decision ( Judge Gorsuch did not participate), explained that the "reside requirement" demands that patent suits filed under that prong of the venue statute be filed in the state where the company is incorporated. In an opinion just shy of ten pages, Justice Thomas explained that the corporate "residence," for purposes of a separate patent venue statute, should be applied narrowly, as first held in the Supreme Court's Fourco Glass v. Transmirra Products, 353 U.S. 222 (1957) decision. In
Dayton Bar Briefs Summer 2017
By Zachary S. Heck Esq. DBA Editorial Board Faruki Ireland Cox Rhinehart & Dusing P.L.L.
that decision, the Court looked to the text of the statute to find that the only reference to venue was defined as a state of incorporation. Although the Federal Circuit held that amendments from 1990, for purposes of general venue, superseded the Court's holding in Fourco, Justice Thomas once again looked to the text of the statute. Justice Thomas disagreed with the Federal Circuit and explained that "[w]hen Congress intends to effect a change of that kind, it ordinarily provides a relatively clear indication of its intent in the text of the amended provision." As a result, plaintiffs wishing to shop for a favorable venue, such as the widely-viewed "plaintiff-friendly" jurisdiction of the Eastern District of Texas, will now be limited to whichever venue is available in the state of incorporation. For the last three years, one-quarter of all patent suits in the United States have fallen onto the docket of a single judge in Marshall, Texas. That statistic will soon be a faded memory. Indeed, this decision could result in a dramatic increase in patent infringement suits being filed in Delaware, where a disproportionate number of companies choose to incorporate. Of course, plaintiffs can still sue for patent infringement in Marshall if the defendant is incorporated in Texas, or if the defendant is allegedly committing infringement and has a regular and established place of business in that jurisdiction. Further, the venue law on foreign defendants has not changed: plaintiffs may sue them anywhere as per the Supreme Court's 1972 decision in Brunette Machine Works Ltd. v. Kockum Industries, Inc., 406 U.S. 706 (1972). In Brunette, the Supreme Court held that a foreign corporation can be sued for patent infringement in any judicial district, following a long-standing rule that venue restrictions do not apply to foreign companies. In a footnote to the TC Heartland ruling, Justice Thomas wrote that the court did not "express any opinion on this court's holding" in Brunette or on the implications of the decision on foreign corporations. Patent litigators should expect foreign companies to be at the center of another round of legal battles over patent venue following TC Heartland. Only time will tell how the Supreme Court will address this issue, and whether Brunette will remain good law.
DBA RISING STAR
above the Bar
Chad E. Burton Esq.
By Edward M. Smith Esq. DBA Editorial Board Nolan Sprowl & Smith
VIRTUAL LAWYER: RAISING THE BAR INTO THE CLOUD
lthough he no longer practices law, he practices making life easier for lawyers and the Bar. Those who know Chad Burton, or know of him, realize that virtual reality is reality for him. A 38-year-old lawyer from Youngstown, Chad grew up in Columbus. He believes strongly in the bar and is trying to advance it through the use of technology. Chad was a member of the ABA Commission on the Future of Legal Services and is on the governing board for the ABA Center for Innovation. Chad believes there are significant unmet legal needs. As a result, that has created a vacuum for non-legal “services” to enter the market. In other words, we are losing business in many areas as a result of not understanding how many consumers seek legal services. Chad became an attorney in 2004, after completing his law school at Case Western Reserve. He graduated from Miami of Ohio in 2001 with a degree in political science. His first job was with Faruki, Ireland & Cox and subsequently the litigation department at Thompson Hine. In 2009, Chad started his own firm, Burton Law. It was a “traditional” model; then he switched to an “alternative” law firm model in four states, often referred to as a “virtual law practice.”1 Lawyers worked remotely and used part-time offices to meet clients, as needed. Chad was always interested in technology and believed that was the way to connect with clients and serve their needs. He also taught law practice management for four years, from 2012 to 2016, at the University of Dayton School of Law. He believes strongly in the organized bar. His long-time interest in technology led him to a new law-related career, one that gives him the opportunity to create greater value for practicing lawyers and bar associations. In 2012, he created CuroLegal, a legal technology development firm. The business is focused on design and strategy for law firms, bar associations and law schools and on the development of innovative practice aids designed to make it easier for lawyers to connect with clients and serve their legal needs. He is currently working with the Dayton Bar Association on its website. In June of this year, the company rolled out, in conjunction with the American Bar Association, an online application, the Legal Checkup for Veterans (www.veteranslegalcheckup.com). This is a free question and answer application designed to help veterans understand whether or not they have a legal problem, focusing on employment, family and housing law. The application is designed to keep lawyers in the equation for access to justice. Chad said that he was “volunteering on the inside” by volunteering his company’s time to develop the application. Indeed, he and CuroLegal were recognized by ABA President, Linda Klein, for their volunteer efforts to develop this web-based application for those who really need and deserve it. Chad said his company looks at different ways to structure practice models to help solo and small practice development. He sets up an infrastructure for law firms to get and keep clients, and to “get money in the door.” This evolved into an application – ABA Blueprint (www.abablueprint.com) – to help solo and small practice firms with practice development and management. Another similar initiative Chad developed through his company was a significant member benefit for the New York State Bar Association – LawHUB (mylawhub.nysba.org). This is a single source platform designed to permit lawyers to access practice management resources targeted to their particular practice, making the bar association an indispensable part of a lawyer’s practice. The dashboard includes access to “a suite of integrated practice management tools.” These include Fastcase, Clio, Google Calendar, Office 365 Calendar and LawPay. It is designed to be somewhat like a cafeteria, with the lawyer customizing the dashboard by selecting functions and information tailored to the lawyer’s practice. The ways of practicing law are evolving and will be different, just as they were when the typewriter took over for the pen; when the telegraph and then the telephone delivered messages that took days to deliver by horse or ship; when email took the place of letter-writing; when the cellular bag-phone and then the mobile “smart” phone replaced the land-line; when the typewriters were replaced by the “mag cards”, which were replaced by disks, then fully integrated computers with word-processing capabilities and transfer of information through the cloud. Time marches on. I am sure that our predecessors would be amazed by the inventions that have driven culture, business and the professions. But the desire to create access to justice and equal justice under the law has not changed. Technology is simply an array of tools that can be used for its advancement. Chad is at the forefront of this evolution and we are proud of his connection to our community and our bar association. We are only witnessing the beginning of his journey to assist the advancement of our profession. For that we are grateful.
Dayton Bar Briefs Summer 2017
The Honorable Anthony (Tony) Capizzi is NCJFCJ's 73rd President T T
he Honorable Anthony (Tony) Capizzi of the Montgomery County Juvenile Court, Ohio is the National Council of Juvenile and Family Court Judges’ (NCJFCJ) 2017-2018 president of the board of directors. He is the 11th NCJFCJ president hailing from Ohio. Judge Capizzi’s involvement in NCJFCJ began in 2005 as a member. He has served on multiple NCJFCJ committees including the Juvenile Drug Court Training and Technical Assistance Project Advisory Committee, the Diversity Committee, and the Legislative Committee. He has served as member of faculty for multiple NCJFCJ conferences and institutes. “Judge Capizzi is a nationally recognized leader and at the forefront of juvenile justice and family law issues,” said Joey Orduna Hastings, CEO of the NCJFCJ. “With Judge Capizzi leading the charge, I am confident that the NCJFCJ will continue to do its most innovative and cutting-edge work yet for children and families who seek justice in our courtrooms.” “What is particularly noteworthy about Judge Capizzi’s efforts is that they are appreciated in equal measure by the youth and their parents,” said Ohio Chief Justice Maureen O’Connor. “He has made success stories out of the most hardened youth, and believers of the most frustrated, angry and helpless parents.” Judge Capizzi is known as a workaholic and remains enthusiastic and energetic about working to promote the welfare of children, as has been his focus throughout his legal career.
Congratulations Judge Capizzi!
for up to date dba info and announcements... follow us! @Dayton_Bar www.daybar.org
@DaytonBarAssociation Summer 2017 Dayton Bar Briefs
LABOR & EMPLOYMENT
SCOTUS Overturns Circuit Courts’ Interpretation of ERISA Church Plan Exemption for Church-Affiliated Employers
n June 5, 2017, the U.S. Supreme Court decided Advocate Health Care Network v. Stapleton, No. 16-74, resolving the question of whether church-affiliated hospitals’ employee defined-benefit pension plans qualify for the ERISA church plan exemption, despite those plans not having been originally “established” by a church. Under ERISA, the Employee Retirement Income Security Act of 1974, most private employers and employee benefit plans must adhere to specific requirements to ensure plan solvency. These requirements include minimum funding and vesting thresholds and insuring pension funds through the federal Pension Benefit Guaranty Corporation (PBGC), as well as specific reporting, disclosure and fiduciary responsibilities implemented by a plan administrator. These safeguards apply not only to pension funds, but also to 401(k), 403(b) and employee health and welfare benefit plans. However, ERISA provides an exemption for “church plans” that are established and maintained by a church. If an organization’s employee benefit plan meets the statutory definition of a “church plan”, they are exempt from the requirements of ERISA. The church plan exemption provision of the ERISA statute as originally drafted by Congress provided that only plans established directly by a church could qualify for the exemption. In 1980, Congress amended the section to include church-affiliated organizations in the definition of an exempt church plan. Under the new section of the statute, an employee benefit plan maintained by a church-affiliated organization would also be permitted to take the exemption and would not be obligated to comply with the ERISA requirements. The IRS and the Department of Labor had always considered such organizations exempt from ERISA for many years, when the Supreme Court accepted the case to resolve differing lower court interpretations of the ERISA church plan exemption language. In 2014, employees and former employees of Advocate Health Care Network as well as employees of other large health systems filed class actions under ERISA, claiming that the health systems were not entitled
Dayton Bar Briefs Summer 2017
to take advantage of the church plan exemption because they had not been originally established by a church. They specifically argued that the church plan exemption was never meant to include “giant businesses” like the health systems involved, many of which employed over 35,000 people. The employees also accused the health systems of underfunding their pension plans. Advocate Health in the Ninth Circuit, and other health systems in the Third and Seventh Circuit courts separately argued that their status as church-affiliated principal purpose organizations under ERISA Section 33 entitled them to the church plan exemptions from compliance with the ERISA requirements. The lower courts initially ruled in favor of the employees, rejecting the hospitals’ argument that they had relied upon opinions from the IRS allowing them to take the church plan exemption, and holding that the ERISA church plan exemption would only apply to employee benefit plans that had been established directly by a church. The U.S. Supreme Court agreed with Advocate (and the other two hospital systems involved in the litigation) regarding their interpretation of the ERISA statutory language. In the opinion written by Justice Kagan, the Court held that the 1980 revisions to the ERISA statute regarding the church plan exemption merely expanded the definition of a church plan to include a plan that was administered by an organization with the “principal purpose” or function to administer or fund a plan. As long as the organization is controlled by or associated with a church, the Court held, it would be exempt from ERISA. The Court disagreed with the lower courts’ statutory analysis, as well as their reliance upon the legislative history involving the amendments to the church plan exemption section of ERISA. A plain reading of the statutory language would lead to the legal conclusion that Congress meant to include church-affiliated organizations within the definition of a church plan. The Court held that the hospital systems were exempt from all ERISA continued on page 15
LABOR & EMPLOYMENT: SCOTUS Overturns Circuit Courts’ Interpretation of ERISA Church Plan Exemption continued from page14 requirements under the church plan exemption because they were associated or affiliated with a church. The plans did not have to be established by a church in order to qualify for the exemption. However, the decision avoided deciding whether large non-profit hospital systems meet the requirement for the exemption in terms of whether they are sufficiently controlled by or associated with a church. In her concurring opinion, Justice Sotomayor agreed with the analysis of the Court but stated that she was “troubled by the outcome of these cases” in that organizations such as these hospitals, “operate for-profit subsidiaries, employ thousands of employees, earn billions of dollars in revenue, and compete with secular hospitals that have to comply with costly ERISA regulations. These organizations thus bear little resemblance to those Congress considered when enacting the 1980 amendment to the church plan definition.” Also mentioned was the fact that several of the hospital systems involved owned subsidiaries which were not non-profit entities and perhaps did not have contracts affirming their affiliation with any church. This may signal an avenue for further legal challenges to the church plan exemption for employee beneficiaries of ERISA-exemption benefits plans. Employers currently relying upon the exemption should perform an audit and analysis of each business entity claiming the exemption based upon a church affiliation involving either church control, church association, or on the basis that the organization has the principal purpose of administering or funding a plan By Kristina E. Curry Esq. or program of employee benefits DBA Editorial Board for employees of a church or Pickrel Schaeffer & convention or association of Ebeling Co., LPA churches.
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Summer 2017 Dayton Bar Briefs
Need to catch up on CLE this Summer? The DBA has you covered. Join us for great CLE programs! Domestic Relations 101 (video replay)
Professional Conduct: The Top 10 Ethics Mistakes (video replay)
Tuesday, August 1, 2017 | 1:00 - 4:15pm 3.0 CLE General hrs | Seminar #1718-013 M $105 | NM $150 | PP $0
Best Practices for Handling Commercial Real Property Issues (video replay) Tuesday, August 8, 2017 | 1:00 - 4:15pm 3.0 CLE General hrs | Seminar #1718-014 M $105 | NM $150 | PP $0 Presenters: Jonathan F. Hung Esq. Green & Green, Lawyers Andrew M. Engel Esq., Kendo Dulaney Law AGENDA: - Commercial Lending Requirements for - Commercial Real Estate Transactions - Commercial Tax Appeals: Process and Issues - Common Commercial Lease Issues - Owner-Contract-Subcontractor Issues in Liability Claims - Update on Foreclosure Defense - Real Property Case Law Update
Dayton Bar Briefs Summer 2017
Tuesday, August 22, 2017 | 1:00 - 4:15pm 3.0 CLE hrs Professional Conduct | Seminar #1718-015 M $105 | NM $150 | PP $0 Presenters: John Ruffolo Esq., DBA Bar Counsel, Ruffolo Stone & Stone Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL
Judge Langerâ€™s 2016 Criminal Law Update: Survey of US Supreme Court, Ohio Supreme Court and Ohio Appellate Case Law (video replay) Tuesday, August 29, 2017 | 9:00 - 12:15 pm 3.0 CLE hrs | Seminar #1718-016 M $105 | NM $150 | PP $0 Presenter: Hon. Dennis J. Langer, Montgomery County Common Pleas Court AGENDA: Judge Langer will review a wide spectrum of cases addressing search and seizure, confessions, pretrial identification, waiver of counsel, substantive criminal law, no contest pleas, rules of evidence, trial procedure, sentencing, probation revocation hearings, and other miscellaneous issues.
emina S E V I A New L
The Rules of Evidence Series: Character and Impeachment
Friday, September 29, 2017 | 9:00-12:15pm 3.0 General CLE hrs | Seminar #1718-020 M $105 | NM $150 | PP $0 Presenter: Hon. Mary Katherine Huffman Montgomery Cty Common Pleas Court
Annual Bench Bar Conference Friday, November 3, 2017
Annual Elder Law Update
Thursday, November 9, 2017
Take Advantage of the Best Deal in CLE!
This three-hour CLE presentation will explore the challenges associated with character and impeachment evidence.The presentation will aid participants in identifying the difference between character evidence offered to support a claim or defense and impeachment evidence offered to test the credibility of a witness. Participants will also learn the various methods of introducing character and impeachment evidence and under what circumstances the methods of introducing the evidence are appropriate. AGENDA:
Passports Available for a Limited Time Sales End September 29th
-Hour 1 Character Evidence – Evid. R. 403, 404 and 405 -Hour 2 Habit Evidence, Offers to Compromise, Insurance, Plea Negotiations and Pleas, Payment of Expenses – Evid. R. 406, 407, 408, 409, 410 and 411 -Hour 3 Impeachment Evidence – Evid. R. 607, 608, and 609
register online: www.daybar.org/cle www.daybar.org
*Must be DBA Member to Purchase Passport*
525 Unlimited Passport 295 12-Hour Passport
Summer 2017 Dayton Bar Briefs
Dayton Bar Association
The Association for Legal Professionals Since 1883
he most festive event of the year, the 2017 Annual Meeting took place on June 9, 2017 at Sinclair Community College, Building 12. The event took place starting at 6:30pm with registration, hors d’oeuvres and cocktails and The Eric Zaden Trio entertained. A wonderful buffet dinner was served, featuring carved top round and Nordica salmon. A surprise video presentation for DBA Executive Director, Bill Wheeler was playing during the evening. A few months ago, Mr. Wheeler announced he will be retiring from the DBA, effective September 30th of this year. The video presentation was a tribute featuring DBA Past Presidents and their comments about Bill’s tenure as Executive Director of the Association, since 2003. Opening remarks were made by Bill Wheeler and he thanked the sponsors of the evening: Platinum Level: Estabrook Charitable Trust, Administered by: Porter Wright Morris & Arthur and Faruki Ireland Cox Rhinehart & Dusing P.L.L.; Gold Level: Thompson Hine; Silver Level: Dinsmore & Shohl LLP, Freund Freeze & Arnold and Premier Health. Bronze Level: Miller Creative Strategies, LLC + Park-N-Go Airport Parking, Ohio Bar Liability Insurance Company Subashi & Wildermuth and Young & Alexander Co., LPA. Patron Level: Ferneding Insurance, John M. Ruffolo Esq., Mood Media – Dayton, Murr Compton Claypoole & Macbeth and Sinclair College Paralegal Program. Bill introduced the staff of the DBA, whom he says, “make the Bar Association run.” Attorney Susan Solle, who served with dedication and leadership as the 102nd President of the DBA, called the meeting to order. She recognized the law firms who are members of the 100% Club, which consists of law firms with two or more members, in which every member is a member of the DBA. Susan asked the DBA Sustaining Members to stand in recognition of giving added support to the Association. There was a record breaking number of Past Presidents in attendance, who were acknowledged by wearing a corsage or boutonniere. Susan introduced the Committee Chairman and Vice Chairmen, who then received certificates as a Thank You for their dedication to the DBA and the legal profession over the past year. Also recognized by Susan was the Leadership Development Classes of 2016 and 2017. The Class of 2016 consisted of Christina J. Back, Jennifer CunninghanMinnick, Chance O. Cox, Joe J. Hyde, Brian B. Gravunder and Steven W. Swick. The new Class of 2017 includes, Clark C. Crum, Zachary S. Heck, Nadia A. Klarr, Thomas Styslinger, Jonathan L. Sutermeister, and Jane A. Williamson. The Leadership Development Class was designed to develop future interest and leadership in the DBA, to engage lawyers early in their careers and to gain a deeper understanding of the benefits of membership as well as provide networking opportunities by introducing new lawyers to key stakeholders in the Dayton legal community. Over the past year, the Leadership Development Class helped elderly homeowners with housing violations to fix up their homes. Judge Wiseman will be the leader of the new class of 2017. Susan called members of the Board of Trustees: Kermit F. Lowery, Barbara J. Doseck, Lynnette Dinkler and Merle F. Wilberding, to the stage to receive a token of appreciation as outgoing Immediate Past President, Secretary and Member(s)-at-Large, respectively. The election of 2017-18 Board of Trustees Officers was held. The slate of nominees was Judge Mary Wiseman for Second Vice President and Cara Powers for Secretary. A vote was taken and the motion carried. The following 2017-18 Board of Trustees were sworn in by Judge Jeffrey Froelich: President, Brian L. Wildermuth Esq.; First Vice President, David P. Pierce Esq.; Second Vice President, Hon. Mary L. Wiseman; Secretary, Cara W. Powers Esq.; Treasurer, Jonathon L. Beck Esq.; Immediate Past President, Susan D. Solle; and Member(s)-at-Large, Cassandra L. Andres Rice, Angelina N. Jackson Esq., Hon. Timothy N. O'Connell and Fredric L. Young Esq. Susan Solle made her remarks as the outgoing President. She said, “This has been one of the most rewarding years of my career.” A photo of Susan with a crown on her head was shown behind her, which brought a good laugh being as though she couldn’t see it at first and didn’t know what people were laughing about. Susan recognized Bill Wheeler, who will be retiring in September. She said he “Always has answers to our questions. Bill, we love you. You have raised the Bar.” Bill was presented an award from the Board, named The Legacy of Excellence Award. Bill Wheeler spoke and said, “I knew something was going on, but wasn’t sure what it was. It has been a privilege and an honor to serve you.” He was presented with a personalized rocking chair and a Dayton-themed lap blanket, and a bottle of scotch. Susan then introduced Brian L. Wildermuth as the next President of the Dayton Bar and stated that, “Brian is one of the smartest people I know. He always has good ideas.” While at the podium, Brian said, “It is the greatest honor of my professional career to become President of the DBA. We are a member driven organization. If we don’t provide value to our members, then they will look elsewhere. We the Board are dedicated to keeping our membership strong. My firm, Subashi and Wildermuth has the kind of senior partner that always has our back, and encourages us to participate in the DBA. Some years ago, Judge Krumholtz stood in front of you and said, “Stand up, speak up, sit down”. Thank you to all of the Past Presidents. I am very much looking forward to working with you. Thanks everyone.” Brian recognized his wife Jane, and their two daughters, Rosie and Isabel who were also in attendance. The evening concluded with Bill giving Susan yellow roses, a personalized chair with her name and DBA logo, along with a beautiful watch in honor of all the time she spent at the DBA. It is a bittersweet feeling to watch how the DBA will evolve with this new chapter, under new leadership, as we steadily embark towards our goal of providing excellence in the legal profession.
Dayton Bar Briefs Summer 2017
By Mary KS Soter Esq. DBA Editorial Board Mary K.C. Soter Law Office
Summer 2017 Dayton Bar Briefs
Platinum Estabrook Charitable Trust, Administered by: Porter Wright Morris & Arthur
Faruki Ireland Cox Rhinehart & Dusing P.L.L. Gold Thompson Hine Silver Dinsmore & Shohl LLP Freund Freeze & Arnold Premier Health Bronze Miller Creative Strategies, LLC Park-N-Go Airport Parking Ohio Bar Liability Insurance Company Subashi & Wildermuth Young & Alexander Co., LPA Patron Ferneding Insurance John M. Ruffolo Esq. Mood Media - Dayton Murr Compton Claypoole & Macbeth Sinclair College Paralegal Program 20
Dayton Bar Briefs Summer 2017
The DBA Foundation Board of Trustees has initiated the Foundation Fellows Program to recognize those members of the Dayton legal community who have maintained the highest standards of the legal profession and who are dedicated to the welfare of the community and furtherance of the purposes and ideals of the Dayton Bar Association and Foundation. Foundation Fellow nominees have distinguished themselves at the bench or the bar, demonstrated integrity, high character, have been involved in legal and/or community affairs and have made a commitment to the future success of the Dayton Bar Association Foundation. *The Class of 2017 Foundation Fellows are highlighted in green below.
Hon. Dennis J. Adkins
Mag. Joseph S. Gallagher
*L. Anthony Lush
John M. Ruffolo
Charles F. Allbery, III
Charles F. Geidner
Jane M. Lynch
Marybeth W. Rutledge
Debra B. Armanini
Caroline H. Gentry
*Michelle M. Maciorowski
Beth W. Schaeffer
Theresa A. Baker
David C. Greer
Dianne F. Marx
Gary C. Schaengold
Lawrence J. Greger
Craig T. Matthews
Jon M. Sebaly
Jonathon L. Beck
Dennis E. Gump
Hon. Alice O. McCollum
Todd D. Severt
Robert A. Bostick
Christine M. Haaker
Hon. Frances E. McGee
Edward L. Shank
Karen D. Bradley
Robert J. Hadley
Jeffrey R. McQuiston
Carl D. Sherrets
Joan B. Brenner
*R. Mark Henry
Alan F. Meckstroth
Charles D. Shook
Hon. James A. Brogan
L. Stephen Herbert
Hon. Michael R. Merz
Hon. Gregory F. Singer
Hon. James F. Cannon
J. Michael Herr
David P. Mesaros
Richard S. Skelton
Hon. Anthony Capizzi
Ralph E. Heyman
Mag. Arvin S. Miller III
Ralph A. Skilken, Jr.
Robert L. Caspar, Jr.
Louis I. Hoffman
Michael B. Miller
Charles W. Slicer, Sr.
Mark R. Chilson
Nicholas C. Hollenkamp
Hon. Robert L. Moore
Jeffrey D. Slyman
Hon. William A. Clark
Hon. Mary Katherine Huffman
Hon. Michael J. Newman
Edward M. Smith
Christopher F. Cowan
Hon. Guy R. Humphrey
Bruce I. Nicholson
*Mary K.C. Soter
Jeffrey T. Cox
D. Jeffrey Ireland
Victoria L. Nilles
Paul H. Spaeth
Dale E. Creech, Jr.
Thomas E. Jenks
Thomas R. Noland
Andrew C. Storar
Robert M. Curry
William A. Jividen
Hon. Timothy N. O’Connell
Nicholas E. Subashi
Hon. Steven K. Dankof
*Keith R. Kearney
Hon. Thomas M. O’Diam
Hon. David G. Sunderland
Larry J Denny
Ronald D. Keener
Robert J. Surdyk
Peter J. Donahue
Anne P. Keeton
Alvarene N. Owens
Jeffrey A. Swillinger
Hon. Mary E. Donovan
James W. Kelleher
Richard P. Perna
Bridget A. Tracy
Daryl R. Douple
Thomas W. Kendo, Jr.
Hon. John S. Pickrel
Louis E. Tracy
Trisha M. Duff
Hon. John W. Kessler
*John D. Poley
Hon. Michael L. Tucker
James A. Dyer
Scott A. King
Hon. Connie S. Price
*H. Charles Wagner
Christopher B. Epley
Thomas A. Knoth
Lynn M. Reynolds
Christopher A. Walker
Lauren K. Epperley
James G. Kordik
Hugh E. Wall, III
Lee C. Falke
John R. Koverman, Jr.
Mag. Bonnie Beaman Rice
Brian D. Weaver
Charles J. Faruki
Leo F. Krebs
Hon. Walter H. Rice
Gary J. Weston
Robert N. Farquhar
Michael W. Krumholtz
H. Pete Rife
Thomas P. Whelley, ll
Mag. Gina A. Feller
Laurence A. Lasky
Hon. Adele M. Riley
Brian L. Wildermuth
Hon. Patrick J. Foley
Jon Paul Rion
Merle F. Willberding
Gary L. Froelich
Gary J. Leppla
Paul B. Roderer, Sr.
David P. Williamson
Hon. Jeffrey E. Froelich
Dennis A. Lieberman
William A. Rogers, Jr.
Hon. William H. Wolff, Jr.
Richard L. Furry
Hon. James F. Long
Marshall D. Ruchman
Patricia A. Zimmer
Summer 2017 Dayton Bar Briefs
10 Reasons You Should Consider DBA Membership
You Should Have Received This By Now...
1. CLE-Member Rate significant savings for conveniently located programs 2. FREE Pictorial Legal Directory – Printed and Online Versions 3. FREE Subscription to Dayton Bar Briefs magazine 4. Lawyer Referral Service enables you to grow your practice 5. Personnel Placement Service exclusively for our members 6. Reduced registration fee for the Annual Bench Bar Conference 7. Public speaking opportunities 8. Networking & Congeniality at DBA sponsored professional/social events 9. Member Committees & Divisions for substantive law and service-oriented areas of focus 10. Professional growth through association with members of the legal community
2017-18 DBA Dues renewal Statements
welcome new members ATTORNEYS COLBY, Lauren C. Mont Cty Common Pleas Ct. Admitted to the Ohio Bar: 11/14 EVANS, Mark E. Bricker & Eckler, LLP Admitted to the Ohio Bar: 11/01 JIA, Lingyu Mont Cty Common Pleas Ct. Admitted to the Ohio Bar: 06/16 KOLNICKI, Shari A. Coolidge Wall Admitted to the Ohio Bar: 11/00
PARALEGAL HODSON, Sheri L. 22
Dayton Bar Briefs Summer 2017
PARALEGAL STUDENTS ANTHONY, Haley N. AROGUN, Naomi D. BRENNEMAN, Rebecca D. BRISCOE, Ashley A. BROOKS, Miranda BURKE, Ashley M. CACCAMO, Christina A. CHENEY, Nicholas S. CLEMENTS, Shelley L. COX, Miranda A. DIETER, Elizabeth K. EIFERT, Valerie S. ELDRED, Lindsey A. ERNST, Brittany L. FARLEY, Robert E. FRIDENMAKER, Liza M. HOLLON, Elizabeth K. HOOTEN, Alexandra G. JOHNSON, Ashley N.
JORDAN, Heather M. MASON, April L. MENGLE, Melissa A. MURPHY, Andrea M. MYERS, Courtney E. NIMERSHEIM, Kelsey M. PAYNE, Abigail M. SACKSTEDER, Michael E. SEATON, Adam SHAW, Corinne M. SIBERT, Bryanna N. SONEK, Emma C. TALLMAN, Jennifer M. TOTTY, Sherry M. VASE, Laura A. WILSON, Sarah E. WINTERS, Vela E. ZULA, Jessica A.
our year in review... Photo captions, left to right:1) May 2016 Women in Law Forum Reception. 2) December 2016 Holiday Luncheon 2016-17 DBA Pres. Susan D. Solle Esq.; VLP Vice Pres. Lindsey Posey Esq.; Pres. VLP Susan Bridgman Esq.; Ohio Sup. Ct. Justice Judith L. French; Exec. Dir. VLP Kelly Henrici; 2016-17 DBA 2nd Vice Pres. Brian L. Wildermuth Esq. and E. Jane Taylor, OLAF 3) 24th Annual Bench Bar "The Rule of Law in a Shrinking World" Co-Chairs from left to right: Hon. Jeffrey Welbaum; Howard N. Fenton, (Ohio Northern Univ.) and Martin A. Foos Esq. 4) Attorney Cheryll Bennett, Judge Erik Blaine, Attorney Sasha Blaine and their families enjoying DBA Night at Dragons Field (below) 2017-18 DBA President Brian L. Wildermuth and 2nd Vice President David P. Pierce enjoying the baseball game 5) Diversity Day from left to right: Co-Chair Angelina Jackson Esq.; Co-Vice Chair Kevin Conner Esq.; Keynote Speaker David Singleton; Chair Barb Doseck Esq.; and Co-Vice Chair Magistrate Brandon McClain 6) February 2017 Judge Dennis J. Langer speaks to the Chancery Club Luncheon about some of Abraham Lincoln's most interesting cases "Abraham Lincoln the Lawyer" 7) Bench Bar Media Forum 8) Evening with the Judges was a huge success
FROM THE JUDGES DESK
Often Ignored Victim Remedy By Hon. Timothy N. O’Connell Montgomery Cty Common Pleas Court
ver the last several decades there has been a recurrent call for recognition of victim’s rights. The most obvious examples are requirements for courts to consider victim impact statements and victims wishes in dispositions of criminal cases. An often overlooked victim right was the subject of an important Ohio Supreme Court civil decision at the end of 2016. In Jacobson v. Kaforey the Ohio Supreme Court clarified and, one might argue, reinvigorated R.C. 2307.60. In a 4-2-1 decision, the Ohio Supreme Court held that the current version of R.C. 2307.60 independently authorizes a civil action for damages caused by criminal acts, unless otherwise prohibited by law. When considering causes of action, in the context of a tort-type situation, the practitioner considers many common law tort causes of action. Among the array of possible theories are assault and battery, false imprisonment, trespass to property, conversion, negligence, and defamation. In the tort-type area one does not generally think of statutory causes of action. The only statutory tort-personal injury type theories that readily come to mind are dog bite and landlordtenant statutes. The Jacobson v. Kaforey case sensitizes attorneys to the existence of a broad statutory cause of action in tort-personal injury circumstances.1
FACTS AND PROCEDURAL HISTORY
Jessica Jacobson filed a pro se complaint against defendants-appellants, Ellen C. Kaforey, Akron Children’s Hospital, and Cleveland Clinic Children’s Hospital for Rehabilitation, alleging, as relevant to the appeal, three civil claims brought under R.C. 2307.60. Each of those claims sought recovery for damages arising out of the alleged violation of a criminal statute: unlawful restraint, R.C. 2905.03; kidnapping, R.C. 2905.01; and child enticement, R.C. 2905.05. Jacobson alleged that the hospitals and Kaforey – an attorney and registered nurse who had been appointed by the Summit County Probate Court as a conservator to assist Jacobson’s mother in making medical decision for Jacobson – unlawfully restrained Jessica by keeping Jessica’s mother from visiting her ( Jessica) while she was hospitalized in 2001 at the age of seven. Further, Jessica alleged that Kaforey, aided by Cleveland Clinic Children’s Hospital for Rehabilitation, kidnapped Jessica by arranging without authority to have Jessica sent that year to live with a family member in Florida. And finally, Jessica alleged that Kaforey, in concert with the hospitals, unlawfully enticed Jessica onto the plane to Florida without obtaining the required legal permission from Jessica’s mother. Kaforey and both hospitals moved to dismiss all counts of the complaint under Civ.R. 12(B)(6) for failure to state claims upon which relief could be granted. The trial court granted the motions as to all claims and dismissed the case. In ruling on the claims brought under R.C. 2307.60, the trial court observed that “Ohio courts have established that civil actions for damages may not be predicated upon alleged violation of a criminal statute.” Jessica appealed asserting that the trial court should not have dismissed the claims brought under R.C. 2307.60. She argued that 24
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the statute creates a cause of action to recover damages caused by a criminal act. A divided panel of the court of appeals agreed with Jessica, holding that “the current version of R.C. 2307.60 independently authorizes a civil action for damages” caused by criminal acts. “That is exactly what the plain language of the statute authorizes.”2 The court of appeals remanded the cause to the trial court for further proceedings. Kaforey and both hospitals moved the court of appeals under App.R. 25 to certify a conflict between its judgment and the judgments of several other courts of appeals, each of which held that R.C. 2307.60 does not create an independent cause of action but merely codifies Ohio common law that a civil action does not merge into a criminal prosecution. The court of appeals granted the motions, holding that its judgment was in conflict with judgments of the Third, Fifth, and Tenth District Courts of Appeals. The Ohio Supreme Court determined that a conflict existed and ordered briefing.
continued on page 26
ENDNOTES: 1 2
Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434. 2015-Ohio-2624, 39 N.E.3d 799, ¶ 21 (9th Dist.).
? w o n u K e CLE at o Y d Di Onlin rs Get
tes? mbe a e R M d e A nt DB Discou r h othe ns t i w s r partne r Associatio A B D e Th tan Ba i l o p o r et tion vide Ohio M To pro ability *Selec *Afford e c n e i en *Conv E.com L C t s a F ayton D : t i s i V
DBA 2017-2018 Committees START THE NEW DBA FISCAL YEAR OFF RIGHT! Grow personally and professionally through committee participation! Log on to view “Interest Groups”
Judges’ Committee on Notaries Public *Meetings scheduled when necessary.
Civil Trial Practice & Alternative Dispute Resolution 2nd Tuesday at noon
Unauthorized Practice of Law & Fee Dispute Arbitration John M. Ruffolo, Chair
Corporate Counsel (In-House Counsel) 4th Thursday at 4:30pm
Eikenbary Advisory Board *Meetings scheduled when necessary.
Appellate Court Practice 2nd Wednesday at noon
Criminal Law & Its Enforcement 3rd Wednesday at noon
Bar Exam and Qualifications *Meetings scheduled when necessary.
Domestic Relations 2nd Thursday at noon
Professional Ethics Select Thursday(s) at 4:00pm
Environmental Law Bimonthly, 2nd Wednesday at noon
Estate Planning, Trust & Probate Law 1st Wednesday at 4:00pm
Dayton Bar Briefs Editorial Board *Meetings scheduled when necessary.
Federal Practice 2nd Monday at noon
Diversity Issues 1st Tuesday at noon
Juvenile Law 1st Monday at 4:00pm
Paralegal *Meetings scheduled when necessary.
Labor & Employment Law 2nd Tuesday at noon
Public Service & Congeniality Select Friday(s) at 11:00am
Real Property 2nd Thursday at noon Small Firm/Solo Office 1st Monday at noon Workers’ Compensation / Social Security 1st Thursday at noon Young Lawyers Division 1st Wednesday time TBA
Summer 2017 Dayton Bar Briefs
FROM THE JUDGES DESK: Often Ignored Victim Remedy continued from page 24
This decision offers a good review of the law regarding interpretations of statutes. It is also interesting that all three of the writers’ assert that they are acting consistent with the, often debated, concept of judicial restraint. The majority decision is relatively brief. The majority concludes that the statute is not ambiguous and it creates a civil cause of action for damages resulting from any criminal act unless otherwise prohibited by law. The statute at the heart of the dispute is R.C. 2307.60 (A)(1). It provides: Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code. Justice O’Neill, writing for the majority, determined that the first step in considering the meaning of a statute is to determine whether the statute is plain and unambiguous. If the statute is unambiguous then the statute is to be applied not interpreted.3 The majority found that the statute, R.C. 2307.60 (A)(1) is unambiguous. The statute by its plain and unambiguous terms creates the statutory cause of action for damages resulting from any criminal act. The wording and the title to the legislation expressly indicate that the general assembly was establishing a specific statutory civil action for recovery of full damages for personal injury or property loss arising from any criminal act. This legislation was passed in 1984 and was signed by the governor in 1985. The wording chosen for Am.Sub.H.B. No.426, 140 Ohio Laws, Part II, 3783 is: “An act…to amend, for the purpose of adopting a new section number as indicated in parentheses, section 1.16 (2307.60)…of the Revised Code to establish a specific statutory civil action for the recovery of full damages for personal injury or property loss arising from any criminal act…” The majority said these statements are crystal clear. Accordingly, the majority affirmed the Ninth District. Justice Kennedy wrote a concurring opinion joined by Judge Jensen. Justice Kennedy found that the statute was ambiguous. Accordingly, she engaged in an analysis of legislative intent. Justice Kennedy asserted that if a statute is ambiguous, it is necessary to consider “other matters” pursuant to R.C. 1.49. She held that these other matters are the circumstances of the statutory enactment, the former statutory provisions, the available legislative history, and the consequences of a particular construction. Analyzing each of the factors Justice Kennedy arrived at a conclusion that all the other matters weighed in favor of finding that R.C. 2307.60 does create an independent civil cause of action. Justice O’Donnell dissented. Justice O’Donnell asserted that R.C. 2307.60 does not create an independent cause of action resulting from a criminal act but merely codifies Ohio common law to the effect that a criminal prosecution does not extinguish a civil cause of action, and therefore only actions that existed at common law, or that have been authorized by statute, can be commenced to seek damages caused by a criminal act. Because there are no statutes establishing 26
Dayton Bar Briefs Summer 2017
civil causes of actions for violations of R.C. 2905.01, 2905.03, and 2905.05 he would reverse the judgment of the Ninth District Court of Appeals. Justice O’Donnell does not appear to make an express determination that the statute is ambiguous. He asserts that because the parties have presented opposing interpretations of the statutory language and there is a conflict among the appellate courts, the language is ambiguous. It is interesting that Justice O’Donnell, generally, uses the same factors as Justice Kennedy for determining the meaning of the statute. Justice O’Donnell agrees with Justice Kennedy, and for the most part, the majority in finding that the court uses former statutory provisions, legislative history, and the consequences of a particular construction. There is some minor difference in the factual test among the three opinions here. Justice O’Donnell specifically mentions the common law, Justice Kennedy specifies the circumstances of the statutory enactment and Justice O’Neill mentions public policy. The tests that the Judges use are consistent with R.C. 1.49. R.C. 1.49 does contain the language, “may consider among other matters”. So, Justice O’Neill’s specifying of public policy would not be inconsistent with R.C. 1.49, although those specific words are not used. The Jacobson case is instructive to counsel for a third reason. First, it advises attorneys of the clear existence of a cause of action in the civil division for criminal acts. Second, it provides a good review of the factors counsel need to know for arguing the meaning of a statute when the language is ambiguous. The third bit of education is that the case provides a laundry list of specific statutory causes of action for activity or behavior that is also criminal. There are specific statutory civil causes of action for theft offenses, willful damaging of property, identity theft, possession or sale of unauthorized television device, vandalism, desecration, ethnic intimidation and Medicaid eligibility fraud. Jacobson contains the specific statutory citation for those types of civil causes of action. The writer is not insensitive to the practical problem in this area. It is one thing to have a valid legal theory or cause of action. It is another to actually recover. As with any criminal act, the collectability may be a problem. It is unlikely insurance is available and the defendant(s) are probably not economically collectible.
If a client contacts you feeling victimized or after being accused, the writer recommends review of Jacobson v. Koforey for, at least, some sensitivity to available civil causes of action in the tort-personal injury area. The writer has recently adjudicated a case where the plaintiff prosecuted a cause under R.C. 2307.60 in conjunction with a breach of contract theory. Be advised that the majority did caution that it made no ruling regarding how the statute operates or what a plaintiff must do to prove a claim under R.C. 2307.60 (A)(1).
3 Sears v. Weimer, 143 Ohio St. 312 (1944) ¶ 5 of the syllabus.
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Summer 2017 Dayton Bar Briefs
law-related organizations Dayton Bar Association Foundation
The Dayton Bar Association Foundation is the charitable arm of our legal community. Working together, we strive to improve Our Community by Promoting Justice and Respect for the Law. Every gift, large or small, makes a difference in the lives of the people of this community. The Foundation is a great place to create a memorial for a loved one, pursue your own philanthropic goals or leave a lasting legacy to this community.
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: email@example.com
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: firstname.lastname@example.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. 28
Dayton Bar Briefs Summer 2017
Thurgood Marshall Law Society How to Contact TMLS: President Robert L. Gresham Esq. 937-222-7477 rgresham@ yourohiolegalhelp.com
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members on the move If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award, or have other news to share, we’d like to hear from you. News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted via email and are subject to editing. We also request a current, high-resolution, directory-style photo to accompany your announcement. These monthly accouncements are printed as space is available. Send to DBA Publications Manager, Shayla M. Eggleton: email@example.com. Send your address changes to Carol Blevins: firstname.lastname@example.org
On June 6, 2017, THOMAS J. INTILI was inducted as fellow of the Ohio State Bar Foundation in a ceremony at the Ohio Supreme Court. OSBF is the philanthropic arm of the Ohio State Bar Association. It promotes the pursuit of justice and the public understanding of the rule of law. A new class of civic-minded lawyers is inducted each year by invitation. These lawyers volunteer their time for a year of service to outreach programs throughout Ohio.
Seasoned trial attorney and community leader ANNE P. KEETON joins Freund, Freeze & Arnold, a regional litigation law firm serving Ohio, Kentucky and Indiana. With fourteen years of litigation experience, Anne has been named an Ohio Rising Star Super Lawyer by Law & Politics magazine and holds an AV® Preeminent™ Rating, a rating given to less than 5% of all attorneys across the United States. She KEETON was also named among Dayton Business Journal’s Top 40 Under 40 for 2014. Anne has developed a diverse civil litigation and appellate practice focusing on personal injury defense, product liability, fire and arson claims, employment discrimination, and insurance coverage issues. Her trial experience includes the defense of a national corporation on remand of a multi-million-dollar punitive damage award, the successful defense of a young woman sued on a six-figure claim by an insurance company after a fire broke out at her apartment complex, and a unanimous defense verdict for a couple sued for fraud in the sale of their home. Anne is an active member of the OSBA, DBA and serves on the Executive Committee for the Carl D. Kessler Inn of Court and is a member of The Lawyer’s Club of Dayton. She previously served on the Associate Board for the Dayton Art Institute and is now a member of the Dayton Children’s Hospital Women’s Board. Anne joins Freund, Freeze & Arnold as a shareholder. Sebaly Shillito + Dyer has hired JOSH SCHIERLOH in its Litigation Department. He will focus his practice on business and commercial litigation. Josh is a Dayton native and earned both his undergraduate and law degrees from the University of Dayton.
save the date The Chancery Club Luncheon(s) The Old Courthouse | Doors open at 11:30am *There are no luncheons in December or January Friday, September 15, 2017 Friday, October 13, 2017 Wills for Heroes Charles I. Lathrem Senior Center 2900 Glengarry Dr., Dayton, OH 45420 Saturday, September 30, 2017 Training 8:30am; Appointments 10:00-2:00pm 50 Year Honoree Luncheon Sinclair Community College, Bldg 12 Wednesday, October 11, 2017 Doors open at 11:30am Annual Bench Bar Conference Sinclair Community College, Bldg 12 Friday, November 3, 2017 Criminal Law Certification Thursday, November 30, 2017 Probate Law Institute Friday, March 9, 2018 Annual Diversity Day Luncheon Friday, April 13, 2018 Annual Domestic Relations Seminar Friday, April 20, 2018 Celebration of Life Memorial Luncheon Monday, May 14, 2018 Sinclair Community College, Bldg 12 Doors open at 11:30am
EDITORIAL ERROR: It has been brought to the attention of the DBA Editorial Board, that the June 2017 article "Musings on Mortality" by Dave Greer, that recapped the 2017 Celebration of Life Memorial Luncheon, included an error. The very last paragraph states "There were other Dayton lawyers and former lawyers who left the world in the past year. Among those fondly remembered were Bill Schenck, Bob Womsley and Judge Judy Cross. All of them left traces which color our own personalities and sharpen our sense of humanity." The name is incorrect for Judge Judy Cross, it should be Judge Judith King. We apologize for any confusion this may have caused.
Dayton Bar Briefs Summer 2017
For info concerning Classified Ad and Display Ad Space in the Dayton Bar Briefs or any other DBA Publication, contact DBA Publications Manager, Shayla M. Eggleton: email@example.com or 937.222.7902. Discount Rates available for consecutive and/ or combined Online + Display + Classified advertising!
R OUR EER FO TS! T N U L VO EN ING EV . UPCOM is for details r h C t Contac
EXPERIENCED DIVORCE LAWYER SOUGHT
Holzfaster, Cecil, McKnight & Mues has an opening for a lawyer with preferably 3+ years experience in Domestic Relations work. Some present book of business is a plus. Please send resume to: Chip Mues at firstname.lastname@example.org.
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.
William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 572-3185 email@example.com
The next Wills for Heroes will be held:
Saturday, September 30, 2017 Charles I. Lathrem Senior Center 2900 Glengarry Dr., Dayton, OH 45420 Training will begin at 8:30am Appointments 10:00-2:00pm *Contact Chris: firstname.lastname@example.org 937.222.7902
Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 224-1427.
OFFICE SHARE ATTORNEY Established law office in downtown Miamisburg is looking for one or two attorneys for an office sharing arrangement with the possibility of an eventual equity interest. Office is conveniently located across the street from the municipal court and within 20 minutes of downtown Dayton. Interested parties please email email@example.com. OFFICE SHARING SPACE Turnkey, fully furnished office sharing arrangement in Washington Township available for one or two attorneys, one staff member, plus conference room, and garage parking. Confidential inquiries 937-609-9627.
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contact Shayla about DBA Advertising opportunities: firstname.lastname@example.org 937.222.7902
OFFICE SPACE AVAILABLE
Office space available in small downtown law office with private parking lot. One block from downtown court buildings. Easy on/ off I-75 access. Reasonable rental rate. Call 937-224-0039 for more information.
Graydon Head & Ritchey, LLP, 80+ attorney firm headquartered in downtown Cincinnati is seeking a staff attorney experienced in handling Ohio workersâ€™ compensation matters to join its Labor & Employment team. The successful candidate will handle BWC and Industrial Commission matters and hearings at all levels, as well as provide support on other workplace health/safety and general employment matters. We seek excellent verbal and written communication skills and an ability to work collaboratively with fellow lawyers and professionally with opposing lawyers. We offer competitive compensation and an attractive benefits package. Please reply in confidence with your cover letter, resume and law school transcript to: Sharon Hambene, Recruiting & Development Coor.,312 Walnut Street, Suite 1800, Cincinnati, OH 45202, (Phone) 513.629.2848, (Fax) 513.651.3836, Email: email@example.com www.daybar.org
advertiser index ComDoc Inc................................................5 Eikenbary Trust .........................................7 Elizabeth Diamond Company ...............9 Ferneding Insurance.................................8 J. Steve Justice - Mediations...................5 Johnson Investment Council................27 LCNB Bank..................................................9 National Processing Solutions.............15 OBLIC..........................................back cover Park-N-Go................................................11 R.L. Emmons & Associates.....................15 Rogers McNay Insurance.......................10 Trisha M. Duff - Mediations...................14 Summer 2017 Dayton Bar Briefs
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