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Rose v. Garfield Heights, Case no. 2005-1828
8th District Court of Appeals (Cuyahoga County)
Preferred Capital, Inc.v. Power Engineering Group, Inc., Case no. 2005-2134
9
th District Court of Appeals (Summit County)
Cincinnati Community Kollel v. Wilkins, Tax Commissioner, Case no. 2006-0365
State Board of Tax Appeals
In Re: Donald Adkins, Jr., Case no. 2006-0514
5th District Court of Appeals (Tuscarawas County)
Rose v. Garfield Heights, Case no. 2005-1828
8th District Court of Appeals (Cuyahoga County)
ISSUE: Under a former provision of Ohio insurance law in effect at the time of injury, did a liability insurance policy purchased by a municipality that included coverage of city-owned vehicles provide uninsured/underinsured motorist (UM/UIM) coverage for injuries suffered by a city employee who was struck by a hit and run driver while performing his official duties?
BACKGROUND: In the course of his duties as a police officer for the City of Garfield Heights, Ronald Rose was struck and injured by a hit-and-run driver who left the scene. A second officer, Lieutenant Wolske, responded to Rose's call for assistance and investigated the accident scene, but found there was no physical evidence of the at-fault vehicle and no witnesses to the accident other than Rose.
Rose filed a claim seeking uninsured motorist coverage under Garfield Heights' liability policy with Clarendon National Insurance Company. The insurer denied the claim. Rose sued, arguing that, even though the Clarendon policy did not include express UM/UIM coverage, the version of R.C. 3937.18 in effect at the time of his injury specified that any Ohio insurance policy providing auto liability coverage was presumed to include UM/UIM coverage by operation of law. The Cuyahoga County Common Pleas Court granted summary judgment to Clarendon. It ruled that the Clarendon policy did provide UM/UIM coverage by operation of law, but denied coverage for Rose's injuries based on a separate provision of the law stating that the testimony of an injured insured is not sufficient to support a UM/UIM claim unless it is supported by independent corroborative evidence that the claimant's damages were caused by an unidentified motor vehicle operator.
On review, the 8th District Court of Appeals reversed the trial court's decision, holding that Lt. Wolske's affidavit describing his investigation and Rose's medical records were sufficient to meet the statutory requirement of corroborating evidence.
Clarendon has appealed the 8th District's ruling to the Supreme Court. The company argues that everything included in Lt. Wolske's account of events is based on what he was told by Rose, and is therefore not “independent” corroboration of Rose's version of events. While medical records support Rose's claims of injury, they assert, those records include no evidence that the cause of those injuries was the negligent or intentional act of an unidentified driver. The company also argues that the policy it sold to Garfield Heights did not fall within the statutory definition of an “auto liability policy.”
Attorneys for Rose argue that the supporting affidavit and medical records they submitted raised an issue of material fact sufficient to defeat a motion for summary judgment and require a trial at which a jury can evaluate the evidence offered by Rose in support of his version of events. They dispute Clarendon's claim that the Garfield Heights policy was not an auto liability policy, noting that it specifically insured the city against damages caused by drivers of city vehicles and included a list of almost 100 city-owned vehicles specifically insured under the policy.
Contacts
Gerald R. Horning, 216.241.2262, for
Officer Ronald Rose.
Amy S. Thomas, 614.228.1311, for Clarendon National Insurance Co.
Preferred Capital, Inc.v. Power Engineering Group, Inc., Case no. 2005-2134
9th District Court of Appeals (Summit County)
ISSUE: If a non-Ohio vendor has entered into equipment lease contracts with non-Ohio companies and the contracts are subsequently assigned to an Ohio lease financing company, when the original vendor fails to perform on the contracts resulting in nonpayment by its customers, may the assignee enforce a ‘choice of venue' clause included in the contracts requiring customers to defend collection actions filed against them by the assignee in Ohio courts of the assignee's choosing?
BACKGROUND: This case involves a group of 13 non-Ohio businesses that entered into contracts with New Jersey-based Norvergence, Inc. for “package deals” of monthly telecommunications and Internet services. Power Engineering Group, Inc. and 12 other customers signed contracts in which they agreed to lease a “matrix box” provided by Norvergence that was portrayed as an essential component necessary to receive low-cost phone and Internet service through Norvergence's service network. Shortly after obtaining the signed customer lease agreements, Norvergence assigned or “sold” them to a lease financing company, Preferred Capital, Inc. of Brecksville, Ohio one of several such companies with which Norvergence had a pre-existing “master program agreement” that was not disclosed in its customer contracts.
Norvergence subsequently declared bankruptcy and failed to provide the promised services to its customers, who then defaulted on payments on contracts which were now owned by Preferred Capital. Preferred Capital brought legal actions in the Summit County Court of Common Pleas to compel individual customers to continue paying on their Norvergent contracts, invoking a “choice of law/choice of forum” clause included in the contracts stating that any dispute between the parties would be resolved in the courts of the state where the principle office of Norvergence or its assignee was located. The Summit County judges who heard these cases granted judgments to the customers, finding that the court did not have personal jurisdiction over customers who had no close contact with Ohio, that the forum selection clause in Norvergence's contracts was so vague and nonspecific as to be invalid, and that the clause imposed unreasonable and unjust requirements on Norvergence's customers.
Preferred Capital appealed each of the trial court decisions, which were consolidated for consideration by the 9th District Court of Appeals. The 9th District voted 2-1 to reverse the trial court rulings, holding that the choice-of-forum contract provision was valid and enforceable and ordering the Summit County common pleas court to accept jurisdiction over Preferred Capital's suits against the equipment lessees.
Attorneys for the equipment lessees urge the Supreme Court to reverse the 9th District and affirm the lower court decisions denying jurisdiction. They argue that other courts including the U.S. District Court for the Northern District of Ohio have held the same Norvergence forum-selection clause at issue in this case to be invalid because customers were not informed that Norvergence had already entered into master program agreements to assign their leases to third parties before the customers signed the leases. They cite the holding of the Northern District in Preferred Capital Inc. v. Sarasota Kennel Club that the circumstances surrounding Norvergence's negotiation of its customer contracts constituted “overreaching, if not outright fraud,” and point to Ohio cases in which forum selection clauses in commercial contracts have been held unenforceable when they were part of a fraudulent scheme and imposed an unjust and unreasonable burden on non-Ohio parties.
Attorneys for Preferred Capital argue that Norvergence's customers were responsible for reading the terms of the contracts they signed, and that one of those terms was an agreement to litigate any disputes in the home state of Norvergence or of its assignee. They note that customers involved in these cases are located in Florida, Georgia, Michigan, Texas and Washington, and assert that requiring those parties to defend lawsuits in Ohio places them at no greater hardship or disadvantage than defending similar court actions in New Jersey, which they would have been required to do if there had been no assignment of their contracts and they were dealing with Norvergence rather than its assignee.
Contacts
Mark S. Shearer, 440.717.1580, for
lessee appellants.
Tamara A. O'Brien, 330.434.3000, for Preferred Capital, Inc.
Cincinnati Community Kollel v. Wilkins, Tax Commissioner, Case no. 2006-0365
State Board of Tax Appeals
ISSUE: Does a residential “community kollel” at which post-graduate rabbinical scholars live and other members of a religious congregation come to study and discuss Jewish religious texts and the practice of Orthodox Judaism meet the statutory definition of an “educational or charitable institution” eligible for property tax exemption under R. C. 5709.121?
BACKGROUND: The Cincinnati Community Kollel, a non-profit organization, seeks property tax exemption for two apartment buildings that house married rabbis and their families on a rent-free basis while they participate in intensive study of the Torah, Talmud, and other Orthodox Jewish religious texts. The scholars interact with lay members of a nearby synagogue on an intermittent basis by teaching informal classes on Jewish scripture and the traditions of Orthodox life and worship.
A learning center near the residential properties, at which virtually all of the kollel's study and discussion activities take place, is already tax-exempt under R.C. 5709.07, the section of state law exempting “houses of worship” from property taxes. In 2002, the state tax commissioner denied an application by the kollel for tax exemption of its residential properties under a different legal provision, R.C. 5709.121, that grants exemption to properties owned by an “educational or charitable institution.” On review, the Board of Tax Appeals (BTA) affirmed the commissioner's determination that the kollel's classification as a religious institution for tax purposes disqualified it for exemptions restricted to institutions whose primary purpose was education or charitable activities.
The kollel filed a new petition in 2004, again seeking tax exemption for its residential properties on the basis that they were primarily used to advance educational and charitable goals. The commissioner issued a new ruling citing his 2002 decision and again denying exemption, and the BTA affirmed the commissioner's holding. The kollel has exercised its right to appeal the BTA's decision to the Supreme Court.
Attorneys for the kollel argue that the commissioner and BTA have erred in holding that, just because an owner qualifies for exemption of one piece of property as a religious institution, it cannot also qualify for exemption of a different property as an educational or charitable institution. They argue that the board ignored testimony establishing that the primary activity engaged in by the scholars who reside in their apartment buildings is educating each other and other members of their congregation. They also note that the kollel charges no rent and seeks no profit from its residential properties, and uses the property solely to advance the general good by encouraging high moral standards and striving to enhance participants' quality of spiritual life.
Attorneys for the tax commissioner respond that under Ohio's statutory scheme, the eligibility of an institutional property owner for tax exemptions is determined by the primary mission of the organization. Since the kollel's charter clearly identifies its primary goal as “to maintain and operate an institution for providing religious instruction,” they argue, the kollel has been properly classified as a religious institution and granted immunity for its primary facility as a house of worship. Having been thus classified, they assert, the kollel cannot also claim the separate tax advantages offered to institutions whose primary missions are educational or charitable.
The commissioner notes that while the kollel does provide educational instruction of a kind, the content of that learning is distinctly and exclusively religious and is tailored to members of one religious faith. He also cites prior court cases denying “educational or charitable” tax exempt status to property used by other religious groups whose educational programs did not result in the achievement of a diploma or degree, focused exclusively on religious topics and offered instruction solely to their own denomination rather than the wider public.
Contacts
Simon Groner, 513.632.9595, for the
Cincinnati Community Kollel.
Cheryl D. Pokorny, 614.466.2980, for the State Tax Commissioner.
In Re: Donald Adkins, Jr., Case no. 2006-0514
5th District Court of Appeals (Tuscarawas County)
ISSUE: As applied in this case, does a provision in Ohio R.C. 2151.414 that permits a juvenile court to permanently terminate the parental rights of mentally retarded parents based on the severity of their retardation, absent findings of specific harm or imminent danger to the child caused by their incompetent parenting, violate the parents' fundamental constitutional right to have custody and care of their child?
BACKGROUND: In this case, Bertha and Donald Adkins of Dennison, a married couple who are both mentally retarded, ask the Supreme Court to overturn rulings by the Tuscarawas County Juvenile Court and 5th District Court of Appeals that terminated their parental rights over their son, Donald Jr., and awarded permanent custody of the child to the Tuscarawas County Office of Job and Family Services (TCJFS).
In January 2005, Mrs. Adkins contacted local police and requested that TCJFS take temporary custody of 11-year-old Donald, Jr. because he had begun acting aggressively toward her and she was afraid she could not prevent him from harming himself or others. The agency, which had multiple prior dealings with the Adkinses, took temporary custody of Donald Jr. As part of a case plan that the parents were directed to follow and complete in order to regain custody Mr. and Mrs. Adkins underwent psychological evaluations and were found to have I.Q. scores of 59 and 62 respectively. Also in compliance with the case plan, Mr. and Mrs. Adkins began attending parenting education classes at TCJFS. While the normal course of these classes is 10 weeks, the Adkinses were told to stop attending after four weeks because the instructor believed the instruction they were receiving as part of a classroom group was not sufficient to meet their unique needs and they needed more one-on-one, in-home instruction.
Before any such instruction was offered, the Tuscarawas County Juvenile Court conducted a hearing on a motion by TCJFS to assume permanent custody of Donald Jr. and granted that motion, thus terminating the Adkinses right to have custody of and care for their son. The court based its action on a finding under
R.C. 2151.414(E) that the Adkinses suffered from “chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency … that is so severe that it makes the parent(s) unable to provide an adequate permanent home for the child for the present or, as anticipated, within one year (after the date of the permanent custody hearing.)” On review, the 5th District Court of Appeals affirmed the decision of the juvenile court.
The Supreme Court has agreed to hear arguments in the case on the issue of whether R.C. 2151.414(E), as applied in this case, unconstitutionally discriminates against mentally retarded parents.
Attorneys for Mr. and Mrs. Adkins point to evidence from case workers that Donald Jr. displayed strong emotional bonds with his parents and was succeeding in mainstream school classes while in his parents' custody. They argue that the trial court record in this case shows that the judge based her decision primarily on findings detailing the parents' mental limitations rather than clear evidence of any specific harm or danger to the child that would result from being restored to his parents' home. They note that the court cited as evidence observed incidents of childlike behavior by Mr. and Mrs. Adkins around their son that they say would not have been deemed sufficient to deprive parents with normal cognitive capacity of custody of their child.
They also assert that, before initiating court action to permanently take away the Adkinses parental rights, the TCJFS failed to fulfill the legal requirement that they make “diligent efforts” to assist the Adkinses in remedying the problems that led to the temporary loss of custody of their son. By cutting off their parenting classes after four weeks and providing no replacement services, and failing to provide in-home training during Donald's supervised visits with his parents while he was in temporary custody, they assert, the county failed to meet the particularized needs of these individuals before depriving them of the fundamental right to live with and raise their own child.
Attorneys for TCJFS respond that their agency had a long history of dealings with the Adkinses including prior cases in which the juvenile court found it necessary to permanently remove two of Mrs. Adkins other children from her custody and place them in foster care. They assert that the county acted in good faith and met its legal obligations in setting up a care plan to help the Adkinses deal with Donald Jr.'s aggression, school truancy and other problems. They argue that the trial court acted within its discretion and relied on credible expert testimony in finding that there was a rational basis to conclude Mr. and Mrs. Adkins' retardation was so severe that it made returning Donald Jr. to their custody anytime in the foreseeable future contrary to the best interest of the child.
Contacts
J. Dean Carro, 330.972.7751, for
Bertha and Donald Adkins Sr.
David Haverfield, 330.339.7791, for Tuscarawas County Job & Family Services.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.