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WCI, Inc., d.b.a. Cheeks v. Ohio Liquor Control Commission, Case no. 2006-1360
10
th District Court of Appeals (Franklin County)
State of Ohio v. Norman A. Craig, Case no. 2006-1568
8th District Court of Appeals (Cuyahoga County)
John H. Hutchings et al. v. David R. Childress et al., Case nos. 2006-1703 and 2006-2183
5th District Court of Appeals (Delaware County)
A. Schulman, Inc. v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2006-1944
State Board of Tax Appeals
WCI, Inc., d.b.a. Cheeks v. Ohio Liquor Control Commission, Case no. 2006-1360
10
th District Court of Appeals (Franklin County)
ISSUE: Is the Ohio Liquor Control Commission authorized to suspend the liquor license of a permit-holder on the basis that one of its employee was convicted of a felony for selling drugs on the permit-holder's premises while she was employed there, despite the fact that the employee was no longer employed by the permit-holder on the date of her conviction?
BACKGROUND: A provision of Ohio's state liquor laws, R.C. 4301.25(A), allows the Ohio Liquor Control Commission (OLCC) to “suspend or revoke any permit” to sell liquor for “(c)onviction of the holder or the holder's agent or employee... for a felony.”
In this case the commission imposed a 30-day suspension of the liquor permit held by WCI, Inc., the operator of a Dayton-area “gentleman's club” known as Cheeks. The basis for that suspension was the felony conviction of Brooke Orshoski, a dancer at the club, who was arrested for selling cocaine to an undercover officer on the premises of the club in February 2003, while she was employed there. Following her arrest, Orshoski was fired by the owners and was no longer employed by the club in December 2003 when her case came to trial and she was convicted on a felony drug trafficking count.
WCI appealed the commission's order to the Franklin County Court of Common Pleas, which affirmed the 30-day suspension based on Orshoski's conviction. On review, however, the 10th District Court of Appeals reversed the suspension order. The appellate panel agreed with arguments by WCI that the language of R.C. 4301.25(A) authorizes the commission to suspend a permit holder's license for an employee's felony conviction only if it can show that the offender was employed by the permit holder at the time of his or her conviction. Since it was undisputed that Orshoski was no longer employed by Cheeks on the date of her conviction, the 10th District held that the club owner's license was not subject to suspension under the statute. The state has appealed the court of appeals' holding to the Supreme Court.
The Ohio Attorney General's Office, representing the OLCC, urges the Court to reverse the 10th District's ruling and reinstate the suspension order against Cheeks. They assert that the clear legislative intent underlying R.C. 4301.25(A) is to make permit holders accountable for the actions of their agents and employees in the course of their employment by placing the permit holder's license at risk if an employee engages in on-the-job conduct that results in a felony conviction. They contend that, under the 10th District's reading of the law, a club owner could allow its employees to engage in all kinds of criminal conduct on the permit premises and then escape any consequences for that conduct simply by firing any employee who was arrested before he or she came to trial. The state's attorneys argue that this interpretation of the law is absurd and renders R.C. 4301.25 virtually meaningless, and assert that the only reasonable reading of the statute is that it authorizes permit suspensions for actions committed by an employee while working for the permit holder that subsequently result in a felony conviction.
Attorneys for WCI argue that the 10th District correctly refrained from analyzing legislative intent and instead applied the plain language of R.C. 4301.25, which they say authorizes a permit suspension only when a current employee of the permit holder is convicted of a felony. They suggest that the underlying purpose for the law is to encourage permit holders to promptly discharge any employee who is charged with a felony offense, by threatening the employer with loss of its liquor license if the offender remains an employee at the time he or she is convicted.
Contacts
Stephen P. Carney, 614.466.8980, for the Ohio
Liquor Control Commission.
Chris O. Paparodis, 614.461.5600, for WCI, Inc., d.b.a. Cheeks.
State of Ohio v. Norman A. Craig, Case no. 2006-1568
8th District Court of Appeals (Cuyahoga County)
Is any trial court order dismissing a criminal indictment a “final, appealable order” that the state may immediately appeal regardless of whether the dismissal is with or without prejudice?
BACKGROUND: Under Ohio law and procedural rules, a trial court may dismiss a pending criminal charge or civil complaint in one of two ways: “with prejudice,” meaning that the party that initiated the dismissed matter is permanently barred from initiating a new court action reasserting that charge or claim; and “without prejudice,” meaning that the initiating party is free to file a new court action reasserting the dismissed charge or civil complaint.
In this case, a Cleveland trial court judge dismissed a felony indictment against Norman Craig for the alleged rape of a child when the prosecutor, after failing to obtain the judge's agreement to recuse herself from the case earlier on the trial date, had not appeared in court to commence the trial 30 minutes after the scheduled starting time.
The Cuyahoga County prosecutor attempted to appeal the dismissal to the 8th District Court of Appeals, but the 8th District ruled that the dismissal order was not “final” and thus not ripe for appeal because the trial court had not indicated in its order that the charge against Craig was dismissed “with prejudice,” so the state still had an opportunity to re-indict and try Craig on the rape charge.
The prosecutor has appealed the 8th District's ruling to the Supreme Court. He asserts that that the 8th District's refusal to review this and similar cases in which criminal indictments have been dismissed by a trial court “without prejudice” is contrary to R.C. 2945.67(A). The state cites language in that statute stating that a prosecutor “may appeal as a matter of right any decision of a trial court in a criminal case … which decision grants a motion to dismiss all or any part of an indictment.” The state points to cases in which several other Ohio appellate districts have accepted and decided appeals of trial court orders dismissing a criminal indictment despite the fact that the order did not specify that a charge was dismissed “with prejudice.” The state urges the Supreme Court to order the 8th District to accept and decide this case and future appeals challenging a trial court's dismissal of a criminal indictment regardless of whether the trial court order specified that the dismissal was “with prejudice.”
Attorneys for Craig, supported by an amicus curiae (friend of the court) brief from the Cuyahoga County Public Defender's Office, respond that the 8th District was correct in finding that the dismissal without prejudice of the indictment against Craig was not a “final” order as defined by R.C. 2505.02 because the trial court's action did not “determine the action” or prevent the state from obtaining a judgment of conviction against Craig by reindicting him for rape based on the same conduct for which he was originally indicted. They point out that a defendant is not entitled to immediate appellate review of a court order allowing the state to voluntarily dismiss a charge “without prejudice” with the intention of refiling it later. They urge the Court to affirm the 8th District's denial of immediate review of defense motions for dismissal without prejudice, because they say that policy prevents defendants from being forced to defend long and costly appellate proceedings and maintains a “level playing field” for both sides in criminal cases.
Contacts
Jon W. Oebker, 216.443.7800, for
the State of Ohio and Cuyahoga County prosecutor's office.
Rufus Sims, 216.502.0800, for Norman Craig.
John H. Hutchings et al. v. David R. Childress et al., Case nos. 2006-1703 and 2006-2183
5th District Court of Appeals (Delaware County)
ISSUE: When a married person is injured as the result of negligence by a tortfeasor (person at fault), may the couple recover from the tortfeasor for the income lost due to the uninjured spouse missing work to care for the injured spouse, or may they recover only the reasonable cost of obtaining third-party home health care services?
BACKGROUND: Nancy Hutchings of Dublin suffered long-term brain injuries as the result of a traffic accident caused by David Childress in the course of his employment with Central Ohio Paintball, Inc. Nancy's husband, John Hutchings, who is self-employed as a financial planner, spent the first six weeks after the accident at home caring for his wife on a fulltime basis and subsequently cut back his hours of practice significantly in order to provide daily care for Nancy and take over household duties formerly performed by his wife.
The Hutchingses sued Childress and Central Ohio paintball seeking recovery for Nancy's lifetime injuries, John's loss of consortium, and the couple's loss of income resulting from John's missed work immediately following the accident and ongoing reduced ability to operate his business in order to provide necessary care for his wife. The Delaware County Court of Common Pleas denied a motion by the Hutchingses to specifically instruct the jury that it should include their lost income as part of any award of damages. The jury returned a verdict awarding damages to Nancy for her injuries and to John for loss of consortium, but did not make any award for the economic costs of John's missed work to care for his wife.
The Hutchingses appealed. The 5th District Court of Appeals affirmed the trial court's decision, but certified that its ruling on the issue of the recoverability of lost income was in conflict with a 2005 decision of the 2nd District, Depouw v. Bichette. In that case, the 2nd District held that a couple was entitled to recover from a tortfeasor for a wife's lost wages during a period of several weeks in which she missed work to personally care for her injured husband.
The Supreme Court agreed to hear arguments in order to resolve the conflict between appellate districts.
Attorneys for the Hutchingses urge the Court to follow the 2nd District's holding in Depouw. They assert that the trial and appellate court rulings in their case violated the principle that injured victims should be compensated for all damages they suffer as the result of a tortfeasor's negligence, and argue that affirmance of the lower courts would establish a rule of law in Ohio that requires family members to go back to work and leave the care of a loved one to strangers or face devastating and unrecoverable economic losses.
Attorneys for the defendants contend that the only claim asserted by the Hutchings for lost income was included in John's claim for loss of consortium, and argue that the lower courts properly denied such recovery because economic losses are not compensable under the legal theory of loss of consortium. They point to other cases in which they say courts in Ohio and other states have held that if the parents of an injured child or the spouse of an injured spouse are entitled to any recovery for time spent caring for an injured family member, that recovery is limited to the market value of whatever uncompensated health care services were provided by a family member in lieu of hiring a third-party home health care provider.
Contacts
Rex H. Elliott, 614.481.6000, for
John and Nancy Hutchings.
A. Scott Norman, 614.445.8888, for David Childress and Central Ohio Paintball Inc.
A. Schulman, Inc. v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2006-1944
State Board of Tax Appeals
ISSUE: Did the State Board of Tax Appeals err in reversing a ruling of the tax commissioner and granting a property tax exemption for certain pieces of plastic extrusion equipment under a statutory provision applicable to “patterns, jigs, and dies?”
BACKGROUND: The state tax commissioner appeals a ruling by the Board of Tax Appeals (BTA) granting a property tax exemption to A. Schulman, Inc. Schulman is a manufacturer of colorized plastic pellets that it makes by heating raw plastic resins to a “taffy-like” consistency, combining that material with additives and pigments, and then cooling and shaping the resulting mixture it into pellet form. The company markets its pellets as raw material used by other manufacturers, who extrude and shape them into various commercial products.
The tax commissioner determined that parts of Schulman's equipment used to move molten plastic to the equipment that actually shapes it into pellet form were subject to Ohio's personal property tax. Schulman appealed that determination and several other findings of the commissioner to the BTA. After reviewing written evidence and conducting a hearing, the BTA agreed with Schulman's argument that the extrusion screws and barrels it uses to move heated plastic to the final shaping stage were integral parts of the pelletizing process, and therefore covered by a tax exemption applicable to equipment such as dies, jigs and patterns that are used to custom-shape raw material into finished products. The commissioner has exercised his right to appeal the BTA's ruling to the Supreme Court.
Attorneys for the tax commissioner argue that the BTA erred in applying the exemption for jigs and dies to general-purpose material handling machinery that simply moves raw material to the end stage equipment that actually does shape it into a specific finished shape. They cite past BTA decisions that they say have held that similar equipment which merely moves masses of material to be shaped does not qualify for exemption under the jig and die provision. They also argue that the BTA erred by failing to conduct its proceedings with a presumption that the commissioner's determination must be upheld unless Schulman presented clear and convincing evidence that it was incorrect. Instead, they assert, the BTA overruled the commissioner without citing any precedents or substantive evidence produced by Schulman to substantiate its claim for an exemption.
Attorneys for Schulman respond that their appeal to the BTA did not seek a tax “exemption” but rather disputed the commissioner's determination that some of their production equipment was subject to taxation when they believed it to fall within the category of jigs and dies that are specifically excluded from the statutory definition of “personal property”– and therefore should never have been assessed as taxable in the first place. They argue that the BTA did cite factual findings from its review of the case that were sufficient to support the board's decision to exclude Schulman extrusion screws, barrels and related equipment from the category of taxable personal property.
Contacts
Barton A. Hubbard, 614.466.5967, for
the State Board of Tax Appeals.
Leonard A. Carlson, 614.231.8900, for A. Schulman, Inc.
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.