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State of Ohio v. Timothy M. Wamsley, Case no. 2006-2135
7th District Court of Appeals (Columbiana County)
Lorri Turner, Administratix,etc. v. Ohio Bell Telephone Company et al., Case nos. 2007-0035 and 2007-0112
8th District Court of Appeals (Cuyahoga County)
Peggy Sexton et al.v. City of Mason et al., Case no. 2007-0305
12th District Court of Appeals (Warren County)
Disciplinary Counsel v. John Richard Tomlan, Case no. 2007-1595
State of Ohio v. Timothy M. Wamsley, Case no. 2006-2135
7th District Court of Appeals (Columbiana County)
ISSUE: In a criminal case, when the jury instructions given by a trial court did not explain every essential element of the charged offense, but the defendant failed to object to that deficiency at trial, should the defective jury instruction be considered a “structural error” that automatically requires a reviewing court to remand the case for a new trial, or should a reviewing court order a new trial only if it finds that the defective jury instruction was “plain error” that resulted in a “manifest miscarriage of justice?”
BACKGROUND: This case asks the Court to review and apply Ohio and federal case law regarding the standard of review that a court of appeals should apply in determining whether an error in a trial court's jury instructions that is not objected to at trial was so serious that it deprived a criminal defendant of his constitutional right to due process of law.
Timothy Wamsley was convicted of aggravated burglary and sentenced to four years in prison for breaking into the apartment of his former live-in girlfriend, Janet Stoddard, and beating and kicking Stoddard. A few days before the incident, Stoddard had moved out of a home she had shared with Wamsley for several years and rented her own apartment. She had subsequently allowed Wamsley to stay overnight at the new apartment but had not given him a key. Earlier on the day of the incident, Stoddard and Wamsley had quarreled and she had called the police to remove Wamsely from the apartment when he refused to leave at her request.
Wamsley appealed his conviction and sentence. Among several assignments of error, Wamsley argued that the instructions given to the jury by the trial judge were fatally defective because the judge did not indicate to the jury that, in order to convict Wamsley of aggravated burglary, they must find that he had knowingly trespassed by entering Stoddard's property without a right or permission to do so. In a 2-1 decision, the 7th District Court of Appeals vacated Wamsley's conviction and ordered that he receive a new trial. The appellate majority held that the trial court had violated Wamsley's due process rights by failing to instruct the jury that it must find beyond a reasonable doubt that he knew he was trespassing at the time he injured Stoddard.
The state, represented by the Columbiana County prosecutor's office, has appealed the 7th District's ruling to the Supreme Court. The state points to references in the 7th District majority's opinion to the doctrine of “structural error,” a term they say applies only to mistakes by a trial court (such as the denial of legal counsel or exclusion of jurors based on race) that render the entirety of a trial unreliable and therefore require an automatic remand for retrial. In this case, the prosecutor asserts that because Wamsley did not object to the trial court's jury instructions before the case was submitted to the jury, “structural error” analysis was not appropriate and the 7th District was instead required to conduct a “plain error” analysis under which Wamsley's conviction should be overturned only if the reviewing court found that, looking at the entirety of the trial, it was clear that the defendant would have been acquitted if not for the defective jury instruction. Because the 7th District did not make such a finding, the state contends that the court of appeals' judgment should be reversed and Wamsley's conviction affirmed.
Attorneys for Wamsley respond that the 7th District did conduct a “plain error” review of the trial court's proceedings, and found that the judge's failure to instruct the jury on all essential elements of the charge of aggravated burglary, including the guilty mental state necessary to prove trespass, was clearly so prejudicial to Wamsley's due process rights that it required a new trial. They assert that the 7th District's additional discussion of “structural error” was not the legal basis for its judgment awarding Wamsley a new trial, and should not be a basis for the Supreme Court to disturb that ruling.
Contacts
Tammie M Jones, 330.420.0140, for
the State of Ohio and Columbiana County prosecutor's office.
Katherine A. Szudy, 614.644.1614, for Timothy Wamsley.
Lorri Turner, Administratix,etc. v. Ohio Bell Telephone Company et al., Case nos. 2007-0035 and 2007-0112
8th District Court of Appeals (Cuyahoga County)
ISSUE: When a vehicle being operated on a public street or highway collides with a utility pole that is located outside of the paved roadway and the improved berm adjacent to the roadway, but less than the full width of a passenger car from the edge of the pavement, is the utility entitled to summary judgment that it was not negligent because its pole was not a danger to motorists properly using the roadway?
BACKGROUND: Robert Turner was killed in a pre-dawn traffic accident in a rural area while riding in a vehicle driven by a co-worker, Bryan Hittle. Because of thick fog that impaired visibility, Hittle told police he could not clearly see the center and edge lines of the two-lane road, and was following the tail lights of a pickup truck immediately in front of him. When he attempted to follow the pickup into a curve to the left, the passenger side of Hittle's car ran off the paved portion of the road and he struck a utility pole located three feet, nine inches outside of the white edge line and two feet, five inches from the edge of the pavement.
Turner's mother, Lorri Turner, filed suit seeking wrongful death damages not only from Hittle but also from the Ohio Bell Telephone Company, owner of the utility pole. In her complaint, Ms. Turner alleged that the utility company was negligent and thus liable for damages because it had located its pole so close to the paved portion of the roadway that it posed a foreseeable danger to motorists in the normal course of using the road. The Cuyahoga County Court of Common Pleas granted a motion by Ohio Bell for summary judgment dismissing the claims against the company. The trial court held that, because the pole was not located on the paved area of the roadway or in an improved roadside berm, it did not present a foreseeable danger to motorists making normal use of the roadway.
On review, however, the 8th District Court of Appeals reversed the trial court's ruling and remanded the case for further proceedings. The appellate panel held that, because the utility pole was located in such close proximity to the paved area of the roadway that Hittle had struck it while a portion of his car remained within a normal lane of travel, the question of negligence with regard to the location of the pole was a material issue of fact that should be decided by a jury.
Ohio Bell, joined by several other utility companies which have filed amicus curiae (friend of the court) briefs, now asks the Supreme Court to overrule the 8th District and reinstate the trial court's summary judgment in its favor. Attorneys for the company cite prior Ohio court decisions holding that the owner of a utility pole struck by a motorist is not negligent so long as the pole was not located within the paved portion of a roadway on in an improved area of roadside berm intended to be used for vehicle traffic under unusual or emergency conditions. They argue that abandoning this clear legal standard in favor of the imprecise “close proximity” standard applied by the 8th District in this case could force utility companies across the state to move thousands of poles that a jury might decide were “too close” to a roadway even though they are not in a paved or improved area. They also note that Hittle was found guilty of vehicular manslaughter for his actions resulting in the crash that killed Turner, and urge the Court to affirm the trial court's holding that the sole cause of the crash and resulting damages in this case was Hittle's unsafe driving, not the location of their utility pole.
Attorneys for Ms. Turner and her husband's estate argue that only three of the prior court decisions cited by Ohio Bell involved utility poles that were located so close to a roadway that they could be struck by a vehicle that was still partially within a marked traffic lane, and that in all three of those cases the poles struck by a driver were located on a raised “tree lawn” that was separated from the adjacent lane of travel by a curb. They point out that the state law permitting utilities to erect poles on the right-of-way of public roads is conditional, and specifically requires that utility poles not be placed where they create a safety hazard or interfere with the public's use of roadways, including roadside areas. They assert that there is no “bright line” legal standard limiting the liability of utilities to cases where a pole struck by a motorist was actually within the paved or improved portion of a roadway, and urge the Court not to adopt such an inflexible standard, but rather to allow a judge or jury to determine based on the facts of an individual case whether the placement of a pole in very close proximity to a busy roadway was or was not negligent.
Contacts
Thomas I. Michals, 216.622.8200, for
Ohio Bell Telephone Company.
Sean P. Allan, 216.377.0598, for Lorri Turner, Administratrix for Estate of Robert Turner.
Peggy Sexton et al.v. City of Mason et al., Case no. 2007-0305
12th District Court of Appeals (Warren County)
ISSUE: When a property owner asserts a tort claim for damage to his property arising from the past conduct of an adjoining land owner, must the plaintiff's lawsuit be filed within four years after the completion of the conduct that caused the damage, or may the plaintiff assert a claim for “continuing trespass” if he can demonstrate that his property suffered new damage arising from the defendant's past conduct within four years of the date the suit was filed?
BACKGROUND: This case involves a dispute among a Warren County couple, Larry and Peggy Sexton, the city of Mason, and the developer and contractors who built Trailside Acres, a residential subdivision that was constructed on land adjacent to the Sextons' property in several stages, starting in the late 1980s and concluding in 1995. As early as 1992, the Sextons noticed that storm water runoff from the subdivision had begun causing higher water levels and occasional flooding of a small creek that ran through their property, resulting in minor damage.
In 1995, the Sextons sent a letter to Mason city officials complaining that storm water runoff from the subdivision during periods of heavy rain had become so severe that it had caused bank erosion and killed trees along the creek bed on their property, and that during heavy rains the creek threatened to flood their home and had covered their driveway with fast-flowing water to the point that vehicles could not enter or exit the property. The Sextons engaged in ongoing discussions with city officials for a number of years seeking improvements in the storm water drainage system near their home, but did not file a lawsuit. In July 2001, following an exceptionally heavy rainfall, runoff from the subdivision caused severe flood damage to the Sexton's property including major flooding of their basement and flooding of their driveway so extensive that emergency workers summoned to rescue them were unable to reach the house.
In July 2003, the Sextons filed suit against the city and its engineering department alleging that they had been negligent in approving the plans and permitting construction of the subdivision and had been notified of but failed to remediate the storm water drainage problems that culminated in severe damage to the Sextons' property. The complaint was later amended to include as defendants the developer of the subdivision and the contractor responsible for excavating the site and constructing its storm sewerage system. The defendants moved for dismissal of the Sextons' claims against them on the basis that the construction allegedly resulting in their damages had been completed in 1995, and that the plaintiffs had not filed suit within the statutory four-year time limit for commencing legal action to recover for damages to real property.
The trial court initially denied the defendants' motions to dismiss, holding that the Sextons had asserted a claim for “continuing trespass” that was not time barred regardless of the date of the defendants' conduct so long as they only sought recovery for damage to their property that had occurred within the four-year period prior to the date they filed suit. On reconsideration, however, the trial court reversed its earlier holding and ruled that the Sextons' complaint was actually a claim of “permanent trespass” that had to be filed within four years after they were aware of the negligent conduct that resulted in damage to their property. On review, the 12th District Court of Appeals affirmed the ruling of the trial court, holding that the Sextons knew about the drainage problem as early as 1992 and complained to the city about it in 1995, but failed to initiate a lawsuit based on the alleged inadequate storm water control system until long after the four-year statute of limitations had expired.
The Sextons now ask the Supreme Court to overrule the lower courts and hold that their complaint falls within the legal definition of a claim for “continuing trespass,” and that the running of the four-year statute of limitations for such claims should therefore be calculated not from the date of the alleged offending conduct, but rather from the most recent date on which the plaintiffs can show that they suffered new damage arising from the defendants' conduct. They argue that the trial court and court of appeals' reading of the law unfairly denies legal redress to property owners who try to negotiate an out-of-court solution to a problem that causes them only minor harm within a few years of its discovery, but who later incur catastrophic damages arising from the same negligent conduct.
Attorneys for the developer and other defendants, supported by an amicus curiae (friend of the court) brief filed by the Ohio Manufacturers Association, urge the court to affirm the trial and appellate court decisions. They assert that the legislature's intent in adopting statutes of limitations for filing various types of tort lawsuits was to promote the swift and decisive resolution of disputes by setting a finite time limit after an alleged negligent act takes place within which a party alleging damages must either sue or waive the right to do so in the future.
Contacts
James A. Whitaker, 513.398.1910, for
Peggy and Larry Sexton.
B. Scott Jones, 513.721.1311, for Rishon Enterprises (subdivision developer).
Richard D. Schuster, 614.464.5475, for Amicus Curiae Ohio Manufacturers Assn.
Disciplinary Counsel v. John Richard Tomlan, Case no. 2007-1595
The Board of Commissioners on Grievances & Discipline has recommended that the law license of St. Clairsville attorney John R. Tomlan be suspended indefinitely for multiple violations of state attorney discipline rules in his handling of the financial affairs of an elderly client. Tomlan denies that his actions were improper and urges that, if it does find rule violations, the Supreme Court impose a public reprimand or a stayed license suspension as the appropriate sanction.
The disciplinary board found that, over a period of several years during which he provided legal services to a client in her ‘90s who was confined in a nursing home, Tomlan participated in multiple transactions in which the client transferred assets valued at more than $1.4 million from ownership in her name only to accounts or instruments in which Tomlan was named as joint owner with right of survivorship. The effect of those transfers was that, upon the death of the client, Tomlan became sole owner of the transferred assets. The board noted that Tomlan did not urge or make arrangements for an independent, disinterested attorney to consult with or advise his client regarding these transactions, despite provisions of the Code of Professional Responsibility requiring such action when a lawyer's personal or financial interest may conflict with the best interest of a client.
The board also found that Tomlan delayed for sixteen months after the client's death before commencing the probate of her estate, delaying payments to her creditors and causing negative financial consequences to her heirs, and failed to initially disclose to the probate court that after the client's death he had exercised his status as surviving joint owner by redeeming a $100,000 certificate of deposit funded from the client's assets.
Tomlan argues that while state disciplinary rules bar an attorney from receiving a bequest in a client's will unless the client uses a different, independent attorney to draft the will, there is no comparable requirement that a separate attorney be involved where a competent client chooses to retitle assets from her sole ownership to joint ownership with her attorney. He contends that he had become the client's close friend and personal confidant over a period of years, and did not regard himself as providing professional legal services at the times he assisted her in obtaining and completing the paperwork necessary to reconfigure ownership of her assets. Tomlan also states that prior to each conversion of an asset from sole to joint ownership, he had the client independently discuss the transaction with her nephew, who raised no objections.
Contacts
Jonathan Coughlan, 614.461.0256, for
the Office of Disciplinary Counsel.
Stuart G. Parsell, 614.365.9900, for John R. Tomlan.
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.