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State ex rel. The Cincinnati Enquirer, a Division of Gannett Satellite Network, Inc. v. Barbara Riley [Helen Jones-Kelley], Director, Ohio Department of Job and Family Services, Case no. 2006-2239
Robert E. Schlegel, Executor of the Estate of Margaret E. Schlegel, et al. v. Thomas Gindlesberger et al., Case no. 2007-0113
5th District Court of Appeals (Holmes County)
State of Ohio v. Andrew W. Fulmer, Case no. 2007-0265
11th District Court of Appeals (Lake County)
Western Rogers v. City of Dayton et al., Case nos. 2007-0549 and 2007-0684
2nd District Court of Appeals (Montgomery County)
State of Ohio v. Fernando Cabrales, Case nos. 2007-0595 and 2007-0651
1st District Court of Appeals (Hamilton County)
State ex rel. The Cincinnati Enquirer, a Division of Gannett Satellite Network, Inc. v. Barbara Riley [Helen Jones-Kelley], Director, Ohio Department of Job and Family Services, Case no. 2006-2239
ISSUE: Is the Ohio Department of Job and Family Service's database containing the names and addresses of all foster associations, institutions and homes a “public record?”
BACKGROUND: In September of 2006, a reporter for The Cincinnati Enquirer made a public records request of the then-director of the Ohio Department of Job and Family Services (ODJFS) for an electronic copy of the department's database containing the names and addresses of all foster associations, institutions and homes certified by the state under O.R.C. Chapter 5103. The request was denied by in-house counsel for the department citing U.S. and Supreme Court of Ohio cases, including State ex rel. McCleary v. Roberts (2000) in support of the denial.
The newspaper has asked the Supreme Court of Ohio to issue a writ of mandamus to compel ODJFS to release the documents on the ground they are public records as defined in O.R.C. 149.43(A). Attorneys for the paper argue that the court cases cited by ODJFS in its letter denying access are not relevant because the identity of foster care providers is not confidential and the records being requested do not contain any private information about children.
ODJFS maintains that under state and federal law the records are exempted from public records disclosure because the foster parents receive public assistance and their information is confidential. The state's attorneys cite R.C. 5101.27 and federal regulations in support of their position that the Enquirer is not entitled to access to the requested information.
Contacts
John C. Greiner, 513.621.6464, for
The Cincinnati Enquirer.
Henry G. Appel, 614.466.8600, for Director Helen Jones-Kelley and the Ohio Attorney General's office.
Robert E. Schlegel, Executor of the Estate of Margaret E. Schlegel, et al. v. Thomas Gindlesberger et al.,
Case no. 2007-0113
5th District Court of Appeals (Holmes County)
ISSUE: Even though they never had a direct attorney-client relationship with a decedent's attorney, do the heirs of a decedent have legal standing to sue the decedent's attorney for legal errors in an estate plan that resulted in the loss of the heirs' intended inheritance?
BACKGROUND: In 1990, attorney Thomas Gindlesberger prepared a deed transferring ownership of a farm owned by Margaret Schlegel to Roy Schlegel, one of her three children, but reserving to Mrs. Schlegel various residual rights and control over the property for the remainder of her life. Gindlesberger subsequently reviewed and updated Mrs. Schlegel's estate plan on several occasions prior to her death in 2003, and was aware throughout that period that a primary goal of his client was to insure that each of her children received an equal share of her property.
Following her death, Mrs. Schlegel's children discovered that the retained interest provisions Gindlesberger had written into the 1990 deed conveying the farm to Roy inadvertently triggered provisions of federal law that required the full value of the farm to be included in Mrs. Schlegel's taxable estate. With the value of the farm included, the amount of federal and state estate taxes assessed against the estate was so large that it wiped out all the assets that Mrs. Schlegel had intended to pass on to Robert Schlegel and Anna Shoemaker, the two children to whom she had not conveyed an interest in the farm.
Robert and Anna filed suit against Gindlesberger, alleging that he was negligent in preparing the 1990 deed and in failing to anticipate or advise their mother about the negative estate tax consequences of retaining an ownership interest in the farm property. They sought recovery of the amounts they would have inherited from their mother's estate if Gindlesberger had provided her with competent legal advice and estate planning services.
Gindlesberger filed a motion for summary judgment, asking the trial court to dismiss the plaintiffs' claims. The court granted his motion, holding that, under prior Ohio court decisions, a claim of legal malpractice may only be brought if the plaintiffs can show that they had a lawyer/client relationship with the defendant or that the lawyer acted with deliberate malice. Since the plaintiffs could not meet either of those requirements, the trial court ruled that they had no standing to sue. On review, the 5th District Court of Appeals affirmed the trial court's ruling.
The plaintiffs ask the Supreme Court to reverse the lower courts and to follow the lead of other states which have expanded the right to sue for legal malpractice to heirs who were the intended beneficiaries of a lawyer's client in cases where the lawyer's negligence or incompetence is directly responsible for the loss of money or property that the client intended to pass on to those persons. They argue that other Ohio professionals including physicians, accountants and architects can be held legally accountable to non-clients who suffer losses as a result of their professional negligence. They urge the Court to abandon outdated prior court decisions and apply the same standard of accountability to attorneys, particularly in cases where the primary purpose for which the client hired the attorney was to obtain estate planning advice and services that would insure the successful transfer of his or her assets to a specified person or persons.
Attorneys for Gindlesberger urge the Court to follow its earlier decisions limiting malpractice claims to persons who have or had a direct lawyer/client relationship with the attorney they seek to sue. They point out that the wishes and interests of a client are often different and even in conflict with the wishes and interests of that person's prospective heirs. They note that in this case Gindlesberger was following Mrs. Schlegel's express wishes in including retained interest provisions in the farm deed, and argue that lawyers cannot fulfill their ethical duty to give first priority to the interest of their client if they face the threat of future lawsuits by heirs seeking damages because a lawful action taken at a client's request while alive results in a reduced inheritance for the heir after the client's death.
Contacts
Ronald L. Rosenfield, 216.696.9300, for
Anna Mae Shoemaker and the Estate of Robert Schlegel.
John C. Nemeth, 614.443.4866, for Thomas Gindlesberger.
State of Ohio v. Andrew W. Fulmer, Case no. 2007-0265
11th District Court of Appeals (Lake County)
ISSUE: When the state is required to prove that a criminal defendant acted “knowingly” in committing an unlawful act, and the defense elicits testimony from the state's medical expert that ingesting an overdose of aspirin could have caused the defendant to be “metabolically deranged” at the time of the crime, does a trial judge commit reversible error by instructing jury members to disregard “any evidence as to ... the defendant's medical condition” in determining whether he was capable of forming the guilty mental state necessary to support a conviction?
BACKGROUND: Three Eastlake police officers were dispatched to a business address in that city where they had been told they would find Andrew Fulmer, who had reportedly taken a number of unidentified pills in an attempt the commit suicide. After initially not answering when officers knocked, Fulmer emerged from the building but then walked away from them and repeatedly refused to hang up a cell phone on which he was talking or to answer their questions intended to discover his medical condition. Fulmer became increasingly agitated when an officer continued to press him to hang up the phone and answer questions, and eventually pushed the officer away from him, at which time the officer attempted to take him into custody. Before being subdued, Fulmer fought with all three officers for several minutes, kicking and punching them repeatedly and striking one officer in the back of the head with a flashlight. He was subsequently charged with one count of felonious assault and two counts of assault.
During his jury trial, Fulmer's attorney cross-examined a doctor called by the state to testify about the officers' injuries. The defense lawyer elicited from that witness a statement that ingesting a large overdose of aspirin, which Fulmer claimed to have done before the officers arrived, could alter a person's blood acidity levels to the point of inducing a state of “metabolic derangement” in which a person's brain would not function normally.
In his instructions to the jury, the trial judge advised jurors that because Fulmer had not entered a plea of not guilty by reasons of insanity, and because Ohio does not recognize the partial defense of “diminished capacity,” they should “disregard any evidence of the defendant's medical condition” in determining whether he was guilty of assault, which requires a finding that the defendant acted “knowingly.” The jury convicted Fulmer on all three counts, and the court sentenced him to four years in prison. On review, the 11th District Court of Appeals reversed the trial court's judgment and vacated Fulmer's conviction. The appellate panel ruled 2-1 that the jury instruction to disregard “all evidence” concerning the defendant's medical condition effectively allowed jurors to find Fulmer guilty without making the required finding that he acted “knowingly.”
The Lake County prosecutor's office now asks the Supreme Court to overrule the 11th District and reinstate Fulmer's conviction. They argue that the court of appeals' ruling effectively allowed Fulmer to employ an impermissible defense of “diminished capacity” based on his voluntary ingestion of drugs. They cite prior Supreme Court decisions barring a diminished capacity defense and also point to legislation enacted in 2000 that specifically bars Ohio courts from considering the effects of “voluntary intoxication” in determining whether a defendant acted with a required mental state that is an element of a criminal offense.
Attorneys for Fulmer urge the Court to affirm the ruling of the 11th District. They point out that the state did not object at trial to the doctor's testimony about potential medical effects of an aspirin overdose on Fulmer's reasoning ability. They also note that neither the defense attorney nor the court of appeals decision ever mentioned “diminished capacity” as a basis for reversing his conviction. Instead, they say, the court of appeals correctly found that in instructing jurors to give no consideration whatever to Fulmer's medical condition at the time of his offenses, the trial court improperly excluded relevant and uncontested medical testimony from the jury's determination of whether Fulmer was capable of “formulating the requisite intent to commit the crimes at issue.”
Contacts
Karen A. Sheppert, 440.350.2683, for
the State of Ohio and Lake County prosecutor's office.
R. Paul LaPlante, 440.350.3200, for Andrew Fulmer.
Western Rogers v. City of Dayton et al., Case nos. 2007-0549 and 2007-0684
2nd District Court of Appeals (Montgomery County)
ISSUE: When a car crash caused by a city worker in the course of his employment causes injury to another driver, and the city does not carry liability insurance and has not filed a Certificate of Self-Insurance with the state in compliance with Ohio's financial responsibility law, does the city employee qualify as an “uninsured motorist” for whose negligence the injured party may recover under the uninsured motorist coverage in his own auto insurance policy?
BACKGROUND: This case asks the Court to decide whether a municipality that has not obtained a Certificate of Self-Insurance from the state is nevertheless “self-insured” within the meaning of R.C. Chapter 4509, Ohio's motor vehicle financial responsibility law.
In April 2002, Western Rogers of Dayton was injured in a traffic accident caused by a city employee, Earl Moreo, while Moreo was driving a city-owned vehicle in the course of his public employment. Rogers attempted to recover for his damages by suing Moreo and the city. He subsequently amended his complaint to include a claim for uninsured motorist (UM) coverage under his own personal auto policy issued by State Farm Insurance. The city and Moreo filed a motion for summary judgment dismissing them as defendants in the suit. They asserted that because the city was neither covered by a policy of insurance nor self-insured under the terms of Ohio's financial responsibility statute, the city and its employees were therefore immune from civil liability for Rogers ' injuries under R.C. Chapter 2477, Ohio's sovereign immunity law.
The trial court granted summary judgment in favor of the city and Moreo, and held that Moreo qualified as an “uninsured motorist” under state insurance laws, which entitled Rogers to recover from State Farm under the UM coverage in his own policy. State Farm appealed to the 2nd District Court of Appeals. The appellate panel affirmed the trial court's ruling, but also certified that its decision in this case was in conflict with a 2004 ruling by the 1st District on the same legal issue. The Supreme Court has agreed to hear arguments to resolve the conflict between appellate districts.
State Farm argues that, even though Dayton had not filed a Certificate of Self-Insurance in compliance with Ohio's financial responsibility statute, it was “self-insured in the practical sense” because the city budget included a set-aside amount to cover potential liability claims, and city employees were therefore excluded from the legal category of “uninsured motorists” covered by Rogers' policy.
Attorneys for the city and Moreo respond that R.C. 3937.18, the state law setting guidelines for uninsured/underinsured motorist coverage in Ohio auto policies, excepts a party from the definition of an “uninsured motorist” only if that party has liability insurance or has complied with all requirements in the state's financial responsibility law to be certified as “self-insured.” They note that the financial responsibility law specifically requires that a “self-insured” party must obtain a certificate of self-insurance from the state. They urge the Court to affirm the lower court rulings that, because the city had not applied for or obtained such a certificate, and because Moreo and the city had sovereign immunity from civil liability for negligent acts performed in the course of his public employment, Moreo was legally an “uninsured motorist” and Rogers' State Farm policy must therefore provide coverage for his injuries.
Contacts
Mark H. Gams, 614.228.5151, for
State Farm Insurance Co.
Patrick J. Bonfield, 937.333.4100, for the city of Dayton and Earl Moreo.
State of Ohio v. Fernando Cabrales, Case nos. 2007-0595 and 2007-0651
1st District Court of Appeals (Hamilton County)
ISSUE: Under Ohio law, a court may not impose multiple sentences against a criminal defendant if two or more charges brought against him for the same criminal conduct are “allied offenses of similar import.” This case asks the Supreme Court to determine whether a defendant was improperly convicted and sentenced for both trafficking in a controlled substance and possession of a controlled substance in a case where the same quantity of the same illegal drug was the basis for both charges.
BACKGROUND: In a case involving a shipment of more than 300 pounds of marijuana that was intercepted by Ohio law enforcement officers near Cincinnati , Fernando Cabrales was convicted on one count of possession of marijuana in violation of R.C. 2925.11(A) and on two counts of trafficking in marijuana. One of the trafficking counts was based on violation of R.C. 2925.03(A)(1), which prohibits “selling or offering to sell a controlled substance.” The second trafficking count charged Cabrales with violating R.C. 2925.03(A)(2), which prohibits a person from “preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a controlled substance.” The trial court convicted Cabrales on the possession charge and on both trafficking counts, and sentenced him to prison terms totaling 26 years, which the sentencing judge ordered to be served consecutively.
On review, the 1st District Court of Appeals affirmed Cabrales' convictions but held that he should not have received separate sentences for the possession charge and the trafficking count based on R.C. 2925.03(A)(2), because those two charges were “allied offenses of similar import.” The 1st District remanded the case to the trial court for resentencing based on its ruling, but also certified that its decision was in conflict with earlier rulings by two other Ohio courts of appeals which held that the criminal charges at issue in Cabrales' case are not allied offenses of similar import. The Supreme Court has agreed to hear arguments to resolve the conflict among appellate districts.
The Hamilton County prosecutor's office urges the Court to overrule the 1st District and reinstate the separate sentences imposed by the trial court. They argue that trafficking under R.C. 2925.03(A)(2) does not necessarily require actual possession of drugs by an offender, because deliveries of drugs being transported from a seller to a buyer are often controlled by “middlemen” who use telephones and other means to arrange the transaction without ever actually being in the same location as the drugs.
Attorneys for Cabrales argue that whereas it is possible for an offender to violate RC. 2925.03(A)(1) by “selling or offering drugs for sale” without actually possessing them, it is impossible for a person to be guilty of “transporting, preparing, delivering or distributing” under R.C. 2925.03(A)(2) without at some point being in actual or constructive control of a quantity of illegal drugs, which constitutes a violation of the possession statute. Accordingly, they assert, the charges are allied offenses and the trial court erred in convicting and sentencing Cabrales separately for both crimes.
Contacts
Scott M. Heenan, 513.946.3227,
the State of Ohio and Hamilton County prosecutor's office.
Elizabeth E. Agar, 513.241.5670, for Fernando Cabrales.
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.