Court News Ohio
Court News Ohio
Court News Ohio

Tuesday Aug. 18, 2020

Rayco Manufacturing Inc. v. Murphy, Rogers, Sloss & Gambel et al., Case No. 2019-1498
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Ryan Turner, Case No. 2019-1674
Twelfth District Court of Appeals (Clermont County)

State of Ohio v. Christian Carlisle, Case No. 2019-1700
Eleventh District Court of Appeals (Lake County)

In re Complaint of Suburban Natural Gas Company v. Columbia Gas of Ohio Inc., Case No. 2019-1765
Public Utilities Commission of Ohio

State of Ohio v. Roger Simpson, Case No. 2019-1769
Twelfth District Court of Appeals (Butler County)


May Attorney Fees Be Awarded in Breach-of-Settlement Cases?

Rayco Manufacturing Inc. v. Murphy, Rogers, Sloss & Gambel et al., Case No. 2019-1498
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can a court consider attorney fees as compensatory damages for a breach-of-settlement agreement and award fees to the nonbreaching party?

BACKGROUND:
Rayco Manufacturing produces equipment for the forestry and landscaping industry. For many years Rayco purchased engines from Deutz Corporation to power Rayco’s tractor crawlers. After an engine redesign, a number of tractor crawlers began to overheat and fail. Rayco blamed the issue on Deutz. Deutz countered that the problems were caused by Rayco or the equipment users.

Rayco hired the Louisiana-based Murphy, Rogers, Sloss & Gambel law firm to sue Deutz. Murphy hired Cleveland-based Cavitch, Familo & Durkin to be its local attorneys when the case was filed in the U.S. District Court for the Northern District of Ohio. The law firms hired an engine expert to submit a report in the case. The federal district court granted summary judgment to Deutz after finding Rayco’s expert failed to determine the specific cause of the engine failure.

Rayco sued the Murphy and Cavitch firms, along with all the individual attorneys representing the company, for legal malpractice, alleging they failed to inform the expert about information that  needed to be contained in the report.

The parties began negotiating a settlement through mediation in 2015. In June 2016, Rayco’s attorney sent a letter to the mediator authorizing the mediator to settle the case for $3 million. Rayco also demanded $25,000 from each law firm, claiming it was overbilled for legal fees. After consulting with insurance companies handling the firms’ malpractice coverage, the firms initially sought to settle for $2.6 million along with $50,000 for overbilling. Rayco refused, and the firms agreed to pay the proposed $3,050,000 to settle all claims and issues in the matter. After returning a draft settlement to Rayco’s attorney, the firms learned that Rayco’s chief executive officer refused to sign the agreement.

Firms Seeks to Enforce Settlement
A year after the offer was made, the law firms asked the trial court to enforce the alleged settlement. The trial judge conducted a hearing and determined that the parties had reached a settlement, and Rayco was in breach of the settlement for failing to accept the payment and end the litigation. Based on the trial court’s decision, the law firms sought payment by Rayco of their attorney fees incurred from attempting to enforce the settlement and end the case.

The trial court denied the attorney-fee request. Both Rayco and the law firms appealed to the Eighth District Court of Appeals. The Eighth District affirmed the trial court’s decision that Rayco agreed to settle and was in breach of the agreement. The appeals court reversed the trial court’s ruling on attorney fees and remanded the case to the trial court to assess how much Rayco owed the law firms.

Rayco appealed the decision of the three-member panel of Eighth District judges who considered the matter and requested an en banc decision. In a 7-5 ruling, the Eighth District concluded there was a settlement and the attorney fee award was appropriate.

Rayco appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Decision Violates Long-Standing Rule, Company Asserts
Rayco explains that the “American Rule” is a bedrock principle in which each party pays its own attorney fees, win or lose, unless there is a specific exception. The traditional rule doesn’t apply if a statute requires the losing party to pay the prevailing party’s attorney fees, a provision of a contract between parties discusses fee-shifting, or a court finds a party acted in bad faith. Rayco states none of those exceptions apply in this case and there is no justification for varying from the American Rule. Allowing for the payment of attorneys for any other reason would be a significant judicial expansion of the rule, the company states.

Rayco notes Ohio appellate courts have justified the payment of attorney fees in cases brought to enforce settlement agreements by stating there is strong public policy favoring the settlement and enforcement of settlement agreements. The company notes a strong public policy for the enforcement of “all” contracts, and there is no strong policy reason to grant attorney fees for breaches of settlement contracts while not granting them in other breach-of-contract cases.

The company explains the Eighth District has adopted the position of other Ohio appellate courts that the attorney fees awarded in a breach-of-settlement case are compensatory damages. Rayco asserts the money spent by attorneys to enforce a settlement agreement are “costs of litigation” as in any breach-of-contract case. While a court can characterize them as damages, the nature of the costs is the payment of attorney fees, which aren’t damages, the company concludes.

Fees Are Damages in Settlement Cases, Law Firms Assert
The law firms note that for 20 years Ohio courts have been awarding attorney fees as compensatory damages in breach-of-settlement cases because the subject of the contract is different than a typical breach of a contract dealing with the sale of goods or provision of services. A settlement contract’s purpose is to end litigation and its cost, the firms explain. If a settlement agreement isn’t followed, then the other party has to spend additional funds on litigation to enforce the agreement, the firms explain. And the damages suffered by the party seeking to enforce the agreement is the attorney fees, which distinguishes these from other types of contract cases, the firms maintain.

Ohio courts and federal courts in Ohio have allowed for the payment of the fees as damages because it doesn’t penalize the party seeking to enforce the agreement, the law firms assert. The appellate court decisions to award fees in breach-of-settlement cases don’t conflict with the American Rule because the fees are damages, the firms state.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Rayco Manufacturing Inc.: Andrew Lycans, 330.264.4444

Representing Murphy, Rogers, Sloss & Gambel et al.: Michael Mumford, 216.621.0200

Representing Cavitch, Familo & Durkin Co.: Timothy Brick, 216.241.5310

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Does Driving on Lines of Road Constitute Marked-Lanes Traffic Violation?

State of Ohio v. Ryan Turner, Case No. 2019-1674
Twelfth District Court of Appeals (Clermont County)

ISSUE: Does an officer have a “reasonable and articulable suspicion” to conduct a traffic stop for a marked-lanes violation when the officer observes the tires of the vehicle driving on, but not across, a line on the road?

BACKGROUND:
Near midnight on Aug. 5, 2018, an Ohio State Highway Patrol trooper had stopped for a red light in Clermont County. The trooper saw a sedan leave a private driveway and turn onto the road. The trooper later described the turn as “odd,” and he followed the car. The sedan turned onto Old State Route 74. While the sedan traveled along the road, the trooper saw its two right tires touch the white edge line on the road’s right side. The trooper continued following the vehicle and soon activated his flashing lights to initiate a traffic stop for a marked-lanes violation. 

The driver, Ryan Turner, was charged with one marked-lanes traffic violation and two counts of operating a vehicle under the influence. Turner pleaded not guilty.

In October 2018, the Clermont County Municipal Court held a hearing to consider Turner’s request to suppress evidence from the traffic stop. The trooper testified, and a video recording from the officer’s cruiser was provided. Turner argued the trooper had no justification for the stop because it wasn’t a traffic violation for his tires to touch the edge, or fog, line. The municipal court granted the motion to suppress, concluding that the trooper didn’t have probable cause for the stop.

The Clermont County prosecutor appealed to the Twelfth District Court of Appeals, which reversed the municipal court’s decision. The Twelfth District certified to the Ohio Supreme Court that the ruling conflicts with decisions from other state appellate courts. The Supreme Court accepted the case, agreeing to review the conflict. Because of the COVID-19 pandemic, the Court will hear arguments by videoconference.

Driver Argues Most Appeals Courts Agree that Touching Road Lines Isn’t Traffic Violation
Turner argues that when a vehicle’s tires touch, but don’t drive across, a line that marks the lanes on a road, a law enforcement officer doesn’t have “reasonable and articulable suspicion” of criminal activity to justify a traffic stop for a marked-lanes violation. Reasonable and articulable suspicion requires the officer to have a reasonable suspicion based on specific or describable facts that criminal behavior is imminent or has occurred, Turner states.

He maintains that, unlike the Twelfth District, the First, Third, Fifth, Sixth, Eighth, and Eleventh district courts of appeal agree that touching a marked line while driving isn’t a violation of state law. The Twelfth District cited State v. Mays, a 2008 Ohio Supreme Court ruling, to support its decision. In Mays, the driver’s right tire crossed a road’s white edge line twice. Turner states he merely touched a line on Old State Route 74 one time, contending that Mays doesn’t address the issue in this case.

He notes that some of the lower appeals court cases were decided before Mays and others after, some involved a vehicle touching a marked line once, while others touched a line multiple times. The cases also varied in whether the lines were edge lines, center lines, or dashed lines. But none concluded that simply driving on the marked line, rather than crossing it, was enough justification for a traffic stop by law enforcement, Turner argues.

The statute about marked-lanes violations, R.C. 4511.33, states “A vehicle … shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic ….” Turner points out that a tennis ball that bounces on the baseline is in bounds, and a baseball that hits the foul ball line is ruled as in the field of play. A vehicle on a road’s marked lines is still in the lane of traffic, he maintains.

Traffic Law: Marked-Lanes Violations
R.C. 4511.33(A)(1) addresses driving in one’s lane on a roadway. A violation of the law is a minor misdemeanor. The law states:

“(A) Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:

(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety. …”

Traffic Law: Marked-Lanes Violations
R.C. 4511.33(A)(1) addresses driving in one’s lane on a roadway. A violation of the law is a minor misdemeanor. The law states:

“(A) Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:

(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety. …”

The Twelfth District raised concerns about the safety of other motorists, pedestrians, and disabled vehicles. The court concluded that if vehicles can legally travel on a road’s marked lines, then collisions are bound to occur when, for example, two cars traveling in opposite directions both legally drive on the center line. Turner argues, however, that other laws, such as those prohibiting reckless operation or vehicular assault, bar or deter such absurd actions, which run afoul of common sense and a driver’s duty of care.

State Contends ‘Entirely Within’ Means Inside Lines on Roads
Referencing the statute’s language that a vehicle must be driving “entirely within” the lane, the Clermont County Prosecutor’s Office argues the plain meaning of those words indicates the vehicle must be on the inside or on the inner side of the lines. The lines form the boundary of a lane, the prosecutor maintains. If a vehicle drives on a line or touches a line, the vehicle has stopped being entirely on the inner side of the lane, the prosecutor states.

The office also contends that a center line, for example, can’t be both part of the lane for traffic going in one direction while also being part of the lane for those traveling in the opposite direction. If driving on the line is a traffic violation, then cars won’t drive on the line and crashes will be deterred, the office argues.

The prosecutor views lines on the roads as a buffer zone. The prosecutor states that the Ohio Department of Transportation measures lanes based on the space between lines, so lines must not be part of the lanes. Interpreting the law to mean the marked lines are buffer zones most effectively protects against harm to other motorists and pedestrians on the road, the prosecutor contends.

In response to Turner’s sports analogies, the prosecutor snaps to football, reflecting that a player is out of bounds when he touches a sideline or other boundary line. The prosecutor maintains that when lines are part of the field of play – as in tennis and baseball – the rules specifically state it. For sports like football that ban touching the lines, the rules state a player must be “within” the boundary, just as R.C. 4511.33 requires a vehicle to be driven “entirely within” a single lane, the prosecutor argues.

Regarding Mays, the prosecutor asserts that the Twelfth District relied on the Supreme Court case not to compare its specific details to Turner’s. The prosecutor argues Mays instead made other conclusions: that an officer’s reasonable suspicion has no connection to the “as nearly as practicable” language in the law; that a single marked-lanes violation is sufficient for reasonable suspicion; and that weaving between the lines doesn’t give officers enough reason to pull over a driver. The office’s brief maintains that the other appellate court rulings are “fundamentally flawed” because some were decided before Mays, those issued after Mays don’t even reference the decision, and the remaining misapply Mays.

Defense Group and Attorney General to Join Oral Argument
The Ohio Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Turner. The association asks the Court to reject a national trend that is allowing more significant intrusions by law enforcement into personal privacy. The Court granted a joint motion from the association and Turner for them to share Turner’s 15 minutes allotted for oral argument.  

An amicus brief supporting the Clermont County prosecutor’s position has been submitted by the Ohio Attorney General’s Office, which notes that more than 1,000 people die each year in Ohio traffic accidents. Pointing out that the office has an interest in giving clear guidance to law enforcement about traffic laws, the attorney general maintains that a line marked on the road can’t be “within” two lanes simultaneously. The attorney general also argues that even if the trooper misunderstood the marked-lanes law, the mistake was reasonable. The attorney general and the prosecutor will share oral argument time before the Court.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Ryan Turner: Zachary Faris, 513.732.1141

Representing the State of Ohio from the Clermont County Prosecutor’s Office: Nicholas Horton, 513.732.8175

Representing the Ohio Association of Criminal Defense Lawyers: Louis Grube, 216.344.9393

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Is Method to Reduce Arson Registration Requirement Unconstitutional?

State of Ohio v. Christian Carlisle, Case No. 2019-1700
Eleventh District Court of Appeals (Lake County)

ISSUE: Does R.C. 2909.15(D)(2)(b) violate the separation-of-powers doctrine by permitting a trial judge to reduce the number of years a defendant must register with the Arson Offender Registry only after receiving a request from the prosecutor and investigating law enforcement agency?

BACKGROUND:
In June 2018, Christian Carlisle was fired by Walmart in Eastlake. He then set fire to blankets in  Walmart, and a local fire department responded. No one was injured.

Carlisle pleaded no contest to arson, a first-degree misdemeanor. The trial court sentenced him to 12 months of community control, which included 180 days in jail, of which 90 days were suspended. He also was fined $250, and ordered to receive mental health counseling and to pay restitution. Additionally, the court ordered Carlisle to register with the state’s Arson Offender Registry for the rest of his life. Carlisle’s attorney objected to the lifetime registration requirement. The attorney didn’t specifically raise the constitutionality of the lifetime registration requirement, and the trial judge didn’t inquire about the basis for the objection. At the sentencing hearing Carlisle’s attorney asked for a 10-year registration requirement, and the Eastlake city prosecutor didn’t object.

Carlisle appealed to the Eleventh District Court of Appeals. In a split decision, the Eleventh District affirmed the trial court’s decision. The Eleventh District also certified that its decision conflicts with the Fourth District Court of Appeals 2017 State v. Dingus decision.

Carlisle appealed to the Ohio Supreme Court, which agreed to review the certified conflict. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Law Impedes on Court’s Sentencing Authority, Offender Argues
Carlisle explains that the separation-of-powers doctrine is not explicitly stated in the Ohio Constitution, but the state recognizes the doctrine as part of the constitutional framework of government, similarly to the U.S. Constitution. Each division of government is protected from encroachment by the others, and the legislative branch has no right to limit the powers of the judicial branch, he argues. He notes that the Ohio Supreme Court has ruled in similar cases that laws restricting a court’s power to determine guilt and sentence a defendant have been ruled as unconstitutional violations of the separation-of-powers doctrine.

Based on decisions regarding sex-offender registrations, Carlisle maintains that a registration requirement is part of a criminal sentence and not a civil proceeding, as previous courts have ruled. He explains the law as of July 2013 requires that anyone who meets the definition of an arson offender must register annually for life with the Arson Offender Registry, and pay a $50 registration fee and an annual $25 renewal fee. The failure to register or renew a registration is a felony. The registry isn’t accessible to the public, and only limited law enforcement and firefighting officials can review it. R.C. 2909.15(D)(2)(b) allows a judge to lower the lifetime registration to 10 years or more only after receiving a request from the prosecutor and the investigating law enforcement agency involved in the arson offender’s case.

Carlisle argues the trial court’s discretion to impose the reduced reporting period is compromised by the condition that the executive branch, in the form of the prosecutor and investigating agency, controls when a judge can reduce the reporting time. Because the executive branch encroaches on the judicial branch’s discretion to impose a sentence, it violates the separation-of-powers doctrine, Carlisle maintains.

Power Not Infringed, Prosecutor Maintains
The Eastlake prosecutor argues the separation of powers are maintained because the legislative and executive branches aren’t interfering with the judicial branch’s right to determine guilt and to sentence the offender. Citing the Ohio Supreme Court’s 2007 Arbino v. Johnson & Johnson decision, the prosecutor maintains the legislature has the authority to set the penalties for the activities it determines to be crimes.

The prosecutor supports the Eleventh District’s position that R.C. 2909.15(D)(2)(b) acts as a “trigger” that allows the trial court to consider a lesser registration requirement, but has no effect on the court’s role to determine guilt. The judge also isn’t bound by any recommendation of the executive branch and can reduce the registration requirements in the law or ignore them, the prosecutor concludes.

Attorney General Question Offender’s Challenge
In an amicus curiae brief supporting Eastlake’s position, the Ohio Attorney General’s Office questions whether Carlisle had standing to bring the challenge. The attorney general asserts that the prosecutor did suggest to the trial court that Carlisle receive the reduced registration requirement, and the judge ignored the request and ordered the lifetime registration. Carlisle isn’t impacted by request provision in R.C. 2909.15(D)(2)(b) and lacks standing to challenge the ruling in the Supreme Court, the office argues.

Carlisle counters that the prosecutor never requested a lower registration requirement, but only stayed silent when Carlisle’s attorney suggested it to the trial court. He maintains the trial court couldn’t act on that request if made by the prosecution because the law also required the investigating agency to join in making the request, and there is no proof the agency did so. Carlisle argues he is still impacted by the unconstitutional law by having to wait for the state to request a reduction, and that gives him standing to appeal the case.

Court Permits Alloting Argument Time to Attorney General
The Court approved a request by the city to allot its original time to the attorney general’s office.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the City of Eastlake Prosecutor’s Office: Judson Hawkins, 440.840.9286

Representing Christian Carlisle from the Lake County Public Defender’s Office: Justin Macklin, 440.350.3200

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Did Gas Company Infringe on Another Company’s Service Area in Delaware County?

In re Complaint of Suburban Natural Gas Company v. Columbia Gas of Ohio Inc., Case No. 2019-1765
Public Utilities Commission of Ohio

ISSUES:

  • Did the Public Utilities Commission of Ohio (PUCO) fail to enforce the “1995 Stipulation” between Suburban Natural Gas Company and Columbia Gas of Ohio?
  • Does the PUCO lack the authority to stop the duplication of facilities for utilities?
  • Did Columbia Gas implement its builder incentive program in an unfair and anti-competitive manner?
  • Did Suburban meet its burden to prove its allegations?

BACKGROUND:
The Public Utilities Commission of Ohio (PUCO) in August 1987 addressed a dispute between Suburban Natural Gas Company and Columbia Gas of Ohio about natural gas service in Delaware County. The PUCO determined that Columbia Gas had violated the commission-approved plan for gas rates by offering customers free service and related equipment. The company must receive PUCO approval before offering incentives for discounted natural gas rates.

Columbia Gas applied to amend its rate plan, or tariff, to allow the incentives. In its 1993 request to the PUCO, the company asked to offer incentives in a new Delaware County residential subdivision called Oak Creek. Suburban intervened in the case. The companies resolved the dispute in an agreement, referred to as the “1995 Stipulation,” in which the PUCO authorized the transfer of certain customers, natural gas distribution facilities, and equipment between the companies.

In 2016, Columbia Gas received PUCO approval to continue a program offering incentives to homebuilders and developers for each energy-efficient home constructed. The incentives are paid to the builder or developer through the Columbia Gas “demand-side management” program, which is funded by the company’s customers. The PUCO authorized Columbia Gas to present the incentives for homes “located within Columbia’s service territory” and for customers “served by Columbia.”

Columbia Gas Approaches Delaware County Developer
In Delaware County, Pulte Homes was planning a residential subdivision called Glenross south. Pulte wasn’t involved in earlier phases of the Glenross development. One of those earlier Glenross projects was located across the road from the expected new project, and Suburban served the residents there. Columbia Gas pitched the homebuilder incentive program to Pulte, and the homebuilder selected Columbia Gas to serve the Glenross south development.

In October 2017, Suburban filed a complaint with the PUCO against Columbia Gas, alleging that the financial incentives offered to Pulte violated PUCO orders, the 1995 Stipulation, and state law. Suburban argued Columbia Gas was offering incentives outside its service territory to those who weren’t current Columbia Gas customers.

The PUCO rejected Suburban’s claims in April 2019 and, after a rehearing, upheld its decision. Suburban appealed to the Ohio Supreme Court, which is required to consider appeals of PUCO decisions. The Supreme Court will hear arguments in this case by videoconference because of the COVID-19 pandemic.

Prior Agreement Didn’t Endorse Energy-Efficiency Incentives, Suburban Asserts
Suburban argues Columbia Gas violated the 1995 Stipulation and state law through its builder incentive program because the program competed with Suburban and duplicated their facilities. Suburban contends that the 1995 agreement didn’t authorize builder incentives. The company states, though, that the agreement did give Suburban the right to file claims if Columbia Gas reintroduced the prohibited incentives in areas Suburban served.

In Suburban’s view, the PUCO’s 2019 order didn’t include support for the commission’s determinations. The PUCO has an obligation to “explain its rationale, respond to contrary positions, and support its decision with appropriate evidence,” Suburban states, citing a 2011 Ohio Supreme Court ruling.

The commission concluded it didn’t have authority to prevent the duplication of the natural gas facilities, such as pipelines, that were already in place. However, Suburban maintains, the 1995 agreement explicitly barred such duplication. Earlier PUCO decisions demonstrate that it can, and has, found it’s not in the public interest for one utility to duplicate the facilities of other utilities, Suburban argues. Although the decisions involved utilities other than natural gas, the company argues that R.C. Chapter 4905 applies to all public utilities, so any cases about the commission’s regulatory authority are applicable to all public utility cases, regardless of the type of utility.

In the Glenross development, Suburban states it had been serving the area since the early 2000s, and Columbia Gas’ agreement with Pulte would duplicate utility facilities. The commission failed to explain how this duplication of facilities wouldn’t be a waste of resources and contrary to good public policy, Suburban maintains.

The company notes that the PUCO-approved Columbia Gas builder incentives were permitted within the Columbia Gas service territory, yet Columbia Gas installed more than a mile of pipe, passing hundreds of homes in Glenross that were served by Suburban. The new development was outside the Columbia Gas service area, Suburban argues.

Builder Incentive Program Was Permissible Competition, PUCO Argues
The PUCO responds that it found nothing in the 1995 Stipulation barring Columbia Gas from offering incentives to builders of energy-efficient homes through a program approved by the commission. Suburban argues that the 1995 agreement prohibits Columbia Gas from offering incentives to builders in southern Delaware County, but that interpretation isn’t legal because it would allow some builders in Ohio to obtain the incentives but not others, based solely on location, the commission states.

The commission adds that natural gas companies don’t have specified territories in Ohio as some other utilities, such as electric suppliers, do. While Suburban cites cases involving electric and other public utilities, none address natural gas utilities, the PUCO notes. It points out that certified natural gas companies may serve any customers in any part of the state. The commission contends that competition among natural gas companies serves the public interest, and the lack of strict boundaries for natural gas service promotes this policy.

If Suburban wants to offer similar incentives to builders, it can apply to implement such a program, the commission concludes.

Gas Main Extension Placed New Development in Its Service Area, Columbia Gas Maintains
The Court allowed Columbia Gas to intervene in the case as an interested party. The Columbia Gas brief states that the extension of its natural gas distribution main pipeline up the road to serve the Glenross south subdivision, at Pulte’s request, was “entirely lawful.”

The company maintains that the 1995 Stipulation said nothing about energy-efficiency incentives or future duplication of facilities, the PUCO didn’t prohibit Columbia Gas from discussing the builder incentives with a developer that Suburban also could offer to serve, and the PUCO can’t prevent the duplication of facilities or service for natural gas companies. Columbia Gas also argues the Glenross south development became part of its service territory once the extension of its service main to the development was completed, noting that the extension took place before any homes were built. When the homes were constructed in Glenross south, they clearly then resided in the Columbia Gas service territory, the company reasons.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Suburban Natural Gas Company: Kimberly Bojko, 614.365.4124

Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, 614.466.4395

Representing Columbia Gas of Ohio Inc.: Mark Stemm, 614.227.2000

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Was Claim of Ineffective Assistance of Appellate Counsel Adequately Assessed?

State of Ohio v. Roger Simpson, Case No. 2019-1769
Twelfth District Court of Appeals (Butler County)

ISSUE: Are Ohio appellate courts applying adequate methods when considering claims of ineffective assistance of appellant counsel?

BACKGROUND:
In 2017, three men were accused of the gang rape of a woman on the campus of Miami University. Roger Simpson was indicted on 23 counts of rape, kidnapping, and other charges. Elijah Mincy was indicted for 23 similar offenses, and Rodney Gibson was charged with 26 counts related to the rape. The three were to receive separate trials with Simpson going first.

Simpson was found guilty on all 23 counts. After Simpson’s trial, Mincy and Gibson entered into plea agreements with the Butler County prosecutor. The three men were then scheduled for sentencing on the same day, one after the other. Mincy pleaded guilty to two counts and was sentenced to eight years in prison . Gibson pleaded guilty to one count and received five years in prison. Simpson was sentenced to 51 years in prison.

Simpson appealed his conviction and sentence to the Twelfth District Court of Appeals, which affirmed the trial court’s decision. In 2019, Simpson invoked one of the Ohio Rules for Appellate Procedure that allows a defendant to request the state reopen his appeal and allow him to argue the ineffective assistance of appellate counsel. The Twelfth District denied the request.

Simpson appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Parties Not Arguing Case
Both Simpson and the Butler County Prosecutor’s Office waived the right to orally argue the case before the Supreme Court, and requested that the Court decide the case based on the submitted briefs. The Ohio Public Defender’s Office, which filed an amicus curiae brief supporting Simpson’s position, sought and received permission from the Court to argue on behalf of applicants, such as Simpson, who are seeking to claim ineffective assistance of appellate counsel. In turn, the Ohio Attorney General’s Office received permission to argue on behalf of the prosecution.

Court Should Consider Factors to Determine Effectiveness, Offender Argues
Simpson explains that under App.R. 26(B) the defendant must demonstrate the appellate court lawyer’s performance was defective and that, if not for the defective work, the outcome of the appeal would have been different. He notes the Supreme Court agreed to consider how reviewing courts should determine whether an appellate lawyer’s service was defective.

Simpson asserts the Twelfth District used a too-strict standard to determine the effectiveness of his appellate attorney and focused too much on whether he would have prevailed had the attorney used a different strategy. He argues the rule doesn’t set the bar that high, but rather tests for whether he has a “colorable” claim, which only requires a “reasonable probability” that the outcome would be different in order to gain a second appeal.

Simpson suggests the Ohio Supreme Court adopt a series of factors developed by the Sixth U.S. Circuit Court of Appeals in its 2004 Mapes v. Tate decision. In Mapes, the Sixth Circuit suggested 11 factors to consider when determining if an appellate lawyer was effective. Those factors include whether the issues from the trial court that the lawyer omitted were stronger than those the lawyer presented on appeal. Other factors include whether the attorney met with the offender, and the level of the attorney’s experience and expertise.

Using the Mapes factors leads to predictable, uniform, and stable decisions by Ohio courts and would “harmonize” the state’s process with the decision-making process followed by the federal courts in Ohio, Simpson argues. Simpson maintains that had the Twelfth District followed the Mapes factors it would have concluded that his appellate attorney was ineffective and that he deserves a second appeal.

Courts Reject Viable Claims, Public Defender Argues
The public defender supports the use of the Mapes factors, but finds the key problem facing offenders is that the appellate courts are misapplying the rule to determine if a “genuine issue” exists regarding whether the individual was deprived of effective assistance.

The public defender maintains that at this stage of reopening the appeal, the offender need only prove a “fair probability” of success on the merit. The office maintains many appellate courts are requiring defendants prove they have a greater chance of success. The rule for appeals only requires that the individual make a colorable claim of ineffectiveness, which means only that the claim is legitimate and may reasonably be asserted, given the facts presented and the current law, the public defender’s brief states.  

Assistance Claim Rightfully Rejected, Prosecutor Asserts
The Butler County prosecutor maintains the Twelfth District properly applied precedent and the rule to conclude that Simpson failed to raise a “genuine issue” as to whether his appellate lawyer was ineffective. The prosecutor notes that courts follow the U.S. Supreme Court’s 1984 Strickland v. Washington decision, which found a criminal defendant must prove the attorney’s representation fell below an objective standard of reasonableness, and requires that there be a reasonable probability that had the attorney performed reasonably, the result of the proceedings would have been different.

Ohio applies the Strickland test to appellate lawyers by determining whether the attorney was deficient for failing to raise issues that, if presented, would have a “reasonable probability of success,” the prosecutor notes. The prosecutor details the claims Simpson raised on appeal, and the ones he claimed he could have raised that would have led to a different outcome. The prosecutor argues the newly raised claims would have been rejected and would have been unsuccessful. The prosecutor also applies the Mapes factors to Simpson’s argument, and concludes the factors would have been of little help to his case as well. The prosecutor maintains the appeals court correctly rejected Simpson’s ineffective assistance appeal.

Current Standards Provide Best Test, Attorney General Maintains
The attorney general argues the standard set by Strickland is a superior way to evaluate the performance of appellate attorneys compared with the “checklist-style” test in Mapes. The attorney general maintains the Twelfth District used the Strickland test to determine if Simpson’s appellate attorney wasn’t effective because she failed to raise three issues. The attorney general’s brief notes the appeals court examined each of those issues and concluded that it was reasonable for Simpson’s appellate attorney not to raise those issues because they would fail.

The attorney general argues there is no reason to overturn the Twelfth District’s decision or revisit the standard to determine the effectiveness of attorneys. The office rejects the use of the Mapes factors and maintains they wouldn’t bring further clarity to whether an attorney’s performance was ineffective.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Ohio Public Defender’s Office: Patrick Clark, 614.466.5394

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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