Tuesday, May 2, 2023
State of Ohio v. Thomas E. Knuff Jr., Case No. 2019-1323
Cuyahoga County Common Pleas Court
AJZ’s Hauling, LLC, v. TruNorth Warranty Programs of North America, Case No. 2022-0750
Eighth District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. Gregory E. Carter, Case No. 2023-0169
Licking County
Parma Heights Man Contests Death Sentence, Conviction in Murders of Roommates
State of Ohio v. Thomas E. Knuff Jr., Case No. 2019-1323
Cuyahoga County Common Pleas Court
Thomas Knuff Jr. was convicted in the 2017 murders of two Parma Heights residents and for other crimes. The trial court sentenced Knuff to death.
Because the death penalty was imposed, Knuff is entitled to an automatic appeal to the Supreme Court of Ohio. He raised 24 legal issues to argue that his convictions and sentence should be overturned.
Woman Contacts Police to Report Sister Missing
John Mann had a house in Parma Heights in May 2017. Regina Capobianco was living with Mann. On May 3, Capobianco’s birthday, police were called to the house in response to a report about an intoxicated woman. Police noted that Capobianco, Mann, and Knuff were there.
Capobianco’s sister contacted the Parma Heights Police Department later in May because she hadn’t heard from Capobianco since her birthday. Police visited the house several times in May and June to conduct welfare checks and to investigate neighbor complaints about the condition of the house. Officers noted a terrible odor, filth, and garbage. On June 21, police searched the house and found the decomposing bodies of Capobianco and Mann. Medical examiners determined that Capobianco had been stabbed six times and Mann had been stabbed 15 times. Cocaine and other drugs were found in their systems.
Capobianco’s sister had told police that Capobianco and Knuff had known each other for more than a decade and exchanged letters while Knuff was in prison. Alicia Stoner worked as a medical health counselor at the prison where Knuff was incarcerated and became romantically involved with him. After his release from prison, Knuff told Stoner he was staying with Capobianco and Mann at Mann’s house.
On May 12, Knuff called Stoner and said that Capobianco and Mann had gotten into a fight, and Capobianco stabbed Mann. Knuff said he intervened and stabbed Capobianco in self-defense, and his finger was cut. Stoner said Knuff refused to call an ambulance for them, saying they were dead.
Around May 17 or 18, police contacted the owners of a Parma Heights hair studio and a nail salon. Their shops had been broken into, and money was taken from their cash registers. Surveillance camera footage led police to identify Knuff. After police arrested Knuff for robbing the stores, he asked Stoner to contact a guy to set fire to Mann’s house.
Charges Include Murders and Local Robberies
Knuff was indicted in July 2017 on charges of aggravated murder, aggravated burglary, aggravated robbery, breaking and entering, theft, and other offenses. His trial before a jury began in April 2019. In June 2019, the jury found Knuff guilty on all charges and specifications, except for aggravated robbery.
After the mitigation phase of the capital trial, the jury recommended the death penalty. The trial court agreed with the recommendation, imposing the death sentence plus 37 years for the non-capital offenses.
Arguments Address Record of Proceedings and Witness Testimony
Among the 24 legal issues raised by Knuff, he contends that rules for criminal cases require all proceedings to be conducted on the record. In his case, the pretrial meetings and the “jury view,” or visit to a crime scene, weren’t done on the record and there are no transcripts of these proceedings, Knuff argues. He asserts that these deficiencies result in an improper death penalty trial and violate his constitutional rights to due process and a fair trial.
His brief also alleges that the prosecutor presented witnesses to “improperly inject poisonous and irrelevant testimony” into the trial, undermining the jury’s ability to give a fair and unbiased verdict. The brief states that the prosecutor improperly elicited testimony about Knuff’s previous prison sentence, portrayed Knuff as a bad father and brother, and claimed he had a substance abuse problem.
Knuff notes that the trial court waived court costs during sentencing, then imposed the costs in its written entry. The costs should be vacated, Knuff maintains.
His brief also makes claims about improper jury selection and instructions; ineffective assistance of counsel; the failure to separate the charges related to the deaths of Capobianco and Mann from the charges about the break-ins at the salons; and execution by lethal injection.
State Agrees With One Claim, Disagrees With All Others
The Cuyahoga County Prosecutor’s Office acknowledges that the trial court waived court costs in open court. The case should be returned to the trial court only to correct the clerical error, the prosecutor notes.
The prosecutor maintains that although Knuff believes certain proceedings had to be recorded, the types of meetings he refers to don’t need to be recorded. For the jury view, a court reporter was present and available to go on the record if needed, the prosecutor notes. Since the details of the visit weren’t transcribed, that means no issues were raised requiring them to be recorded, the prosecutor contends.
The prosecutor rejects the claim that testimony about Knuff was improper. Knuff’s attorney mentioned the time in prison in the opening statements, the prosecutor notes. The testimony from Knuff’s sister and son gave context to their relationships and wasn’t used to prove Knuff committed the murders. And Knuff’s drug use and mental health issues were observations made by witnesses about Knuff’s conduct and demeanor and the events that took place, the prosecutor argues.
The prosecutor concludes that all of Knuff’s arguments, except for the court cost waiver, lack merit.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Thomas E. Knuff Jr.: Joseph Pagano, 216.685.9940
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, fzeleznikar@prosecutor.cuyahogacounty.us
Could Trial Court Reconsider Its Order to Send Case to Arbitration?
AJZ’s Hauling, LLC, v. TruNorth Warranty Programs of North America, Case No. 2022-0750
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- When a trial court issues a final appealable order to direct a case to arbitration and the period to appeal that order has lapsed, can the trial court reconsider its decision?
- Does the language in R.C. 2711.03, stating that a court “shall hear the parties” in a request to direct a case to arbitration, mean the court must hold an oral hearing?
BACKGROUND:
AJZ’s Hauling is a Pennsylvania-based business owned by a husband and wife. In 2018, the company paid $119,300 for a 2011 truck from Premier Truck Sales & Rental in Valley View, Ohio. . Four days after leaving with the truck, AJZ’s received a two-year warranty from Premier that was provided by North Carolina-based TruNorth Warranty Programs of America. The wife initialed the four pages of the warranty agreement and returned it to TruNorth.
Soon after delivery, the truck began experiencing problems. Dissatisfied with attempts to have it repaired and after denials of claims, AJZ’s filed a lawsuit in Cuyahoga County Common Pleas Court, the home county of Premier. The lawsuits alleged five claims against Premier, including breach of contract, and two claims against TruNorth, including breach of contract.
Rather than respond to the complaint, TruNorth sought to have the case dismissed for lack of jurisdiction, since it is located in North Carolina. In the alternative, TruNorth asked the trial court to stay the proceedings and direct the matter to arbitration. The company cited the last page of its warranty that AJZ’s owner signed, which indicated all disputes with the company must first be arbitrated and that arbitration had to take place in North Carolina. AJZ’s submitted its objections to TruNorth’s attempt to submit the case to arbitration. However, TruNorth submitted no other information to the court other than its motions to dismiss the case or send it to arbitration.
AJZ’s and Premier settled their portion of the lawsuit. In a three-sentence entry, the trial court in August 2019 granted TruNorth’s request to stay the proceedings and send the case to arbitration. AJZ’s didn’t appeal the decision, but instead received the trial court’s approval to dismiss the case without prejudice.
In December 2019, AJZ’s refiled its lawsuit, but only against TruNorth, and reasserted the same claims, seeking to have the trial court address the matter. TruNorth reiterated its request to send the dispute to arbitration. Both sides submitted briefs arguing their positions. In March 2020, the trial court issued a four-paragraph decision, which denied the arbitration and ordered the case to proceed in common pleas court. TruNorth appealed the decision to the Eighth District Court of Appeals. The Eighth District affirmed the trial court’s decision.
TruNorth appealed to the Supreme Court of Ohio, which agreed to hear the case.
Trial Court Not Empowered to Change Its Decision, Company Asserts
TruNorth raises two objections to the Eighth District’s ruling. The company maintains that under the principle of res judicata, the trial court was unable to reconsider its initial ruling directing the parties to arbitration. It also argues that when the trial court reconsidered the case, it failed to conduct a hearing on the matter that is mandated by R.C. 2711.03.
The purpose of res judicata is to deter repeated litigation to address the same issue among the same parties, TruNorth explains. The company notes that both parties and the Eighth District agree the trial court’s first, short decision was a final appealable order. To question the outcome, AJZ’s had to appeal the trial court decision, TruNorth asserts. The company cited the Supreme Court’s 1995 Grava v. Parkman Twp. decision, which found that a final judgment in a case brings to a conclusion all claims that were or could have been litigated between the parties in that lawsuit. Instead of appealing the order to arbitrate the case, AJZ’s filed a second lawsuit raising the exact same claims it made in the lawsuit it dismissed, TruNorth notes.
TruNorth maintains that once a trial court issues a final order on the issue of arbitration, it no longer has jurisdiction to reconsider that case. At that point AJZ’s had to participate in the arbitration or appeal the decision to the appeals court, which it didn’t. The Eighth District ruled the trial court’s decision didn’t indicate that it considered any of AJZ’s arguments or analyze the law before ruling in TruNorth’s favor. The Eighth District found the trial court’s decision to be “unjust,” the company notes. TruNorth argues there are limited exceptions to res judicata that allow for subsequent claims to be heard a second time by a trial court, but a finding that the process was “unjust” isn’t one of them. Without the appeals court finding a more concrete reason to allow the case to be reconsidered, the “unjust” exception will obliterate the concept of res judicata, the company concludes.
TruNorth also contests that when the trial court considered the case a second time, it ignored the company’s request for a hearing and failed to follow the law by not conducting an oral hearing on the case. The Eighth District ruled that TruNorth wasn’t specific in its request for a hearing and noted that the law reads the court “shall hear the parties,” which means a non-oral hearing where only written arguments are submitted suffices. TruNorth argues that had a hearing been conducted, then evidence would have been presented indicating that AJZ’s owner signed the documents and understood it contained an arbitration clause. Without conducting the hearing, the court failed to follow the law, the company concludes.
Court Correctly Revisited Ruling, Hauler Asserts
AJZ’s also cites the Supreme Court’s Grava decision, which stated that res judicata is “not to be applied so rigidly as to defeat the ends of justices or so as to work an injustice.” The Eighth District found that a reviewing court should consider applying res judicata based on the totality of the circumstances, AJZ’s notes. The appeals court found that it was completely reasonable to reconsider the ruling since AJZ’s was primarily focused on its issues with Premier, which sold the truck, rather than the warranty company. Considering the warranty wasn’t provided to the hauling company until four days after it purchased the truck and that no one from Premier or TruNorth had a conversation with the owners regarding the nature of the warranty, it was reasonable for the trial court to review its prior decision without first requiring AJZ’s to file an appeal, the hauler asserts.
AJZ’s notes the Eighth District explained why it didn’t require the company to appeal the initial ruling. The Eighth District found in the first ruling the trial court didn’t make any factual findings, explain any reasoning for its decision, or reference any evidence by the parties. The trial court didn’t consider AJZ’s argument that the arbitration provision listed on the last page of the warranty was unconscionable and invalid, the hauler notes. The Eighth District focused on the particular facts and circumstances of the case before deciding res judicata didn’t apply. AJZ’s maintains the decision didn’t present any broad ruling that would widely allow the losing parties in trial court to refile cases rather than appeal final orders, the hauler asserts.
AJZ’s also agrees that an actual oral hearing wasn’t required to determine whether the matter needed to be arbitrated. The hauler notes that TruNorth didn’t complain about a lack of a hearing in the first case, when the trial court ruled in its favor. The hauler notes the General Assembly has enacted several laws with language that indicates when an actual in-person, oral hearing is necessary. R.C. 2711.03 doesn’t have the specific language stating that a hearing must be conducted. Several courts have interpreted “shall hear the parties” as meaning the law only requires the court to consider evidence presented by the parties even if it only accepts written submissions, AJZ’s notes. The Supreme Court should deny TruNorth’s request to direct the case to arbitration and let the matter proceed in trial court, the hauler concludes.
Friend-of-Court Brief Submitted
An amicus curiae brief supporting the TruNorth’s position was submitted by the Ohio Association of Civil Trial Attorneys.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing TruNorth Warranty Programs of North America: Mark Mikhaiel, mmikhaiel@sssb-law.com
Representing AJZ’s Hauling LLC: Ronald Friedberg, rfriedberg@meyersroman.com
Lawyer Faces Suspension for Sexual Misconduct, Lying to Police
Disciplinary Counsel v. Gregory E. Carter, Case No. 2023-0169
Licking County
A Licking County attorney facing ethics charges objects to a proposed six-month suspension from the practice of law. The lawyer is charged with having sexual contact with a client’s girlfriend and lying to police about it.
In 2018, Eric McClain was convicted of three felonies in two separate cases before the Licking County Common Pleas Court. In the first case, he was sentenced by Judge David Branstool to a two-year prison term. In the second case, Judge Thomas Marcelain sentenced McClain to two more years in prison and imposed the term run consecutively to the first sentence for a total of four years in prison.
In February 2020, McClain contacted attorney Gregory Carter seeking judicial release from prison. McClain’s mother, Debbie Fabian, and a woman identified in court records as J.G. went to see Carter. Fabian agreed to pay a $500 flat fee to Carter to seek her son’s judicial release from the two judges. McClain is the father of one of J.G.’s four children. J.G. testified that she lent Fabian the $500 to pay Carter’s fee, but she didn’t sign the fee agreement.
At the meeting, J.G. expressed to Carter her hope that McClain would be released from prison early for the benefit of their child. She would later express that she wanted McClain released “for parenting, babysitting, support, all the father things.” Except for the initial meeting with Carter, J.G. wasn’t involved in McClain’s legal matters.
Carter filed the judicial release requests in April 2020. Judge Branstool granted the request when there were two months remaining on the first prison term. Judge Marcelain denied the request made to him, explaining McClain was not yet eligible because he hadn’t started serving the second sentence. Carter met again with McClain’s mother in July 2020 to discuss refiling the judicial release request with Judge Marcelain. Fabian agreed to pay Carter $300.
Attorney Lures Woman to Office
Four days after meeting with Fabian, Carter sent a text message to J.G. asking if she could come to his law office. He didn’t invite Fabian. J.G. agreed to meet. Carter was burning essential oil, including one he said was called “slim and sexy.” He told J.G. he was “just trying to get you up here.”
J.G. inquired about McClain’s chances of getting released. Carter told her he would try his best and he read her a draft of the motion he intended to submit. J.G. took some anti-anxiety medication while Carter read the motion out loud.
After he finished reading, Carter asked if he could receive his “reward” from J.G., gesturing to his lips and cheek. Carter approached J.G., put his hands on her head, and shoved her head to his genitals. J.G. performed oral sex on Carter and at some point, he tried to pull her up onto his desk. J.G. stopped and said, “I can’t do this anymore.”
J.G. used her cellphone to record 24 minutes of the encounter, including the sexual activity. She later testified her intent was to record the meeting to share the information regarding McClain’s case with Fabian. As J.G. was leaving Carter’s office, he took two pictures of her with his cellphone.
The next day, Carter filed the release request with Judge Marcelain. The judge denied it, finding McClain hadn’t served enough time on his sentence to be eligible for release. Carter acknowledged the error and agreed to refile the motions later in the year when McClain was eligible, without additional cost to Fabian. Carter made the third filing in December 2020, but the judge declined it in February 2021.
Client Files Complaint, Police Investigate
After being denied release, McClain learned of the encounter with J.G. He wrote to the Licking County Bar Association alleging that Carter had assaulted J.G. Six days later, the Newark police department opened an investigation into the allegations. J.G. said she didn’t go to the police after the office visit because she worried it might interfere with McClain’s chances of being released.
The investigating detective conducted a phone interview with Carter. He claimed J.G. made advances and denied any sexual contact between them. The detective informed Carter he had listened to the recording made by J.G. Only then did Carter admit that J.G. performed oral sex, but he said he didn’t request it and that the sexual conduct was consensual. He did admit to the officer that his conducted was “definitely” unethical. He also stated that he wasn’t originally truthful because of how the situation would affect his law license.
The investigation was presented to the Licking County Prosecutor’s Office, which declined to pursue criminal charges.
Professional Conduct Board Finds Rule Violations
The Office of the Disciplinary Counsel filed a complaint against Carter with the Board of Professional Conduct. Based on stipulations by the parties and testimony presented at a disciplinary hearing , the board concluded that Carter violated attorney ethics rules, finding his conduct involved fraud, dishonesty, deceit, or misrepresentation. The board also found his conduct reflected adversely on his fitness to practice law.
In considering a proposed sanction, the board found the record was unclear of the exact nature of McClain and J.G.’s relationship at the time of the sexual encounter with Carter. The board also found that while Carter was unable to gain McClain’s early release, the encounter with J.G. didn’t appear to compromise the attorney’s efforts to free McClain. The board recommends that Carter be suspended for six months and complete six hours of continuing legal education that includes three hours of sexual harassment training.
Carter objected to the board’s recommendation, which triggers an oral argument before the Supreme Court of Ohio.
Stayed Suspension Appropriate, Attorney Asserts
Carter asserts the encounter with J.G. was consensual. He notes that in her recording, which he didn’t know about at the time, he can be heard saying, “Are you sure? You know how shy you are,” before they had any contact. He also asserts the photos he took of J.G. are “worth a thousand words” that effectively convey she wasn’t afraid of Carter. He notes she didn’t report the matter to police, but rather McClain did after she told him about it, which was after his representation of McClain ended.
Carter acknowledges his responses to the Newark police were dishonest and that behavior warrants a fully stayed suspension.
Suspension Warranted, Disciplinary Counsel Argues
The disciplinary counsel charges that Carter used his client relationship, and his position and prestige as an attorney, to obtain sex as a “reward” from the mother of his client’s child. The disciplinary counsel maintains that Carter takes no responsibility for luring J.G. to his office for no other reason than his personal interests.
The disciplinary counsel notes that Carter admitted to police his behavior was definitely unethical, but backtracked during his disciplinary hearing, maintaining it was “poor exercise of judgment.” The three-member board hearing panel listened to the recording, viewed the photographs, and heard both Carter and J.G.’s description of the encounter, and came to the conclusion that Carter’s actions violated the ethics rules, the disciplinary counsel notes.
Carter followed his unethical encounter with J.G. by lying to a police officer about the matter, and based on Supreme Court precedent, Carter’s behavior warrants at least an actual suspension of six months, the disciplinary counsel concludes.
– 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 Office of the Disciplinary Counsel: Martha Asseff, martha.asseff@sc.ohio.gov
Representing Gregory E. Carter: Dennis McNamara, dennis@dwmcnamara.com