Wednesday, January 11, 2017
James A Wilson v. William Lawrence, Executor, Case no. 2015-2081
Eighth District Court of Appeals (Cuyahoga County)
In re Application of Shamir L. Coll, Case no. 2016-1243
Board of Commissioners on Character and Fitness
Audrey Clendenin v. Girl Scouts of Western Ohio and Administrator, Bureau of Workers’ Compensation, Case no. 2015-1993
Fifth District Court of Appeals (Hamilton County)
Is Claim Against Estate “Presented” When Executor Receives Claim?
James A Wilson v. William Lawrence, Executor, Case no. 2015-2081
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does a claim against an estate meet the requirements of R.C. 2117.06(B) when it’s sent to associates of the deceased who then forward the claim to the estate’s executor and the executor’s attorney within the required six-month period?
- When a statute doesn’t define “presented,” is a claim against an estate presented when the executor of the estate receives the notice, regardless of how the claim reaches the executor?
BACKGROUND:
In 2011, James A. Wilson agreed to sell Joseph T. Gorman a 15 percent interest in Marine 1, LLC, for $300,000. Gorman made $113,000 in partial payments through mid-2012 and died in January 2013, owing Wilson $187,000. In July 2013, William Lawrence was appointed executor of Gorman’s estate, and 10 days after his appointment, an attorney for Wilson sent two notice-of-claims letters stating that Gorman’s estate owed Wilson approximately $200,000 plus interest for the outstanding payments for the Marine 1 sale.
The claim letters weren’t sent to Lawrence, but rather to Randall Myeroff, the trustee of a trust in Gorman’s name, and to Pat Clark, Gorman’s former business manager. Myeroff immediately forwarded the letter to Lawrence, and James Goldsmith, the attorney for the Gorman estate. Clark forwarded her copy of Wilson’s claim notice to Goldsmith. According to testimony from Myeroff and Clark, both Lawrence and Goldsmith acknowledged receiving the Wilson letters before the six-month deadline for making a claim.
Two months after submission, Wilson received notice that the estate rejected his claim, with the estate stating Wilson didn’t follow the requirement in R.C. 2117.06(B) to present his claim to the executor of the estate. Wilson filed a lawsuit alleging breach of an agreement by the estate.
In 2015, a Cuyahoga County trial court granted the estate summary judgment finding that Wilson didn’t comply with the law, and Wilson appealed to the Eighth District Court of Appeals. The Eighth District reversed the trial court’s judgment by holding that a claim is “presented” under R.C. 2117.06 when it’s received by the executor, administrator, or attorney for the estate, regardless of whether it was received indirectly.
Lawrence moved to certify a conflict between the Eighth District’s decision and the Fourth District Court of Appeals’1980 Jackson v. Stevens decision regarding what constitutes “presented” under the law. The Supreme Court accepted the certified question for review and consolidated it with Lawrence’s appeal of the Eighth District decision.
Estate Argues Law Requires Direct Presentment to Executor
Lawrence argues that R.C. 2117.06(A)(1)(a) clearly indicates the three ways a creditor can submit a claim against an estate with an executor. Those methods are limited to making the claim to the executor in writing; writing to the executor and filing a copy with the probate court; or mailing a written claim to the address of the deceased and that letter being “actually received” by the executor with the law’s mandatory six-month timeframe. Lawrence maintains that because the law specifies the “manners” in which the claim can be made, the law must be read to define “present” as requiring the claim be delivered to the executor or mailed to the address of the deceased, but not to someone else who then delivers it to the executor.
“The statute does not permit the claim to be addressed to anyone just so long as it is ‘actually received’ by the executor. Instead, only a claim addressed to the decedent or the executor will pass muster,” Lawrence’s brief states.
Lawrence suggests that a useful analogy to R.C. 2117.06(A)(1)(a) is Ohio Civil Rule 4.1, which outlines all the proper methods to serve notice of a civil lawsuit to a party. He maintains that Ohio courts have consistently held that if service doesn’t follow the rules then — even if the defendant has actual knowledge of the attempted service — the lawsuit can’t proceed. The Eighth District determined that Ohio has a “softened” standard for presentment that isn’t exactly as the law is written, and the executor’s actual receipt of the claim through Gorman’s representatives was sufficient. Lawrence notes the dissenting judge on the Eighth District’s three-member panel suggested that interpretation changes the standard from presentment to “knowledge,” which diminishes the law’s long-standing principle to facilitate the prompt and efficient administration of estates.
“The Eighth District’s decision calls into question the continuing validity of nearly century-old precedents, repeatedly cited and relied upon by other Ohio Courts of Appeals, supporting the commonsense proposition that the statute’s presentment requirement does indeed obligate a would-be plaintiff to ascertain who and where the court-appointed executor is and to deliver his claim to him in writing. Moreover, the Eighth District’s decision all but eliminates the specific, mandatory procedure set forth in Ohio Rev. Code 2117.06(A)(1),” the brief states.
Wilson Maintains Actual Receipt is Sufficient
Wilson notes the Ohio Supreme Court’s 1964 Fortelka v. Meifort decision held that the purpose of the law is to ensure prompt presentment of the claims to the executor and receipt of the claim within the time period. Having the claim reach the executor through a representative doesn’t delay the “expeditious and efficient administration of the estate,” he argues. Wilson points to subsequent Ohio appellate court rulings that have indicated substantial compliance with the law will suffice if the executor receives notice that indicates who is making the claim and the amount sought.
Wilson asserts the General Assembly used the word “present” in R.C. 2117.06(A)(1) without defining it, and that “present” has been defined in Ohio case law to mean “give” and not “mail” or “post.”
“From the use of the word ‘present,’ it appears that the General Assembly intended that the claim notice would be effective when actually received and not when merely mailed. Consequently, it matters not to whom it was mailed, but who received the notice,” Wilson’s brief states.
Wilson also noted that timely receipt by the attorney for the estate has also been determined to meet the law’s requirement, and, in this case, both the executor and the executor’s attorney received the notices within the six-month timeframe.
Wilson also asserts the Eighth District’s ruling isn’t in conflict with the Fourth District’s Jackson decision, which involved a claim sent mistakenly to a person thought to be the executor. The creditor making the claim then sought to sue the estate only after contacting the appropriate executor after the six-month deadline. Wilson argues the Fourth District also effectively overruled its Jackson decision in a 1989 case (Edens v. Barberton) and applied the same softened standard to presentment as the Eighth District applied in this case.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing William Lawrence: James Goldsmith, 216.583.7000
Representing James A. Wilson: Joseph Triscaro, 440.248.8811
Law School Graduate Defends Answers on Bar Exam Application
In re Application of Shamir L. Coll, Case no. 2016-1243
Board of Commissioners on Character and Fitness
The Board of Commissioners on Character and Fitness recommends that the Ohio Supreme Court reject a current application from Shamir L. Coll of Lorain to take the bar examination to enter the practice of law. Pointing to Coll’s answers to certain questions on his application and his testimony during a hearing about the matter, the board concludes that Coll didn’t demonstrate the necessary character and fitness to take the bar exam. The board suggests that he be allowed to reapply for the July 2019 bar examination.
Applicant Mentions KKK on Forms Reporting Traffic Incidents
Coll graduated in 2015 from the University of Toledo College of Law and applied to take the February 2016 bar exam. A question on the application asked whether the candidate has been charged in the past 10 years with any moving vehicle violations that weren’t alcohol- or drug-related, and then requires the applicant to fill out a form for each incident.
In his response, Coll noted that he had received speeding tickets in “many cities, many counties, OH”; listed only one date for the incidents; and, for the description of the incidents, wrote “racism mostly.” Staff in the Supreme Court’s bar admissions office contacted Coll in early February 2016 to alert him that his answers weren’t specific enough for the multiple incidents. Coll resubmitted the traffic violation forms, this time identifying four separate incidents between July 2008 and July 2012. He listed the “final disposition” as “speeding” for three of the incidents and “stop sign” for the fourth. For his description of the incidents, he wrote “KKK … their city is worthless,” “KKK … maybe I was speeding,” “KKK … they wanted to be me,” and “KKK … They hate being them.” Coll also left other lines on the forms blank.
Board Holds Hearing, Recommends Preventing Applicant from Taking Exam
At a hearing in late April 2016 before a three-member panel of the board, Coll stated that by giving his full name, his Social Security number, and his Ohio driver’s license number he thought the board had enough information to look into the citations. He also maintained that the board breached its contractual duty to conduct an investigation of him in return for his application fee. As far as the references to the Ku Klux Klan, Coll testified that he wanted to “flex his legal rights” under the First Amendment to express himself as an individual. He added that his previous driving record was inconsequential to evaluating his overall character.
The board notes in its report to the Court that an applicant has a “duty to cooperate and to provide accurate and complete answers to all requested information” and that Coll “set out to sabotage the application process” with his provocative responses.
“Not only do his constitutional arguments lack rigor, his facile exercise – at the expense of the Bar Admissions Committee and the Board of Commissioners – demonstrates a woefully inadequate appreciation for the seriousness of the legal profession and the bar admissions process, so much so that the [p]anel concludes that his immaturity (or egotism … or both), combined with a dramatic lack of judgment, render him currently unfit to practice law,” the report states. “His testimony does not permit the [p]anel to conclude that his conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them.”
Applicant Argues Responses Were Within Free-Speech Rights
Coll has objected to the character and fitness board’s conclusions and recommendation. Because of the free-speech rights guaranteed in the First Amendment to the U.S. Constitution, Coll asserts that the board can’t deny his character, fitness, and moral qualifications to practice law based on his comments about racism on the traffic violation forms. He cites several U.S. Supreme Court decisions involving applicants who were prohibited from taking the bar exam in their states because they declined to answer questions about their connections to communist organizations or to divulge other political affiliations. The U.S. Supreme Court overturned the denials by the states. Coll concludes from these rulings that “states cannot chill applicants First Amendment rights” to express themselves on their bar applications.
He also contends that any omissions on his application may be grounds for disapproval only if the omissions are relevant. The admissions committee must weigh several factors when determining the importance of an applicant’s prior conduct, he states, explaining that his traffic convictions occurred when he was young, from 17 to 21 years old; the offenses were minor misdemeanors; he has been rehabilitated given that he has had no traffic violations in the past four years; and he has made positive social contributions through his work as a legal intern at the Toledo Municipal Court. His supervisor there, a prosecuting attorney, spoke before the board’s panel of his competent work and qualities showing strong character and fitness to practice law, he notes.
In addition, he argues that the proposed delay until 2019 for him to reapply to take the bar exam is harsher than the sanctions approved in similar cases. In an example he gave, an applicant was required to wait three years to reapply because he didn’t disclose that he hadn’t graduated from law school and had been charged with significant traffic violations, including drunk or drugged driving and leaving the scene of an accident. Coll argues these issues are much more serious concerns than those raised in his application, yet he is receiving the same three-year ban before he can reapply. Coll points to another case in which the applicant failed to report three of four alcohol-related offenses, but only had to wait one year before he could reapply.
Coll asks the Court to approve the bar exam application he submitted in 2016 and to let him to take the exam in 2017.
Bar Association Waives Oral Argument
The Toledo Bar Association, which in January 2016 initially approved Coll’s application to take the bar exam, didn’t file a brief in this case and, as a result, will not be permitted to participate in oral argument.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Shamir L. Coll, pro se: 440.258.5161
Representing the Toledo Bar Association: Keithley B. Sparrow, 419.242.1400
Does Workers’ Comp Law Dealing with Pre-Existing Conditions Temporarily Suspend or Permanently Terminate Benefits?
Audrey Clendenin v. Girl Scouts of Western Ohio and Administrator, Bureau of Workers’ Compensation, Case no. 2015-1993
Fifth District Court of Appeals (Hamilton County)
ISSUE: Does a decision that a claimant’s pre-existing medical condition aggravated by a workplace injury has returned to its pre-injury level involve the extent of the claimant’s disability, which temporarily suspends benefits and cannot be appealed in common pleas court? Or is an appeal of this type of decision a right-to-participate claim, which permanently stops benefits and may be appealed in common pleas court?
BACKGROUND:
As an employee of the Girl Scouts of Western Ohio in 2008, Audrey Clendenin was injured in a work-related accident. Clendenin applied for and received workers’ compensation benefits for her injuries. Some of her compensation was for shoulder and arm injuries directly caused by the accident, while other benefits were paid for pre-existing conditions that had been substantially aggravated by the workplace injury. One of these pre-existing conditions was an autoimmune disorder that can cause a skin rash, weak and inflamed muscles, and other symptoms.
Five years later, the administrator of the Bureau of Workers’ Compensation asked to stop Clendenin’s benefits related to the autoimmune disorder because the condition had returned to the level it had been before the workplace injuries occurred. The Industrial Commission approved the request.
Clendenin appealed the decision to stop the payments to the Hamilton County Common Pleas Court in August 2013. The bureau argued that the common pleas court wasn’t the correct place for the appeal. The bureau stated that determinations preventing an employee from participating in the workers’ compensation system can be appealed in common pleas courts, while decisions that temporarily suspend benefits aren’t appealable and can only be challenged by asking for a court order through a mandamus action. The bureau refers to a challenge to the temporary suspension of benefits as an “extent of disability” claim. In its view, stopping Clendenin’s benefits for the pre-existing condition was a temporary suspension and couldn’t be contested in the common pleas court.
The common pleas court agreed with the bureau and dismissed the case in October 2014. Clendenin filed an appeal with the First District Court of Appeals, which reversed, ruling that her case was instead a “right to participate” claim because the bureau had ended the possibility of any future benefits should her pre-existing condition worsen again because of the work injury. Claims involving the right of an employee to participate or continue participating in the workers’ compensation system are properly brought in common pleas court, the First District concluded, so Clendenin’s case was permitted.
The case was ordered back to the common pleas court for further consideration. However, the bureau appealed to the Ohio Supreme Court, which agreed to hear the case.
Bureau Maintains Benefit Suspension Not Permanent
R.C. 4123.54(G) states that an employee can receive workers’ compensation for an injury that “substantially aggravates” a pre-existing condition, but no compensation or benefits are payable once the pre-existing condition returns to the pre-injury level. In its brief, the bureau then points to another workers’ compensation statute, R.C. 4123.52, which gives the Industrial Commission the authority to make modifications or changes to former findings or orders.
Considering the statutes together, the bureau argues that the pre-existing condition provision can lead to a suspension of benefits, which is temporary and can be undone, rather than a permanent termination of compensation. According to the bureau, the First District wrongly concluded that the pre-existing condition statute forever bars any additional compensation after a pre-existing condition worsened by an injury returns to the pre-injury level. Instead, the bureau likens this situation to cases involving temporary total disability awards, which can be stopped and restarted as warranted, based on Ohio Supreme Court rulings.
State law provides certain Industrial Commission orders about workers’ compensation benefits to be appealed to a common pleas court unless the orders involve “a decision as to the extent of disability.” The bureau maintains that Clendenin’s temporary suspension of benefits is one type of an extent-of-disability claim, which can’t be appealed to a common pleas court. Employers or employees may contest this type of benefit suspension only through a mandamus action.
Though the bureau indicates that Clendenin did file a mandamus complaint in the Tenth District Court of Appeals, it notes that it opposed that claim only because this appeal was pending in the First District.
No Further Compensation Allowed for Condition, Employee Asserts
Clendenin counters that the Industrial Commission’s termination of her benefits for the aggravated pre-existing condition foreclosed the possibility for her to receive any further compensation for the condition. Because she could no longer re-open a claim for this condition, her challenge involved her right to participate in the workers’ compensation system, which is properly appealed to a common pleas court.
She contends that R.C. 4123.54(G), the pre-existing condition statute, has created confusion between right-to-participate and extent-of-disability claims. In her view, the statute’s language prohibits any further compensation after a pre-existing condition worsened by an injury returns to its pre-injury level.
The Supreme Court has defined only limited circumstances in which the Industrial Commission may invoke authority for continued jurisdiction in workers’ compensation cases, Clendenin argues. These factors are new and changed circumstances, fraud, clear mistake of fact, clear mistake of law, or error by an inferior tribunal. However, Clendenin believes the statute clearly prevents the Industrial Commission from reopening her claim even if there are new or changed circumstances. She concludes that her case is a right-to-participate claim because she no longer can pursue compensation if her pre-existing autoimmune disorder is again substantially aggravated by her workplace injury.
A determination based on R.C. 4123.54(G) that stops workers’ compensation benefits closes off the employee’s right to participate in the workers’ compensation system, and such a decision is properly appealed to a common pleas court, as she did in her case, Clendenin concludes.
Employer Waives Oral Argument
Clendenin’s employer, the Girl Scouts of Western Ohio, which is also a party named in the case, didn’t file a merit brief with the Supreme Court. According to Court rules, a party that doesn’t submit a brief waives the opportunity to participate in oral argument.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Stephen Buehrer, administrator, Bureau of Workers’ Compensation: Eric Murphy, 614.466.8980
Representing Audrey Clendenin: Dennis Becker, 513.683.2252
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