Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Sept. 7, 2021

Janine Lycan, et al. v. City of Cleveland, et al., Case no. 2020-0341
Eighth District Court of Appeals (Cuyahoga County)

Steven Sinley v. Safety Controls Technology, Inc., et al., Case no. 2020-1158
Eighth District Court of Appeals (Cuyahoga County)

Cleveland Metropolitan Bar Association v. Douglas Paul Whipple, Case no. 2021-0229

Ronald M. Jezerinac, et al. v. Mo M. Dioun, et al., Case no. 2020-0743
Tenth District Court of Appeals (Franklin County)

Can Drivers Seek Camera-Ticket Refunds without Requesting Hearings to Contest Citations?

Janine Lycan et al. v. City of Cleveland, Case No. 2020-0341
Eighth District Court of Appeals (Cuyahoga County)


  • Must those appealing a traffic-camera citation seek an administrative hearing and an appeal to the common pleas court before they can take any other judicial action, including initiating a class-action lawsuit against a municipality?
  • Is payment of a photo enforcement citation an admission of guilt and a final judgment, barring any further legal action under the theory of “res judicata”?

A 12-year-old legal dispute regarding Cleveland’s former use of automated traffic cameras to catch red-light and speeding violators has reached the Ohio Supreme Court for a third time.

A Cuyahoga County Common Pleas Court has certified a class-action lawsuit against the city, and estimated the city must refund drivers of leased vehicles about $4.1 million in fines. The city argues the drivers admitted their guilt and no refunds are due.

In an amicus curiae brief, the Ohio Municipal League maintains the issue is much broader than the embattled photo enforcement program Cleveland voters shut down in 2014. The precedent set by the lower court “undermines the home rule authority of Ohio’s municipalities and threatens to disrupt the enforcement of their municipal codes and ordinances,” the group states.

In 2005, Cleveland adopted an ordinance to create a traffic-camera-enforcement program. The law originally stated the ticket generated when the camera spots an offending vehicle’s license plate is sent to the vehicle owner. The owner had 21 days from when the ticket was mailed to pay or appeal through an administrative process conducted by a city hearing officer. Those who did not pay on time were considered to have waived their right to contest the ticket and to have admitted the violation. Those who lost the administrative appeal had a right through state law, R.C. Chapter 2506, to appeal the decision to the common pleas court.

Drivers who leased their vehicles challenged the ordinance, arguing it did not apply to them because they are not the vehicle owners. The Ohio Supreme Court declined to review a 2009 decision Eighth District decision (Dickson & Campbell v. Cleveland), and the city amended the ordinance to also permit ticketing those who lease or rent vehicles.

Based on that ruling, Janine Lycan filed a class-action lawsuit in Cuyahoga County Common Pleas Court in February 2009, seeking the return of fines paid by those who leased or rented before the law was changed. Other motorists then joined the lawsuit.

Winding Legal Journey Ensues
In 2009, the trial court granted the city’s request to dismiss Lycan’s class-action case, noting the difference between the actions taken by her and the others compared to the Dickson & Campbell law firm. The law firm had challenged the tickets received by drivers of the firm’s leased vehicles.

Lycan appealed to the Eighth District Court of Appeals, which reversed the trial court, and remanded the case to the common pleas court for further proceedings. Cleveland appealed the Eighth District’s decision to the Ohio Supreme Court, which declined to review it.

The matter returned to the trial court in 2011, when Lycan and the other drivers successfully argued that class certification was justified. Cleveland then appealed to the Eighth District, which affirmed the trial court’s ruling. The city again appealed to the Supreme Court, which agreed to hear the second appeal.

State’s High Court Considers Case
In 2016, the Supreme Court sided with the city, and the case was remanded to the trial court to consider for a third time. (See Cleveland Red-Light Camera Case Returned to Trial Court.) The trial court reconsidered the case in 2016 and estimated the city owed the motorists about $4.12 million. Both sides were dissatisfied with aspects of the decision and appealed the decision to the Eighth District.

The Eighth District affirmed the trial court in 2019, and the city appealed to the Supreme Court. The Court agreed to consider one of the city’s legal arguments, known as propositions of law, which alleged the drivers couldn’t file a class-action lawsuit without first attempting to resolve the issues through the administrative appeals process. Later, the Court ordered the parties to address a second issue: whether the payment of the tickets led to a final result, and the principle of res judicata makes it impossible for class-action lawsuit to go forward.

Lawsuit Inappropriate When Appeals Process Not Followed, City Argues
After the city adopted the photo enforcement program, the city’s Parking Violations Bureau determined that the Ohio Bureau of Motor Vehicles (BMV) identified those who leased vehicles as “additional owners.” The parking bureau then considered those who leased the vehicles as the owners and the ones to receive the citations.

The city argues those additional owners were obliged to exhaust the administrative appeals process before being allowed to seek further judicial action against the city. The city maintains that under its home-rule authority, it had the right to establish an administrative process to issue “civil notices” that carried only a fine and that reported no point deductions on driver’s licenses to the BMV. The city argued its hearing was a “quasi-judicial proceeding” and those proceedings can be appealed under R.C. 2506.01.

Cleveland maintains that Lycan had an “adequate remedy at law” by seeking an administrative hearing and, if failing to prevail, appealing to the common pleas court. Without taking those steps, she and the others are barred from seeking refunds through a class-action lawsuit, the city asserts.

Legal Matter Ended When Ticket Paid, City Adds
Entwined in the legal arguments about the enforcement of the citations is a separate debate as to whether Cleveland preserved its right to argue that the principle of res judicata prevents the motorists from filing a class-action lawsuit. The city contends it didn’t waive the argument during the appeals process, and asks the Court to find that payment of the tickets put an end to any legal dispute between the city and the drivers.

Cleveland points to two similar lawsuits by drivers of leased vehicles who sued the city in federal court. In those suits, the federal court noted that under Ohio law, res judicata has four elements:

    1) a court has issued a final, valid decision on the merits of the case;
    2) the second lawsuit involves the same parties as the first;
    3) the second lawsuit raises claims that were or could have been litigated in the first lawsuit; and
    4) the second lawsuit arises from transactions or occurrences that were the subject of the first matter.

The city notes Ohio courts have recognized the decisions of administrative hearing officers are valid judgments when considering whether res judicata would bar any future litigation. Because Lycan and the others paid and didn’t seek a hearing, a final judgment was rendered, the city contends. Cleveland asserts the other three elements of res judicata are present because the class-action lawsuit involves the same parties who could have argued at the administrative hearings that they should not be ticketed. The transactions of the second cases are the same as the first, which are the traffic tickets, the city concludes.

No Real Appeal Offered by City, Drivers Assert
The motorists maintain that, in general, Ohio law does require them to exhaust their administrative appeals before seeking any other judicial action. However, there is a well-known “futility” exception that allows an individual to circumvent a municipality’s appeal process if it would be futile to attempt to overturn the decision.

The drivers note the parking violations bureau determined that those with leases were considered additional owners and could be ticketed. The bureau acknowledged the photo enforcement program’s hearing officers were trained to deny all claims that maintained the law didn’t apply to drivers of leased vehicles. Because the drivers weren’t allowed to challenge the language of the ordinance, appealing the ticket would be futile, they argue. Since the city confirmed their administrative appeals would be denied, the motorists could skip the appeals process and seek reimbursement through another process, they maintain.

The drivers also argue the city’s res judicata theory doesn’t apply because valid, final judgments against the drivers were never entered. The theory applies to “actual litigation” between two parties, and the payment of a ticket for a minor traffic infraction didn’t constitute a final judgment in a quasi-judicial proceeding, they assert. The motorists contend the rule applies to more in-depth administrative hearings, such as an appeal of a zoning code change or a violation of a city health department order, where the city and the opposing parties argue the merits of their cases before hearing officers.

Since the class-action lawsuit wasn’t the second, but the first and only, legal challenge the drivers brought against the city, the case is not barred by res judicata, the drivers argue. The motorists maintain the two federal lawsuits the city relies on are inconsistent with the majority of courts throughout the nation that have applied res judicata only if there was an actual legal proceeding conducted before a second legal challenge was initiated.

Friend-of-the-Court Briefs Submitted
The Municipal League, in support of Cleveland, warns the Eighth District’s opinion would throw into jeopardy all administrative fines paid to municipalities and transform every paid ticket and fine that wasn’t challenged in an administrative process “into a ticking-time bomb” that could be unleashed in a subsequent legal proceeding. The vendor that operated Cleveland’s traffic camera program, Redflex Traffic Systems, also submitted a brief in support of the city.

Two parties who have similar class-action lawsuits submitted briefs on behalf of Lycan. Allyson Eighmey, who is the lead plaintiff in a case arguing Cleveland did not obey the ordinance’s requirement that the cameras be marked, submitted a brief. Nell Lindsay, who filed a similar class action against Garfield Heights arguing the enforcement cameras weren’t operated consistently with the ordinance that authorized them, also filed a brief in support of Lycan.

Susan Magsig submitted a brief, which doesn’t support either party, but requests the Court announce that any decision in the Lycan case cannot be used to influence any future non-criminal traffic law procedures. Magsig notes the Court’s 2020 decision in her lawsuit against the city of Toledo (State ex rel. Magsig v. Toledo) affirmed that the state law change in 2019 gives municipal courts exclusive jurisdiction over all non-criminal traffic law violations, essentially abolishing the administrative hearings local governments used to enforce automated traffic tickets.

Dan Trevas

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

Representing the City of Cleveland: Gary Singletary, 216.664.2737

Representing Janine Lycan et al.: Paul Flowers, 216.344.9393

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Must Employee Injured in Workplace Resolve Legal Claims Through Arbitration?

Steven Sinley v. Safety Controls Technology Inc. et al., Case No. 2020-1158
Eighth District Court of Appeals (Cuyahoga County)


  • Does the presumption favoring arbitration for resolving disputes of contract-based claims apply to claims based on statutes?
  • Can a collective bargaining agreement waive the right to pursue statutory claims in court without exhaustively listing every affected state and federal statute in the agreement?

Steven Sinley was working in May 2019 at Superior Dairy, a Stark County milk processor. Sinley, who was employed in the maintenance department, responded to a call to repair a malfunctioning grinder machine. While working on the machine, Sinley placed his hands inside. The machine began operating and amputated Sinley’s four fingers on his right, dominant hand.

Sinley’s brief notes that a grinder has an electronic guard that shuts off the grinder when it is disassembled. Unknown to Sinley, Superior Dairy had removed the guard that day, and his supervisor had skipped a “lockout/tagout” process, leaving the machine energized when Sinley began the repairs, his brief explains. Superior Dairy’s brief states that the supervisor activated the machine while Sinley was working on it.

Arbitration Made Part of Collective Bargaining Agreement
Maintenance employees at Superior Dairy are represented for collective bargaining by the Teamsters Local No. 92. The collective bargaining agreement at the time of Sinley’s injury included a provision to resolve grievances through arbitration. A grievance subject to arbitration was defined as “any employment-related controversy or dispute” arising between the union and the employer or between an employee and the parties, or “as to the violation of any employment-related laws or statutes (except workers’ compensation matters).”

The contract also stated:

“Section 4. The above procedures set forth in Articles IX and X shall apply equally to any alleged violation of laws or statutes by the Union or the Company, as alleged by an employee, including without limitation; Title VII of the 1964 Civil Rights Act; the federal Age Discrimination in Employment Act; the Consolidated Omnibus Budget Reconciliation Act; the Employee Retirement Income Security Act; the Equal Pay Act; the Fair Labor Standards Act; the Family and Medical Leave Act; the Americans with Disabilities Act Amendments Act; the Immigration Act of 1990; the Fair Credit Reporting Act; the Labor-Management Relations Act; the Lilly Ledbetter Fair Pay Act; the Occupational Safety and Health Act (but only as to the anti-relations [sic] aspects of OSHA); alleged breaches of a Union’s duty to fairly represent its employees; alleged breaches of Ohio public policy; Ohio Revised Code Chapter 4112; Ohio Revised Code Section 41[23].90 (workers’ compensation retaliation); Ohio Revised Code Section 4101.17; Ohio Revised Code Section 4113.52; Ohio’s overtime and/or minimum wage statute; and the Genetic Information Non-Discrimination Act of 2008.”

Worker Seeks Damages in Court for Injury
In August 2019, Sinley filed a civil lawsuit against Superior Dairy, a company called Safety Controls Technology, and others in Cuyahoga County Common Pleas Court. He alleged Superior Dairy committed an intentional tort, which occurs when an employer commits an act during employment with an intent to injure or the belief that the injury was substantially certain to occur.

Based on the collective bargaining agreement, Superior Dairy asked the court to move the dispute to arbitration. The court rejected the request.

The employer appealed to the Eighth District Court of Appeals, which upheld the trial court’s decision. The employer appealed to the Ohio Supreme Court, which accepted the case.

Employer Contends Injury-Liability Claim Must Be Arbitrated
Superior Dairy points to the collective bargaining agreement’s language, such as “violation of any employment-related laws or statutes” and “shall apply equally to any alleged violation of laws or statutes.” Because of this broad language, the agreement makes clear that claims based on statutes fall under the agreement’s arbitration mandate, Superior Dairy maintains. The employer argues that the agreement exempted only workers’ compensation matters from the scope of the arbitration provisions.

Sinley’s lawsuit is based on R.C. 2745.01, which involves employee claims “for damages resulting from an intentional tort committed by the employer during the course of employment.” Superior Dairy, citing the U.S. Supreme Court’s 2009 decision in 14 Penn Plaza LLC v. Pyett, contends that arbitration provisions must be respected, unless the statute at issue prohibits a waiver of the right to file a lawsuit in court. Ohio’s intentional tort law doesn’t include a waiver or bar arbitration, the employer asserts.

If the arbitration provisions in a collective bargaining agreement are “clear and unmistakable,” then they must be honored, Superior Dairy maintains. It argues that the majority of federal appellate courts have interpreted the “clear and unmistakable” standard as requiring specific reference in the agreement to the statutes in question or to statutory lawsuits generally. The collective bargaining agreement in this case refers to claims based on alleged violations of laws and statutes generally, so Sinley’s claim must go through the arbitration process, Superior Dairy contends.

Employee Argues Employer Liability for Injury Not Within Union Contract’s Scope
Sinley counters that the agreement presented a long list of federal and state statutes, but it didn’t cite R.C. 2745.01 specifically, nor did it mention intentional torts generally. The Eighth District concluded that the agreement’s generalized language couldn’t be interpreted as a clear and unmistakable waiver of Sinley’s right to take his claim of an intentional tort to court.

Sinley also maintains that his lawsuit falls outside of typical “employment-related” matters. While the employer allegedly was responsible for the injury, the conduct that led to the intentional tort moves it beyond the employment relationship, Sinley states. He points to Blankenship v. Cincinnati Milacron Chemicals Inc., a 1982 Ohio Supreme Court decision. The ruling explains that the natural risks associated with employment can’t be equated with employer conduct that leads to intentional wrongdoings. Sinley states that the Court has repeatedly adopted the statement below from a 1988 dissenting opinion:

“[I]njuries resulting from an employer’s intentional torts, even though committed at the workplace, … are totally unrelated to the fact of employment. When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim.”

Sinley states that Superior Dairy is trying to confuse Ohio’s presumption favoring arbitration with the specifics of this collective bargaining agreement, which defines the scope of the statutory claims that require arbitration. The employee concludes that had Superior Dairy wanted to include employer intentional torts in its list of statutory claims subject to arbitration, it could have listed them in the agreement.

Business Groups Maintain Contract Incorporates Employee’s Statutory Claim
Amicus curiae briefs supporting Superior Dairy’s position have been submitted by the Ohio Chamber of Commerce and the U.S. Chamber of Commerce. The Ohio Chamber, which advocates on behalf of 8,000 businesses, argues against a distinction between statutory claims and other types of claims when determining whether they can be arbitrated. Representing 300,000 members nationwide, the U.S. Chamber believes that the lower courts violated federal arbitration law and the collective bargaining agreement in this case didn’t need additional “magic words” to encompass Ohio’s intentional tort statute.

Victims, Employment Lawyers Contend Non-Contractual Claims Can Go to Court
The Ohio Association of Justice, a victim-rights advocacy group, and the Ohio Employment Lawyers Association filed separate amicus briefs in support of Sinley’s views. The Ohio Association of Justice maintains that Sinley’s lawsuit doesn’t argue that his employer violated the collective bargaining agreement, so his suit falls outside of the contract and can’t be subject to arbitration. The employment lawyers’ group argues federal law is unambiguous that waivers in collective bargaining agreements must clearly and unmistakably refer to a specific statute to block the filing of a lawsuit and to force arbitration.

Kathleen Maloney

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

Representing Superior Dairy Inc.: Keith Pryatel, 234.284.2820

Representing Steven Sinley: Michael Elliott, 330.376.1440

Representing the Ohio Association for Justice: Paul Giorgianni, 614.205.5550

Representing the Ohio Chamber of Commerce: Kevin Shimp, 614.629.0916

Representing the Ohio Employment Lawyers Association: Christina Royer, 216.382.2500

Representing the U.S. Chamber of Commerce: Carmine Zarlenga III, 202.263.3227

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Suspension Considered for Attorney Who Filed Motion to Refer Opposing Counsel to OLAP

Cleveland Metropolitan Bar Association v. Douglas P. Whipple, Case No. 2021-0229
Cuyahoga County

A Cleveland-area attorney is facing a one-year suspension with six months stayed for his actions while representing a retired lawyer and his wife in a contentious estate-planning dispute.

Douglas Whipple filed a civil lawsuit for the couple against the lawyer’s son and a former colleague. The Board of Professional Conduct determined that Whipple improperly made criminal and professional misconduct allegations against the defendants’ attorney to try to gain an advantage in the case.

Whipple objects to the board’s conclusions and suggested sanction. He maintains he was acting out of sincere concern when he asked the judge in a publicly filed motion to refer his opposing counsel to the Ohio Lawyers Assistance Program (OLAP).

When a party objects to a professional conduct board disciplinary report, the Ohio Supreme Court must hear oral argument in the case.

Retired Lawyer Sets Up Estate-Planning Documents
Glenn Seeley founded a law firm in 1979 that is now known as Seeley, Savidge, Ebert & Gourash. Whipple worked until 2011 as an attorney at the firm.

In 2010, Seeley named his wife, Kristina, in his power-of-attorney documents and as a co-trustee to a trust. While living in a nursing home in 2016, Seeley changed these documents, naming his son Gregory as his power of attorney and replacing his wife as the trust’s co-trustee. Kristina Seeley hired Whipple to represent her to contest these changes. Whipple also submitted a disciplinary grievance in November 2016 against Gregory and Seeley’s grandson – who are both attorneys – as well as against Gary Ebert, a partner at the Seeley firm. The disciplinary investigation subsequently was closed.

In January 2017, Whipple pursued a civil case for Glenn and Kristina Seeley against the son and Ebert regarding the 2016 amendments. Roger Synenberg represented the defendants. The parties agreed in December 2018 to a settlement, which the Cuyahoga County Common Pleas Court judge approved. The judge directed the parties to complete the remaining obligations under the settlement, including filing an entry to dismiss the case. The judge’s term ended, and Judge Emily Hagan took over the case in January 2019.

Concerns Raised About Wife’s Competency
A few months later, Synenberg began questioning whether Seeley’s wife was competent to sign the agreement. Synenberg told Judge Hagan that he wasn’t asking for an independent medical evaluation, but only a medical professional’s statement regarding her competency to serve as Seeley’s power of attorney and the co-trustee. Whipple supplied a January 2019 Alzheimer’s assessment and a May 2019 letter from a certified nurse practitioner. Synenberg objected to both, and the judge scheduled a June hearing.

On the Friday before the hearing, Whipple filed a motion with the court to refer Synenberg to OLAP. Whipple argued the attacks on Seeley’s wife were unfounded and designed to delay the dismissal of the case. He suggested that Synenberg’s conduct indicated he was unfit to practice law.

Whipple stated at the court hearing that if the defendants’ attorneys would sign the dismissal of the case without challenging Kristina Seeley’s competency, there would be no need to address his motion requesting that Synenberg be referred to OLAP.

Board Describes Professional Conduct Violations
The board’s report found that Whipple violated rules governing the conduct of Ohio attorneys. In violation of one rule, Whipple alleged in his motion that Synenberg retaliated against a witness in an earlier case and committed professional misconduct in this case – statements designed “solely to obtain an advantage in a civil matter,” the board stated.

“[Whipple] described Synenberg’s conduct as ‘not conduct that one would expect from a lawyer thinking and acting rationally,’ ‘irrational [and] suffering from performance issues,’ ‘impulsive, irrational conduct that might reasonably justify further investigation,’ and ‘out of control to some degree, and perhaps as a result of a mental, emotional, or other condition,’” according to the report.

Whipple also violated rules against filing frivolous motions and against conduct prejudicial to the administration of justice, the board concluded.

In determining the recommended suspension of one year with six months stayed, the board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. The board determined that Whipple’s pattern of misconduct (citing the November 2016 grievance), refusal to admit his conduct was wrong, and harm to Synenberg were aggravating circumstances. Mitigating factors were Whipple’s lack of a disciplinary record, cooperation in the disciplinary process, and character references.

Attorney Maintains He Violated No Professional Conduct Rules
Whipple responds that he spent two years advocating for the Seeleys to protect them from being exploited. He maintains that he filed the motion recommending the OLAP referral because he was concerned that Synenberg might retaliate against him and Seeley’s wife, as happened in the earlier case. Nor did the motion “threaten” criminal charges of witness retaliation because the earlier case was widely known – covered by the news media and discussed around the courthouse, he contends.

He points to a judicial conduct rule requiring judges to take appropriate action if they believe an attorney is impaired in some way. He argues he had an obligation to inform the Judge Hagan about Synenberg’s conduct so she could decide what to do. Whipple states that he wanted Judge Hagan to understand why Synenberg needed help.

Whipple acknowledges that it was a poor decision to file such a confidential matter on the court docket. But the motion had nothing to do with preventing an inquiry into Kristina Seeley’s mental competency or intimidating Synenberg into signing the case dismissal, he maintains. He notes that he contacted OLAP himself after he was unable to persuade Judge Hagan to make the referral – further demonstrating his concern had nothing to do with the Seeley lawsuit.

The evidence shows that an actual suspension isn’t necessary to protect the public, Whipple argues. He suggests that, if any sanction is warranted, a public reprimand or a fully stayed suspension would be appropriate.

Bar Association Highlights Ties Between OLAP Motion and Attempt to Close Civil Case
The Cleveland Metropolitan Bar Association, which investigated the matter, counters that Whipple filed the motion to refer Synenberg when he realized the defendants and Synenberg weren’t going to drop the issue of Kristina Seeley’s mental capacity. Whipple’s motion clearly connects his accusations against Synenberg to the dismissal of the Seeleys’ civil case. The bar association points to Whipple’s statements at the June 2019 court hearing:

“If the attorneys are not going to unconditionally sign the [dismissal], then I would like to speak on the motion that I filed Friday,” Whipple said. “So to me it’s really a question, Do we dismiss the case or do we proceed with my motion? … If we dismiss the case, then we don’t need a ruling on my motion. If we don’t dismiss the case, then I would like to address the merits of my motion.”

The if-then statements demonstrate that obtaining dismissal of the Seeley case was the true motive for filing the OLAP motion regarding Synenberg, the bar association argues.

The bar association also notes that the judicial conduct rule Whipple mentions in no way conveys that lawyers must file a motion on a court’s public docket to alert the judge to a lawyer in distress. Any concerns Whipple had about his opposing counsel could have been raised in several other ways while ensuring confidentiality, the bar association states. It quotes the board report, which stated, “[Whipple] chose to raise the allegations on the record, in open court and, as the transcripts of the court hearing revealed, ultimately used the motion as leverage in an attempt to have the underlying matter dismissed.”

Kathleen Maloney

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

Douglas P. Whipple, representing himself: 216.912.8479

Representing the Cleveland Metropolitan Bar Association: Heather Zirke, 216.696.3525

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Can Replacement for Resigning Appellate Judge Consider Requests for Reconsideration?

Ronald M. Jezerinac et al. v. Mo M. Dioun et al., Case No. 2020-0743
Tenth District Court of Appeals (Franklin County)

ISSUE: Under the Ohio Rules of Appellate Procedure, must a reconsideration of an appellate court’s decision be conducted by the same three judges on the panel that issued the original decision?

Several limited partners and one general partner own Barley’s, a restaurant and microbrewery in Columbus. In 2012, Ronald Jezerinac and his family invited Mo Dioun and his family to invest in the restaurant. The Jezerinacs and the Diouns became 50/50 owners of the general partnership that operated Barley’s. The building where Barley’s operates is owned by a separate, but related company. The Jezerinacs also own a substantial, but not fully disclosed, amount of the partnership that owns the building.

As Barley’s profits began to grow, a dispute between the Jezerinacs and the Diouns ensued, and the Diouns claimed the Jezerinacs were maneuvering to “squeeze them out” of the business. As part of their operating agreement, the business was placed into receivership because the general partners were unable to agree on decisions.

Eventually the Diouns created a separate company to place a bid for ownership of the restaurant. The Jezerinacs led a group that placed a competing bid with the receiver. The two parties argued in Franklin County Common Pleas Court about the process. After the trial court agreed to a proposal that favored the Jezerinacs and partners, the Diouns appealed to the Tenth District Court of Appeals.

Appellate Court Changes Prompt Challenges
In June 2018, a three-judge panel consisting of then Judges Jennifer Brunner, William Klatt, and Timothy Horton were assigned the case and conducted oral argument in November 2019. At the time the case was assigned, disciplinary proceedings against Judge Horton were pending.

In 2-1 decision, Judges Brunner and Horton sided with the Diouns and remanded the case to the trial court. On the same day of the decision, Judge Horton resigned.

The Jezerinacs applied for reconsideration of the ruling. As the request was pending, Judge Frederick Nelson was appointed in 2019 to replace Judge Horton. Judge Nelson replaced Judge Horton on the panel considering the Jezerinacs’ reconsideration request. Judge Nelson joined Judge Klatt in granting the motion for reconsideration, with Judge Brunner dissenting. In a 2-1 decision, the panel then reversed the earlier decision and sided with the Jezerinacs’ position.

The Diouns asked the panel again to reconsider its decision. The request was denied, and the Diouns appealed to the Ohio Supreme Court, which agreed to hear the case.

Only Original Judges Can Reconsider Case, Losing Partner Argues
The Diouns note that the Ohio Rules of Appellate Procedure were amended in 2010 and updated the process for applying for reconsideration. Rule 26(A)(1)(c) states, “The application for reconsideration shall be considered by the panel that issued the original decision.”

The family indicates the word “panel” isn’t defined in the rule, but that by dictionary definitions and the Ohio Constitution, it means a three-judge panel, and the rule doesn’t explain what happens when any of the three judges that issued the original decision leave the bench. The Diouns argue the rule’s plain language means that only the three judges who heard and decided the case can rule on a reconsideration request. In this case, Judge Nelson had no authority to participate, they maintain.

The Diouns point to the 2011 State v. Huber decision by the Eighth District Court of Appeals. In that case, one of the three judges on a panel retired by the time the reconsideration request was made. The remaining two judges agreed to reconsider the case and listed the retired judge as “not participating.” The Diouns noted the Eighth District’s interpretation of the rule should be followed.

Unlike the Huber case, the remaining judges, Brunner and Klatt, were divided, leaving the motion for reconsideration without Judge Nelson’s vote as 1-1. Because there was no majority, the motion failed, the Diouns argue, and the original ruling in their favor should stand.

Parties Debate Rule’s Consistency with State Constitution
Both the Diouns and the Jezerinacs maintain their position is more consistent with the language of the Ohio Constitution.

Article IV, Section 3 of the Ohio Constitution states that “three judges shall participate in the hearing and disposition of the case.” Article IV, Section 3(B)(3) states that “a majority of the judges hearing the cause shall be necessary to render a judgment.”

The Diouns maintain that “hearing” the case means participating in oral argument. Because Judge Nelson didn’t participate in the case until after it was originally decided, he wasn’t part of the “majority of the judges hearing the cause,” the family asserts. Because he didn’t hear the case, under the constitution, he couldn’t participate in the judgment, they conclude.

The Jezerinacs argue the rules and state constitution pertain to the “office” of judge and not the individual. The rule indicates “the panel” must reconsider the decision, but doesn’t mandate the same “judges” hear it, but rather the holders of the “judicial seats.” Judge Nelson replaced Judge Horton and assumed his judicial seat, which entitled Judge Nelson to be placed on the panel as a replacement for Judge Horton, the Jezerinacs and their partners argue.

Judges Routinely Substituted, Partnerships Maintain
Brewery Real Estate Partnership, the owners of the building which include the Jezerinacs, also are contesting the Diouns’ appeal. In its brief, the partnership makes arguments similar to the Jezerinacs.
The partnerships collectively argue the best interpretation of “panel” permits the replacement of a judge who dies or retires during a lawsuit. Ohio appellate courts routinely assign new judges to panels when others leave the bench with matters pending, they note, and several motions of reconsideration have been heard by a new judge replacing the judge who was part of issuing the original decision. The difference in this matter, the partnerships note, is that it’s one of the few appellate decisions where the remaining judges disagree on the outcome and a party is challenging the ruling.

Other sections of the appellate rules refer to panels and the replacement of judges, they assert. In none of the other sections does a rule referring to a panel with a new judge define it as a “new panel” or “different panel,” the Jezerinacs argue, meaning in the context of the rules, a replacement judge can reconsider an original decision.

The partnerships also maintain their interpretation is more consistent with the state constitution. They note that prior court decisions indicated that three appellate judges must review a case and, under Article IV, Section 3(B)(3), a majority must decide the case. The Jezerinacs maintain the Diouns’ position that two judges can rule, and that a motion can fail because it only received one vote, violates the constitution.

The partnerships also reject the Diouns’ contention that “hearing” only means conducting oral argument. The Jezerinacs state that “hearing” has the same meaning as “considering” and that many legal proceedings requiring a hearing don’t require an oral presentation, but could be just the submission of arguments to the courts in several ways. Because Judge Nelson reviewed the original decision and all the arguments in the case, he did “hear” it, the Jezerinacs assert, and Judge Nelson was entitled to vote on the outcome.

Opponent Counters ‘Hearing’ Claim
In a reply brief, the Diouns maintain if the Court accepts the Jezerinacs’ position that Judge Nelson could hear the case, then under the state constitution, the Jezerinacs would still lose. The opponents both note that the Court has ruled the constitution requires a minimum of three judges hear a case, but more than three judges can decide a case.

The Diouns argue that not only did Judge Nelson hear the case, so did Judge Horton, who joined the decision favoring the Diouns. Under the provisions of the constitution that the Jezerinacs cite, a “majority” of the judges who heard the case must provide the judgment. Counting Judge Horton’s vote, two judges sided with Diouns and two sided with the Jezerinacs. That 2-2 vote means a majority of judges didn’t rule in favor of the Jezerinacs and their partners, and the original decision favoring the Diouns should stand, the Diouns maintain.

Receiver Seeks to Complete Sale
Steven Skutch was appointed by the trial court as the receiver in this case. He notes that throughout the litigation, he hasn’t taken a position on the claims of the parties. However, he submitted a brief to implore to the Court to decide the case in favor of the Jezerinacs and their partners so that he can complete the sale of the business and terminate the receivership.

Other Parties Not Participating
Four other named parties in the case failed to submit merit briefs and can’t participate in oral arguments.

Dan Trevas

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

Representing Mo M. Dioun et al. : Rick Ashton, 614.221.8500

Representing Ronald M. Jezerinac et al.: Marc Kessler, 614.235.5168

Representing Brewery Real Estate Partnership: James Ryan, 614.229.3247

Representing Steven Skutch, receiver: Robert Folland, 614.628.1429

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