Tuesday, Feb. 7, 2023
Jack Marchbanks, director of the Ohio Department of Transportation v. Ice House Ventures, LLC, et al., Case No. 2022-0047
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Tyler Williams, Case No. 2022-0121
Ninth District Court of Appeals (Lorain County)
Disciplinary Counsel v. Griff M. Nowicki, Case No. 2022-1253
Montgomery County
What Does ‘Damages’ Mean for Property Taken for Highway Project?
Jack Marchbanks, director of the Ohio Department of Transportation v. Ice House Ventures, LLC, et al., Case No. 2022-0047
Tenth District Court of Appeals (Franklin County)
ISSUES:
- When parties enter into a written settlement agreement, is a “meeting of the minds” presumed between the parties?
- Once a written settlement is memorialized in a court order, can a party to the agreement claim that no meeting of minds existed?
- If a settlement is breached in an eminent domain matter, is the party alleging the breach entitled to the type of damages awarded for a breach of contract?
BACKGROUND:
The Ohio Department of Transportation (ODOT) is reconfiguring parts of Interstate 70 that run through downtown Columbus. To improve the highway, the transportation agency filed a lawsuit in 2016 to use eminent domain to take property owned by Ice House Ventures, Lion Management Services, and Smokestack Ventures. The property contains an office building and 85 parking spaces, and ODOT was seeking a portion of it.
In 2018, ODOT and the property owners agreed to settle instead of going to trial. As compensation for taking the property, ODOT would pay the property owners $900,000 and transfer an adjacent piece of land to them to restore 12 of 15 eliminated parking spaces.
The city of Columbus owns the property offered for the parking spaces, subject to a highway easement held by ODOT. Because ODOT first had to obtain the property from the city, the settlement stated that if the land wasn’t transferred within a year, “the [c]ourt shall retain jurisdiction to determine the damages due to [the property owners] for the failure of ODOT to deliver this portion of the consideration for ODOT's appropriation of [the] property.”
In October 2018, the Franklin County Common Pleas Court entered its judgment detailing the terms of the settlement. ODOT paid the $900,000. But at a status conference with the court in March 2019, ODOT explained that the city decided not to transfer the property to the agency.
When Land for Parking Not Delivered, Property Owners Request Damages
The property owners filed a motion to enforce the settlement, seeking damages and attorney fees. The court held a hearing and concluded that ODOT breached the agreement by not providing the land for the parking spaces. The court determined that the property owners were entitled to damages of $75,000 per parking space for the 12 spots, totaling $900,000.
ODOT appealed to the Tenth District Court of Appeals, which reversed the trial court. The Tenth District stated that the settlement wasn’t valid and enforceable because there was no “meeting of the minds” between the parties at the time of the agreement on what “damages” meant. The appeals court vacated the trial court order memorializing the settlement and remanded the case for a trial.
The property owners appealed to the Supreme Court of Ohio, which accepted the case.
State Agency Understood Terms of Settlement, Property Owners Maintain
To form a contract, there must be mutual agreement between the parties, described as a “meeting of the minds.” The property owners argue that when parties sign a written agreement, it is presumed there is a meeting of the minds. At the court hearing on whether the settlement was breached, no testimony was presented to support ODOT’s arguments now that the contract wasn’t binding, the contract terms were unclear, or there was no meeting of the minds on the meaning of “damages,” the property owners maintain.
The owners contend that damages for breaching a contract means placing the party that didn’t violate the agreement in as good a position as it would have been had the contract terms been met. The briefs in the case call this “expectation damages.” But ODOT focuses on “damages to the residue” – which the property owners argue applies only to eminent domain cases that go to trial and have damages determined by a jury. When juries consider the appropriate compensation for property taken through eminent domain, they determine the “damages to the residue” – a review of the “before and after market value analysis” of the property. But once a settlement is reached, the way a jury would calculate damages at trial isn’t relevant, the property owners assert.
The property owners also state that ODOT’s approach for the new parking space land doesn’t make sense because that property wasn’t taken. ODOT was to instead give them the parking lot property.
The property owners maintain that there was no misunderstanding of the term “damages” in the settlement. Compensation for the taken property was set by the terms of the settlement, the owners state, and ODOT violated the contractual obligations of the settlement. The contractual meaning of damages applies, the owners argue, which would be compensation for the 12 parking spots it would have gained if ODOT had done what it promised.
Calculation Used in Eminent Domain Cases Applies, State Agency Counters
ODOT states that when a portion of an owner’s property is taken through eminent domain, state law provides that the owner is entitled to damages to the residue – determined by comparing the fair market values before and after the appropriation of the property that wasn’t taken.
The state agency argues that because it viewed the damages provided for in the settlement differently than the property owners, no meeting of the minds occurred, so no valid contract existed. ODOT maintains that it raised concerns at the hearing that the trial court could award only the eminent-domain type of damages. It asserts that it stressed this interpretation at the hearing, witnesses testified about it, and the disagreement was brought up in the agency’s closing argument. The debate shows there was no meeting of the minds and that the issue was raised in the trial court, the state agency maintains.
It adds that as long as damages to the residue are the correct calculation to use in this case, then the common pleas court has jurisdiction to address the breach of contract. However, ODOT argues, if the settlement allows expectation damages against the state for breach of the contract, then such a claim must be brought in the Court of Claims, which handles all allegations against the state for damages.
Chamber of Commerce Submits Arguments
The Ohio Chamber of Commerce filed an amicus curiae brief supporting the property owners.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ice House Ventures, Lion Management Services, and Smokestack Ventures: Joseph Miller, 614.464.6400
Representing the Ohio Department of Transportation from the Ohio Attorney General’s Office: Benjamin Flowers, 614.464.5903
When Does Speedy Trial Clock Start for Prison Inmate Facing Charges for Other Crimes?
State of Ohio v. Tyler Williams, Case No. 2022-0121
Ninth District Court of Appeals (Lorain County)
ISSUES:
- Does a person in prison who is facing other charges satisfy the state law to request a speedy trial by delivering written notice to the warden?
- Does a warden’s failure to deliver an inmate’s request for a speedy trial prevent the prosecution from trying the inmate on a new charge if 180 days has passed since the inmate provided notice to the warden to maintain speedy trial rights?
BACKGROUND:
In October 2018, Tyler Williams was indicted by a Lorain County grand jury on aggravated robbery and robbery charges. In February 2019, Williams was on trial for a separate crime in Cuyahoga County, and was housed in the Cuyahoga County jail. by A Cuyahoga County trial court convicted and sentenced him to three years in prison and transported him to the Lorain Correctional Institution. Once back in Lorain County, he was informed that he had been charged with crimes in Lorain County in 2018.
Following R.C. 2941.401, Williams was required to notify the Lorain County prosecutor and the trial judge of any intent to preserve his rights to a speedy trial. The law directed him to provide notice to the prison warden, and the law instructed the warden to deliver the notices to the prosecutor and the trial court, along with a certificate detailing the terms of Williams’ incarceration. The warden didn’t mail the notice or certificate to the prosecutor or the court.
Once the 180-day speedy trial clock expired on Williams’ charges, he asked the trial court to dismiss the case, and the judge agreed. The Lorain County Prosecutor’s Office appealed the decision to the Ninth District Court of Appeals. In a split decision, the Ninth District reversed the trial court’s ruling.
Williams appealed to the Supreme Court of Ohio, which agreed to hear the case.
State Bears Consequences When Speedy Trial Notice Not Delivered, Inmate Asserts
Williams maintains that he fulfilled his duties under R.C. 2941.401 to notify the warden of his intent to invoke his speedy trial rights. If the warden, an executive branch officer, fails to carry out the duties specified in the law, then the consequences are borne by the state, he argues. Williams notes that state appellate courts are split on whether the inmate loses the right to a speedy trial, or the prosecutor loses the right to try a suspect for a crime, when the notice and certificate aren’t delivered. He describes the law as ambiguous and as an “interpretive puzzle that this court must decipher.”
Williams explains that two laws -- R.C. 2941.401, which applies to those imprisoned in Ohio institutions, and R.C. 2963.30, which is for those imprisoned in other states or the federal system -- provide similar, but slightly different language about how to interpret the law when speedy trial notices aren’t delivered or are delivered late. He argues the Ninth District and the prosecutor are relying on a U.S. Supreme Court ruling dealing with an interstate incident about the consequences of the late delivery of an inmate’s notice. In that case, the high court ruled the failure of on-time delivery cut off the defendant’s right to invoke the speedy-trial time limit.
Ohio shouldn’t apply the U.S. Supreme Court ruling to Ohio’s law dealing with incarceration within the state for a few reasons, Williams asserts. First, Ohio has no ability to control how prison officials in other states or the federal system conduct their business, he explains. With R.C. 2941.401, the state has full oversight of the state’s own wardens and can direct their actions, he notes. He also points to the wording of the interstate law and argues it focuses on the delivery of the notice to the prosecution and trial court, while the in-state law emphasizes the inmate’s duty to provide notice to the warden.
Williams argues the in-state law only gives the inmate one option to preserve speedy trial rights, and that is through the warden’s delivery of the notice along with the certificate prepared by the warden. The warden is directed by law to deliver the notice and certificate by certified or registered mail. The inmate doesn’t have full control over delivery of the notice, and even if Williams directly notified the prosecutor or court of his interest in invoking his rights, the delivery would be incomplete because it wouldn’t contain the warden’s certificate, he argues.
Both the U.S. and Ohio constitutions guarantee speedy trial rights, Williams notes. It would be unconstitutional to force him to forfeit that right because of the warden’s failure to comply with the notification requirements, he concludes.
Losing Ability to Try Case Unreasonable, Prosecutor Asserts
The Lorain County prosecutor argues that the law isn’t ambiguous and the 180-day speedy trial clock is triggered once the prosecutor and trial court receive the inmate’s notice. The office maintains it would be unreasonable to prevent the state’s ability to prosecute a defendant for felony crimes because of a warden’s negligence. Under Williams’ interpretation of the law, the prosecutor might be precluded from seeking to uphold criminal laws even before the office knows of the speedy trial request. The legislature wouldn’t have intended such an absurd result, the prosecutor maintains, and the negligence of the warden shouldn’t cut off the time to prosecute the suspect.
The prosecutor argues the law clearly puts the burden on the inmate to ensure the notice and certificate are delivered to the prosecutor and trial court. The wording of the statute demonstrates that the consequences of the failure of the notice to be delivered falls on the inmate, not the state, the office asserts. The prosecutor notes that there is a balancing act between the rights of an inmate to the timely disposition of the case, and the state’s ability to prosecute the case. The Court should rule consistently with past decisions and appellate court decisions that start the speedy trial clock for an incarcerated individual only when the notice is received by the prosecutor and trial court, the prosecutor 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 Tyler Williams: Peter Galyardt, 614.466.5394
Representing the State of Ohio from the Lorain County Prosecutor’s Office: Lindsey Poprocki, 440.329.5389
Suspension Proposed for Attorney for Having Inappropriate Relationship With Employee/Client
Disciplinary Counsel v. Griff M. Nowicki, Case No. 2022-1253
Montgomery County
A Montgomery County attorney is facing discipline for a romantic relationship he began with an employee at his law firm while representing the employee in a lawsuit.
Griff Nowicki and the Office of Disciplinary Counsel, which investigated the complaint, agreed to a one-year suspension, fully stayed. The Board of Professional Conduct, however, recommends a one-year suspension with six months stayed in its report to the Supreme Court of Ohio.
Nowicki objects to the board’s recommended sanction. Because of his objection, the Supreme Court will hold an oral argument in the case.
Attorney Assists Employee and Her Husband With Lawsuit
Sondra Clark was hired as an assistant at Nowicki’s law firm in 2018. In August of that year, Nowicki agreed to represent Clark, her husband, and her son in lawsuit. The attorney’s representation was pro bono. He filed an answer in the civil case and stated that he did no other work in the matter.
In December 2018, Clark’s husband left the home where he and Clark lived, and no longer saw their children. The following April, Nowicki and Clark began a sexual relationship. Clark’s husband learned they were dating. Charges were later filed against Clark’s husband for telephone harassment and violating a protection order that Clark obtained against him.
Because Nowicki and Clark were victims in the harassment cases, Nowicki withdrew in August 2019 from representing Clark’s husband in the civil case. He continued to represent Clark and her son in the matter. Clark filed for divorce, with Nowicki as her lawyer. The civil case was dismissed later in August.
Clark’s husband pled guilty to three misdemeanors, and their divorce was finalized in October 2019. Clark and Nowicki married in 2020.
Professional Conduct Board Increases Recommended Suspension
The board panel that reviewed the misconduct allegations found that Nowicki violated rules against engaging in sexual activity with a client and against representing a client when there are certain conflicts of interest.
Looking at prior disciplinary decisions, the panel concluded that Nowicki should receive a one-year suspension with six months stayed and that he complete three hours of extra continuing education on professional conduct. The board adopted the findings and recommended sanction.
Attorney Argues Facts Support Stay of Suspension
Nowicki doesn’t take issue with the determination that his actions were professional misconduct. He sees differences, though, between his case and the cases cited by the board to support an actual six-month suspension. He maintains that he wasn’t paid to represent the Clarks in the civil suit, his romantic relationship with Clark began four months after she separated from her husband in December 2018, and he had no dishonest motive in starting the relationship. He also submitted certificates to the Court showing he has already completed the additional coursework.
Disciplinary Counsel Opposes Harsher Sanction
The disciplinary counsel maintains that the jointly recommended one-year stayed suspension protects the public and is supported by prior disciplinary decisions. Nowicki’s misconduct was serious, but there was no actual harm to Clark or her husband as clients, the disciplinary counsel states. The office points out that the civil case was dismissed, which benefited Clark and her husband, and Nowicki didn’t neglect their cases. Also, Clark’s husband had left Clark before the attorney and she began a romantic relationship, the office notes.
The disciplinary counsel argues that when an attorney commits misconduct by starting a sexual relationship with a client, that action isn’t inherently dishonest or selfish. Context matters, the disciplinary counsel maintains. Even if the Court determines that Nowicki’s motives were selfish, that shouldn’t push the discipline in this case to an actual suspension, given the facts, the disciplinary counsel concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Griff M. Nowicki, representing himself: 937.684.4684
Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.387.9700