Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, January 9, 2024

State of Ohio v. Elvin Maldonado, Case No. 2023-0480
Eighth District Court of Appeals (Cuyahoga County)

Jeffrey Harmon and David Beasley v. City of Cincinnati and Cincinnati Civil Service Commission, Case No. 2023-0559
First District Court of Appeals (Hamilton County)

Phoenix Lighting Group LLC et al. v. Genlyte Thomas Group LLC et al., Case No. 2023-0631
Ninth District Court of Appeals (Summit County)

Can Appeals Court Rule in Case Before Its Three-Judge Panel Issues Decision?

State of Ohio v. Elvin Maldonado, Case No. 2023-0480
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can all the judges on a court of appeals (en banc) consider a case before a decision has been issued by a three-judge panel of the court?

In May 2019, Elvin Maldonado was convicted in Cuyahoga County on multiple counts of felonious assault and for discharging a firearm on or near prohibited premises. He also was found guilty of two firearm specifications that have five-year prison terms.

In the sentence for Maldonado, the court ordered one five-year specification to be served consecutive to a four-year prison sentence for the firearm discharge offense. The other five-year specification was imposed consecutive to a four-year term for the additional offenses. The court imposed the two sets of sentences concurrent to each other, resulting in a nine-year sentence. Maldonado was also required to register as a violent offender after his release from prison.

Maldonado appealed to the Eighth District Court of Appeals, which assigned a three-judge panel to decide the case. The court overturned one of the five-year firearm specifications and the requirement that Maldonado register as a violent offender. The Eighth District returned the case to the trial court for resentencing.

Trial Court Resentences Defendant
For Maldonado’s resentencing, the trial court issued an order overturning the firearm specification and the registration requirement. No hearing was held. The other firearm specification remained in place, so Maldonado’s prison sentence was still nine years.

Maldonado appealed again to the Eighth District, which assigned a three-judge panel. Maldonado argued that the resentencing couldn’t be conducted without a hearing where he could be present. He also disputed the lack of credit for time he served in jail. He and the Cuyahoga County prosecutor each filed briefs, and oral argument was held in March 2022.

In February 2023, the Eighth District stated that the court had reviewed the case en banc, which means by all 12 judges on the court. The full Eighth District reviewed the three-judge panel’s proposed decision in this case as well as two of its prior decisions on the same issue – hearings for resentencing. The earlier rulings conflicted with each other, the appeals court said. It overruled one of the earlier decisions and concluded that a defendant doesn’t need to be present at this type of resentencing proceeding.

Maldonado appealed to the Supreme Court of Ohio, which agreed to review the case.

Full Court Must Wait Until Panel Issues Decision, Man Contends
Maldonado argues that the full Eighth District could not consider his case until the three-judge panel issued a decision first. His brief states that en banc consideration is a secondary review, not the first review conducted by an appeals court.

He points to part of Rule 26 of the Rules of Appellate Procedure, which explains the process for en banc consideration by an appellate court. The rule implies that a panel decision is issued first, otherwise the lack of a decision by the en banc court would revert back to nothing. The rule states, “In the event a majority of the full-time judges of the appellate district is unable to concur in a decision, the decision of the original panel shall remain the decision in the case unless vacated ….” Maldonado adds that the same process is followed when the decisions of an appeals court are in conflict. First, the panel reviews the case before it, then the full appeals court considers the cases that are in conflict.

He also points out that no one outside the Eighth District knew the full court was considering the case until the decision was released, giving the parties no opportunity to participate.

“Here, the Eighth District put the en banc cart before the three-judge-panel horse,” his brief states. “Instead of allowing the panel to first make a decision and then decide if there were truly a conflict, the Eighth District took a shortcut and went directly to the en banc procedure. In the process, both parties to this appeal were shut out.”

Eighth District Resolution of Conflict Decided New Appeal, State Argues
The Cuyahoga County Prosecutor’s Office maintains that before Maldonado’s case reached the appeals court, two Eighth District decisions were already in conflict on the issue of resentencing hearings. According to the appellate court rules, conflicts within an appellate district must be resolved by the full appeals court, which in the Eighth District is 12 judges, the prosecutor explains. Because the earlier rulings involved the same legal issue as in Maldonado’s case, the full Eighth District first had to resolve the conflict between the earlier rulings, the prosecutor argues.  

The prosecutor contends that the rules allow an appeals court to resolve an intra-district conflict at any time. The full court didn’t have to wait for the three-judge panel to issue an opinion in Maldonado’s case first, the prosecutor maintains.

The prosecutor notes that by resolving the conflict between the earlier rulings, the full Eighth District established the law for the district, including Maldonado’s case. The prosecutor contends that sending Maldonado’s case back to the three-judge panel wouldn’t change the outcome of his case.

The prosecutor adds that Maldonado wasn’t shut out of the legal process because an en banc review isn’t an opening for the parties to reargue the merits of the appeal or to raise new legal arguments.

Kathleen Maloney

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

Representing Elvin Maldonado from the Cuyahoga County Public Defender’s Office: John Martin,

Representing State of Ohio from the Cuyahoga County Prosecutor’s Office: Tasha Forchione,

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Can Employees Challenge Forced COVID Leave Through Civil Service Commission?

Jeffrey Harmon and David Beasley v. City of Cincinnati and Cincinnati Civil Service Commission, Case No. 2023-0559
First District Court of Appeals (Hamilton County)


  • Does a trial court lack jurisdiction to consider a lawsuit if the underlying claim depends on an interpretation of a collective bargaining agreement?
  • If a municipal civil service commission determines that its rules don’t entitle a party to a hearing, must the trial court defer to that interpretation?

In spring 2020, at the onset of the COVID-19 pandemic, the city of Cincinnati implemented a temporary emergency leave (TEL) program. In a memo to the mayor and City Council, the city manager explained that the city faced a projected deficit due to the pandemic. To deal with the deficit, certain non-critical employees would be placed on emergency leave for about three months. The employees could use the time they had accumulated for sick, vacation, compensatory, or other paid leave for their pay during the TEL program period, or they could apply for unemployment compensation from the state.

At the close of business on April 4, 2020, city employees Jeffrey Harmon and David Beasley were put on leave for three months. Harmon had worked for the city for 29 years, and Beasley had been employed there for 16 years. Both were members of a union, the Cincinnati Organized and Dedicated Employees (CODE). The union filed a grievance against the city on behalf of city employees placed on leave.

In May, Harmon and Beasley submitted appeals to the Cincinnati Civil Service Commission regarding the decision to place them on leave. They argued that, regardless of the use of the words “temporary emergency leave,” they were laid off, and the city didn’t follow the civil service rules that apply to layoffs. The employees maintained that civil service rules for layoffs require a calculation based on criteria including seniority and performance. The employees contended that they wouldn’t have been laid off if the city had followed the rules.

The employees were notified that a formal hearing by the commission on their appeal wasn’t appropriate based on the rules, but that they could appear before the commission to argue why they should be granted a hearing.

Civil Service Commission Considers Employee Appeals
Harmon and Beasley appeared before the commission in July 2020. The commission found that the TEL program wasn’t a layoff or separation, so the employees didn’t qualify for a hearing under the civil service rules. The commission stated that the employee claims should be pursued through the grievance and arbitration process available through the collective bargaining agreement between their union and the city.

Harmon and Beasley appealed the commission decision to the Hamilton County Common Pleas Court. A magistrate concluded in January 2022 that the evidence showed the TEL program was a layoff and the commission’s denial of a hearing violated the employees’ due process rights. The decision also stated that the court had jurisdiction to hear the appeal. The trial court approved the magistrate’s decision, and the case was ordered back to the commission for a hearing.

The city appealed to the First District Court of Appeals. The city argued that only commission decisions that follow a hearing can be appealed and heard by a trial court. The employees weren’t granted a hearing by the commission, so they had no right to appeal. In its March 2023 decision, however, the appeals court determined that the employees were entitled to a hearing before the commission and could appeal the denial of the hearing.

The city appealed to the Supreme Court of Ohio, which agreed to review the issues. 

TEL Program Falls Under Collective Bargaining Agreement, City Maintains
The city argues that a provision in the collective bargaining agreement with the employees allows the city to lay them off from their jobs for any legitimate reason. It was a legitimate exercise of the city’s management rights to implement the TEL program, given the COVID-19 pandemic, the city contends.

The city also asserts that the dispute over whether the TEL program was an illegal layoff involves the terms and conditions of the employees’ employment. Those terms and conditions are governed by the collective bargaining agreement, the city notes. It argues the dispute must be resolved through the arbitration process described in the agreement. Harmon’s and Beasley’s appeals to the civil service commission were improper because the matter had to be resolved through arbitration, the city contends. It maintains that the commission lacked the authority to consider the employee appeals.

The city also argues the same legal claims are presented in the union grievance and the individual appeals from Harmon and Beasley to the commission. The employees can’t make their claims in two different forums, the city asserts.

Layoff Process Can Be Appealed to Civil Service Commission, Employees Argue
Harmon and Beasley counter that the collective bargaining agreement gives employees the right to appeal procedural aspects of a layoff to the civil service commission. And the TEL program was a layoff, regardless of what the city called it, the employees maintain. They state that “layoff” is defined as a temporary or permanent termination of a person’s employment and note that a memo to employees at that time described the program as “mass layoffs.” Because the collective bargaining agreement allows these appeals, the commission had jurisdiction to consider the employee appeals, and the trial court had the authority to review the commission decision, Harmon and Beasley argue.

They state that the city also mischaracterizes their legal claims. The appeal to the commission alleged that the city failed to follow the layoff procedures delineated in the commission rules. The appeal said nothing about violating the collective bargaining agreement, the employees contend. Although the facts are the same in the union grievance and the appeal to the commission, Harmon and Beasley maintain that the legal claims are different – the grievance alleged that the city violated the collective bargaining agreement, but their appeal to the commission argues the city violated the civil service rules.

If it were decided that the TEL program was not a layoff, then Harmon and Beasley note that the bargaining agreement doesn’t include any mention of the TEL program. They point out that individual employees are permitted to challenge at the commission any employment terms and conditions that aren’t part of the agreement – such as the TEL program.

City and Employees Debate Right to Appeal Decision That Denied Hearing
The city and the employees also disagree about whether the commission had the ultimate authority to decide whether its rules entitled Harmon and Beasley to a hearing, and how the courts are to review that commission decision.

The city notes that a commission decision based on a hearing can be appealed. However, Harmon and Beasley were granted an appearance, not a hearing, before the commission. The commission’s ruling based on only the appearance couldn’t be appealed, so the trial court lacked jurisdiction to consider the employees’ appeals, the city contends. It also maintains that instead of ordering a hearing, the trial and appeals courts should have deferred to the commission’s conclusion that no hearing was warranted. 

Harmon and Beasley respond that the city is improperly raising a new issue never made in the appeals court and it can’t be argued now. The trial court found that it was unreasonable for the commission to not allow a hearing, and the city didn’t appeal that ruling, the employees maintain. They argue the test is whether the commission should have held a hearing, and the trial and appeals court agreed that the employees were entitled to a hearing. The commission’s denial of a hearing could be appealed and heard by the courts, the employees conclude.

Kathleen Maloney

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

Representing the City of Cincinnati and the Cincinnati Civil Service Commission from the Cincinnati Law Department: William Hicks,

Representing Jeffrey Harmon and David Beasley: Robb Stokar,

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Can Trial Court Only Carry Out Supreme Court Orders When Case Remanded?

Phoenix Lighting Group LLC et al. v. Genlyte Thomas Group LLC et al., Case No. 2023-0631
Ninth District Court of Appeals (Summit County)

ISSUE: Once a superior court directs a trial court to issue a final judgment, can the trial court award attorney fees and expenses for post-trial and appellate work?

This is the second time the Supreme Court of Ohio will consider a dispute between two commercial lighting companies regarding the award of attorney fees. Phoenix Lighting sold products made by Acuity Brand Lighting. The owner of Phoenix was approached by two employees about buying Phoenix. At the same time, the employees approached Genlyte Thomas Group, also known as Daybrite, Capri, Omega (DCO), about starting their own sales agency. DCO was a direct competitor of Acuity.

Using information gained from working at Phoenix, and with DCO’s financial assistance, the two employees formed a new sales agency and hired several Phoenix employees. Phoenix eventually went out of business.

In 2009, Phoenix sued DCO on several grounds. The case went to trial in 2014, and a jury returned a verdict for Phoenix that awarded $1.68 million in compensatory damages and $3.66 million in punitive damages. Because the jury awarded punitive damages, Phoenix could seek payment of its attorney fees from DCO. The trial court accepted the estimation by Phoenix attorneys that it cost $1,991,507 to defend the company. The attorneys asked for a fee enhancement based on the length and complexity of the case. The trial court awarded Phoenix $3.9 million in attorney fees.

DCO appealed the jury verdict, the damages, and the attorney fees to the Ninth District Court of Appeals. Phoenix responded to the appeal by making claims for additional punitive damages not awarded by the trial court. In 2018, the Ninth District rejected DCO’s claims but remanded the case to the trial court for further proceedings, including increasing the punitive damages award sought by Phoenix.

DCO appealed to the Supreme Court, which only agreed to consider the claim that the attorney fee enhancement was improper. In 2020, the Supreme Court agreed with DCO and stated that “we remand the cause to the trial court with instructions to issue a final judgment granting Phoenix attorney fees in the amount of $1,991,507.”

The trial court complied by instructing DCO to pay $1,991,507 to Phoenix’s attorneys. After the Supreme Court decision, Phoenix asked the trial court for additional attorney fees. DCO objected, stating the trial court’s only power was to award the fees ordered by the Supreme Court. In 2022, the trial court granted Phoenix’s request for an additional $1,563,000 in fees and expenses incurred during the appeals process.

DCO appealed the decision to the Ninth District, which affirmed the trial court’s decision. DCO appealed to the Supreme Court, which agreed to hear the case.

Trial Court Limited to Carrying Out Supreme Court Instructions, Company Asserts
DCO explained that a reviewing court issues a “mandate” to the lower court when modifying a lower court’s decision. The company explained that there are two types of mandates: general and specific. In a general mandate, the reviewing court gives an instruction such as to “conduct further proceedings.” In a specific mandate, the reviewing court provides a specific instruction. In this case, the Supreme Court ordered the trial court to “issue a final judgment granting Phoenix attorney fees in the amount of $1,991,507.” DCO argues this was the only action the trial court could undertake. DCO paid the attorney fees, and maintains that payment ended the case.

DCO argues that the trial court had to strictly comply with the Supreme Court’s order and couldn’t expand its authority. The company asserts that the trial court had no further jurisdiction over the matter and couldn’t consider Phoenix’s request for additional attorney fees for work conducted during the appeal.

DCO asserts the Ninth District justified the trial court’s decision by developing an imaginary line between the “pre-judgment” and “post-judgment” attorney fees. The Ninth District concluded that the Supreme Court mandate only covered the pre-judgment fees, noting the costs to Phoenix for defending its trial court victory through the appeals process had not yet occurred. DCO argues that no other Ohio court has made the distinction between attorney fees accumulated before and after the trial court judgment. The company notes that the Supreme Court made no distinction in its decision. DCO explains that Phoenix submitted a brief in 2020 asking the Court to award additional fees as it defended the judgment. The Court chose not to address the request and ordered the trial court to issue a final judgment for $1,991,507, DCO argues. The company maintains the Court meant what it said that its decision was the final judgment, and the trial court wasn’t free to open up the case for other matters.

Trial Court Authorized to Award Additional Fees, Defunct Business Maintains
Phoenix emphasized that to understand the trial court’s decision, the Supreme Court must consider that there was both a special and a general mandate issued by reviewing courts. When DCO first appealed, the Ninth District sided with Phoenix and issued a general mandate ordering the trial court to conduct further proceedings. But before that happened, DCO appealed to the Supreme Court, which agreed to consider only one issue raised by DCO, not the entire case. The Court only addressed DCO’s objections to the trial court decision to enhance Phoenix’s attorney fees. Because the Court’s judgment is only directed toward that one issue, the trial court isn’t barred from considering other matters, the company claims.

The Supreme Court didn’t tell the trial court to disregard the Ninth District’s decision, Phoenix notes. The business argues that the trial court had the right to conduct further proceedings on other matters based on the Ninth District’s general mandate. That permitted the trial court to consider the requests for attorney fees, the business asserts. Phoenix notes that the trial court recognized that Phoenix incurred additional legal expenses when DCO continued to appeal the trial court’s decision. Phoenix argues that the additional attorney fees can assessed as court costs, which trial judges impose after a judgment to bring a case to a conclusion. The trial judge has a right to consider costs expended on appeals when calculating court costs, the business concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Phoenix’s position was submitted by the Ohio Association for Justice.

Dan Trevas

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

Representing Genlyte Thomas Group LLC et al.: Benjamin Sasse,

Representing Phoenix Lighting Group LLC et al.: Jeffrey Witschey,

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