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Robert Thorton v. Montville Plastics & Rubber, Inc., Administrator, Ohio Bureau of Worker's Compensation, Case no. 2007-1588
11th District Court of Appeals (Geauga County)
In Re: Shardai Burt, Juvenile, Case no. 2007-1751
5th District Cout of Appeals (Stark County)
City of Middleburg Heights v. Vincent Quinones, Case no. 2007-1863
8th District Court of Appeals (Cuyahoga County)
In Re: H.F. & R.F., Minor Children, Case nos. 2008-1036 and 2008-1037
8th District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. Kristen Lynn Kelly, Case no. 2008-1198
Greene County
Did Claimant Abandon Workers’ Comp Claim By Dismissing Appeal Without Employer’s Consent?
Robert Thorton v. Montville Plastics & Rubber, Inc., Administrator, Ohio Bureau of Worker's Compensation, Case no. 2007-1588
11th District Court of Appeals (Geauga County)
ISSUE: Did an amendment to the state workers’ compensation law that took effect in August 2006 apply retroactively to bar an injured employee from voluntarily dismissing an appeal complaint he filed in 2005 without first obtaining his employer’s consent.
BACKGROUND: When the Ohio Bureau of Workers’ Compensation (BWC) grants an employee’s claim for benefits, and an administrative appeal of that ruling by the worker’s employer to the Industrial Commission is unsuccessful, the employer has a statutory right to appeal the case to the local common pleas court. In order to initiate such an action, however, after the employer files a notice of appeal the law requires the worker whose benefits are being challenged to file an initial complaint with the court, to which the employer and the BWC then file answers. Through legislation that took effect on Aug. 25, 2006, the General Assembly amended the workers’ compensation statute to specify that once an employee has filed the complaint necessary to initiate his employer’s appeal of a BWC award, the employee may not voluntarily dismiss that complaint without the employer’s consent.
In January 2006, the BWC granted an award of benefits to Robert Thorton for injuries he sustained in June 2005 while employed at a Parkman, Ohio, plastics manufacturing facility operated by Montville Plastics & Rubber Inc. After an unsuccessful appeal of that award to the Industrial Commission, Montville filed a notice of appeal in the Geauga County Court of Common Pleas on March 1, 2006. On March 13, 2006, Thorton filed the required complaint, to which Montville and BWC filed their answers. In its answer, Montville disputed the existence of several medical conditions for which Thorton had been awarded benefits, and also challenged Thorton’s claim that the injuries on which his award was based arose out of his employment. A jury trial was scheduled for Nov. 27, 2006.
On Oct. 19, 2006, Thorton voluntarily dismissed his complaint under Civil Rule 41(A)(1)(a), which allows the plaintiff in a civil action to unilaterally dismiss his claim “without prejudice,” with the condition that he must refile it within one year after the date of dismissal or forfeit his claim. On Oct. 31, 2006, the trial court made an entry in its journal noting the dismissal of Thorton’s complaint without prejudice. The effect of the dismissal was to prevent the common pleas court from proceeding to hear Montville’s appeal until Thorton either reinitiated the appeal process by refiling his complaint or allowed the one-year refiling period to lapse. On Nov. 30, 2006, Montville filed an action in the 11th District Court of Appeals seeking relief from the trial court’s dismissal of Thorton’s complaint on the basis that the dismissal was improperly granted without the employer’s consent. The employer asked the court of appeals to enter final judgment in its favor on the basis that Thorton had permanently abandoned his workers’ compensation claim by dismissing it unilaterally contrary to the employer consent requirement that took effect Aug. 25, 2006.
The 11th District dismissed Montville’s appeal without considering the merits, based on its finding that the appeal was not filed within 30 days after Thorton dismissed his complaint. In its decision, the court of appeals wrote that voluntary dismissals under Civ.R.41(A)(1)(a) are “self-executing” actions that automatically terminate a case without any required intervention by the court, and that the 30-day period to appeal the legality of Thorton’s dismissal therefore began to run on Oct. 19, 2006, not on Oct. 31 when the trial court took official notice of the dismissal.
Attorneys for Montville now ask the Supreme Court to overrule the 11th District and hold that their original appeal was timely filed because the 30-day time limit should have been calculated from the Oct. 31 entry in the trial court’s journal certifying that Thorton’s dismissal of the appeal complaint was “without prejudice.” They argue that the trial court’s approval of a dismissal “without prejudice” in this case was directly contrary to the legislative amendment prohibiting unilateral dismissals of workers’ compensation appeals after Aug. 25, 2006 without the consent of the claimant’s employer.
Attorneys for Thorton cite case law supporting the 11th District’s holding that voluntary dismissals under Civ.R.41(A)(1)(a) are self-executing and immediately effective without requiring any subsequent action or order of a court. They also assert that, in any case, such dismissals are not “final orders” subject to direct appeal because they do not determine the outcome of a case but merely postpone the court’s consideration of it for a limited period.
Finally, both Thorton and a brief filed by the BWC argue that Montville’s position is based on the false premise that the legislative changes to the Workers’ Compensation Act that took effect on Aug. 25, 2006, were applicable to Thorton’s case. They point to specific language in the legislation making its provisions applicable only to cases “arising on and after the effective date of this act.” They note that Thorton’s claim “arose” on the date of his injuries in June 2005, and argue that even if Montville’s appeal were deemed to be the event triggering the current case, that appeal was filed on March 1, 2006, more than five months before the effective date of the employer consent provision.
Contacts
Aubrey B. Willacy, 216.241.7740, for Montville Plastic & Rubber Inc.
Mitchell A. Stern, 216.861.0006, for Robert Thorton.
William P. Marshall, 216.466.8980, for the Administrator, Ohio Bureau of Workers’ Compensation.
Does Charging Minor With ‘Violating a Previous Court Order’ Violate Child’s Due Process Rights?
In Re: Shardai Burt, Juvenile, Case no. 2007-1751
5th District Cout of Appeals (Stark County)
ISSUE: Did a juvenile court violate the due process rights of a youthful offender when it adjudicated her guilty of a first-degree misdemeanor count of “violating a previous court order” based on a probation violation involving disrespectful or unruly conduct that would not have constituted a first-degree misdemeanor if committed by an adult?
BACKGROUND: In this case, attorneys for juvenile offender Shardai Burt of Canton have challenged the Stark County Juvenile Court’s adjudication of Burt as guilty of a more serious charge of “violating a previous court order” (VOPCO) in a case where they say Burt’s conduct should have been grounds only for a probation violation hearing or a non-criminal “status offense” charge because her actions would not have constituted a crime if they were committed by an adult.
They argue that the court’s tactic in adjudicating Burt for a VOPCO violation rather than for a probation violation, or for the status offense supported by her actual conduct, a practice they allege the court has used excessively in other juvenile cases, violated Burt’s constitutional right to due process and exposed her to more severe penalties than the law provides for the offense she actually committed.
Attorneys for the Stark County prosecutor’s office respond that the legislature provided juvenile courts with the option of charging offenders with a VOPCO count to provide a more severe sentencing option in cases where youthful offenders repeatedly defy previous court orders by committing additional status offenses that, by themselves, would not support incarceration. They argue that the discretion to invoke VOPCO in cases involving status offenses is necessary for juvenile courts to perform their function of rehabilitating unruly minors. They compare the use of VOPCO in juvenile court to an adult court’s discretion to impose more severe sanctions, including extended incarceration, on adult offenders who act in contempt of court.
Contacts
Angela Miller, 614.466.5394, for Shardai Burt.
Ronald M. Caldwell, 330.451.7869, for the Stark County prosecutor’s office.
May Municipal Court Assess Court Costs On ‘Per Charge’ Versus ‘Per Case’ Basis?
City of Middleburg Heights v. Vincent Quinones, Case no. 2007-1863
8th District Court of Appeals (Cuyahoga County)
ISSUE: In cases where a defendant is charged with multiple traffic offenses arising from the same incident as part of a single case, does state law require municipal courts to make a single assessment of court costs against the defendant on a per-case basis, or may the court impose a separate court cost assessment for each individual offense of which the defendant is found guilty?
BACKGROUND: Vincent Quinones was stopped and cited by a Middleburg Heights police officer in November 2005 for four separate traffic violations: DUI, weaving across marked lanes of traffic, speeding and failure to wear a seatbelt. He entered pleas of not guilty to all charges. After a bench trial in Berea Municipal Court at which he was found guilty of all four charged offenses, Quinones was sentenced to a driver license suspension and other penalties for the DUI conviction, was fined for the other three violations, and was ordered to pay a separate assessment of court costs for each of the four traffic law violations of which he was convicted.
Quinones filed an appeal with the Eighth District Court of Appeals, challenging both his convictions and the trial court’s assessment of court costs against him on a per-charge rather than a per-case basis. The Eighth District reversed his convictions on the marked lanes and seatbelt charges. It also held that the municipal court acted contrary to law and two Ohio attorney general opinions in assessing court costs on a per-charge rather than a per-case basis.
The City of Middleburg Heights, supported by an amicus curiae (friend of the court) filed by the clerk of the Berea Municipal Court, sought and were granted review of the Eighth District’s decision.
They argue that the Eighth District erred in its legal analysis by failing to consider R.C. 1901.26(B), a portion of the state law governing the assessment of court costs that they say allows local courts to make an additional assessment of costs, separate from the general costs authorized elsewhere in state law, to help cover the costs of local “special projects” such as acquisition or rehabilitation of court facilities. They point to language in R.C. 1901.26(B) allowing the assessment of these special project costs “on the filing of each criminal cause,” and urge the Supreme Court to rule that the Berea Municipal Court’s procedure is proper because it assesses the general court costs authorized by state statutes on a per-case basis, and only assesses offenders on a per-offense bases for the add-on local special projects cost.
Attorneys for Quinones urge the Court to affirm the Eighth District’s ruling that court costs may only be assessed on a per-case basis. They argue that the practice of the Berea Municipal Court in making multiple assessments of court costs against defendants based on the number of offenses with which they were charged is contrary to the requirements of the general state statutes that authorize the imposition of court costs, R.C. 2947.23 and 1901.26(A). They also assert that the per-charge fees assessed against Quinones did not fall under the “special project” category authorized by R.C. 1901.26(B) because that statute requires that such costs be established by a specific local rule of court, and that they be assessed on the filing of a charge, not as a consequence of being convicted.
Contacts
Peter H. Hull, 440.234.8811, for the city of Middleburg Heights.
Patrick P. Leneghan Jr., 216.651.4600, for Vincent Quinones.
Is Juvenile Court Adjudication and Disposition of Temporary Custody a ‘Final, Appealable Order?’
In Re: H.F. & R.F., Minor Children, Case nos. 2008-1036 and 2008-1037
8th District Court of Appeals (Cuyahoga County)
ISSUE: When a juvenile court makes an adjudication that a child is abused, neglected or dependent and enters a dispositional order granting temporary custody of the child to a county children services agency, are those actions “final, appealable orders” that must be appealed within 30 days, or may a party seeking reversal of those actions wait to appeal them until after the court has entered a subsequent dispositional order in the case granting permanent custody of the child to the county agency?
BACKGROUND: A provision of the state’s rules of appellate procedure, App.R. 3, sets a deadline of 30 days for the filing of an appeal of a “final order” issued by a trial court. A subsequent provision, App.R.4(B)(5), makes a limited exception to the 30-day time limit for filing appeals in cases in which a trial court has entered a “partial” order “that has not disposed of all claims as to all parties.” In such cases, App.R. 4(B)(5) allows a party to file an appeal either within 30 days after the entry of the partial order that the appellant wishes to challenge, or within 30 days after a subsequent order in which the trial court disposes of the remaining claims.
In this case, the Cuyahoga County Department of Children & Family Services (CCDCFS) removed two children identified as H.F. and R.F. from their home based on suspected neglect or abuse. An adjudicatory hearing was held in May 2006, and in early June 2006 the juvenile court issued orders adjudicating the children as abused or neglected and making the disposition that they be placed in the temporary custody of CCDCFS. More than a year later, in July 2007, following a trial in which the children’s father opposed a motion to modify temporary custody to permanent custody, the court issued an order granting permanent custody of the children to CCDCFS.
The father appealed the permanent custody order to the Eighth District Court of Appeals, alleging among other claims that he was not properly advised of the rights he was giving up before making certain admissions at the May 2006 adjudicatory hearing, and that those admissions should not have been considered by the juvenile court in finding the children to be abused or neglected and awarding temporary custody to the county agency. CCDCFS filed a motion seeking dismissal of the father’s claims based on alleged defects in the May 2006 hearing, on the ground that any appeals arising from that proceeding were required to be filed within 30 days after the juvenile court issued its June 2006 adjudication and disposition orders. The Eighth District ruled that it had jurisdiction to hear and decide the father’s appeal based on the June 2006 orders because those orders were not “final” but rather fell within the exception in App.R.4(B)(5) for appealing “partial” orders that did not “dispose of all issues for all parties.”
The Eighth District certified that its ruling on the applicable time limit for the father’s appeal was in conflict with rulings of other court of appeals districts and with other decisions of the Eighth District on the same issue. The Supreme Court agreed to review the case to resolve the conflict.
Attorneys for CCDCFS point to rulings by the Fourth and 12th District Courts of Appeals and the Supreme Court of Ohio’s 1990 holding in In re Murray that a juvenile court order adjudicating a child as neglected or dependent, followed by a dispositional order granting temporary custody to a public children services agency, “constitutes a ‘final order’ within the meaning of R.C. 2505.02 and is appealable to the court of appeals pursuant to R.C. 2501.02.” They argue that the June 2006 orders issued by the juvenile court in this case disposed of all issues before the court and therefore did not constitute a “partial” order excepted from the 30-day appeal deadline by App.R.4(B)(5).
Attorneys for the father of H.F and R.F. cite other court decisions including two earlier decisions of the Eighth District holding that juvenile court orders awarding temporary custody of a child pending a parent’s compliance with conditions for reunification of the family do not “dispose of all issues for all parties,” but rather leave the disposition of the child at issue pending a later ruling by the court. Under that interpretation, they argue, the June 2006 court orders challenged by the father were still subject to timely appeal until 30 days after the court issued its final order granting permanent custody to CCDCFS in July 2007.
Contacts
Joseph C. Young, 216. 635.3802, for the Cuyahoga County Dept. of Children & Family Services.
Jonathan N. Garver, 216.391.1112, for S.F. father of H.F. and R.F.
Attorney Discipline
Disciplinary Counsel v. Kristen Lynn Kelly, Case no. 2008-1198
Greene County
The Board of Commissioners on Grievances & Discipline has recommended that Fairborn attorney Kristen Lynn Kelly be indefinitely suspended from the practice of law for misappropriating funds from the Greene County Humane Society while serving as the society’s volunteer treasurer and for providing uncompensated legal services to the humane society between 2000 and 2006, while Kelly was serving as a full-time magistrate for the Greene County Domestic Relations Court.
The disciplinary board found that between January 2005 and August 2006, Kelly abused her position as treasurer to divert approximately $42,000 from the humane society’s bank accounts to her own account. While noting that Kelly served for many years as a dedicated and unpaid advocate for abused and abandoned animals at considerable personal cost, and has since reimbursed the society for all of the missing funds, the board found that her multiple acts of misappropriation over a 20-month period and further abuse of her position as treasurer by submitting multiple false financial reports to the humane society board to conceal her misconduct were grounds for an indefinite license suspension.
Kelly has filed objections to the board’s recommended sanction. She urges the Court to instead adopt the penalty recommended by the three-member hearing panel that reviewed the evidence and heard character witness testimony in her case, which was a two-year license suspension with the final six months stayed on conditions.
Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Geoffrey Stern, 614.462.5400, for Kristen Lynn Kelly.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.