author: O'Donnell, J.

text:
    The STATE EX REL. JACKSON TUBE SERVICE, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.
    No. 2017-0790
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided September 27, 2018
    Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and Joshua R. Lounsbury, Dayton, for appellant.
   O'Donnell, J.

{¶ 1} Jackson Tube Service, Inc., appeals from a judgment of the Tenth District Court of Appeals denying its request to compel the Industrial Commission to vacate its order that granted Chad Thompson's application for an additional award due to the violation of a specific safety requirement ("VSSR")

and to issue an order denying the application based on the defense of impossibility.

Case History

{¶ 2} Thompson, an industrial electrician in the maintenance department of Jackson Tube, was injured on November 18, 2009, while in the process of reinstalling a flywheel in a cutoff machine. A crane held the suspended flywheel in a sling as Thompson and a coworker worked beneath it, trying to move the flywheel into position, but the sling broke, dropping the flywheel, which struck Thompson and broke both legs. His workers' compensation claim was allowed for bilateral femur fracture and right femoral shaft nonunion.

{¶ 3} Thompson also filed an application for a VSSR award, alleging violations of numerous sections of the Ohio Administrative Code related to hoisting and haulage equipment, power-driven cranes and hoists, and cranes, hoists, and derricks.

{¶ 4} At a hearing on the VSSR application, Thompson testified, "It's my understanding that there is a fixture for that application that's offered by the manufacturer, and that was only noted after the accident when we had gone back and taken a look." (Emphasis added.) However, Jackson Tube's maintenance supervisor, Ron Kimrey, and its manager of safety and training, David Booher, both testified that they were not aware of an alternative way to perform the job in a fashion that absolutely kept an individual from being under the flywheel while it was placed back onto the cutoff machine.

{¶ 5} A staff hearing officer granted the VSSR application, determined that Thompson's injury occurred when he was required to work under a suspended load in violation of Ohio Adm.Code 4123:1-5-15(D), and rejected Jackson Tube's argument that it was impossible to comply with the specific safety requirement ("SSR"). In reaching that conclusion, the hearing officer relied on Thompson's understanding that the manufacturer offered a fixture that could have been used to perform the task differently. Thus, the hearing officer concluded the employer's violation of Ohio Adm.Code 4123:1-5-15(D) constituted a VSSR.

{¶ 6} Jackson Tube filed a motion for rehearing under Ohio Adm.Code 4121-3-20(E)(1)(b), alleging that the order granting Thompson's application was based on an obvious mistake of fact or clear mistake of law. In support of its motion, Jackson Tube offered Kimrey's affidavit, which stated that Thermatool, the manufacturer of the cutoff machine, verified that it "does not manufacture or provide a device or mechanism to assist in removing or replacing the flywheel." Kimrey further attested that "Thermatool's engineer, Dan Lungo, has also * * * indicated that he is not aware of any device or mechanism designed to assist in removing or replacing the flywheel on the Cut Off Machine used at Jackson Tube." And although Lungo told Kimrey that "the only way to replace the flywheel * * * without using a crane and sling is to unbolt the machine from the floor and use heavy machinery to tilt the machine onto a 45 degree angle," Kimrey explained that he had researched the availability of a device to support the machine at a 45 degree angle and "can state that no such device exists."

{¶ 7} In denying the motion for rehearing, the hearing officer determined that Jackson Tube did not meet the criteria for rehearing set forth in Ohio Adm.Code 4121-3-20(E)(1) and stated that an obvious mistake of fact is not shown merely because a hearing officer relies on evidence or testimony that is contrary to or inconsistent with evidence presented by the opposing party.

{¶ 8} Jackson Tube filed a complaint seeking a writ of mandamus in the Tenth District Court of Appeals alleging that the commission had abused its discretion when it rejected Jackson Tube's impossibility defense and when it denied the motion for rehearing.

{¶ 9} A magistrate concluded that the commission did not abuse its discretion when it determined that Jackson Tube failed to establish a clear mistake of fact to justify rehearing or when it concluded that Thompson was entitled to an award for a VSSR. The magistrate noted that the commission relied on Thompson's testimony that Thermatool, the manufacturer of the cutoff machine, offered a fixture that would help support the flywheel while it was being reinstalled and that Jackson Tube had offered no evidence to the contrary. In addition, the magistrate determined that Kimrey's affidavit did not conclusively prove that it was impossible for Jackson Tube to comply with the SSR.

{¶ 10} The court of appeals adopted the magistrate's findings of fact and conclusions of law and denied Jackson Tube's request for a writ of mandamus.

{¶ 11} Jackson Tube filed this appeal, raising the following propositions of law for our review:

The Court of Appeals erred when it rejected Jackson Tube's "impossibility" defense.
The Court of Appeals erred when it failed to address SHO Cromley's denial of Jackson Tube's motion for a rehearing.

Positions of the Parties

{¶ 12} Jackson Tube asserts that when compliance with a specific safety requirement is impossible, an application for a VSSR award should not be granted. In this case, it contends that there was no way to repair the cutoff machine without requiring employees to work under the suspended flywheel and that Thompson's "understanding" about the existence of a fixture that allowed the flywheel to be removed without using a crane has no basis in fact and has been wholly refuted by contrary testimony. Jackson Tube further maintains that it is impossible to unbolt the cutoff machine from the floor and use heavy machinery to tilt it to a 45 degree angle because no device exists that could support the machine at that angle. Lastly, it argues that the commission abused its discretion when it denied the motion for rehearing, as it relied upon a mistake of fact when it granted a VSSR award.

{¶ 13} Neither the commission nor Thompson filed an appellee's brief.

Issue

{¶ 14} This case presents an issue of first impression: whether impossibility is a defense to a VSSR claim.

Legal Analysis

{¶ 15} The crux of the dispute in this case arises from Ohio Adm.Code 4123:1-5-15(D), which states, "Employees shall not be required to work or pass under suspended loads, nor shall the crane operator be required to carry a suspended load over employees."

{¶ 16} To prevail on its mandamus claim seeking to have the commission ordered to vacate its VSSR award, Jackson Tube must demonstrate that the commission's decision to issue a VSSR award was an abuse of discretion. See State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm. , 144 Ohio St.3d 243, 2015-Ohio-4525, 41 N.E.3d 1233, ¶ 13. An abuse of discretion occurs when the record contains no evidence to support the commission's order. State ex rel. Burley v. Coil Packing, Inc ., 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).

Impossibility as a Defense to Violating an SSR

{¶ 17} In the context of VSSR awards, this court has previously considered cases where the employer raised impossibility as a defense, but in those cases, we found the record contained some evidence that it was not impossible for the employer to comply with the regulation at issue. See State ex rel. Mosser Constr., Inc. v. Indus. Comm. , 61 Ohio St.3d 445, 575 N.E.2d 193 (1991) (Where removal of a section of duct pipe left an unguarded opening in a work platform that Donald Saam fell through and did not survive, Mosser Construction, Inc., argued impossibility to comply with the regulation. This court held that the commission did not abuse its discretion in granting a VSSR award and in finding that while it would have been difficult to follow the guarding requirement, it was not impossible); see also State ex rel. Go-Jo Industries v. Indus. Comm. , 83 Ohio St.3d 529, 700 N.E.2d 1264 (1998) (Where Rodney Gist had reached into a cartoner machine to remove a carton and the machine pulled his hand, the commission determined that Go-Jo Industries violated the regulation to equip the machine with means to disengage its power and granted a VSSR award. We acknowledged that it would be impossible to comply with the SSR if the controls had to be within easy reach of all possible positions but concluded that there was " 'some evidence' supporting the conclusion that [Gist's] presence at the site of injury was not abnormal, irregular, or unusual in the performance of his duties").

{¶ 18} Neither case, however, fully developed the concept of impossibility as a defense to a VSSR award.

Impossibility as a Defense to Violating an OSHA Standard

{¶ 19} Federal courts have considered impossibility as an affirmative defense to a charge of violating an Occupational Safety and Health Administration ("OSHA") standard and have held that to establish this defense, the employer must demonstrate (1) that compliance with the standard's requirements is impossible or would have precluded performance of the work and (2) that no alternative means of employee protection had been available. See Brock v. Dun-Par Engineered Form Co. , 843 F.2d 1135, 1136 (8th Cir.1988) (concluding that the employer has the burden to establish that alternative means of compliance were not available); Bancker Const. Corp. v. Reich , 31 F.3d 32, 34 (2d Cir.1994) (holding the employer failed to establish that it was impossible to comply with a requirement that employees working in trenches be protected by an adequate protection system); A/C Elec. Co. v. Occupational Safety & Health Rev. Comm. , 956 F.2d 530, 534 (6th Cir.1991) (acknowledging employer could raise impossibility as an affirmative defense but concluding employer waived it under the circumstances); E & R Erectors, Inc. v. Secy. of Labor , 107 F.3d 157, 163 (3d Cir.1997) (holding that an employer failed to present any evidence that it was impossible to comply with regulation requiring that fall protection be provided if the distance from the ground is greater than 25 feet).

Impossibility as a Defense to VSSR

{¶ 20} In accord with these cases, we conclude that to establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement, an employer must show (1) that it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work and (2) that no alternative means of employee protection existed or were available

{¶ 21} In E & R Erectors , an OSHA compliance officer inspected a construction worksite where a seven story building was being raised and witnessed E & R Erectors, employees installing large steel columns on a level of the building that he estimated to be between 29 and 33 feet from the ground. Id. at 159-160. After observing that temporary guardrails had been removed in the area where the employees were working, the employees also told him that they did not use any fall protection while installing the columns. Id. Thereafter, he determined E & R violated federal regulations that required fall protection be provided if the distance from the ground is greater than 25 feet, and OSHA subsequently issued a citation for this violation. Id. at 160. Following a hearing before an OSHA Review Commission administrative law judge, the review commission rejected E & R's argument that it had been impossible to comply with the regulations, affirmed the citation, and issued a fine. Id. at 160, 164.

{¶ 22} In affirming the review commission's order, the Third Circuit Court of Appeals stated that "E & R failed to present any evidence to the compliance officer or the ALJ to establish that it was impossible to comply with the safety requirements," and it noted that E & R's vice president had "conceded that the use of lifelines was feasible as a means of fall protection." Id. at 163.

{¶ 23} Contrary to the lack of evidence of impossibility in E & R Erectors , there is evidence in this case that compliance with Ohio Adm.Code 4123:1-5-15(D) was impossible. In granting the VSSR award to Thompson, the commission relied on Thompson's understanding that an alternative means of replacing the flywheel existed, which did not require an individual to stand under it.

{¶ 24} However, the commission erred by relying on Thompson's mistaken supposition. It did not constitute some evidence upon which the commission could rely, because Thompson's speculation never established that Thermatool offered such a fixture or that one exists, and Jackson Tube presented evidence-not supposition-that rebutted the speculative statement and established that no such fixture existed and had never been manufactured. Jackson Tube's employees, Kimrey and Booher, both testified at the hearing on the VSSR application that they were not aware of any alternative means to replace the flywheel in a fashion that kept an individual from being under the suspended load while it was placed back onto the cutoff machine. And Lungo, Thermatool's engineer, indicated he is unaware of any device to assist in replacing a flywheel on the cutoff machine.

{¶ 25} In addition, Kimrey's affidavit confirmed that Thermatool verified that it had not manufactured a device or mechanism to assist in removing or replacing the flywheel. And while Lungo told Kimrey that the flywheel could be replaced by using heavy machinery to tilt the cutoff machine onto a 45 degree angle, Kimrey researched the availability of such a machine and concluded that it does not exist.

{¶ 26} Thus, when an employer presents evidence in connection with an application for an additional award for violation of a specific safety requirement that establishes it would have been impossible to comply with the standard's requirement or that compliance would have precluded performance of the work and that no alternative means of employee protection existed or were available, the employer establishes the affirmative defense of impossibility of compliance. {¶ 27} In this case, the commission abused its discretion in granting a VSSR award because it relied on speculative testimony regarding the existence of alternative means of performance proved wholly nonexistent. The evidence here demonstrates that Jackson Tube established the defense of impossibility.

{¶ 28} The dissent's position that "Thompson's testimony that he believed there was a 'fixture' that would have assisted in replacing the flywheel without requiring him to work under a suspended load constitutes some evidence supporting the commission's order" is not well taken. (Emphasis added.) Dissenting opinion at ¶ 32. The dissent fails to address the lack of an evidentiary basis for Thompson's testimony. Thompson's unsubstantiated belief, unsupported by personal knowledge, does not constitute evidence of the existence of an alternative means to replace the flywheel. See State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994) ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter"). Hence, there is no evidence that it had been possible for Jackson Tube to comply with the SSR.

Conclusion

{¶ 29} Because there is no evidence to support the commission's decision to grant an award for a VSSR, the commission abused its discretion, and therefore we reverse the judgment of the court of appeals and grant Jackson Tube's request for a writ of mandamus compelling the commission to vacate its order and to issue an order denying the VSSR application. Jackson Tube's alternative request for a writ of mandamus compelling a rehearing is dismissed as moot.

Judgment accordingly.

Kennedy, French, and Fischer, JJ., concur.

O'Connor, C.J., dissents, with an opinion joined by DeWine and DeGenaro, JJ.

{¶ 30} I respectfully dissent. The Industrial Commission did not abuse its discretion in granting Chad Thompson's application for an award based on the violation of a specific safety requirement ("VSSR") by appellant Jackson Tube Service, Inc. ("Jackson Tube"), nor did it abuse its discretion in denying Jackson Tube's motion for rehearing.

{¶ 31} It is well established that we review an order of the commission challenged in mandamus under the abuse-of-discretion standard.

State ex rel. Consolidation Coal Co. v. Indus. Comm , 78 Ohio St.3d 176, 177, 677 N.E.2d 338 (1997). We are required to uphold the order so long as it is supported by "some evidence." Id. The commission is also the "exclusive evaluator of weight and credibility." State ex rel. LTV Steel Co. v. Indus. Comm. , 88 Ohio St.3d 284, 287, 725 N.E.2d 639 (2000) ; State ex rel. Athey v. Indus. Comm. , 89 Ohio St.3d 473, 475, 733 N.E.2d 589 (2000). "To go further and assess the credibility of the evidence would place this court 'in the role of a "super commission," a role never envisioned by either the Ohio Constitution or the General Assembly.' " Consolidation Coal at 177, 677 N.E.2d 338, quoting State ex rel. Burley v. Coil Packing, Inc. , 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).

{¶ 32} With respect to the commission's order granting the VSSR award, the commission considered evidence from both sides concerning whether it was impossible for Jackson Tube to comply with Ohio Adm.Code 4123:1-5-15(D), which prohibits employers from requiring employees to work under a suspended load. In my view, Thompson's testimony that he believed there was a "fixture" that would have assisted in replacing the flywheel without requiring him to work under a suspended load constitutes some evidence supporting the commission's order. Indeed, Jackson Tube's maintenance manager, Ron Kimrey, and its manager of safety and training, David Booher, both confirmed that after Thompson was injured, Jackson Tube made a hook that was intended to enable workers to replace the flywheel without having to work under a suspended load. Although they testified that the hook had not been tested, this testimony constitutes additional evidence supporting the conclusion that compliance with the rule was not impossible. To the extent that the evidence presented by Jackson Tube at the hearing supported the opposite conclusion-for example, testimony by Kimrey that he was not aware of any third-party tool or device that could assist in replacing the flywheel without violating Ohio Adm.Code 4123:1-5-15(D) -it is not our role under the "some evidence" standard to decide which side has more evidence or which evidence is more credible. LTV Steel at 287, 725 N.E.2d 639 ; Athey at 475, 733 N.E.2d 589.

{¶ 33} I would also find that the commission did not abuse its discretion in denying Jackson Tube's motion for rehearing. Rehearing can be obtained under Ohio Adm.Code 4121-3-20(E)(1) in two circumstances: when a movant presents new evidence or "in exceptional cases where the order was based on an obvious mistake of fact or clear mistake of law." Ohio Adm.Code 4121-3-20(E)(1)(a) and (b). Jackson Tube sought rehearing based on the latter circumstance, claiming that the commission made an "obvious mistake of fact" and a "clear mistake of law" under paragraph (E)(1)(b). What stands out, however, is that Jackson Tube's motion and arguments are based on evidence that was not presented to the commission at the hearing. Specifically, at the hearing, testimony from Kimrey and Booher provided the main support for Jackson Tube's argument that compliance with Ohio Adm.Code 4123:1-5-15(D) was impossible. In seeking rehearing, Jackson Tube presented more testimony from Kimrey, in the form of an affidavit, focused entirely on providing additional support for that same argument.

{¶ 34} Under Ohio Adm.Code 4121-3-20(E)(1)(a), new evidence can form the basis of a motion for rehearing only if it was "not previously considered and * * * by due diligence could not [have been] obtained * * * prior to the merit hearing." Jackson Tube makes no argument that the Kimrey affidavit would meet this standard. Instead, it appears to attempt an end run around paragraph (E)(1)(a) by casting this evidence as proof of an "obvious mistake of fact" under paragraph (E)(1)(b). In other words, Jackson Tube could have presented all of the evidence in the Kimrey affidavit at the hearing, but it failed to do so and is now trying to get a second bite at the apple. The commission did not abuse its discretion by rejecting that effort.

{¶ 35} The majority, however, lets Jackson Tube have its second bite. It then goes further and grants Jackson Tube the relief it seeks by applying the wrong standard of review. Instead of considering whether there is "some evidence" to support the commission's two orders, the majority, addressing neither order in particular, looks for, and identifies, "some evidence" supporting Jackson Tube's argument. The majority then dismisses the evidence relied on by the commission as a "mistaken supposition." Majority opinion at ¶ 24. In particular, it casts Thompson's testimony concerning the "fixture" developed by Jackson Tube as "speculation," without acknowledging that the existence of this "fixture" was confirmed at the hearing by both Kimrey and Booher. Id . The majority then finds that Jackson Tube established the impossibility defense based on the new evidence in the Kimrey affidavit submitted only in support of the motion for rehearing.

{¶ 36} The majority's analysis does not adhere to the rules we have established governing our review of a commission order. It turns the "some evidence" standard inside out and openly reassesses the weight and credibility of the evidence, including evidence belatedly and improperly submitted only after Jackson Tube suffered an adverse VSSR-award decision. Contra LTV Steel , 88 Ohio St.3d at 287, 725 N.E.2d 639 ("The commission is the exclusive evaluator of weight and credibility, and as long as some evidence supports the commission's decision, reviewing courts must defer to its judgment"); Athey , 89 Ohio St.3d at 475, 733 N.E.2d 589 (same). Overall, the majority finds that the evidence presented in the Kimrey affidavit persuasively contradicts the evidence relied on by the commission. Putting aside Jackson Tube's failure to present this evidence at the hearing, we have held numerous times that "[w]here a commission order is adequately explained and based on some evidence, even evidence that may be persuasively contradicted by other evidence of record , the order will not be disturbed as manifesting an abuse of discretion." (Emphasis added.) State ex rel. Mobley v. Indus. Comm. , 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997) ; see also State ex rel. Metz v. GTC, Inc. , 142 Ohio St.3d 359, 2015-Ohio-1348, 30 N.E.3d 941, ¶ 20. The majority does not follow this clear law.

{¶ 37} Finally, I disagree with the process used-or, more accurately, not used-by the majority in the creation of a new rule for the impossibility defense. The syllabus paragraph states that to establish impossibility as an affirmative defense, an employer must show "(1) that it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work and (2) that no alternative means of employee protection existed or were available." The majority adopts the rule from federal case law concerning violations of federal workplace-safety rules. At no point was this rule or federal case law proposed or considered by the parties, the commission, or the court of appeals. Jackson Tube has not asked for this rule in its brief; Thompson did not file a brief in response; and we have not held oral argument in this case. In light of this, it is unwise for us to announce a new rule of law in this case when there is no need to do so.

{¶ 38} For these reasons, I respectfully dissent.

DeWine and DeGenaro, JJ., concur in the foregoing opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROGERS, Appellant, v. EPPINGER, Warden, Appellee.
    No. 2017-1644
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided October 9, 2018
    Willie J. Rogers, pro se.
    Michael DeWine, Attorney General, and Maura O'Neill Jaite, Assistant Attorney General, for appellee.
   Per Curiam.

{¶ 1} Appellant, Willie J. Rogers, appeals the judgment of the Ninth District Court of Appeals dismissing his petition for a writ of habeas corpus. We affirm.

Background

{¶ 2} On June 9, 1983, Rogers was convicted of two counts of kidnapping and three counts of gross sexual imposition in Cuyahoga County Common Pleas Court case No. CR-82-176974. The trial judge imposed an aggregate prison term of 20 to 65 years. Rogers's sentence was subsequently modified to 15 to 65 years.

{¶ 3} On August 17, 1992, Rogers was granted parole, effective December 2, 1992. However, on November 24, 1992, the Ohio Department of Rehabilitation and Correction ("ODRC") informed Rogers that he would be released into the custody of the Maricopa County (Arizona) Sheriff's Department and that his reporting obligations in Ohio would begin once Arizona released him from custody. ODRC also notified Rogers that his Ohio reporting obligations would continue for at least two years.

{¶ 4} Arizona received custody of Rogers in December 1992 and released him in December 1996. However, it appears that Rogers failed to report his whereabouts to the state of Ohio, as required by the terms of his release. Rogers was declared a parole violator on August 1, 2003.

{¶ 5} On July 12, 2013, an Ohio arrest warrant was issued for Rogers for violating the conditions of his parole. On June 18, 2015, Governor John Kasich signed an extradition request to the state of California for the return of Rogers. Rogers was returned to the custody of Ohio on July 30, 2015. He received a parole hearing on July 25, 2017, and was denied an early release.

{¶ 6} On September 1, 2017, Rogers filed a complaint in the Ninth District Court of Appeals seeking a writ of habeas corpus against appellee, Grafton Correctional Institution Warden LaShann Eppinger. He raised two arguments against his reincarceration in Ohio: (1) that he never received notice of his Ohio reporting obligations upon release from custody in Arizona and that he never agreed to those conditions and (2) that due to the length of time that had passed since Rogers was released on parole by the Adult Parole Authority, the state of Ohio was estopped from pursuing him for a technical parole violation. He also averred that he did attempt to report to Ohio but was told that there was no record of him being on parole.

{¶ 7} On October 10, 2017, the court of appeals sua sponte dismissed the petition due to Rogers's failure to abide by the mandatory filing requirements of R.C. 2969.25. When an inmate files a civil action or appeal against a government entity or employee in a court of common pleas, court of appeals, county court, or municipal court, he must comply with the procedural requirements contained in R.C. 2969.25. R.C. 2969.25(C)(1) specifies that when an inmate files a civil suit against a government official and seeks a waiver of the filing fees, the inmate must file an affidavit that contains the monetary balance in the inmate's account for each of the preceding six months as certified by the institutional cashier. The account statement submitted by Rogers covered the six months between January 1, and July 1, 2017, but it did not have any information for the two months immediately preceding the filing of the petition.

{¶ 8} Rogers appealed.

Analysis

{¶ 9} In his first proposition of law, Rogers argues that we should excuse his noncompliance with the "petty" technical requirements of R.C. 2969.25(C). However, R.C. 2969.25(C)"[does not] permit substantial compliance." State ex rel. Manns v. Henson , 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, ¶ 4. "The requirements of R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an inmate's complaint." State ex rel. Hall v. Mohr , 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4.

{¶ 10} In his second proposition of law, Rogers challenges the constitutionality of the statute on its face and as applied, summarily asserting that R.C. 2969.25 is "unconstitutionally vague, ambiguous, and overbroad" and is "arbitrarily applied." But his conclusory statements do not "rebut the presumed constitutionality of the statute." State ex rel. Evans v. McGrath , 151 Ohio St.3d 345, 2017-Ohio-8290, 88 N.E.3d 957, ¶ 6 (rejecting constitutional challenge to R.C. 2969.25(C)(1) filing requirements); accord Boles v. Knab , 129 Ohio St.3d 222, 2011-Ohio-2859, 951 N.E.2d 389, ¶ 3 (same).

{¶ 11} Although Rogers also attempts to argue that the state of Ohio has no authority to keep him confined, the merits of any underlying claims in his habeas petition are not properly before this court.

{¶ 12} We hold that the court of appeals properly dismissed Rogers's petition for failure to attach the statement of his inmate account that is required by R.C. 2969.25(C).

Judgment affirmed.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.

Kennedy, J., concurs in judgment only.


text:
    LOPEZ, Appellant, v. WARDEN, MADISON CORRECTIONAL INSTITUTION, Appellee.
    No. 2017-1805
    Supreme Court of Ohio.
    Submitted May 22, 2018 Decided October 9, 2018
    Robinson & Brandt, P.S.C., and Jeffrey M. Brandt, Cincinnati, for appellant.
    Michael DeWine, Attorney General, and Stephanie Watson, Assistant Attorney General, for appellee.
   Per Curiam.

{¶ 1} We affirm the judgment of the Twelfth District Court of Appeals dismissing the petition of appellant, Juan Ramone Lopez, for a writ of habeas corpus.

{¶ 2} In October 1998, Lopez was arrested on suspicion of murder. At that time, Lopez identified himself as "Eduardo Bonilla." He was subsequently indicted under the name "Eduardo Bonilla aka Juan Ramone Lopez" and convicted of seven charges-including complicity to commit aggravated murder, conspiracy to commit aggravated murder, complicity to commit murder, and complicity to commit kidnapping. The Greene County Common Pleas Court sentenced Lopez to an aggregate prison term of life with the possibility of parole after 30 years. The court of appeals affirmed Lopez's conviction and sentence.

State v. Bonilla , 2d Dist. Greene No. 99CA0118, 2001 WL 236762 (Mar. 2, 2001), appeal not accepted , 93 Ohio St.3d 1446, 756 N.E.2d 111 (2001).

{¶ 3} In September 2017, Lopez filed a petition for a writ of habeas corpus in the Twelfth District Court of Appeals, arguing that the trial court lacked jurisdiction to convict him because the juvenile court had not conducted a bindover proceeding as required by R.C. 2152.12 and Juv.R. 30. Lopez claims that his name was not Eduardo Bonilla in 1998. Lopez insists that he adopted the identity of Eduardo Bonilla-who was an adult in 1998-only to purchase cigarettes and beer. According to Lopez, he was actually a juvenile on the date of the crimes. Consequently, Lopez argues that the protections afforded to juveniles in R.C. 2152.12 and Juv.R. 30 applied to him. Appellee, the warden of the Madison Correctional Institution, filed a motion to dismiss asserting that Lopez failed to state a claim upon which relief could be granted under Civ.R. 12(B)(6). Lopez opposed the motion.

{¶ 4} In November 2017, the court of appeals dismissed Lopez's petition, holding that he had an adequate remedy in the ordinary course of the law through which he could raise his bindover claim and that his habeas claim was barred by res judicata.

{¶ 5} We affirm the court of appeals' judgment only as it pertains to dismissing Lopez's petition on res judicata grounds. When petitioners have appealed adverse judgments in successive habeas corpus cases, we have applied res judicata to bar those claims. State ex rel. Childs v. Lazaroff , 90 Ohio St.3d 519, 520, 739 N.E.2d 802 (2001).

{¶ 6} In 2009, Lopez raised this very claim in an original action for a writ of habeas corpus in this court. Lopez v. Sheets , 124 Ohio St.3d 1439, 2010-Ohio-188, 920 N.E.2d 370. Under these circumstances, we may take judicial notice of our own docket. See State ex rel. Neff v. Corrigan , 75 Ohio St.3d 12, 16, 661 N.E.2d 170 (1996). Moreover, Lopez had fully litigated this claim in a postconviction petition and lost. State v. Bonilla , 2d Dist. Greene No. 2011 CA 46, 2014-Ohio-623, 2014 WL 707582 (affirming the trial court's judgment that Lopez was an adult at the time that the crimes were committed). "Res judicata precludes a petitioner from using habeas corpus to gain successive appellate review of previously litigated issues." State ex rel. Gibson v. Sloan , 147 Ohio St.3d 240, 2016-Ohio-3422, 63 N.E.3d 1172, ¶ 9. Accordingly, the court of appeals correctly determined that res judicata precludes Lopez from raising his bindover claim in this habeas corpus action.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    The STATE EX REL. SWAIN, Appellant, v. HARRIS, Warden, Appellee.
    No. 2018-0464
    Supreme Court of Ohio.
    Submitted June 26, 2018 Decided October 10, 2018
    Sean Swain, pro se.
    Michael DeWine, Attorney General, and Stephanie Watson, Assistant Attorney General, for appellee.
   Per Curiam.

{¶ 1} Appellant, Sean Swain, appeals the judgment of the Twelfth District Court of Appeals dismissing his petition for a writ of habeas corpus. We affirm.

Background

{¶ 2} Swain was convicted of aggravated murder in 1991, but his conviction was reversed on appeal and the cause was remanded to the Erie County Common Pleas Court. State v. Swain , 6th Dist. Erie No. E-91-80, 1993 WL 434581, *1, 8 (Oct. 29, 1993). In 1995, Swain was retried, convicted of murder and aggravated murder, and sentenced to life in prison with the possibility of parole after 20 years. See State v. Swain , 6th Dist. Erie No. E-95-011, 1996 WL 402026, *1 (July 19, 1996) (affirming Swain's 1995 conviction). He is currently incarcerated at the Warren Correctional Institution.

{¶ 3} On January 17, 2018, Swain filed a petition for a writ of habeas corpus in the Twelfth District Court of Appeals against appellee, Warden Chae Harris. Swain alleged that the trial court in which he was convicted lacked jurisdiction because it was operating outside the territory of Ohio. According to Swain, Erie County is located in land recognized as sovereign Native American Territory under Article III of the Treaty of Greenville, signed August 3, 1795.

{¶ 4} Warden Harris filed a motion to dismiss. On March 8, 2018, the court of appeals granted Harris's motion to dismiss, stating that "despite [Swain's] argument to the contrary, he was convicted by a court of competent jurisdiction." Swain timely appealed.

Legal analysis

{¶ 5} On appeal, Swain continues to maintain that his conviction and sentence are void based on the terms of the Treaty of Greenville. He is correct that the Treaty of Greenville fixed the western boundary of the United States so that today's Erie County was not included in the Ohio Territory but remained in the possession of Native Americans. Ohio History Central, Treaty of Greenville (1795) , http://www.ohi ohistorycentral.org/w/Treaty_of_Greenville_(1795) (accessed Sept. 5, 2018). However,

following the Treaty of Greenville, numerous other treaties were entered whereby the various Native-American tribes residing in the region "ceded land to the United States in a piecemeal fashion." See Ottawa Tribe of Oklahoma v. Logan , 577 F.3d 634, 637 (6th Cir.2009). By the end of the 1830s, the tribes "had conveyed all of their lands in Ohio to the United States," and "[b]y 1839, the main tribal organization had transferred to Kansas." Id. at 636.

Coffey v. Warden, Warren Corr. Inst. , S.D.Ohio No. 1:16-cv-353, 2016 WL 7106238, *2 (Dec. 5, 2016).

{¶ 6} Specifically, in the Treaty of Fort Industry-which was signed on July 4, 1805-representatives of the Wyandot (Huron), Ottawa, Objibwe (Chippewa), Munsee, Lenape (Delaware), Potawatomi, and Shawnee tribes relinquished 500,000 acres of land south of Lake Erie and west of the Cuyahoga River in northeastern Ohio to the United States. Ohio History Central, Treaty of Fort Industry (1805) , http://www.ohiohistorycentral.org/w/Treaty_of_Fort_Industry_ (1805) (accessed Sept. 5, 2018). That territory, known then and now as the Firelands (or the Sufferers' Land), included all of present-day Erie County, including Sandusky, the county seat where Swain was tried and convicted. See Firelands Council of Historical Societies, About the Firelands , http://firelandsohio.ericebinger.com/?page_id=2 (accessed Sept. 5, 2018); see also 1 Howe, Historical Collections of Ohio in Two Volumes , 565 (1904).

{¶ 7} Swain's assertion that Erie County was never ceded to the United States is incorrect. Therefore, he has stated no basis for relief in habeas corpus.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    DAYTON BAR ASSOCIATION v. STRAHORN.
    No. 2017-0799
    Supreme Court of Ohio.
    Submitted April 11, 2018 Decided May 16, 2018
    {¶ 1} On December 28, 2017, this court suspended respondent, Derrick Anthony Strahorn, from the practice of law for a period of six months, with the entire suspension stayed on conditions, and ordered respondent to pay board costs in the amount of $554.70. Respondent has not paid board costs in the amount of $554.70 as ordered by the court. On April 11, 2018, this court issued an order to show cause why respondent should not be found in contempt and the stay of his suspension revoked for failure to pay board costs in the amount of $554.70. Respondent did not file a response to the show-cause order.
    {¶ 2} Upon consideration thereof, it is ordered and adjudged by this court that respondent, Derrick Anthony Strahorn, Attorney Registration No. 0034483, last known business address in Dayton, Ohio, is found in contempt for failure to comply with the court's December 28, 2017 suspension order.
    {¶ 3} It is further ordered that the previously imposed stay of the six-month suspension is revoked and that respondent is suspended from the practice of law until respondent pays board costs in the amount of $554.70 and any interest due, has applied for reinstatement, and has been granted reinstatement by this court.
    {¶ 4} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 5} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 6} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent pays the board costs, including any and all accrued interest, (2) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (4) respondent complies with this and all other orders of the court, and (5) this court orders respondent reinstated.
    {¶ 7} It is further ordered that respondent shall immediately do the following:
    {¶ 8} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 9} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 10} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in respondent's possession or control;
    {¶ 11} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 12} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 13} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where the respondent may receive communications; and

{¶ 14} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 15} It is further ordered that respondent shall keep the clerk, the Dayton Bar Association, and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 16} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 17} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, by certified mail to respondent's last known address.

{¶ 18} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    IN RE POLIZZI.
    No. 2018-0777
    Supreme Court of Ohio.
    Submitted June 4, 2018 Decided June 7, 2018
    ON CERTIFIED ENTRY OF FELONY CONVICTION.
    {¶ 1} On June 4, 2018, and pursuant to Gov.Bar R. V(18), the director of the Board of Professional Conduct filed with the Supreme Court a certified copy of a judgment entry of a felony conviction against Anthony John Polizzi Jr., an attorney licensed to practice law in the state of Ohio.
    {¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(18)(A)(4), it is ordered and decreed that Anthony John Polizzi Jr., Attorney Registration No. 0090170, last known address in North Royalton, Ohio, is suspended from the practice of law for an interim period, effective as of the date of this entry.
    {¶ 3} It is further ordered that this matter is referred to disciplinary counsel for investigation and the commencement of disciplinary proceedings.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and that respondent is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that effective immediately, respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with this and all other orders issued by this court, (3) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, and (4) this court orders respondent reinstated.
    {¶ 10} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in respondent's possession or control;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where the affiant may receive communications; and

{¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 21} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 22} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    DISCIPLINARY COUNSEL v. MCDANIEL.
    No. 2018-0687
    Supreme Court of Ohio.
    Submitted May 14, 2018 Decided June 22, 2018
    {¶ 1} This cause is pending before the Supreme Court of Ohio in accordance with the reciprocal-discipline provisions of Gov.Bar R. V(20).
    {¶ 2} On May 14, 2018, relator, disciplinary counsel, filed with this court a certified copy of an order of the Presiding Disciplinary Judge of the Supreme Court of Arizona entered January 2, 2018, in In the Matter of a Suspended Member of the State Bar of Arizona, Thomas C. McDaniel III , in case No. PDJ-2017-9097, suspending respondent from the practice of law for a period of one year to be served consecutively to a previously imposed two-year suspension. On May 16, 2018, this court ordered respondent to show cause why identical or comparable discipline should not be imposed in this state. No objections were filed, and this cause was considered by the court.
    {¶ 3} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(20)(B), respondent, Thomas C. McDaniel III, Attorney Registration No. 0056259, last known business address in Tucson, Arizona, is suspended from the practice of law for a period of one year, with the suspension to be served consecutively to the two-year suspension imposed in Disciplinary Counsel v. McDaniel , --- Ohio St.3d ----, 2018-Ohio-412, --- N.E.3d ----. It is further ordered that respondent will not be reinstated to the practice of law in Ohio until such time as respondent is reinstated to the practice of law in the state of Arizona.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 10} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent files evidence with the clerk of this court and with disciplinary counsel demonstrating his reinstatement to the practice of law in Arizona, (4) respondent complies with this and all other orders issued by this court, and (5) this court orders respondent reinstated.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and the disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and

{¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 21} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    IN RE Resignation of THOMAS.
    No. 2018-1151
    Supreme Court of Ohio.
    Submitted August 10, 2018 Decided September 20, 2018
    {¶ 1} Lawrence Russell Thomas III, Attorney Registration No. 0072340, last known business address in Hamilton, Ohio, who was admitted to the bar of this state on November 20, 2000, submitted an application for retirement or resignation pursuant to Gov.Bar R. VI(11). The application was referred to disciplinary counsel pursuant to Gov.Bar R. VI(11)(B). On August 10, 2018, the Office of Attorney Services filed disciplinary counsel's report, under seal, with this court in accordance with Gov.Bar R. VI(11)(B)(2).
    {¶ 2} On consideration thereof, it is ordered by the court that pursuant to Gov.Bar R. VI(11)(C), the resignation as an attorney and counselor at law is accepted as a resignation with disciplinary action pending.
    {¶ 3} It is further ordered and adjudged that from and after this date all rights and privileges extended to respondent to practice law in the state of Ohio be withdrawn, that henceforth respondent shall cease to hold himself forth as an attorney authorized to appear in the courts of this state, and that respondent shall not attempt, either directly or indirectly, to render services as an attorney or counselor at law to or for any individuals, corporation, or society, nor in any way perform or seek to perform services for anyone, no matter how constituted, that must by law be executed by a duly appointed and qualified attorney within the state of Ohio.
    {¶ 4} It is further ordered that respondent desist and refrain from the practice of law in any form, either as principal or agent or clerk or employee of another, and hereby is forbidden to appear in the state of Ohio as an attorney and counselor at law before any court, judge, board, commission, or other public authority, and hereby is forbidden to give another an opinion as to the law or its application or advise with relation thereto.
    {¶ 5} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 6} It is further ordered that respondent shall not enter into an employment, contractual, or consulting relationship with an attorney or law firm with which respondent was associated as a partner, shareholder, member, or employee at the time respondent engaged in the misconduct that resulted in this acceptance of respondent's resignation with discipline pending.
    {¶ 7} It is further ordered that respondent shall surrender respondent's certificate of admission to practice to the clerk of the court on or before 30 days from the date of this order and that respondent's name be stricken from the roll of attorneys maintained by this court.
    {¶ 8} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 9} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 10} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's resignation and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 11} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 12} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in the possession or control of respondent;
    {¶ 13} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
    {¶ 14} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;
    {¶ 15} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where respondent may receive communications; and
    {¶ 16} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.
    {¶ 17} It is further ordered that on or before 30 days from the date of this order, respondent shall surrender the attorney-registration card for the 2017/2019 biennium.
    {¶ 18} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.
    {¶ 19} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.
    {¶ 20} It is further ordered that service shall be deemed made on respondent by sending this order and all other orders in this case to respondent's last known address.
    {¶ 21} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    DISCIPLINARY COUNSEL v. CLUTTS.
    No. 2018-1227
    Supreme Court of Ohio.
    Submitted August 28, 2018 Decided September 27, 2018
    {¶ 1} This cause is pending before the Supreme Court of Ohio in accordance with the reciprocal discipline provisions of Gov.Bar R. V(20).
    {¶ 2} On August 28, 2018, relator, disciplinary counsel, filed with this court a certified copy of an order of the Supreme Court of Illinois entered September 22, 2017, in In re Raymond Edward Clutts , Case No. 2017PR00048, disbarring respondent on consent. On August 30, 2018, this court ordered respondent to show cause why identical or comparable discipline should not be imposed in this state. No objections were filed, and this cause was considered by the court.
    {¶ 3} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(20)(B), respondent, Raymond Edward Clutts, Attorney Registration No. 0058842, last known business address in Schaumburg, Illinois, is suspended from the practice of law for a period of three years and respondent will not be reinstated to the practice of law in Ohio until such time as respondent is reinstated to the practice of law in the state of Illinois.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 10} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent files evidence with the clerk of this court and with disciplinary counsel demonstrating his reinstatement to the practice of law in Illinois, (4) respondent complies with this and all other orders issued by this court, and (5) this court orders respondent reinstated.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and the disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and {¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 21} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 22} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


author: DEGENARO, J., not participating.

text:
    IN RE Application of DAYTON POWER & LIGHT CO.
    2017-0204
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Sua sponte, appeal dismissed as moot.
    O'CONNOR, C.J., and KENNEDY, FISCHER, and DEWINE, JJ., concur.
    O'DONNELL and FRENCH, JJ., dissent.
   DEGENARO, J., not participating.


author: O'DONNELL, J., dissents.

text:
    STATE EX REL. SUMMIT GASTROENTEROLOGY ASSOC., INC. v. MCCARTY
    2018-0965
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.
   O'DONNELL, J., dissents.


text:
    STATE EX REL. HEDENBERG v. N. CENT. CORR. INST.
    2018-1117
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Relator's motion to strike denied as moot.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FISCHER, and DEWINE, JJ., concur.
   FRENCH and DEGENARO, JJ., concur in the granting of respondent's motion to dismiss but would deny relator's motion to strike on the merits.


text:
    STATE EX REL. PEARSON v. KELBLEY
    2018-1211
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On S.Ct.Prac.R. 12.04 determination, Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, and DEGENARO, JJ., concur.
    DEWINE, J., dissents and would grant an alternative writ.


text:
    TASSONE v. BLACK
    2018-1224
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. GALLUZZO v. WEITHMAN
    2018-1228
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On S.Ct.Prac.R. 12.04 determination. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, FRENCH, FISCHER, and DEGENARO, JJ., concur.
    KENNEDY and DEWINE, JJ., would deny the petition on the merits.


text:
    STATE EX REL. WALKER v. ADULT PAROLE AUTH.
    2018-1232
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN v. KEYCORP CORPORATE OFFICES
    2018-1244
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On S.Ct.Prac.R. 12.04 determination, cause dismissed. Relator's motion to include supporting evidence for the complaint denied. Respondent's motion for leave to file motion to dismiss denied as moot.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. BRADDY v. MCDONNELL
    2018-1272
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN-NAZARENE v. UNIV. OF CINCINNATI
    2018-1254
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondents' motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    MCADAMS v. GOLDBERG
    2018-1113
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's amended motion to dismiss. Motion granted. Cause dismissed. Motion for stay of trial-court proceedings denied as moot.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN v. PROCTER & GAMBLE CORP.
    2018-1352
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    HILL v. NAVARRE
    2018-1353
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On S.Ct.Prac.R. 12.04 determination. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, and DEGENARO, JJ., concur.
    DEWINE, J., dissents and would grant an alternative writ.


text:
    BALDWIN v. HUNTINGTON BANK CORPORATE OFFICE HEADQUARTERS
    2018-1361
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondents' motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. EBERHARDT v. JANIK
    2018-1367
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Sua sponte, cause dismissed. Petitioner's emergency motion for bond and request for alternative writs denied.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    SANKEY v. SEZON
    2018-1369
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN v. JPMORGAN CHASE BANK
    2018-1374
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondent's motion to dismiss. Motion granted. Cause dismissed. Respondent's motion to deem action frivolous granted.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    DECLARATION AS NOTICE
    2018-1280
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondents' motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN-NAZARENE v. PNC BANK CORPORATE HEADQUARTERS
    2018-1281
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondents' motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


author: FRENCH, J., not participating.

text:
    PEOPLES v. SCHNEIDER
    2018-1288
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FISCHER, DEWINE, and DEGENARO, JJ., concur.
   FRENCH, J., not participating.


text:
    STATE EX REL. JONES v. WALSH
    2018-1294
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On relator's motion to amend court records to correct misspelling of name. Motion granted. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    MESSENGER v. FINNEGAN
    2018-1304
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On S.Ct.Prac.R. 12.04 determination. Cause dismissed. Relator's motion to amend granted.
    O'CONNOR, C.J., and O'DONNELL, FRENCH, FISCHER, and DEGENARO, JJ., concur.
    KENNEDY and DEWINE, JJ., would deny the petition on the merits.


text:
    STATE EX REL. BUCHANAN v. RENICK
    2018-1311
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. BOLER-BEY v. MCCARTHY
    2018-1320
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's answer and motion for judgment on pleadings. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. KERR v. COLLIER
    2018-1329
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    On respondent's motion to dismiss. Motion granted. Cause dismissed. Relator's motion for leave to amend denied.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN v. PROCTOR & GAMBLE CORP.
    2018-1336
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    MOORE v. MT. CARMEL HEALTH SYS.
    2018-1233
    Supreme Court of Ohio.
    November 28, 2018
    APPEAL ACCEPTED FOR REVIEW
    First appeal of Mount Carmel Health System accepted. Second appeal of Eric Humphreys and Central Ohio Anesthesia, Inc., accepted. Sua sponte, cause consolidated with 2018-1479, Moore v. Mt. Carmel Health Sys., and briefing in Nos. 2018-1233 and 2018-1479 shall be consolidated. The parties shall file two originals of each of the briefs permitted under S.Ct.Prac.R. 16.02 through 16.04 and include both case numbers on the cover page of the briefs. The parties shall otherwise comply with the requirements of S.Ct. Prac.R. 16.01 through 16.04.
    FISCHER, J., dissents in part and would not accept the second appeal.
    O'DONNELL and DEGENARO, JJ., dissent.


text:
    BALDWIN v. US BANK
    2018-1387
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    BALDWIN v. WELLS FARGO ADVISORS
    2018-1398
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Miscellaneous case. On respondents' motion to dismiss. Motion granted. Cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE EX REL. MCDOUGALD v. ERDOS
    2018-1459
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Sua sponte, cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    DAVIS v. EPPINGER
    2018-1466
    Supreme Court of Ohio.
    November 28, 2018
    MERIT DECISION WITHOUT OPINION
    Sua sponte, cause dismissed.
    O'CONNOR, C.J., and O'DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and DEGENARO, JJ., concur.


text:
    STATE v. HAWKINS
    2018-1177
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's motion to request bond. Motion denied.
    FISCHER and DEWINE, JJ., dissent.


text:
    STATE v. SIEMERING
    2018-1358
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's emergency motion for stay of court of appeals' judgment. Motion denied.


text:
    STATE v. ERVIN
    2018-1388
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's amended motion to stay. Motion denied.


text:
    MOORE v. MT. CARMEL HEALTH SYS.
    2018-1479
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On review of an order certifying a conflict. The court determines that a conflict exists. The parties are ordered to brief the issue stated at page 26 of the court of appeals' entry filed October 11, 2018: "Does the Ohio savings statute, R.C. 2305.19(A), apply to an action in which a plaintiff attempts, but fails to perfect service on the original complaint within one year pursuant to Civ.R. 3(A)? If so, when a plaintiff files instructions for service after the Civ.R. 3(A) one-year period, does the request act as a dismissal by operation of law and also act as the refiling of an identical cause of action so as to allow the action to continue?"
    The conflict cases are Anderson v. Borg-Warner, 8th Dist. Cuyahoga Nos. 80551 and 80926, 2003-Ohio-1500; Pewitt v. Roberts, 8th Dist. Cuyahoga No. 85334, 2005-Ohio-4298; Sheldon v. Burke, 8th Dist. Cuyahoga No. 103576, 2016-Ohio-941; Khatib v. Peters, 2017-Ohio-95, 77 N.E.3d 461 (8th Dist.); Bently v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735: and Gibson v. Summers, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-2995.
    Sua sponte, cause consolidated with 2018-1233, Moore v. Mt. Carmel Health Sys., and briefing in Nos. 2018-1233 and 2018-1479 shall be consolidated. The parties shall file two originals of each of the briefs permitted under S.Ct.Prac.R. 16.02 through 16.04 and include both case numbers on the cover page of the briefs. The parties shall otherwise comply with the requirements of S.Ct. Prac.R. 16.01 through 16.04.
    O'DONNELL, KENNEDY, FRENCH, and DEWINE, JJ., concur.
    FISCHER, J., would accept the certified conflict as to Bently v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735, only.
    O'CONNOR, C.J., and DEGENARO, J., dissent.


text:
    STATE v. GIBSON
    2018-1530
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's motion to stay proceedings. Motion denied.
   O'DONNELL, J., dissents.


text:
    LRC REALTY, INC. v. B.E.B. PROPERTIES
    2018-1262
    Supreme Court of Ohio.
    November 28, 2018
    APPEAL ACCEPTED FOR REVIEW
    First appeal of 112 Parker Court L.L.C., accepted on proposition of law No. I. Second appeal of LRC Realty, Inc., accepted on proposition of law Nos. I and II.
    KENNEDY, FISCHER, and DEWINE, JJ., would accept both appeals on all propositions of law.
    O'CONNOR, C.J., and O'DONNELL and DEGENARO, JJ., dissent.


text:
    STATE EX REL. LIVINGSTON v. CHERRY
    2018-1432
    Supreme Court of Ohio.
    November 28, 2018
    RECONSIDERATION OF PRIOR DECISION
    On motion for reconsideration. Motion denied. Motion to consolidate, motion to strike, and motion for alternative writ denied.


text:
    VIOLA ASSOCS., L.L.C. v. LORAIN CTY. BD. OF REVISION
    2018-1266
    Supreme Court of Ohio.
    November 28, 2018
    PETITION TO TRANSFER
    On petition to transfer jurisdiction. Petition denied.
    KENNEDY and FRENCH, JJ., dissent.


text:
    COLUMBUS CITY SCHOOLS BD. OF EDN. v. FRANKLIN CTY. BD. OF REVISION
    2018-1299
    Supreme Court of Ohio.
    November 28, 2018
    PETITION TO TRANSFER
    On petition to transfer jurisdiction of Palmer House Borrower, L.L.C. Petition granted. The clerk shall issue an order for the transmittal of the records from the Court of Appeals for Franklin County and the Board of Tax Appeals, and the parties shall brief this case in accordance with the Rules of Practice of the Supreme Court of Ohio.
   O'DONNELL, J., dissents.


text:
    STATE v. WHITAKER
    2018-0638
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's third motion for extension of time to transmit record. Motion granted. The record shall be filed no later than December 5, 2018. No additional motions for extension of time to transmit the record shall be filed.


text:
    ROCK v. BRACY
    2018-1140
    Supreme Court of Ohio.
    November 28, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's motion for appointment of counsel. Motion denied.


text:
    DISCIPLINARY COUNSEL v. SIMMONDS
    2017-1823
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, Rasheed Asani Simmonds, Attorney Registration No. 0067797, last known business address in Cincinnati, Ohio, found in contempt for failure to file an affidavit of compliance on or before October 22, 2018.


text:
    COLUMBUS BAR ASSN. v. OKULEY
    2017-1417
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, John Joseph Okuley, Attorney Registration No. 0076748, last known business address in Columbus, Ohio, found in contempt for failure to file an affidavit of compliance on or before October 26, 2018.


text:
    IN RE Resignation of CHUPARKOFF
    2018-1135
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, Mark Andrew Chuparkoff, Attorney Registration No. 0071982, last known business address in Akron, Ohio, found in contempt for failure to file an affidavit of compliance on or before October 22, 2018.


text:
    IN RE Resignation of SCUDDER
    2018-1138
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, Steven C. Scudder, Attorney Registration No. 0044134, last known business address in Centerville, Ohio, found in contempt for failure to surrender his certificate of admission and failure to file an affidavit of compliance on or before October 22, 2018.


text:
    AYERS v. CLEVELAND
    2018-0852
    Supreme Court of Ohio.
    December 3, 2018
    MOTION AND PROCEDURAL RULING
    On motions for admission pro hac vice of Alex M. Grabowski, Samuel B. Isaacson, Debra Loevy, Scott Rauscher, Anand Swaminathan, and Matt Topic. Motions granted. Pursuant to Gov.Bar R. XII(4), counsel shall file a notice of permission with the Supreme Court's Office of Attorney Services within 30 days.


text:
    CLEVELAND METRO. BAR ASSN. v. MARIOTTI
    2018-1579
    Supreme Court of Ohio.
    December 3, 2018
    DISCIPLINARY CASE
    On certification of default. Mark Mariotti, Attorney Registration No. 0067608, last known business address in Cleveland, Ohio, suspended from the practice of law for an interim period.


text:
    DISCIPLINARY COUNSEL v. BALDWIN.
    2018-1087
    Supreme Court of Ohio.
    November 30, 2018
    DISCIPLINARY CASE
    Sua sponte, Scott Michael Baldwin, Attorney Registration No. 0062522, last known business address in Metamora, Illinois, found in contempt for failure to file affidavit of compliance on or before October 11, 2018.


text:
    GATLING OHIO, L.L.C. v. ALLEGHENY ENERGY SUPPLY CO., L.L.C.
    2018-1524
    Supreme Court of Ohio.
    November 29, 2018
    MOTION AND PROCEDURAL RULING
    On motions for admission pro hac vice of Andrew L. Noble and Russell J. Ober Jr. Motions granted. Pursuant to Gov.Bar R. XII(4), counsel shall file notice of permission with the Supreme Court's Office of Attorney Services within 30 days.


text:
    IN RE Resignation of VERKHLIN
    2018-1147
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, Mark Immanuel Verkhlin, Attorney Registration No. 0083203, last known business address in Tallmadge, Ohio, found in contempt for failure to surrender his certificate of admission and failure to file an affidavit of compliance on or before October 22, 2018.


text:
    STATE EX REL. HEDENBERG v. N. CENT. CORR. INST.
    2018-1117
    Supreme Court of Ohio.
    December 5, 2018
    MOTION AND PROCEDURAL RULING
    On relator's motion to proceed as argued. Motion denied as moot.


text:
    STATE EX REL. PEARSON v. KELBLEY
    2018-1211
    Supreme Court of Ohio.
    December 5, 2018
    MOTION AND PROCEDURAL RULING
    On relator's motion for judgment on the pleadings. Motion denied as moot.


text:
    IN RE BROCK
    Supreme Court of Ohio.
    December 5, 2018
    MOTION AND PROCEDURAL RULING
    On motion for leave to petition to dismiss vexatious-litigator sanction. Motion denied.


text:
    ANDERSON v. WBNS-TV, INC.
    2018-0792
    Supreme Court of Ohio.
    December 5, 2018
    MOTION AND PROCEDURAL RULING
    On appellees' motion to strike. Motion denied. Appellant's motion for leave to file instanter a corrected amended reply brief granted. The corrected amended reply brief attached to appellant's motion is deemed filed.


text:
    WILLACY v. CLEVELAND BD. OF INCOME TAX REV.
    2018-0794
    Supreme Court of Ohio.
    December 5, 2018
    MOTION AND PROCEDURAL RULING
    On appellant's motion to supplement the record. Motion denied.


text:
    STATE EX REL. HOBART v. INDUS. COMM.
    2018-1241
    Supreme Court of Ohio.
    December 5, 2018
    MISCELLANEOUS DISMISSAL
    On appellant's application for dismissal. Application granted. Cause dismissed.


text:
    STATE EX REL. MCDOUGALD v. GREENE
    2018-0013
    Supreme Court of Ohio.
    December 4, 2018
    MISCELLANEOUS DISMISSAL
    Relator has not filed a merit brief, due November 29, 2018, and therefore has failed to prosecute this cause with the requisite diligence. Cause dismissed.


text:
    DUKES v. MCCARTY
    2018-1409
    Supreme Court of Ohio.
    December 4, 2018
    MISCELLANEOUS DISMISSAL
    Appellant has not filed a merit brief, due November 26, 2018, and therefore has failed to prosecute this cause with the requisite diligence. Cause dismissed.


text:
    DISCIPLINARY COUNSEL v. TINCH
    2018-1178
    Supreme Court of Ohio.
    December 4, 2018
    DISCIPLINARY CASE
    Sua sponte, William Matthew Tinch, Attorney Registration No. 0088418, last known business address in Middletown, Ohio, found in contempt for failure to file an affidavit of compliance on or before October 22, 2018.


text:
    STATE EX REL. MORRIS v. SUMMIT CTY. COMMON PLEAS COURT
    2018-1399
    Supreme Court of Ohio.
    December 11, 2018
    MOTION AND PROCEDURAL RULING
    On relator's motion to strike respondent's pleadings for nonservice. Motion denied. Relator may file a response to the motion for judgment on pleadings within ten days.


text:
    DISCIPLINARY COUNSEL v. LENEGHAN
    2016-0370
    Supreme Court of Ohio.
    December 11, 2018
    DISCIPLINARY CASE
    On petition for reinstatement by respondent, Patrick Peter Leneghan, Attorney Registration No. 0041931, last known address in Brooklyn Heights, Ohio. Petition granted. Patrick Peter Leneghan reinstated to the practice of law in Ohio.


text:
    DISCIPLINARY COUNSEL v. POTTS
    2018-0422
    Supreme Court of Ohio.
    December 11, 2018
    DISCIPLINARY CASE
    On certification of default. Timothy Eugene Potts, Attorney Registration No. 0068147, last known address in Mansfield, Ohio, indefinitely suspended from the practice of law.