Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 25, 2015

Arlie Risner v. Ohio Department of Natural Resources, Division of Wildlife, Case no. 2014-0242
Sixth District Court of Appeals (Huron County)

Shari Lewis et al., v. SRMOF 2009-1 Trust, Case no. 2014-0485
Twelfth District Court of Appeals (Butler County)

Joseph P. Testa, Tax Commissioner of Ohio v. City of Cincinnati, Case no. 2014-0531
Ohio Board of Tax Appeals

In re: Application of Joseph V. Libretti Jr., Case no. 2014-1555
Board of Commissioners on Character and Fitness

Can ODNR Seek Possession of and Restitution for Illegally Killed Deer?

Arlie Risner v. Ohio Department of Natural Resources, Division of Wildlife, Case no. 2014-0242
Sixth District Court of Appeals (Huron County)

ISSUE: Does an Ohio statute prohibit the Department of Natural Resources from imposing fines if it has already confiscated a wild animal killed illegally?

In November 2010, state wildlife officers from the Ohio Department of Natural Resources (ODNR) began investigating a complaint that Arlie Risner had been hunting on private property without permission. Officers visited the property and found a tree stand, deer organs, and corn. They took blood samples from the organs.

Officers then visited a meat shop and taxidermist, both of which were processing orders on behalf of Risner. From the taxidermist, officers seized a 20-point rack of antlers that Risner had dropped off at the shop. From the meat shop, officers confiscated deer meat that Risner left to be butchered. An outside lab confirmed that the organ blood found on the private property matched Risner’s deer meat at the meat shop.

Hunting Statutes
Risner was charged with hunting white-tailed deer on the land of another person without first obtaining permission from the landowner as required by R.C. 1533.17. In February 2011, Risner pleaded no contest to the charge. The court imposed a fine of $200, plus court costs, and $90 to the ODNR for unpaid costs associated with processing the meat. The seized meat and antlers were surrendered to the ODNR.

Risner’s hunting license was suspended for a year, from February 23, 2011, to February 23, 2012. During that time, the ODNR informed Risner that his hunting and fishing licenses would remain revoked until he paid $27,851.33 in restitution, determined by a statutory formula, to settle the loss incurred by the unlawful taking of the antlered white-tailed deer, pursuant to R.C. 1531.201.

Risner filed a complaint with the Huron County Court of Common Pleas asking the court to deny the restitution levied against him. The trial court ruled in his favor. The ODNR then appealed, and the Sixth District Court of Appeals agreed with the state agency. Risner then appealed to the Supreme Court, which decided to hear the case.

Risner’s Arguments
Attorneys for Risner contend that the language of R.C. 1531.201(B) doesn’t allow the state to take possession of the deer and also seek restitution. It states, “The chief of the division of wildlife or the chief’s authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 ….”

They argue that based on the plain language of the statute, the ODNR may take possession of the deer or seek restitution. They insist that since the ODNR took possession of the deer meat and antlers, the ODNR cannot also impose restitution. The attorneys cite the statutory definition of “possession,” which means both actual and constructive possession. Based on this premise, the attorneys argue that the ODNR has possession of the animal, even if it’s just the meat and antlers.

They also claim that Risner has already paid $90 in restitution to the ODNR following the lower court order.

State Agency’s Position
Attorneys for the ODNR maintain that the statute’s language allows for both taking possession of the deer and restitution. They rely on Kish v. Akron (2006), decided by the Ohio Supreme Court, which states the word “or” often indicates “a deliberate [legislative] exercise in expansion,” meaning that “or” is used to signify A, or B, or both.

They assert the legislature intended for the statute to authorize restitution, recovery of the animal, or both. They insist that if the state only receives the restitution value of an illegally killed animal, the offender could then sell the animal for more than that amount and make a profit. Conversely, they explain that if the state only recovers the deer, the offender may still profit by selling photographs of the kill or by other means. The attorneys emphasize that these scenarios fail to act as a proper deterrent.

They also point out that the state never gained possession of the deer, because it merely received the meat and antlers.

- Miriah Lee

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

Representing Arlie Risner: Gordon Eyster, 419.342.4261

Representing the Ohio Department of Natural Resources, Division of Wildlife, from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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Can Plaintiff Bring Foreclosure Claim When Not in Possession of Note that Accompanies Mortgage?

Shari Lewis et al., v. SRMOF 2009-1 Trust, Case no. 2014-0485
Twelfth District Court of Appeals (Butler County)

ISSUE: May a foreclosure action be filed with a court when the plaintiff doesn’t have both the note and mortgage at the time of the complaint?

On November 21, 2001, Shari Lewis executed a promissory note, a written promise to pay, to First Union Mortgage Corporation in the amount of $141,600.00 to purchase a home in Trenton, Ohio. The note was secured by a mortgage, which is an interest in the deed. Securing a mortgage and note entails multiple contracts. A mortgage may be assigned to different entities throughout its duration. This mortgage was assigned multiple times, eventually to an entity called SRMOF 2009-1 Trust on August 21, 2011.

Shortly after, the trust filed a complaint in foreclosure against Lewis. The trust alleged it was the holder of the note and mortgage on the property. On July 19, 2012, Lewis requested to inspect the original note. The original note couldn’t be located and a “Notice of Filing Lost Note Affidavit” was filed by a previous holder of the note, meaning that a prior bank indicated that the original note had been lost or destroyed. On August 28, 2012, the trust located the original note.

Case History
The trial court then entered a decree of foreclosure, which ordered the sale of the property. Foreclosure in Ohio is a two-step process. Case law states that only after the court determines a liability under the note can the mortgage be enforced and foreclosure initiated. Lewis appealed the judgment. On appeal, the Twelfth District appellate court determined that the trust had standing to sue even though it lacked the original note at the time the complaint was filed. The court then notified the Ohio Supreme Court that its decision may be in conflict with another appellate court judgment.

The Supreme Court certified the conflict and agreed to address the issue.

Homeowner’s Assertions
Attorneys for Lewis rely on BAC Home Loan Serv. v. McFerren (2013), decided by the Ninth District Court of Appeals. The case stated that one must be both the note and mortgage holder to initiate a foreclosure action.

They emphasize that the transfer of the mortgage without the debt (the note) is a legal nullity. They also point to Carpenter v. Longan (1873), where the U.S. Supreme Court held that a note and a mortgage are inseparable, “while the assignment of the latter alone is a nullity.” Therefore, the trust hadn’t received any interest in enforcing the debt, because it didn’t receive the note, the attorneys assert.

They also insist that Lewis owed no duties to the trust, as the contractual language only pertained to the lender, First Union Mortgage Corporation. Because Lewis didn’t have any contractual obligation to the trust, the attorneys maintain that the trust cannot sue her.

Trust’s Responses
Attorneys for the trust contend that case law suggests that the right to enforce a note follows the assignment of the mortgage. Because the trust was assigned to the mortgage, it naturally had the right to enforce the note, they argue.

They also maintain that Lewis contractually agreed that the mortgagee and its successors had the right to seek enforcement by foreclosure. They point out that it’s the court’s job to enforce contracts as they are written, and here, they assert, the issue is a contractual matter.

They contest Lewis’ argument that a legal nullity is created when the note doesn’t accompany the mortgage. They rely on Bradfield v. Hale (1902), decided by the Ohio Supreme Court. The case allows a mortgagee to bring a claim even when the note enforcement is barred. Based on Bradfield, the attorneys argue that a claim is not barred even if the note cannot be enforced because the trust was not in possession of the note.

- Miriah Lee

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

Representing Shari Lewis: Andrew Engel, 937.433.4090

Representing SRMOF 2009-1 Trust: John Kopf, 614.469.3200

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Can Publicly Owned Golf Courses Managed By Private For-Profit Companies Claim Property-Tax Exemption?

Joseph P. Testa, Tax Commissioner of Ohio v. City of Cincinnati, Case no. 2014-0531
Ohio Board of Tax Appeals


  • Are publicly owned golf courses entitled to a property tax exemption when they are exclusively managed by a for-profit business and in direct competition with privately owned golf courses?
  • Does a private operator’s full control of the publicly owned golf courses equate to a lease, making the property no longer exclusively used for a public purpose and no longer exempt from property taxes?

Since 1998, Cincinnati has contracted with private firms to manage its seven city golf courses. The golf operations are overseen by the Cincinnati Recreation Commission. In 2003, the commission entered into a contract with Cincinnati Golf Management, Inc. a subsidiary of Virginia-based Billy Casper Golf Management, Inc., which manages 150 courses for individuals, corporations, and public entities. Golf Management is paid an annual management fee, approximately $200,000 a year, and receives revenue from food, beverage and merchandise sales at the courses. It’s also eligible for incentive bonuses for reaching certain revenue targets for the courses. Golf Management provides a business and marketing plan to the recreation commission for approval, and adjusts course fees to reflect the local golf market.

Paul Macke, the owner of several privately owned golf courses in the Cincinnati area, filed a complaint with the state Tax Commissioner Joseph Testa about the tax-exempt status of the city courses. He argued he had to close one of his courses based on the lowering of the fees by a nearby city course operated by Golf Management.

Testa found the golf courses are not used exclusively for a public purpose and didn’t qualify for the tax exemption under R.C. 5709.08. The city appealed to the Ohio Board of Tax Appeals (BTA), which found the courses were entitled to the exemption. Testa and Macke have appealed the BTA’s ruling to the Supreme Court.

Since the time of the appeal, the city has closed one of the courses, which for reasons not related to this appeal, were put back on the real property tax list by Testa. In addition, the city of Mason, near Cincinnati, had the property tax exemption removed for a public golf course it has managed by a private company. It too appealed to the BTA, but the ruling on the matter was stayed pending the outcome of the Cincinnati case. The city of Mason has filed an amicus curiae brief in this case.

Tax Commissioner’s Arguments
In the tax commissioner’s brief to the court, Testa argues there is a three-part test a property owner must meet to qualify for the exemption in R.C. 5709.08. (1) The property must be public property; (2) it must be used for a public purpose; and (3) the use must be exclusively for a public purpose. When a city turns over operations to a for-profit entity it eliminates the eligibility for a property tax exemption, according to the brief. Testa notes the city’s stated intention was “to establish and exceed the goals of operating a profitable, private-public partnership business,” and states that both the city and the company profited from the venture. He cites the Supreme Court’s 1950 City of Cleveland v. Bd. Of Tax Appeals ruling that indicated when a city undertakes an enterprise that is proprietary in nature and in competition with similarly owned private enterprises, the real estate isn’t exempt from taxation. Testa cites, and Macke reinforces in his amicus brief, that Macke complained that Golf Management was able to lower fees by benefitting from exemption, and it put Macke at a competitive disadvantage. Macke testified in the BTA proceedings that the private courses should be on an equal playing field with the public courses.

Testa further argues the exemption works to the benefit of Golf Management’s profits. While the courses bring in about $5 million to $6 million annually, the city indicated the majority of the revenue is green fees and the funds are reinvested back into the operations and upkeep of the courses. Testa counters that Golf Management earns not only the $200,000 management fee, but by increasing the attendance, it benefits from the profits of food and merchandise sales, which in total earned Golf Management $608,000 in 2008 and was similar in many of the other years during the contract. While the city does oversee the operation, the management agreement essentially places Golf Management in control of the entire property to make a profit, and therefore, the property loses its status as being devoted exclusively to a public purpose, Testa contends. Further, he asserts, even if the property is not leased to Golf Management, the agreement essentially functions as a lease and that changes the use of the property from one of exclusively public to a use for profit, which would exclude it from exemption.

City Supports BTA Ruling
The city argues that the golf courses are clearly public property open to the public for the use of playing golf, and additionally the city operates golf programs for youth, seniors and the disabled. It states the BTA appropriately focused on the actual use of the courses, not the identity of the golf courses’ manager to determine whether an exemption was appropriate.

Both the city and Testa turn to the BTA’s reliance on the 2005 City of Parma Heights v. Wilkins Supreme Court decision to assess the golf course’s exemptions. In the Parma Heights case, the city leased its ice rink to a private operator, and claimed the public purpose was to provide better ice-skating facilities to its citizens. Cincinnati points out the key factors in the denial to Parma Heights included: the private operator had a lease; the lease allowed the operator to use and occupy the rink; the company was solely responsible for the operation and management; the operator’s income was derived by the rink’s operation; and the operator had to pay all property taxes on the rink.  In this case Cincinnati argues: the city, not Golf Management, pays the property taxes, if there are any; the recreation commission sets the golf course rates and approves the hours and operations (noting that it even denied rate increases proposed by Golf Management); and the city retains control of the property and is allowed on it at any time without Golf Management’s permission. It argues that the city’s representatives testified before the BTA and said if the city aimed to compete with private companies and operate for profit it would have taken the simpler, direct step of leasing the courses to Golf Management.

Friend-of-the-Court Briefs
Paul Macke, the private course operator who filed the complaint against the city, filed a brief in support of the tax commissioner.

The city of Mason filed a brief in support of Cincinnati.

- Dan Trevas

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

Representing the Tax Commissioner of Ohio: Assistant Attorney General Daniel K. Fausey 614.995.9032

Representing Paul Macke: William Bristol, 513.564.9222

Representing City of Cincinnati: Marion E. Haynes III, 513.352.4894

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Should Law Student With Criminal Past and Involvement in Sale of “Spice” Be Permitted to Apply to Practice Law in Ohio?

In re: Application of Joseph V. Libretti Jr., Case no. 2014-1555
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness recommends that the Ohio Supreme Court deny an application from Joseph V. Libretti Jr. to register as a candidate for admission to practice law in the state. The board also recommends that Libretti not be permitted to reapply.

Libretti was indicted 23 years ago on federal charges for drug, firearm, money laundering, and criminal enterprise crimes in Colorado and Wyoming. He pled guilty to continuing a criminal enterprise and served 16 years of a 20-year sentence. While in a halfway house, he met Brian Hohlios. In May 2008, he began five years of supervised release and lived with Hohlios in Casper, Wyoming.

In 2009, Libretti and Hohlios became involved in the sale of “spice,” a mix of herbs and man-made chemicals sometimes referred to as “synthetic marijuana.” Libretti used his credit card to purchase chemicals to make spice. At the time, the chemicals they used weren’t illegal.

Their home was searched by law enforcement in June 2010, and Hohlios committed suicide a month later. After Hohlios’ death, Libretti purchased chemicals used in spice to resell them.

Libretti began law school in Cleveland in August 2010. That winter and spring, he bought and shipped herbs and chemicals to organizations involved in preparing spice-related chemicals or producing spice in Arizona and Wyoming.

In November 2010, the U.S. Drug Enforcement Administration announced it would designate five chemicals used in spice as controlled substances – which would make possessing and selling the chemicals or spice illegal. The agency implemented the action on March 1, 2011.

Libretti had a packet of one of the chemicals and ordered an additional quantity of it before March 1 for a client who needed a larger amount. Libretti’s plan was to ship all the chemicals to the client before it became illegal. However, when the client cancelled his request, Libretti cancelled his order, leaving him with one packet of soon-to-be-illegal chemicals. He placed the packet in a box addressed to his Wyoming attorney. He later turned in the chemicals to authorities.

Now in his early 50s, Libretti has been at the top of his class at the Cleveland-Marshall College of Law. He has clerked for private firms and served as a legal intern for the Cuyahoga County Public Defender.

Board’s Conclusions
In its report, the board notes that an applicant with a conviction must prove he or she is morally fit to practice law and is fully and completely rehabilitated. The board mentions concerns about Libretti participating in the sale of spice after being released from prison and about what it calls a “blind spot” in his “moral filter” given some of the people he sold spice with.

The board concludes that Libretti wasn’t candid during the bar application process about his spice operations and the money he made through the drug sales. The report states that he didn’t disclose the business on his bar application. While he talked about selling “herbal incense” during his application interview with the Cleveland Metropolitan Bar Association, the board also contends that he withheld many pertinent details. The board is concerned as well that the multiple legal actions he has filed related to his history may reflect “litigiousness.”

While noting that Libretti has done well in law school, has provided legal assistance to those who can’t afford it, and has presented many letters of recommendation from attorneys, professors, and former employers, the board concludes that his lack of openness during the application process makes it doubtful that he is rehabilitated or will be.

Applicant’s Responses
Libretti has objected to the board’s recommendation and its focus on the time period from 2009 to 2011. In his brief, he argues that his conduct in law school and in related legal positions demonstrate he’s eligible to practice law and exceeds the required abilities. The letters of recommendation submitted on his behalf speak of his commitment to clients, high-quality skills, honesty, integrity, good judgment, diligence, and reliability, he notes.

He asserts that the board ignored certain factors it must consider in reviewing an applicant’s character and fitness. He explains that the admissions committee considered these factors and others, and initially approved his application.

He also points out that in March 2011, after the chemical he possessed had become illegal, he voluntarily turned it in to law enforcement. He disputes whether selling spice constituted a “business,” emphasizes that the drug wasn’t illegal at the time he was involved, and states that no evidence shows he intended to deceive or conceal information about his activities during his application interview. He asserts that most of the lawsuits the board refers to were wrongly filed because he mistakenly thought they were required, and they were filed about 15 years ago.

He maintains that the board’s inquiry should focus on his present, rather than past, character and fitness and that he hasn’t been involved in producing spice in the last four years. Should the court find, however, that he wasn’t forthcoming in the application process, he asks to be given the opportunity to reapply in the future. He believes that a chance to give back to society as a lawyer and using his skills to help people would allow him to make amends and complete his rehabilitation.

In a later reply brief, Libretti concedes that he wasn’t as open and forthright as was required, and he requests more time from the court to prove he’s worthy of becoming a member of the Ohio bar.

Bar Association’s View
In response, the bar association re-emphasizes examples that, in its view, demonstrate Libretti’s dishonesty and argues he has shown a pattern of deception. The association’s counsel also states that Libretti repeatedly violated the terms of his supervised release and asserts that he lacks remorse for the harm he caused.

The attorney contends that the spice he sold was subject to regulation by the Food and Drug Administration, and he had no approval from the agency. In addition, the association maintains that for the month that Libretti held the packet of spice chemicals before turning them over, they were illegal.

The bar association argues that his spice-related activities after his imprisonment reflect poor judgment. It asserts that, contrary to Libretti’s view, the panel reviewed his entire record and he didn’t meet the burden needed to show he has the requisite character and fitness to practice law in the state.

Oral Argument Time Divided
Libretti’s attorney and John T. Martin, an attorney at the Cuyahoga County Public Defender’s Office, asked to court to allow Martin to participate in oral argument, sharing the time allotted to Libretti. The court granted the request.

Friend-of-the-Court Briefs
Amicus curiae briefs supporting Joseph V. Libretti’s application have been submitted by:

  • Citizens’ Institute for Law and Public Policy, Ohio Justice and Policy Center, and CURE-Ohio
  • Eight attorneys from the Cuyahoga County Public Defender’s Office
  • CURE-Ohio and 15 law professors and attorneys

- Kathleen Maloney

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

Representing Joseph V. Libretti: Deborah Zaccaro Hoffman, 216.381.3400

Representing the Cleveland Metropolitan Bar Association: Paul Crist, 234.380.1588

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.