Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, March 5, 2019

In re Application of 6011 Greenwich Windpark LLC, Case no. 2017-1375
Ohio Power Siting Board

New Riegel Local School District Board of Education and the State of Ohio v. The Buehrer Group Architecture & Engineering Inc. et al., Case no. 2018-0189
Third District Court of Appeals (Seneca County)

State of Ohio v. Benjamin A. Davis, Case no. 2018-0312
Fifth District Court of Appeals (Licking County)

Marcella King Piazza v. Cuyahoga County, et al., Case no. 2017-1649
Eighth District Court of Appeals (Cuyahoga County)

Do Legislature’s 2014 Setbacks for Wind Farms Apply to Huron County Project?

In re Application of 6011 Greenwich Windpark LLC, Case no. 2017-1375
Ohio Power Siting Board


  • Did the Ohio Power Siting Board act unreasonably and unlawfully when it didn’t apply minimum setback requirements effective on Sept. 15, 2014, to 6011 Greenwich Windpark’s request to add three new turbine models to a commercial wind farm?
  • Did the addition of new turbine models require Greenwich Windpark to obtain new setback waivers from landowners?
  • Was board required to hold a public hearing about the changes to the wind farm?
  • Has the board failed to create rules as required by the legislature to establish reasonable regulations regarding wind farms?

In August 2014, the Ohio Power Siting Board issued a certificate to 6011 Greenwich Windpark to build and operate a commercial wind farm in Huron County. The project includes up to 25 wind turbines that can generate up to 60 megawatts of power. State law establishes minimum setback distances between the turbines and residential structures on adjacent properties. The law also allows adjacent property owners to waive the setbacks.

In November 2015, Greenwich Windpark requested approval from the board to add three more models of wind turbines to the project. Greenwich Neighbors United (GNU), a group that includes property owners next to the wind farm, was permitted to intervene in the matter.

The board determined in May 2016 that the original conditions for the certificate would continue to minimize any negative impact on the environment if the new models were used in the project. The board approved the new models, concluding that their addition to the project didn’t necessitate an amendment to the certificate and that no hearing was required by state law.

GNU appealed the board’s decision to the Ohio Supreme Court. The Court must hear appeals from the state’s siting board.

Local Group Believes Wind Farm Must Follow New Setback Rules
GNU views the changes that Greenwich Windpark proposed in November 2015 as “amendments” to the original certificate authorizing the wind farm. The state legislature passed a law, effective in September 2014, that changed the requirements for minimum setback distances between wind turbines and adjacent properties. The legislature noted that the changes applied to any amendments made to an existing certificate after the law’s effective date. GNU argues that Greenwich Windpark’s proposed changes were an application to amend the certificate and the operator was subject to the new setback requirements.

GNU notes that only the adjacent property owners, not the board, can waive the minimum setback requirements. The group believes that the board’s order, though, might be read to not require setback waivers from all the adjacent property owners. However, GNU states, the waivers must be secured before the wind farm can be built. GNU also maintains that the board was mandated by statute to develop rules setting forth a procedure for obtaining setback waivers as well as other standards, but the board hasn’t issued those rules.

When a certificate for a wind farm is amended, the board needed to hold a hearing, GNU asserts. Because no hearing was held, GNU argues that it was denied due process and the opportunity to contest Greenwich Windpark’s claims and the board’s conclusions.

Siting Board Concluded Wind-Farm Additions Didn’t Change Which Setbacks Apply
The board maintains that Greenwich Windpark’s proposal to add more wind turbine models to the project wasn’t an alteration that required an amendment to the wind-farm certificate. The board adds that it has the expertise and discretion to approve these changes without amending the certificate, given that the existing conditions placed on the operator were sufficient to address any impacts from the new turbines.

On the issue of the setback waivers, the board responds that the issue already was settled when the board issued Greenwich Windpark’s original certificate. The board ordered in the original certificate that the operator obtain waivers if the setbacks were less than the required minimums. The addition of new turbine models didn’t change that requirement, the board states.

The board also argues that GNU had no right to an evidentiary hearing, the board has adopted comprehensive rules about wind farms, and the board considered GNU’s comments in making its decision.

Wind-Farm Operator Argues Appeal Is Improper
The Supreme Court permitted Greenwich Windpark to intervene as an interested party in this case. In its brief, the wind-farm operator describes the appeal as “an improper, backdoor attempt by wind power opponents … to kill an approved and properly certificated wind-powered electric generating facility.”

The new turbine models fall within the board’s original conditions, the addition of the new models doesn’t require the certificate to be amended or the imposition of new setback distances, and the changes don’t warrant GNU’s attack on the project, Greenwich Windpark argues. The operator also maintains that GNU hasn’t shown that any of its members own property inside the setback distances, so the appeal fails because none of GNU’s members have been harmed.

Wind Energy Group Supports Huron County Operator
The Mid-Atlantic Renewable Energy Coalition, a consortium of wind energy companies, turbine manufacturers, service companies, and non-profit organizations dedicated to renewable energy technology, has filed an amicus curiae brief supporting the siting board and Greenwich Windpark. The coalition contends that the legislation that went into effect in September 2014 “is one of the most restrictive setback laws in the nation and has proved fatal to the state’s wind industry.” Should GNU win this case, the ruling would have negative financial and employment consequences for Ohio, the coalition states.

- Kathleen Maloney

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

Representing Greenwich Neighbors United: Matthew Pritchard, 614.719.2842

Representing Ohio Power Siting Board from the Ohio Attorney General’s Office: Jodi Bair, 614.644.8599

Representing 6011 Greenwich Windpark LLC: Michael Settineri, 614.464.6400

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Can School District Sue Contractors for Leaky Roof 13 Years After Construction Completed?

New Riegel Local School District Board of Education and the State of Ohio v. The Buehrer Group Architecture & Engineering Inc. et al., Case no. 2018-0189
Third District Court of Appeals (Seneca County)

ISSUE: Does Ohio’s 10-year statute of repose apply to construction breach-of-contract claims?

The New Riegel Local School District filed a lawsuit 13 years after completion of its kindergarten-through-twelfth-grade school building. The district claims $5 million in damages from faulty construction. The contractors argue the 2005 version of Ohio’s “statute of repose” prevents any lawsuit from being filed later than 10 years after the building opened. The issue has drawn national interest as 25 individuals, and statewide and national organizations have filed amicus curiae briefs supporting parties on both sides of the issue.

School Building Roof Leaks, Lawsuit Follows
In 2000, New Riegel and what is now the Ohio Facilities Construction Commission hired the Buehrer Group Architecture & Engineering to design its new K-12 school building. Studer-Obringer served as the general contractor and Charles Construction Services was the roofing contractor.

The state required architects to follow the Ohio School Design Manual to construct a facility that would “perform satisfactorily for 40 years with only maintenance and repairs,” and would last 100 years before major repairs or replacement were needed. The school district and state paid the contractors about $12.5 million for the building, which opened in December 2002. Sometime later, the district discovered the roof was leaking and attributed the problem to the defective design of the building and defective construction.

In April 2015, New Riegel sued the Buehrer Group, the builders, and Ohio Farmers Insurance Company, which insured Studer-Obringer, in Seneca County Common Pleas Court, claiming breach of contract. The contractors asked the trial court to dismiss the case, arguing that the 10-year construction statute of repose in R.C. 2305.131 prevented New Riegel from filing a lawsuit 12 years after the building was substantially completed. The trial court sided with the contractors, and the school district appealed to the Third District Court of Appeals.

The Third District wrote that in its view, the 2005 version of the state law barred New Riegel’s lawsuit, but it was required to follow the Ohio Supreme Court’s 1986 Kosicko v. Charles Shutrump & Sons Co. decision. In Kosicko, the Court found a former version of R.C. 2305.131 didn’t apply to breach-of-contract cases. Because of the precedent set in Kosicko, the Third District ruled the state’s 15-year statute of limitations for breach-of-contract cases applied and that New Riegel met the deadline. The contractors appealed the appellate court’s decision, and the Ohio Supreme Court agreed to hear the case.

Evolved Statute Covers Contract Disputes, Contractors Argue
Buehrer, the builders, and the insurer make similar arguments in their briefs submitted to the Ohio Supreme Court. Buehrer notes that the Court in 1994 struck down a prior version of R.C. 2305.131 as unconstitutional. The Court ruled the prior version applied only to tort claims. In response, the Ohio General Assembly enacted a new version of R.C. 2305.131 in 2001 and revised it again in 2005.

The latest version contained provisions that stated, “[N]o cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property... shall accrue against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.”

Buehrer explains that the statute of repose is designed to protect construction professionals from an indefinite period of exposure to lawsuits after control of the building is turned over to its owner. The company notes that 48 states and the District of Columbia have some form of the statute of repose and more than 30 states apply the law to both tort and breach-of-contract claims. The company argues that because the law indicates that “no cause of action” can be filed, lawmakers intended to apply it to both breach-of-contract and tort claims.

Buehrer also faults the Third District for relying on the Kosicko decision. The appellate court agreed with the company that the new law applies to contract claims because the Third District interpreted the term “no cause of action” to mean any lawsuit related to damages during an improvement to real property. The company asserts that relying on the precedent of Kosicko is wrong because the decision was based on the wording of an earlier version of the law. Buehrer notes that two other appellate districts, the Second and Fifth Districts, haven’t followed Kosicko.

Contract Claims Exempt from Law, School Maintains
The school district notes that while the new version of the law is longer and contains additional provisions, the language defining the types of lawsuits hasn’t changed from the prior versions. The school district notes that the Third District relied only on part of the key sentence of the law, not the entire sentence, when it determined the statute of repose barred any type of case from being filed 10 years after the completion of a project.

When the “no cause of action” portion of the law is read in conjunction with the term “recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property,” that language describes a tort claim, New Riegel argues. The school isn’t claiming the contractors injured its property, but rather that the defective design and construction caused the improvement itself to be damaged from the beginning. The damage stems from the contractors’ failure to live up to their agreements, which is a breach-of-contract claim and not covered by the statute of repose, the district maintains.

New Riegel also notes the law wasn’t meant to apply to contract claims because the time limit applies to actions that “accrue” within 10 years of the building completion. The district explains that in a tort claim, an injury may be discovered several years after the act that caused the injury. However, in a breach-of-contract case, the injury “accrues,” or begins, when a contractor delivers an improvement that is not designed or constructed according to the contract provisions, which is at the beginning of the project, the school asserts. A law that applies to breach-of-contract claims wouldn’t need a 10-year window, the district argues, and that means the statute of repose was not applicable and gave way to Ohio’s 15-year statute of limitations for filing a breach of contract case. (The district notes that the state has now reduced the statute of limitations for breach-of-contract claims to eight years.)

New Riegel also notes that its damages were purely economic, and under Ohio’s “economic-loss rule,” can only be recovered the cost to correct the defective design and the work itself. The limitation to only recover its economic loss transforms any claim the district has into a breach-of-contract claim, which is governed by the 15-year statute of limitations, the district concludes.

Friend-of-the-Court Briefs
An amicus curiae brief supporting the contractors’ position has been jointly filed by a society of architects known as  American Institute of Architects (AIA) Ohio and the Ohio Society of Professional Engineers. Another joint brief in support of the contractors was submitted by:

  • The Ohio Insurance Institute
  • Ohio Manufacturers’ Association
  • Ohio Chamber of Commerce
  • Ohio Chapter of the National Federation of Independent Business
  • Surety & Fidelity Association of America.

The Association General Contractors of Ohio, its affiliated local associations, and the Ohio Contractors Association filed a joint brief in support of the contractors. The Subcontractor’s Association of Northeast Ohio and the Association of Civil Trial Attorneys also submitted separate briefs supporting the contractors.

A joint amicus brief supporting New Riegel was submitted by:

  • The County Commissioners Association of Ohio
  • Ohio Municipal League
  • Ohio Township Association
  • Ohio School Boards Association
  • Erie County

The Ohio Association for Justice submitted a brief in support of the school district, as did Timothy Betton, a plaintiff in an Erie County taxpayer action regarding the installment of 152 miles of water lines.

- Dan Trevas

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

Representing the Buehrer Group Architecture & Engineering Inc.: Brian Winchester, 216.621.9870

Representing Studer-Obringer Inc.: Shannon George, 419.241.3213

Representing Charles Construction Services Inc.: P. Kohl Schneider, 216.241.5310

Representing Ohio Farmers Insurance Company: Marc Sanchez, 216.515.1660

Representing New Riegel Local School District Board of Education: Christopher McCloskey, 614.227.2300

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Must Attorneys Ask to Waive Court Costs for Indigent Defendants at Sentencing?

State of Ohio v. Benjamin A. Davis, Case no. 2018-0312
Fifth District Court of Appeals (Licking County)

ISSUE: When an attorney for an indigent defendant doesn’t file a motion to waive court costs at sentencing, is that failure ineffective assistance of counsel?

When a police officer suspected Benjamin Davis of shoplifting at a Newark grocery store in January 2017, she tried to stop Davis at the store exit. Davis resisted and struck the officer.

He was arrested and couldn’t afford an attorney, so the trial court appointed one. A jury found Davis guilty of assaulting a peace officer, and he was sentenced to 14 months in prison. At the sentencing hearing, the court also ordered Davis to pay court costs.

Davis appealed and argued in part that his trial attorney was ineffective because the attorney didn’t file a motion to waive the court costs given that Davis was indigent. The Fifth District Court of Appeals rejected the argument, stating that Ohio law allows a defendant to ask for a waiver of court costs at any time, so Davis wasn’t harmed.

The Fifth District certified to the Ohio Supreme Court that the Davis decision is in conflict with a 2017 ruling from the Eighth District Court of Appeals (State v. Springer). The Supreme Court agreed to review the conflict.

Delays in Requesting Waivers Have Significant Ramifications, Davis Asserts
Davis notes that court costs are part of a defendant’s sentence and can be waived if a defendant is financially unable to pay. Davis stresses that it’s important for a trial attorney to raise issues at the point in the legal process when they best can be resolved. A court can best make an informed decision whether to waive court costs for an indigent defendant during the sentencing hearing, he argues.

At sentencing, the court has an affidavit about the defendant’s financial circumstances and the presentence investigation report with the defendant’s background information, the attorney can answer questions about the defendant’s ability to pay court costs, and the attorney can clarify and correct any misinformation at that time, Davis states.

If the defendant’s attorney doesn’t ask during sentencing that court costs be waived, Davis argues, the defendant may have to pursue the waiver alone, without representation, because there is no guaranteed right to an attorney for such a step following a conviction. When the attorney fails to request the waiver at sentencing, Davis maintains that the attorney’s representation is ineffective.

In Davis’ view, that lack of effective counsel prejudices the defendant because courts likely would waive court costs for an indigent person, court costs are an “undue financial hardship” on someone already found to be indigent, and unpaid court costs escalate over time into greater debt because of interest and fees. The position echoes the Eighth District’s ruling in Springer, which concluded that once a court determines a defendant is indigent, the failure of the defense attorney to seek a waiver of court costs prejudices the defendant, resulting in ineffective representation.

Although state law, in R.C. 2947.23, allows defendants to request court-cost waivers when their financial situation changes, that opportunity doesn’t eliminate the harm caused to defendants when their attorneys don’t ask for the waiver before the costs are charged, Davis argues. He concludes that imposing heavy costs on those who can’t afford them impedes access to justice for indigent people.

Defendants Can Ask for Waiver After Sentencing, State Counters
The Licking County Prosecutor’s Office notes that courts must charge the costs of prosecution to defendants. The prosecutor argues that Davis treats court costs the same as court-imposed financial sanctions, such as fines and fees. But they aren’t the same, and different legal standards apply, the prosecutor maintains. When a court imposes financial sanctions, such as fines and fees, it takes into account the defendant’s ability to pay, the prosecutor states. However, the office argues, the ability to pay and whether someone is indigent aren’t the criteria a court considers when deciding whether to waive court costs.

The prosecutor indicates that R.C. 2947.23, which was amended in 2013, sets the current standard for deciding whether courts costs can be waived. The law allows courts to cancel all or part of the costs “[i]f at any time the court finds that the amount owing to the court is due and uncollectible, in whole or in part.” With that 2013 change, the prosecutor maintains that courts look at whether the costs are uncollectible, not the financial circumstances of the defendant.

Given the law, a person who has been convicted and assessed court costs has “the unfettered ability” to file a motion at any time asking the court to review, modify, or suspend the court costs, the prosecutor writes in the brief. The prosecutor refers to this as a “file anytime standard.”

Because Davis can ask to have the court costs waived at any time, including after sentencing, the Fifth District determined that his attorney’s representation wasn’t deficient. Describing this issue as “not worthy of the utilization of the limited time this Court has to consider real controversies,” the prosecutor concludes that Davis can simply file a motion if he wants the court to consider waiving his court costs.

State Public Defender Submits Friend-of-the-Court Brief
The Ohio Public Defender’s Office has filed an amicus curiae brief supporting Davis. The organization stresses the substantial negative effects court costs can have on individuals without the means to pay when a trial attorney doesn’t ask that court costs be waived.

- Kathleen Maloney

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

Representing Benjamin A. Davis: James Anzelmo, 614.532.5123

Representing the State of Ohio from the Licking County Prosecutor’s Office: Clifford Murphy, 740.670.5255

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Can Fired Worker Sue After County Publicized Her Termination?

Marcella King Piazza v. Cuyahoga County, et al., Case no. 2017-1649
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Under R.C. 2744.09(B), does a political subdivision retain immunity from a civil lawsuit by a former employee?

In November 2009, Cuyahoga County voters adopted a new form of county government that would be led by a chief executive rather than a county commission. The charter change also called for the elimination of some elected offices, including the county auditor. Six years earlier in 2003, Marcella Piazza began working in the auditor’s office and was subsequently assigned to be an office manager for the boards of revision — a body that hears taxpayer challenges to property values and falls under the authority of the county auditor.

In June 2010, the Cleveland Plain Dealer published more than 30 articles exposing illegal practices and problems with the boards of revision. In August 2010, Piazza was transferred to the county’s Department of Justice Affairs where she served as a victim’s advocate.

In March 2011, Piazza was informed she was fired. About 90 minutes later, a Plain Dealer reporter told Piazza she was told about her firing and asked for a comment. Piazza declined. Shortly after, the newspaper website published a story headlined, “Cuyahoga County Executive Ed FitzGerald fires three employees tied to the boards of revision scandal.” Piazza had no involvement in the scandal, and the county didn’t allege that she did. FitzGerald told the Plain Dealer that he couldn’t justify keeping reassigned boards of revision workers in other positions.

Fired Employee Filed Lawsuit
In 2013, Piazza filed a lawsuit against the county and the Plain Dealer for “false light invasion of privacy.” She voluntarily dismissed the case and refiled in 2015. Piazza alleged the county linked her to the nationally reported corruption scandals without ever indicating that she was involved or was ever accused of poor work performance.

The county and the newspaper asked the trial court for summary judgment for a number of reasons. One of the county’s arguments was that under R.C. Chapter 2744, it had immunity from lawsuits. The court denied the motion and noted that the county wasn’t immune.

The county filed an interlocutory appeal to the Eighth District Court of Appeals in 2017 challenging the ruling that it didn’t have immunity. In a 2-1 decision, the Eighth District affirmed the lower court’s decision. The county appealed the ruling to the Ohio Supreme Court, which agreed to hear the case. The case against the county and the other parties is on hold pending the outcome of the county’s appeal.

Employee’s Lawsuit Too Late, County Argues
The county argues it is entitled to immunity from Piazza’s lawsuit because of both the date on which she filed the suit and the time in which the allegation of the county’s wrongdoing occurred. The county, as a state political subdivision, is generally immune from civil lawsuits. The county notes the trial court applied the limited exemption in R.C. 2744.09(B) that states the immunity doesn’t apply to civil actions by an employee relative to any matter that arises out of the employment relationship between the employee and the political subdivision.

The county challenges the claim that the exemption applies because Piazza initially filed her lawsuit two years after she was last employed by the county, and then refiled nearly four-and-a half years later. The county argues the law is “clear and concise” and applies to current employees. Because Piazza wasn’t employed by the county when she filed her lawsuit, the county asserts she wasn’t an “employee” under R.C. Chapter 2744. Because she wasn’t an employee, the exemption in R.C. 2744.09(B) doesn’t apply and the county retains its immunity, the county asserts.

Further, the allegation against the county is that its actions led to a claim of false light invasion of privacy. That claim is premised on the county’s release of information to the Plain Dealer, the county notes, and the communication that Piazza had been fired happened after her firing. Because the information was released after her firing, Piazza no longer was an employee when statements of her firing took place, the county maintains. Because of the sequence of actions, the county retains its immunity, the county claims. The county bolsters its argument that Piazza was a former employee at the time of termination because she was an at-will employee who could be fired for any reason, she didn’t contest her firing at the time, and she didn’t file for unemployment compensation.

The county objects to the Eighth District’s reliance on two prior Ohio Supreme Court decisions when finding that immunity didn’t apply to Piazza’s lawsuit. The county notes in the 2012 Sampson v. Cuyahoga Metro. Hous. Auth. and the 2013 Vacha v. City of N. Ridgeville decisions, the Court found the intentional tort by the government body against the employee happened during the “employee relationship” and for that reason, the government bodies didn’t have immunity. In contrast, the events leading to the county’s alleged intentional tort of false light invasion of privacy happened after Piazza was fired, so the basis for the lawsuit didn’t arise from the employment relationship, the county concludes.

Statements to Newspaper Connected to Employment, Employee Argues
Piazza argues that the statute makes no distinction between whether a worker was a current or former employee at the time the lawsuit was filed. The law only requires a “causal connection” between the subject of the lawsuit and the employment relationship, she asserts. The county’s statements to the newspaper were related to Piazza’s county employment and falsely implied she was connected to the illegal actions taken by the boards of revision, she maintains.

Piazza also argues Ohio law doesn’t indicate that an employee becomes a former employee at the announcement of termination. Piazza notes there was no evidence she was escorted out of the office at the time or not paid for the rest of the day. Meanwhile, the county might have been preparing a press release about the firing while Piazza was still working, and the evidence indicates she was at her work station when the press was informed, she argues.

“The County is directly responsible for creating the narrative that employee Piazza was fired due to a nonexistent role in the County’s own scandal. Without the County’s complete recklessness and total disregard of the foreseeable consequences to Ms. Piazza, this claim would not exist. How much of the County’s work in behalf of publicizing the termination occurred before the notice rather than directly after is unknown,” Piazza’s brief states.

Piazza also points to the language in R.C. 2744.09(B) that indicates the county isn’t immune from an employee claim regarding “any matter” as long as it arose out of the employment relationship. The law doesn’t place a condition on when the lawsuit had to be filed, and she points to the Court’s Sampson decision, which upheld the right of a former employee to sue his government employer.

Friend-of-the Court Brief
An amicus curiae brief supporting Piazza’s position has been submitted jointly by the Fraternal Order of Police of Ohio and the Ohio Employment Lawyers Association.

- Dan Trevas

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

Representing Cuyahoga County: Awatef Assad, 216.698.6464

Representing Marcella King Piazza: Nancy Schuster, 216.348.1100

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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.