Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, May 11, 2021

Cleveland Botanical Garden v. Staci K. Worthington Drewien, et al., Case no. 2020-0629
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Jeremy Crawford, Case no. 2020-0797
Eighth District Court of Appeals (Cuyahoga County)

Ohio State Bar Association v. Harvey Bruce Bruner, Case no. 2020-1533


Does Botanical Garden’s Operation Comply with Terms of 1882 Deed Creating Park?

Cleveland Botanical Garden v. Staci K. Worthington Drewien et al., Case No. 2020-0629
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:
Appeal –

  • After accepting a conditional gift of property “forever in trust” from a private donor who set conditions for the property’s use, is a municipal corporation permitted to cede use and control of the park property to a private entity that prohibits public access for 75% of the time and generates revenues to fund private purposes?

Cross-Appeal –

  • Does the Ohio Marketable Title Act (MTA) apply to public park property?
  • Does the MTA extinguish the possibility of retaining certain rights unless a party seeking to enforce the interest has recorded a notice of preservation of interest in accordance with R.C. 5301.51?
  • Under the MTA, is it only a “record owner” and a party with a present “possessory interest” in a property that can invoke the “continuous possession” exception to the notice of preservation requirement in state law?

BACKGROUND:
In September 1882, Jeptha Wade, a founder of Western Union Telegraph and the Case Institute of Technology, donated 73 acres of open green space and woods to the city of Cleveland for a public park to be called Wade Park. The three-page property deed set the conditions of the gift.

The city of Cleveland in 1964 leased a section of Wade Park across from the Cleveland Museum of Art to the Cleveland Botanical Garden (CBG). The 1964 lease incorporated all “conditions, restrictions, or limitations and covenants” in the 1882 Wade deed. The lease stated that CBG wouldn’t “close” or “barricade” any part of the park, and wouldn’t charge admission for entrance to the gardens except for special events or fees for the use of the facilities.

Cleveland entered into a lease with University Circle Incorporated (UCI) in 1971 for the maintenance of Wade Oval, an area within Wade Park near CBG. Expressly incorporating the terms of the 1882 Wade deed, the lease required that UCI only use the property “consistent with any conditions, restrictions or limitations and covenants contained in [the Wade] deed ….” Over the decades, the botanical garden subleased parcels from UCI. The botanical garden’s current grounds span 10 acres of Wade Park based on nine leases it has either directly with the city or through subleases with UCI.

1882 Wade Deed
The three-page deed memorializing Jeptha Wade’s donation of 73 acres to the city of Cleveland in 1882 for a park states in part:

“Know all men by these presents that I, Jeptha H. Wade of the City of Cleveland, … being desirous of securing to the citizens of Cleveland for all time the opportunity of re-creating, having, improving and maintaining a beautiful and attractive Public Park therein for the benefit of all the people and being the owner of lands suitable for this purpose … do hereby freely give, grant and convey unto the said City of Cleveland and the successors, to have and to hold forever, the following described real property to wit:

“This conveyance is made to the said City of Cleveland forever in trust for the following purposes and upon the express conditions following to wit: ... The said grounds at all times thereafter to be kept and maintained by said City in such repair and condition as to make it an attractive and desirable place of resort – as a Public Park to be open at all times to the public. … To be for no other purpose than a public park and to be called and known forever by the name of Wade Park. If fencing shall ever be placed on said Park grounds except along the westerly and southerly boundary, it shall be open wrought- iron fence.”

1882 Wade Deed
The three-page deed memorializing Jeptha Wade’s donation of 73 acres to the city of Cleveland in 1882 for a park states in part:

“Know all men by these presents that I, Jeptha H. Wade of the City of Cleveland, … being desirous of securing to the citizens of Cleveland for all time the opportunity of re-creating, having, improving and maintaining a beautiful and attractive Public Park therein for the benefit of all the people and being the owner of lands suitable for this purpose … do hereby freely give, grant and convey unto the said City of Cleveland and the successors, to have and to hold forever, the following described real property to wit:

“This conveyance is made to the said City of Cleveland forever in trust for the following purposes and upon the express conditions following to wit: ... The said grounds at all times thereafter to be kept and maintained by said City in such repair and condition as to make it an attractive and desirable place of resort – as a Public Park to be open at all times to the public. … To be for no other purpose than a public park and to be called and known forever by the name of Wade Park. If fencing shall ever be placed on said Park grounds except along the westerly and southerly boundary, it shall be open wrought- iron fence.”

Botanical Gardens Expand, Begin Charging Admission
In the 1990s, CBG, a nonprofit organization, began a capital campaign to quadruple its building space and build a glass conservatory. The cost of the expansion was $70 million, and CBG raised $50 million. The institution planned to cover the remaining $20 million with bonds that would be paid from charging admission fees to the building and property beginning in 2003. The botanical garden offers free admission five or six days a year and sells memberships. It also operates a parking garage that charges fees.

To avoid potential litigation, CBG started seeking “deeds of release” from Wade’s heirs to relinquish the rights in the deed about the park property reverting to the heirs in certain circumstances. Of the heirs contacted, 24 of 36 agreed to the releases.

Botanical Garden Seeks Clarification in Court Regarding Fees
In August 2013, CBG filed a complaint in Cuyahoga County Common Pleas Court for declaratory judgment, asking the court to confirm that the operation of the property, including charging admission and parking fees, complied with the Wade deed’s limitations on the park’s use. CBG also asserted that the Wade heirs couldn’t contest any issue related to the deed’s fence restriction. Cleveland and UCI – from whom CBG leases its property – were named in the lawsuit. The Wade heirs filed counterclaims and third-party actions, arguing the 1882 deed prohibits charging admission and parking fees and requesting an order to remove any fencing not authorized by the deed.

The trial court considered motions for summary judgment. In April 2019, the court determined that CBG’s use and operation of the property were in line with the Wade deed and that only landowners adjacent to the gardens could seek to enforce the fence restriction. The court also stated that the heirs failed to preserve their reversionary rights under the deed in accordance with the Ohio Marketable Title Act (MTA), so their rights were extinguished and unenforceable.

In its April 2020 decision, the Eighth District Court of Appeals agreed that CBG’s operations didn’t conflict with the deed. However, the appeals court determined that the heirs could seek to enforce the deed’s fence restriction, and the court reversed the trial court’s decision regarding the MTA.

A group of Wade heirs, including Staci Worthington Drewien, appealed to the Ohio Supreme Court. CBG, Cleveland, and UCI filed cross appeals. The Supreme Court accepted the appeal and the cross-appeals. The Court will hear arguments by videoconference because of COVID-19 guidelines. The arguments will be livestreamed.

Botanical Garden’s Actions Contrary to Deed, Wade Heirs Assert
The Wade heirs maintain that, starting in 2003, CBG began ignoring the Wade deed restrictions, including fencing in 10 acres of Wade Park. By 2019, CBG had collected more than $13 million in parking and admission fees from the public, the heirs note. Pointing out that the botanical gardens are open only Tuesday through Sunday from 10 a.m. to 5 p.m., the heirs contend that the CBG grounds aren’t “open at all times to the public,” as the deed requires. Instead, they state, the grounds are completely inaccessible to the public 75% of the time. For the 25% of the time CBG is open, it is available only to those who pay a fee, contrary to Jeptha Wade’s intent when he donated the land, they argue.

The heirs allege that CBG uses the admission and parking fees to service its debt for the $70 million capital expansion and to generate revenue from memberships. These uses aren’t aligned with the purposes of a public park, the heirs conclude.

Deed Doesn’t Prohibit Charging Fees or All Fencing, CBG and City Maintain
The Wade deed states that Wade Park is to be “open at all times to the public,” not that it must be “free,” CBG stresses. The deed doesn’t reference or ban charging for admission or parking, or assessing other fees, in Wade Park, CBG argues. Nor does the deed prohibit fencing anywhere in the park – rather it describes the type of fencing that must be used in certain areas of the park, the nonprofit states. CBG also maintains that although the deed gives the heirs a reversionary interest if the deed is violated, it doesn’t require the city or CBG to obtain the heirs’ consent before taking steps to improve and maintain the park, as long as they are complying with the deed.

One question before the Court is whether the deed permits charging admission and parking fees. However, CBG argues, the manner in which the revenue from those fees is used isn’t relevant to the issue. Even if it were, the way the funds are used is permissible because they support an educational, cultural, and recreational experience at the botanical gardens and defray the nonprofit’s operating costs, CBG maintains.

In their briefs, CBG, the city, and UCI cite court decisions across the country that have concluded a deed’s park-use restriction doesn’t prohibit a city from leasing park land to a private nonprofit entity that charges admission, as long as the entity’s operations are consistent with park purposes.

City Is Trustee of Park, and MTA Doesn’t Apply, Heirs Argue
The Wade heirs also maintain that the MTA did not eliminate rights delineated in the deed, which states that “if the grounds aforesaid or any part thereof shall be perverted or diverted from the public purposes and uses herein expressed, the said property and every part thereof to revert to me or my heirs forever.” The heirs contend the city “is compelled to ‘hold the property in trust for the benefit of all the people,’” quoting the Ohio Supreme Court’s 1895 decision in Cleveland City Cable Ry Co. v. Barriss, which involved Wade Park and the 1882 deed.

The city doesn’t own Wade Park but is its trustee, the heirs maintain. Because Cleveland isn’t an owner with a proprietary interest, it can’t transfer, or convey, ownership of the park and, thus, can’t be subject to the MTA statutes governing land title transactions, they argue.

If their rights could be extinguished under the MTA, though, their rights would be preserved based on the MTA’s exceptions for “continuous possession” and for “title transactions” because each lease between the city and CBG incorporated the terms of the Wade Deed, the heirs maintain.

Heirs Had to Follow MTA to Preserve Rights, CBG and City Contend
The city, UCI, and CBG counter that the only way for the Wade heirs to have retained their reversionary rights stated in the deed would have been to abide by the MTA and record an affidavit with the county recorder’s office on or before Sept. 29, 1964.

The groups contend that Cleveland isn’t a trustee of Wade Park but instead completely owns it. CBG also argues the city has the right to transfer property in Wade Park with the understanding that any purchaser is subject to the Wade deed. The MTA doesn’t exempt from its scope park lands or other property that the government owns or manages, CBG, UCI, and Cleveland maintain.

They also argue the MTA exceptions don’t apply. Cleveland is the “record owner” of the present “possessory interest” in the property, they state. If the heirs wanted to preserve an interest, the heirs, not the city, must have been in continuous possession of Wade Park for the MTA exception to apply, but the city possesses the property, the groups maintain. They also contend that the leases between CBG and the city or CBG and UCI aren’t “title transactions” under the MTA, so that exception also isn’t applicable.

Friend-of-the-Court Brief Raises Constitutional Concern
The Institute for Justice has filed an amicus curiae brief supporting the Wade heirs and addressing the impact of the U.S. Constitution’s contract clause on this case. The clause prohibits states from passing any law “impairing the Obligations of Contracts.” The institute argues that the terms of the Wade deed protecting the public’s access to Wade Park were a contract with the city of Cleveland and remain in effect, regardless of the MTA.

Kathleen Maloney

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

Contacts
Representing Staci K. Worthington Drewien et al.: Matthew Fellerhoff, 513.621.2120

Representing Cleveland Botanical Garden: Eric Levasseur, 216.274.2346

Representing the City of Cleveland: Barbara Langhenry, 216.664.2893

Representing University Circle Inc.: Steven Friedman, 216.479.8500

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Can Gun Possession Conviction Be Tied to Involuntary Manslaughter?

State of Ohio v. Jeremy Crawford, Case No. 2020-0797
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can a conviction for having a weapon under disability serve as the underlying offense to involuntary manslaughter if the reason for the disability is not related to the cause of death?

BACKGROUND:
In August 2018, Larissa Yanetta and her niece, Cassandra Yanetta, went out to drink at several bars in Cleveland. While out, they saw their cousin, Gary Dickens, who joined them for drinks. When the bars closed, the three drove to the house of Chris Campbell. During the evening, Cassandra was communicating with her ex-boyfriend, Jeremy Crawford. Cassandra invited Crawford to Campbell’s home.

Crawford arrived with a friend, who was later identified as Anthony Barnes. At the house, Larissa and Crawford began to argue. As the arguments escalated among several of the people in the house, Campbell ordered them to take the argument outside. Outside, Crawford took out a gun and fired shots into the air. As Dickens was attempting to get into the passenger seat of Larissa’s car, he was shot. Larissa drove Dickens to MetroHealth Hospital, where he died.

After interviewing the witnesses and investigating the crime scene, Cleveland police were unable to determine if Crawford, Barnes, or someone else shot Dickens. Crawford denied shooting Dickens.

Gun Owner Convicted
Crawford was indicted on four counts related to Dickens’ death. He was charged with murder, discharge of a firearm near a premises, having a weapon under disability, and involuntary manslaughter for causing a death as a proximate result of having a weapon under disability. Crawford had a previous conviction for attempted drug possession that made him ineligible to possess a gun.

A jury found Crawford not guilty of murder, but guilty of the other three charges. He was sentenced to 10 years in prison for involuntary manslaughter with three additional years for a firearm specification.

Crawford appealed his conviction to the Eighth District Court of Appeals, arguing that the crime of having a weapon under disability generally cannot be the predicate offense to be convicted of involuntary manslaughter. The Eighth District affirmed the trial court’s decision.

Crawford appealed to the Supreme Court, which agreed to hear the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Crimes Must Be Linked for Conviction, Offender Argues
Crawford doesn’t dispute that he was properly convicted of having a weapon under disability, and notes the disability is related to his previous conviction of attempted drug possession. He claims the Eighth District mistakenly examined only half of the weapons under disability statute, which is before determining that Dickens’ death was the proximate result of Crawford’s possession of the gun. Citing the Eighth District’s decision, Crawford states that to be convicted of involuntary manslaughter, the state must prove “the consequences of his conduct are direct, normal, and reasonably inevitable when viewed in the light of ordinary experiences.”

Crawford “did knowingly acquire, have, carry, or use” a weapon, which the Eighth District found to be a violation of the weapons under disability law. But Crawford argues his conviction isn’t strictly for having or using a weapon, but for having the weapon because of prior drug possession. To use his conviction as the underlying offense for Dickens’ death, the prosecution had to prove that the disability due to the drug offense was related to the cause of death. There was no discussion or evidence in the case that drug possession had anything to do with Dickens’ death by gunshot wounds, so there is no relationship between the two crimes, he explains.

Crawford maintains it is unlikely a weapons under disability conviction could be used as the underlying crime for an involuntary manslaughter conviction, but there are circumstances where it could be.

In one of his briefs presented to the Court, he makes this analogy: Suppose Jones and his business rival Smith got into a fight, and Jones was convicted of felonious assault. If Jones got out of prison and acquired a gun, he would be in violation of his weapons disability related to assaulting Smith. If he sought out Smith, and the two got into a fight, and Smith dies because Jones’ gun went off, then Smith’s death would be proximate result of Jones having a weapon under a disability. But in a typical case where the reason for the disability is unrelated to the death, the weapons disability conviction can’t serve as the offense to convict for involuntary manslaughter, Crawford concludes.

Committing Felony Made Offender Responsible for Death, Prosecutor Argues
The Cuyahoga County Prosecutor’s Office notes that under R.C. 2903.04(A), no person shall cause the death of another as a “proximate result of the offender’s committing or attempting to commit a felony.” The words “proximate result” in the law relates to the theory of proximate cause, the prosecutor notes. The theory is premised on when a person sets in motion a sequence of events where the foreseeable consequences of the person’s actions should be known and the person is responsible for any crimes resulting from those events, the office explains.

Crawford doesn’t dispute he had a prior conviction and was properly charged with having a weapon under disability. He admits to firing a gun in the air in the midst of an escalating argument just prior to when Dickens was shot. For the weapon-under-disability charge to be the predicate offense for involuntary manslaughter, Dickens’ death must have been reasonably anticipated by a reasonable person to be the likely result under similar circumstances, the office explains. The jury concluded that Crawford’s discharge of a gun in the midst of an escalating arguments among a group of clearly intoxicated persons resulted in Dickens’ death, the prosecutor argues, and the conviction was appropriate.

Attorney General Supports Conviction
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the prosecutor’s position, and the prosecutor’s office agreed to split its oral argument time with the attorney general. The attorney general argues the law permits the use of “any” felony to be the predicate offense for an involuntary manslaughter conviction and a convicted felon who uses or possesses a gun can be convicted.

The attorney general’s brief maintains that Crawford is arguing that the “felon-in-possession” law can be used only if the basis of the original felony is also the reason for the cause of the death. The law doesn’t require that, the office argues, and only requires the commission of a felony be related to the death. When a defendant causes someone’s death through violating the felon-in-possession law, that meets all the elements for an involuntary manslaughter conviction under R.C. 2903.04(A), the attorney general argues. Crawford meets the test, and his conviction should be affirmed, the office concludes.

Dan Trevas

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

Contacts
Representing Jeremy Crawford: Jeffrey Gamso, 216.443.7583

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Gregory Ochocki, 216.443.7800

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Cleveland Attorney Accused of Incompetent Representation and Dishonesty

Ohio State Bar Association v. Harvey B. Bruner, Case No. 2020-1533
Cuyahoga County

Harvey Bruner, a criminal defense attorney in Cleveland, is facing a proposed two-year suspension for failing to provide competent legal representation, failing to explain to clients what legal services he would provide for his fee, and not keeping proper records of his work.

The Ohio State Bar Association (OSBA), which investigated the allegations, and Bruner had agreed that he violated several rules governing the conduct of Ohio attorneys and to dismiss other alleged rule violations. Bruner and the OSBA settled on a recommended suspension of two years with one year stayed and restitution for two clients. However, the panel of the Ohio Board of Professional Conduct that heard the disciplinary case reinstituted a dismissed rule violation related to two clients, finding that Bruner’s conduct involved fraud, dishonesty, deceit, or misrepresentation.

The board adopted the panel’s recommendations, but Bruner objects to them. Given the attorney’s objections, the Ohio Supreme Court will hear the case during oral arguments, which will be held by videoconference because of the COVID-19 health crisis. The Court’s session will be livestreamed.

Attorney Doesn’t Explain Legal Work He Will Do, Produces Suspicious Invoices
The professional misconduct allegations against Bruner involve six clients whom he represented between 2012 and 2017.

In March 2016, Carlos Ortega Sr. and Rosa Ortega hired Bruner to look into possible postconviction legal avenues for their son, who was serving a 27-year prison sentence. Bruner told the Ortegas his fee would be $5,000 with $2,500 due at that time, which they paid. There was no written fee agreement. The Ortegas believed that Bruner didn’t perform the services listed in a later invoice or that the dates were wrong. Bruner and the OSBA agreed that he didn’t communicate the scope of his legal representation to the Ortegas and didn’t keep the required records of his work on the case.

Bruner said he was hired by Mary Walton in early 2016 to explore postconviction options for her son. Walton paid Bruner $3,000. She later submitted a grievance against Bruner, and he and the OSBA agreed that he didn’t explain the scope of his representation to her and didn’t maintain the necessary records.

Bruner and the OSBA also stipulated that he didn’t provide competent representation to two other clients and didn’t keep required records. In one case, Bruner charged a client $1,500 to file a motion to withdraw his guilty plea, but a court had denied the same request weeks earlier. Bruner told another client he was eligible for judicial release from prison. However, the man wasn’t eligible for release because his sentence was mandatory.

In addition, the bar association and Bruner stipulated that he threatened a client, which adversely reflected on his fitness to practice law, and that he didn’t disclose a material fact in a disciplinary investigation about different client’s case.

Board Reevaluates Attorney’s Dishonesty and Misrepresentations
The professional conduct board’s panel noted that Bruner’s invoice in the Ortega case stated he completed work on certain dates, and then he later revised those dates twice. In the Walton matter, the attorney charged Walton for visits and travel time to see her son at the Ohio State Penitentiary in Youngstown on two dates that couldn’t be confirmed by Ohio Department of Rehabilitation and Corrections (DRC) records, the board report states.

Although the parties agreed to dismiss allegations that Bruner’s conduct in the Ortega and Walton cases involved fraud, dishonesty, deceit, or misrepresentation in these matters, the panel disagreed. The panel gave Bruner the opportunity to present evidence related to these allegations, but he chose not to proceed.

The board agreed that prior discipline, a pattern of misconduct, multiple offenses, vulnerability of the victims, and failing to make restitution to the Ortegas and Walton were aggravating factors. The board report states the panel concluded that Bruner’s dishonesty was another aggravating factor. The panel declined to accept a lack of a dishonest motive and a cooperative attitude toward the disciplinary proceedings as mitigating circumstances.

The board adopted the panel’s findings and recommendation that Bruner be suspended for two years and required to pay $1,250 to the Ortegas and $1,500 to Walton.

Attorney Wants Court to Stick with Stipulated Misconduct and Suspension
Bruner contests the additional rule violations adopted by the board in the Ortega and Walton matters. He maintains that DRC records found later show that he visited the penitentiary to see Walton’s son, although on a different date than he had stated. He also argues that a $1,500 fee to review the Ortegas’ son’s file – which was 953 pages – wasn’t excessive. He contends that his due process rights have been violated, contending he was prevented from presenting evidence at the disciplinary hearing to counter the additional rule violations.

He asks the Court either to accept the violations and sanction initially agreed to by him and the OSBA or to send the disciplinary case back to the board for a full hearing on the Ortega and Walton issues.

Bar Association Describes Pattern of Misconduct, Supports Elevated Sanction
The OSBA notes that Bruner was originally charged with violations involving fraud, dishonesty, deceit, or misrepresentation in the Ortega and Walton cases. Facts were provided in the bar association’s complaint to support those charges, it states. Although those violations were dismissed as part of the stipulations between the parties, Bruner was given fair notice of those allegations of misconduct at the time of the complaint, meeting due process standards, the OSBA argues.

The bar association re-emphasizes that Bruner misrepresented his time and services on the Ortegas’ invoice. The OSBA adds Bruner had no notes reflecting his supposed review of the lengthy case file and no documents were filed in any court to support his claim of his work on the case.

In the Walton matter, when it was later found that Bruner visited Walton’s son one time months before the dates on the invoice, the complaint was amended to acknowledge that the lawyer made a visit at a different time, the OSBA states.

The OSBA supports the board’s recommended two-year suspension, concluding that Bruner has demonstrated a pattern of unethical conduct and is a threat to the public.

Kathleen Maloney

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

Contacts
Representing Harvey B. Bruner: Michael O’Shea, 216.241.0011

Representing the Ohio State Bar Association: James Manken, 614.644.9110

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