Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Jan. 25, 2022

Christina Cruz, et al. v. English Nanny & Governess School, et al. , Case no. 2020-1247
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Nigel J. Brunson , Case no. 2020-1505
Eighth District Court of Appeals (Cuyahoga County)

NASCAR Holdings, Inc., et al. v. Jeffrey A. McClain, Tax Commissioner of Ohio, et al., Case no. 2021-0578

Medina County Bar Association v. Russell Anthony Buzzelli, Case no. 2021-1233

Can Trial Court Award Additional Attorney Fees for Work on Appeal?

Christina Cruz et al. v. English Nanny & Governess School et al., Case No. 2020-1247
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When attorney fees are awarded as part of punitive damages in a civil case, does a trial court have the discretion to award additional fees for legal work done during the appeal of the case?

In 2011, Christina Cruz graduated from the English Nanny and Governess School. The Chagrin Falls-based nanny school also operates a job placement service. Heidi Kaiser was the placement director.

Kaiser sent Cruz to a weekend interview in Pennsylvania with a single father of two young daughters. During the trip, Cruz believed she witnessed an inappropriate sexual act between the father and his 9-year-old daughter. Cruz told Kaiser she felt she should report the suspected abuse to authorities.

Kaiser made the nanny school owners aware of the matter. Kaiser and Cruz stated in their brief that the owners had urged Cruz not to report the incident and maintained the school could be sued. After speaking to an instructor who specialized in child abuse, Cruz reported the abuse.

Cruz says because of the report, the school no longer arranged for job interviews for her. Kaiser was fired.

Attorney Takes Case
Cruz signed a contingency fee agreement with attorney Peter Pattakos, who later joined the Chandra Law Firm. Cruz and Kaiser filed a lawsuit against the nanny school in late 2011.

The nanny school was successful in getting most of the claims dropped, except for two from Cruz, including the intentional infliction of emotional distress, and Kaiser’s wrongful termination claim. A trial was scheduled for March 2015 but resulted in a mistrial, and a second trial began in May 2015. After a 26-day trial, the jury found in favor of the women.

The jury awarded the women $392,750 in damages, of which $222,750 was for punitive damages. Because the jury granted punitive damages, Cruz’s attorneys could seek payment of attorney fees from the nanny school. At the time of the trial, Pattakos had left the Chandra Law Firm and started his own practice. The jury awarded Pattakos and the Chandra firm about $577,000 in fees.

The trial judge reduced the damages award to the women and reduced the fee award to Pattakos to $125,000, noting that the lawyer accepted the case on a contingency-fee basis. The trial judge eliminated the fee award to the Chandra firm.

Case Goes Through Two Appeals
Both of the women and the nanny school appealed to the Eighth District Court of Appeals. The school argued the verdict should be overturned. The women sought to reinstate the damages awarded by the jury. The Eighth District ruled the trial judge wrongly reduced the damages and the attorney fees, and remanded the case to the trial court.

A new trial court judge reinstated the damages award and granted Pattakos about $282,000 in attorney fees and $138,000 to the Chandra firm. The nanny school appealed again, arguing the attorney fees were unreasonable.

The Eighth District sided with the attorneys again, but ruled the trial judge improperly included fees that Pattakos charged for the appeal. The appeals court also said the Chandra firm should provide more details to demonstrate it earned the legal fees it was awarded.

Pattakos appealed the fee-award issue to the Ohio Supreme Court, which agreed to hear the case.

In Certain Cases, Appellate Attorney Fees Can Be Awarded, Attorney Argues
Citing the Ohio Supreme Court’s 2008 Klein v. Moutz decision, and decisions by the Fifth and Ninth District Courts of Appeals, the Eighth District found that a trial court doesn’t have the authority to award fees to compensate an attorney’s appellate work. The Klein decision noted the General Assembly has enacted certain state laws that permit the added fees for work on appeals, Pattakos explains. However, the appellate court has misread the Klein decision as a limit on when appellate fees can be awarded, he argues.

He points to the Court’s 1991 Bittner v. Tri-County Toyota, Inc. decision, in which the Court ruled the starting point for determining a reasonable fee is derived from the number of hours reasonably expended “on the litigation” multiplied by a reasonable hourly rate.

Pattakos argues that lawmakers didn’t limit attorney fees just to trial court work. He maintains the legislature has recognized common law rules in which the fees must be paid by the losing party. In his brief, Pattakos argues the law allows for a trial court to compensate an attorney for appellate work if the trial court finds by clear and convincing evidence the defendant injured the plaintiff; the action has a “great probability of causing substantial harm” to the plaintiff; and the plaintiff successfully defends the trial court verdict on appeal.

If an lawyer cannot seek attorney fees from the defendant seeking to overturn a trial court verdict, then it harms the injured victim’s ability to defend a judgment, Pattakos maintains. A defendant seeking to overturn the trial court could delay payment to the injured victim for years through appeals, while forcing the injured person to pay an attorney to defend the trial court’s judgment, he notes. His brief states there is “no reasonable basis” to limit the trial court to awarding fees for only the trial court part of the case.

Rules Limit Attorney Fees Awards, Nanny School Maintains
The Eighth District’s ruling that a trial court lacks jurisdiction to award attorney fees expended on an appeal is based on sound principles that exist in Ohio and courts across the nation, the nanny school argues.

The school notes the Fifth and Ninth Districts ruled in cases within two years of the Ohio Supreme Court’s Klein decision, affirming that attorney fee awards for appellate work are only allowed when a state law permits it. The school asserts any diversion from the traditional fee rules must come from the legislature, not the courts.

The nanny school points to the traditional “American Rule,” which requires each party in a lawsuit to pay its own attorney fees except in certain established circumstances. One exception is when a jury imposes punitive damages, as it did on the nanny school and its operators. But that imposition of fees is limited to the reasonable fees expended on the trial, and not for any post-trial work, the school argues.

The nanny school also maintains that neither the women nor their attorneys had any reasonable expectations they would receive attorney fees because the lawyers worked on a contingency-fee basis. The lawyers agreed to accept one-third of the amount the women won at trial, the school argues, and that is the only fee they are entitled regardless of how the case proceeds.

The school also asserts that the prospect of having to pay more legal fees to the opposition on appeal isn’t fair and acts as a deterrent to a defendant who has a legal right to challenge a trial court’s verdict. The school concludes that attorney fees for appellate work may be awarded only in cases where the law authorizes the fees, and that the Court shouldn’t extend the exception to other types of cases such as this one.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Pattakos’ position was submitted jointly by Cleveland Academy of Trial Attorneys, Ohio Association for Justice, and 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 Christina Cruz et al.: Peter Pattakos, 330.836.8533

Representing English Nanny & Governess School et al.: Mark Novak, 216.406.5856

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Did Judge Impose Harsher Sentence Because Defendant Remained Silent at Trial?

State of Ohio v. Nigel J. Brunson, Case No. 2020-1505
Eighth District Court of Appeals (Cuyahoga County)


  • Does a trial court violate a defendant’s right to remain silent, under the U.S. and Ohio constitutions, if the court relies on that silence as a basis for imposing a life sentence without the possibility of parole?
  • Which is more important, a defendant’s right to confront an accuser or a witness’ right to protect conversations with an attorney?

On the evening of Oct. 24, 2016, three men held customers and employees at the Cooley Lounge in Cleveland at gunpoint. The men stole wallets and other items. A customer called 911. One of the men grabbed that customer’s cellphone and hit her in the head with his gun. During the events, bartender Melissa Brinker was taken to a back-office area and shot by one of the men. Brinker died of multiple gunshot wounds.

Nigel Brunson, Garry Lake, and three others were indicted on charges related to the Oct. 24 events. Lake, who said he was sleeping during the crimes in the getaway car driven by a co-defendant, became a witness for the Cuyahoga County prosecutor, testifying against the other defendants. As part of discovery in the joint trial, all defendants received an audio and video recording of statements Lake made to his attorney and a private investigator. Lake made the statements at a police interview but after police had been asked to leave the room.

Brunson’s attorney planned to cross-examine Lake about Lake’s conversation with his attorney. The prosecutor maintained that the recordings were released inadvertently. Determining that attorney-client privilege protected the statements, the trial court prohibited questioning about the content of the recordings.

The jury found Brunson guilty of multiple offenses, including aggravated murder, aggravated robbery, and felonious assault. In August 2018, the trial court sentenced Brunson, who was 19 at the time of the offenses, to life without the possibility of parole.

Judge Discusses Remorse With Defendant at Sentencing Hearing
Before sentencing, the judge spoke to Brunson about remorse, stating: “You killed her and you have no remorse. That’s what I don’t understand. You have no remorse. You don’t acknowledge what you did. The PSI [presentence investigation report], you don’t want to talk to them and tell them about anything that you did.”

After the sentence was imposed, Brunson’s attorney noted he had advised Brunson not to discuss his case with authorities during the presentence investigation, but to instead wait until he was in court to make any comments. The judge noted the clarification for the record, saying, “And so to the extent that you advised him not to speak to the probation officer, I will no longer include that as part of my sentencing or basis therefor.”

The judge added: “And he chose nonetheless not to speak this morning, not to allocute, not to acknowledge anything that he had done, not to express any kind of remorse to anyone in this courtroom, particularly the family and friends of Missy Brinker, who he shot very coldly ….”

Brunson appealed to the Eighth District Court of Appeals, which upheld his convictions and sentence. He appealed to the Ohio Supreme Court, which accepted the case.

Judge Indicated Silence During Trial Led to Life Without Parole, Man Maintains
Brunson argues it is unconstitutional for a court to sentence a defendant more harshly because the defendant exercised the right to remain silent – to not be a witness against oneself – during trial. He acknowledges that his sentence for these crimes included the possibility of life in prison. However, he maintains, he might have had the chance for parole with a less severe sentence. Given that he was 19 at the time of the crimes, “a parole date was no small matter to him,” his brief to the Supreme Court states.

Noting that he pled not guilty to the offenses, Brunson contends that the court made clear in its statements that it had concluded Brunson felt no remorse because he didn’t speak when offered the chance during sentencing. Silence, though, communicates neither remorse nor the lack of it, he maintains.

Judges Must Consider Lack of Remorse When Sentencing, State Argues
The Cuyahoga County Prosecutor’s Office responds that a ruling stating a trial court can never rely on a defendant’s silence as one reason for a life-without-parole sentence is impractical. Typically, it is impossible to tell whether a sentencing judge has used silence against a defendant, the prosecutor argues. In this case, the prosecutor maintains, the judge recognized that Brunson’s lawyer told him not to speak in the presentence investigation, demonstrating that the judge didn’t use Brunson’s silence in determining his sentence.

Also, Ohio law requires trial judges to consider several factors, including whether an offender shows genuine remorse, when determining a sentence, the prosecutor notes. Brunson’s position would eliminate the trial court’s statutory discretion to consider an offender’s remorse, the prosecutor concludes.

Right to Cross-Examine Witness Overcomes Attorney-Client Privilege, Man Maintains
Brunson contends that Garry Lake, who pled guilty to robbery in this case, was the prosecutor’s most important witness. Although the state claims the recording between Lake and his attorney was inadvertently recorded and released in discovery, Lake and his attorney did nothing to stop the recording’s release and didn’t take steps to retract the statements during the year between the disclosure and trial, Brunson maintains. Instead, Brunson argues, the assertion that Lake’s statements were protected by attorney-client privilege was raised only by the prosecutor and only on the first day of trial.

Attorney-client privilege in this scenario must give way to the right to confront witnesses, Brunson states. A defendant’s constitutional right in a criminal case to confront witnesses includes the right to cross-examine them. However, the trial court violated this right as well as his right to present a complete defense, Brunson argues.

Witness Was Questioned Extensively, State Argues
The prosecutor counters that Lake’s attorney-client privilege remained in place because he neither consented to waive the privilege nor voluntarily revealed his communications in a context that wasn’t privileged.

The prosecutor maintains that Brunson’s attorney cross-examined Lake at trial about whether he co-conspired to rob the lounge, what happened the evening of the robbery and murder, the details about his plea deal, and discrepancies between Lake’s official statement to police and his trial testimony. Brunson fully confronted this witness, the prosecutor argues. Regardless, Brunson hasn’t shown how the statements Lake made to his attorney would’ve changed the trial’s outcome, the prosecutor asserts.

Defense Lawyers and Attorney General Submit Arguments
The Ohio Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Brunson’s views.

The Ohio Attorney General’s Office submitted an amicus brief challenging Brunson’s arguments regarding his right to remain silent. The attorney general will share the 15 minutes allotted for argument with the Cuyahoga County prosecutor.

Kathleen Maloney

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

Representing Nigel J. Brunson from the Cuyahoga County Public Defender’s Office: Aaron Baker, 216.443.7583

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Tasha Forchione, 216.443.5771

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Does NASCAR Owe State Taxes for Races Broadcast in Ohio?

NASCAR Holdings Inc. v. Jeffrey A. McClain, tax commissioner of Ohio, Case No. 2021-0578
Ohio Board of Tax Appeals

ISSUE: Is a company not located in Ohio that licenses its intellectual property to other out-of-state companies that use the property rights to generate revenue in Ohio subject to the state’s commercial activity tax?

NASCAR Holdings is a Florida-based company that operates the National Association for Stock Car Racing, and sanctions stock car races throughout the United States and in foreign countries. NASCAR doesn’t broadcast races, sell merchandise, or operate a website covering its own motorsports activities. Instead, NASCAR licenses its intellectual property rights to other businesses to conduct those functions.

In 2012, the Ohio Department of Taxation notified NASCAR that it was conducting an audit of the company for the period of July 2005 to December 2010 to determine if it paid the proper amount of Ohio commercial activity tax (CAT). NASCAR maintained that except for presenting seven races in Ohio in its lower-tier competition levels, it didn’t conduct any revenue-producing activity in Ohio and owed no CAT. NASCAR noted that it sold the broadcasting rights to its races to New York-based Fox Broadcasting Company and licensed Georgia-based Turner to operate the website. A Maryland company was licensed to produce and sell merchandise using NASCAR trademarks and logos.

NASCAR stated it received at its Florida headquarters a flat fee for each of its licenses and that none of the license agreements required or prohibited the companies from using the intellectual property rights to conduct business in Ohio.

The tax department ruled, though, that under R.C. 5751.033(F) the broadcasting rights and use of NASCAR trademarks by the license recipients constituted commercial activity. Based on its calculations of the NASCAR fan base in Ohio and potential audience size, the department determined NASCAR owed about $328,000 in CAT for the five-year period and owed $56,000 in interest. In 2012, the department also imposed $164,000 in penalties for not paying the tax, for a total of $549,520.

NASCAR appealed to the Ohio Tax Commissioner, which affirmed the assessment. The company appealed to the Board of Tax Appeals (BTA) in 2015, and the BTA dismissed the case. The tax commissioner appealed to the Ohio Supreme Court, which reversed the dismissal, and the case became active again before the BTA in 2018. In 2021, the BTA affirmed the tax commissioner’s decision.

NASCAR appealed the BTA ruling to the Supreme Court, which was required to hear the case.

Revenues Not Based on Ohio Fans, Company Asserts
NASCAR makes several legal arguments, known as propositions of law, that claim the tax commissioner wrongly assessed the CAT. One argument is that in this circumstance, the imposition violated the commerce clause of the U.S. Constitution.

The central argument between the parties is where the receipt of revenue should be “sitused,” or located, for tax purposes. NASCAR argues that virtually all its revenues from broadcasting races and selling merchandise should be located in Florida and subject to Florida tax laws.

The revenues sought by Ohio primarily stem from the broadcast rights sold to Fox during that time. The company notes it allows businesses to broadcast races in more than 150 countries, but it doesn’t direct any company on where to use the broadcasting rights granted by NASCAR. NASCAR explains the way the business is transacted may require CAT payments by Fox, or the cable television companies and distributors Fox contracted with to broadcast races in Ohio.

NASCAR maintains the tax commissioner is overlooking a key provision of R.C. 5751.033(F), which states that when a buyer purchases intellectual property, the CAT is based on receipts “to the extent the receipts are based on the right to use the property in this state.” NASCAR argues the term “based on” implies additional revenues generated by the use of its broadcasting rights. It argues the company just received a flat fee from Fox that wasn’t “based on” whether races were broadcasted in Ohio. Fox and the television stations that broadcasted the races in Ohio may have earned additional money “based on” how popular the races were, but NASCAR didn’t, the company states. Because it received no benefit based on how its intellectual property was used in Ohio, it owes no CAT for selling the rights, the company concludes.

Company Attempted to Avoid Taxes, Commissioner Asserts
The tax commissioner asserts that NASCAR took the position in 2012 that taxing its broadcasting rights under the CAT was unconstitutional, and took the risk courts would affirm its position. The commissioner notes both the U.S. and Ohio Supreme Courts have subsequently upheld the CAT and similar state taxes on companies doing business over the internet and airwaves without having a physical presence in Ohio. The imposition of the CAT is reasonable and lawful, the commissioner maintains.

Pointing to R.C. 5751.033(F), the commissioner argues the CAT calculation was determined “based on” the use of the intellectual property by the broadcasters and merchandisers. Those companies paid a flat fee to NASCAR that was calculated on some formula, and that formula had to consider NASCAR’s huge fan base in Ohio, the commissioner argues.

Because NASCAR wouldn’t provide the tax department with figures on the size of its audience or revenues generated from Ohio, the department made its own estimates based on broadcasting industry estimates of the television audience. The law allows the department to make reasonable estimates when an assessment is contested, and the BTA affirmed the procedures the department used to estimate that NASCAR’s tax burden was reasonable, the commissioner concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting NASCAR’s position was submitted by the Ohio Chamber of Commerce.

Dan Trevas

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

Representing NASCAR Holdings Inc.: Jeremy Hayden, 513.381.2838

Representing Jeffrey A. McClain, tax commissioner of Ohio, from the Ohio Attorney General’s Office: Benjamin Flowers, 614.995.3753

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Medina County Attorney Opposes Proposed Suspension for Misconduct

Medina County Bar Association v. Russell A. Buzzelli, Case No. 2021-1233
Medina County

The Board of Professional Conduct recommends a two-year suspension for Wadsworth attorney Russell Buzzelli, concluding that he violated 18 attorney ethics rules.

Buzzelli objects only to the proposed sanction. He asks the Ohio Supreme Court to stay one year of the suspension. The Medina County Bar Association, which submitted the disciplinary complaint against Buzzelli, disagrees. The “extreme nature” of the attorney’s misconduct supports a suspension with no stay to protect the public, the association’s brief maintains.

Because Buzzelli objected to the board’s recommendation, the Supreme Court must hear oral argument in the case.

Client Helps Attorney with Office Work
Buzzelli states that Mary Beth Foster approached him in summer 2017 to represent her in a divorce. Foster began doing work at Buzzelli’s law office, but not as a paid employee, starting in fall 2017 until the late summer of 2018. During part of this time, Buzzelli was estranged from his wife and lived with Foster.

Foster answered the telephone, had an office key, and was in the office with clients. She had access to Buzzelli’s computer, client files, and bank accounts. Buzzelli provided no training or supervision to Foster.

Attorney Threatens Client, Commits Other Misconduct
In September 2018, Foster recorded part of a conversation she and Buzzelli had in his office. The attorney touched Foster against her will – which he referred to in the recording – and threatened to kill her. Buzzelli stated that he wanted to intimidate Foster because she had threatened to murder his wife. However, no evidence to support Buzzelli’s claim was admitted at his disciplinary hearing.

Buzzelli also acted as his wife’s attorney in filing a request for a civil stalking protection order against Foster. At the final hearing, Buzzelli cross-examined Foster using information he gathered while representing her in her cases.

Among his ethical violations, the professional conduct board found Buzzelli failed to take measures to ensure that Foster’s conduct in his law office abided by ethical rules; committed an illegal act – menacing – by threatening Foster; and used information obtained while representing Foster against her in a later legal matter.

The board also determined that Buzzelli neglected the case of a client who paid a $15,000 retainer to him to handle a divorce and then overcharged her, and that he didn’t act diligently while representing a client in the appeal of a conviction.

Professional Conduct Board Rejects Any Stay of Suspension
The board’s three-member panel that conducted the disciplinary hearing suggested a two-year suspension with six months stayed. However, the full board voted to recommend a two-year suspension with no stay, citing Buzzelli’s violence toward Foster and misrepresentations he made in a federal court filing for Foster.

The board recommends that the attorney pay restitution of $7,869 in the overcharging case within 60 days of the final order, pay the costs of the disciplinary proceedings, and complete six hours of legal education on sexual harassment and employee management.

Attorney Advocates for Partial Stay
Buzzelli states in his objections that he acknowledges his ethical misconduct and accepts the proposed conditions of a suspension. Noting his wife’s ongoing medical conditions, he maintains he and his wife are dependent on his ability to earn an income. He asks the Court to stay one year of his suspension, pointing to other similar disciplinary cases with lesser sanctions and stating he has had no other disciplinary actions in 34 years of practicing law.

Bar Association Argues Full Suspension Necessary
The bar association responds in its brief that Buzzelli “has not learned that his actions undermined his clients and the public.” It supports the board’s proposed sanction and conditions.

Kathleen Maloney

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

Representing Russell A. Buzzelli: Peter Cahoon, 330.455.6112

Representing Medina County Bar Association: Patricia Walker, 330.722.5567

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 aren’t part of the case record, and aren’t considered by the Court during its deliberations.

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