Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Jan. 26, 2022

Cynthia Clawson v. Heights Chiropractic Physicians, LLC, et al. , Case no. 2020-1574
Second District Court of Appeals (Montgomery County)

State of Ohio v. Shannon Kidd, Case no. 2021-0026
Eighth District Court of Appeals (Cuyahoga County)

Doreen Barrow, et al. v. Village of New Miami, Case no. 2021-0151
Twelfth District Court of Appeals (Butler County)

Michael P. French et al. v. Ascent Resources - Utica, LLC., Case no. 2021-0166
Seventh District Court of Appeals (Jefferson County)

Can Medical Practice Be Sued for Malpractice if Physician Dismissed from Case?

Cynthia Clawson v. Heights Chiropractic Physicians LLC, Case No. 2020-1574
Second District Court of Appeals (Montgomery County)

ISSUE: Once a physician’s liability in a malpractice lawsuit has been extinguished, must a claim of liability against the employer also be extinguished?

Cynthia Clawson was a patient at Heights Chiropractic Physicians. She normally was treated by Dr. Charles Lee, but in November 2014 she was treated by Dr. Donald Bisesi, a chiropractor and employee of Heights Chiropractic. Clawson claimed that during her treatment, Bisesi ruptured her breast implant while apply pressure to her back when she was face down on a table.

Clawson initially filed a malpractice lawsuit in Montgomery County Common Pleas Court against Heights, Bisesi, and Lee in April 2016. She then voluntarily dismissed her case in September 2017 and refiled it against just Heights and Bisesi in August 2018.

Patient Unable to Locate Doctor
In August 2018, Clawson requested that the clerk of court serve the lawsuit on Bisesi by Federal Express to an address in Melbourne, Florida. Ten days later, the envelope was returned marked “unsuccessful” and “customer not available.” In October, Clawson again requested that the clerk serve Bisesi at the same Melbourne address. This time it was signed by “B. Kanapill.” Clawson made no other attempt to serve Bisesi.

Bisesi became aware of the lawsuit and responded, denying he was negligent in his treatment of Clawson. He asked the trial court to dismiss him from the case because Clawson failed to properly serve him with notice of the lawsuit within the statute of limitations. He told the court he moved from the Melbourne residence where the lawsuit was mailed in June 2018 and had no idea who B. Kanapill was. Clawson argued that her attorney’s office established the Melbourne residence as Bisesi’s last known address and that he should remain part of the case.

The trial court dismissed Bisesi from the case in September 2019.

Weeks later, Heights argued that Clawson’s case against the office was based on the theory of respondeat superior, also known as vicarious liability. Since Bisesi could no longer be found liable for malpractice after his dismissal from the case, Heights, as his employer, could no longer be held liable, the company argued.

The trial court dismissed the case against Heights.

Clawson appealed the decision to dismiss Heights to the Second District Court of Appeals. The Second District reversed the trial court’s decision and ruled that Clawson could continue her case against Heights without Bisesi as a party.

Heights appealed to the Ohio Supreme Court, which agreed to hear the case.

Employers Can’t Be Sued for Malpractice, Doctor’s Office Argues
Heights asks the Supreme Court to extend a 2009 decision regarding lawyers to apply to physicians, which includes chiropractors. In Nat’l Union Fire Insurance Company v. Wuerth, the Court ruled an employer of a professionally licensed employee can only be held vicariously liable for malpractice if the professional employee can be held liable.

Under a vicarious liability claim, an injured person can sue the employee, the employer, or both, Heights explains, and that makes sense in most cases because the employer has the right to control the activities of the employee. However, Ohio courts have recognized an exception for professional malpractice. Only doctors and lawyers can be sued for malpractice, Heights explains, because the licensing authorities in Ohio require these two classes of licensed employees to use their independent judgment. The employer of a doctor or lawyer doesn’t have the right to control how these professionals carry out their duties, and the employer cannot be directly sued for malpractice, the doctor’s office asserts.

Once Bisesi was dismissed from the case, he could no longer be found legally responsible for Clawson’s injuries. Since Bisesi couldn’t be held liable, his employer has no liability, Heights argues. The doctor’s office argues this interpretation applies only when an injured client sues under the theory of respondeat superior, which is the only theory posed by Clawson. Heights maintains, though, that employers of physicians can still be sued for wrongful injury claims under other legal theories.

Claims Against Office Not Impacted by Court’s Prior Malpractice Decision, Patient Asserts
Clawson argues the Wuerth decision isn’t relevant to the case. The Second District concluded the same, Clawson notes. She maintains Ohio courts have routinely treated doctors like other employees and allowed the employer to be sued, even if the injured patient declines to sue the doctor.

Clawson notes that even though Bisesi has been dismissed from the case and can’t be held liable, to win her case she is still required to prove that he was negligent while a Heights employee. If she establishes the chiropractor was negligent, then she has the right to seek damages from his employer, she concludes.

Friend-of-Court Briefs Submitted
An amicus curiae brief supporting Heights’ position was submitted jointly by the following organizations:

 The Ohio Association for Justice filed an amicus brief supporting Clawson.

Dan Trevas

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

Representing Cynthia Clawson: Patrick Conboy, 937.237.94850

Representing Heights Chiropractic Physicians LLC et al.: Charles Davis, 513.721.4500

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Is Delayed Appeal of Alleged Sentencing Error Allowed?

State of Ohio v. Shannon Kidd, Case No. 2021-0026
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Should a court of appeals permit an appeal filed after the standard deadline if a trial court’s sentence is outside of the range set by the General Assembly and there isn’t another available remedy?

In January 1996, Mary Jo Pesho walked out of the Parmatown Mall to retrieve her van while her children waited inside the mall. Pesho was abducted, robbed, raped, and shot to death. Her remains and burned-out van were found two days later at a Cleveland rapid-transit station.

Shannon Kidd, who was 17 at the time of the crimes, took a plea deal in the case and testified against his co-defendant, Mark DiMarco. In the agreement Kidd signed in 1998, he pled guilty to aggravated murder, kidnapping, rape, robbery, and other offenses.

The trial court sentenced Kidd in June 1998 to 20 years to life in prison for aggravated murder and another 10 years for kidnapping and 10 years for rape, totaling 40 years to life. The court imposed the sentences for the other crimes concurrently to the 40-year-to-life term.

Man Believed Parole Would Be Possible After He Served 14 Years
Kidd states that he was told he would be sentenced to 20 years to life if he cooperated with detectives and testified against DiMarco. His understanding was he would be eligible for parole after serving 14 years, and, based on that information, he didn’t file a direct appeal within the 30-day deadline. He indicates he discovered in 2011 or 2012 that his sentence was 40 years to life.

In 2020, he contacted the Ohio Public Defender’s Office, which filed a motion in the Eighth District Court of Appeals asking to file a delayed appeal. In a one-sentence entry, the Eighth District denied his request and dismissed his appeal.

Kidd appealed to the Ohio Supreme Court, which agreed to review the issue.

Man Argues Delayed Appeal Is Only Path Available to Fix Sentence
Kidd maintains he was wrongly sentenced under a law that went into effect six months after the crimes were committed. Based on the law at the time of the offenses, he would be eligible to be considered for parole after serving 14 years, he contends.

Sentencing mistakes sometimes are discovered after the 30-day window for filing a direct appeal has expired, he notes. When this happens, Kidd’s brief to the Court states, the only remedy in Ohio is to ask an appellate court for permission, or “leave,” to file a delayed appeal. He maintains he didn’t read the plea agreement when he was sentenced at the age of 19 and wasn’t aware of his right to appeal.

He notes he pursued his request for a delayed appeal after the Ohio Supreme Court decided State v. Henderson in October 2020. The ruling stated that neither the state nor a defendant can challenge a sentencing error through a different legal avenue – a postconviction motion – leaving him only the delayed-appeal path to correct his sentence.

State Contends 2021 Law Makes This Appeal Unnecessary
The Cuyahoga County Prosecutor’s Office disputes Kidd’s calculations of when he is eligible for possible parole under either the law in effect at the time of the crimes or the law when he was sentenced. Under the law in January 1996, Kidd wouldn’t be eligible for parole until he serves 34 years, the office maintains.

The prosecutor also points out that legislation enacted in 2021 offers an alternative for Kidd and others serving a prison sentence for homicide offenses committed as a juvenile. The law states that a prisoner in this situation is eligible for parole after serving 25 years. The prosecutor notes that it has received notice of a January 2022 parole hearing for Kidd. Because this appeal is no longer an issue of great general or public interest, it should be dismissed as improvidently accepted, the prosecutor argues.

The prosecutor maintains that Kidd didn’t offer a good reason for his 22-year delay in filing his request for an appeal. Kidd filed the request nine or 10 years after he says he learned in 2011 or 2012 of an issue with his sentence, the prosecutor states. He didn’t reach out to his attorneys at that time, and he filed nothing in court, the office indicates.

The prosecutor rejects Kidd’s assertion that he wasn’t advised of his right to appeal. The office maintains the claim is impossible to verify because the material to produce a trial court transcript was destroyed after 12 years, and courts at that time didn’t have to inform criminal defendants of this right. Allowing for appeals after such delay doesn’t further justice and instead undermines the finality of court judgments, the prosecutor concludes.

Kathleen Maloney

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

Representing Shannon Kidd from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Anthony Miranda, 216.443.7416

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Was Village’s Automated Speeding Ticket Hearing Process Fair to Motorists?

Doreen Barrow et al. v. Village of New Miami, Case No. 2021-0151
Twelfth District Court of Appeals (Butler County)

ISSUE: Did the village of New Miami violate the due process rights of recipients of speeding tickets received through the village’s automated speed enforcement program?

After New Miami law enforcement monitored traffic on State Route 127 within the village, the police chief recommended the village adopt an automated speed enforcement program (ASEP). The village council passed an ordinance in July 2012 to implement an ASEP and contracted with OptoTraffic of Maryland to install and set up the program. The automatic cameras and speed detectors were set to issue a “notice of liability” to any motorist photographed as traveling above 46 miles per hour on a section of Route 127 where the posted speed limit was 35 mph.

Over the course of 20 months, more than 31,000 notices were sent to vehicle owners, who could pay the $95 fine or contest the violation through an administrative hearing conducted by the village. The contract with OptoTraffic allowed the company to keep 40% of the fines collected. During the 20 months of operation, about $3 million in fines were paid, of which about $1.8 million went to the village and $1.2 million to OptoTraffic.

Of all those who contested the notices, approximately 113 recipients were found liable after the hearing. The net amount collected from those violations amounted to $10,728.”

In 2013, a group of ticketed motorists filed a class action lawsuit in Butler County Common Pleas Court seeking to declare New Miami’s ASEP unconstitutional and requesting refunds of the citations paid. The trial court granted an injunction that stopped the village from using the ASEP in March 2014 and permitted the motorists’ case to move forward.

Village Attempts to Block Lawsuit
The village twice appealed attempts by the class to move forward with their case, arguing the class was improperly certified, and the village was immune from this type of civil lawsuit. After the Twelfth District Court of Appeals rejected the village’s procedural claims, the trial court determined the village had violated the vehicle owners’ due process rights and was unjustly enriched. The trial court directed the village to repay the ticket recipients $3 million over 10 years.

The village never resumed the ASEP after the trial court blocked its operation in 2014. As New Miami’s third appeal of the trial court’s ruling was pending in the Twelfth District, state lawmakers enacted legislation giving municipal courts exclusive jurisdiction over civil actions regarding traffic laws. The new law effectively ended all administrative hearings on automated speeding tickets and redlight traffic violations operated by cities and villages across the state.

In October 2020, the Twelfth District raised concerns about the fairness of New Miami’s administrative hearing process, but the court ultimately ruled the vehicle owners failed to prove the appeals procedure violated their due process rights. The Twelfth District reversed the trial court’s ruling.

Doreen Barrow and other ticket recipients who are the lead plaintiffs in the class action appealed to the Ohio Supreme Court, which agreed to hear the case.

‘Sham’ Hearings Unfair, Costly to Appeal, Vehicle Owners Argue
While acknowledging the New Miami hearing process cannot be revived for speeding tickets, the vehicle owners maintain it’s still important for the Supreme Court to address the procedure because it may return in some future form as municipalities seek to gain revenues from fines. While the Court has already ruled that administrative hearing procedures used for ASEPs by other cities such as Dayton and Toledo were fair, the class argues the New Miami program is a “sham” because it has additional limits that violate due process rights.

The class members maintain the village’s only evidence of the traffic violations is hearsay because it relies on two still photographs of a vehicle and its license plates to allege the motorists were exceeding the speed limit. The ticket is sent to the vehicle owner, who can argue another person was driving, the vehicle was stolen, the vehicle was loaned to someone else, or the photo is too blurry to identify the speeder. The vehicle owner doesn’t have the right to subpoena any witness from the village or OptoTraffic to verify the monitors were accurate or functioning properly on the day the ticket was issued, the class members assert. The class members argue the only way the Twelfth District found the procedure wasn’t a violation of the vehicle owners’ due process rights is that the village allows an appeal of the administrative hearing to the common pleas court, where a ticket recipient can subpoena OptoTraffic or village witnesses and cross-examine them.

The class members acknowledge that under the U.S. Supreme Court’s 1976 Mathews v. Eldridge decision, an administrative hearing procedure doesn’t have to follow the same due process procedures as a court of law. However, Mathews acknowledges that due process is “flexible” and sets up a test that weighs what a private citizen stands to lose if denied due process compared to what additional burdens are placed on the government to ensure the process is fair. Both parties note that the Mathews test is used throughout the nation to determine if an administrative proceeding provides the appropriate due process.

In New Miami, the vehicle owners face fines up to $205, and the village has collected $3 million from motorists, which is a substantial burden, the class members argue. In exchange, it would be relatively easy for a village representative or OptoTraffic member to appear at a hearing and explain how the machine’s accuracy is ensured, they note.

The class members argue that while administrative appeal process doesn’t have to follow the strict rules of a court, it must afford a meaningful opportunity for the ticket recipient to fairly challenge the fine. The assertion that due process can be achieved by an appeal to the common pleas court isn’t adequate, noting that appealing to a court is costly in both money and time, the class members conclude.

Process Adequate and Constitutional, Village Argues
New Miami maintains its procedure is similar to ones conducted by other municipalities that have succeeded in court challenges, including Dayton and Trotwood. In those cases, as well as similar ASEP challenges around the nation, the courts have applied the Mathews test and found the hearings didn’t violate due process rights, the village argues. The village notes that courts have ruled fines ranging from $100 to $350 to be of a minimal burden to motorists considering the overall costs to maintain and drive a vehicle. The courts have also found it is a burden on local governments to require a police officer or official to appear at a hearing to verify the accuracy of an automated system.

The village also asserts that the Twelfth District ruled the administrative hearing process didn’t prevent the ticket recipients from producing their own evidence to refute the tickets, including providing the testimony of an expert who could generally refute the claim that the machines are accurate.

The village asserts that the notices aren’t hearsay. Even if the evidence was hearsay, it can be used in an administrative hearing as long as it is “reliable, probative, and substantial,” New Miami maintains. The tickets are sufficient to determine a violation, the village concludes.

Friend-of-the-Court Brief Submitted
The cities of Dayton and Toledo submitted a joint amicus curiae brief supporting New Miami’s position. The cities urge the Court to consider the appeal as improvidently allowed. The cities maintain that the 2019 revisions to R.C. 1901.20 have effectively ended the use of administrative hearings for civil traffic offenses and this case no longer presents a question of public or great general interest.

Dan Trevas

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

Representing Doreen Barrow et al.: Paul De Marco, 513.651.3700

Representing the Village of New Miami: James Englert, 513.381.9200

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Is Dispute Over Oil and Gas Lease Exempt from Arbitration?

Michael P. French et al. v. Ascent Resources - Utica LLC, Case No. 2021-0166
Seventh District Court of Appeals (Jefferson County)

ISSUE: Does Ohio’s arbitration law, which excludes from arbitration “controversies involving title to or possession of real estate,” apply to a landowner seeking a court judgment that title in the property’s oil and gas interest has reverted to the landowner because the lease has expired?

In 2007, the joint property owners of 175 acres in Jefferson County known as “Sutherland Farm” leased the oil and gas interests below the land to Mason Dixon Energy. The leases were transferred a few times to different companies, ultimately to Ascent Resources – Utica in 2015. The leases expired in 2017 unless Ascent met certain requirements, detailed in the lease agreements.

The landowners – Michael French, Karen French, Thomas Sutherland, Cynthia Sutherland, John Sutherland, Lloyd Boyd, and Mary Ann Boyd – sued in July 2018, arguing Ascent didn’t meet the lease requirements, so the leases expired. If the leases expired, ownership of the oil and gas interests reverted to the landowners. Ascent countered that the leases were still in effect.

Arbitration was a provision in the leases. Ascent asked the Jefferson County Common Pleas Court in February 2019 to stay the proceedings so an arbitration could be conducted. The court found, however, that the case involves “title to or possession of real estate.” Ohio law excludes these types of cases from arbitration.

Ascent appealed to the Seventh District Court of Appeals, which overturned the trial court, determining that the dispute isn’t about real estate title or possession.

The Sutherland Farm owners appealed to the Ohio Supreme Court, which accepted the case.

Landowners Argue This Lawsuit Exempt from Arbitration
Arbitration provisions in contracts are enforceable under Ohio law, but R.C. 2711.01 also states that “controversies involving the title to or the possession of real estate” are excluded from arbitration mandates in contracts. The landowners contend that they can’t be forced into arbitration because this case involves real estate title or possession. They maintain that their view is supported by Supreme Court decisions about leases of oil and gas rights under properties. In Chesapeake Exploration v. Buell (2015), the Court ruled that a recorded oil and gas lease is a title transaction and that a lease “affects the possession and custody of both the mineral and surface estates.”  

Ascent casts this a contract issue – whether its leases on the oil and gas interests automatically renewed because it met the contract’s terms for “commencing” drilling operations. The landowners don’t agree. They state that Ascent wasn’t required to take the steps to drill, but it instead could decide, without penalty, whether to do so. Because the company could choose what to do, this case doesn’t involve a breach of the contract, the landowners maintain. They argue the Court made this clear in Browne v. Artex Oil Co. (2019), which determined that a lawsuit claiming that mineral rights returned to a landowner because an oil and gas lease expired “is not an action upon a written contract; it is more akin to a quiet-title action.”

The lease’s expiration returning the oil and gas rights to the landowners, implicates title and possession, which triggers the arbitration exception, they argue. Based on Court precedent, this controversy is exempt from arbitration, the landowners conclude.

Arbitration Enforceable in This Contract Dispute, Company Asserts
According to Ascent, the arbitration exception applies to cases that directly affect real estate title or possession, but not to contract debates that have an indirect effect on title or possession.

“Why is this a problem? Because a broad interpretation of the R.C. 2711.01(B) exception would prohibit arbitration in most real estate disputes,” the company brief states. “The arbitrability exception would then swallow the pro-arbitration rule in the [Arbitration] Act as to real estate issues.”

Ascent maintains that neither Chesapeake Exploration nor Browne addressed the arbitration exception. In addition, the Court in Chesapeake ruled that a lease’s expiration that isn’t recorded (publicly documented) is not a title transaction, Ascent contends. It argues that the ruling undercuts, rather than supports, the landowners’ position. In Browne, the Court determined which statute of limitations applied in a certain context – an issue that doesn’t apply to this case, Ascent states.

Another Oil and Gas Company Submits Brief
Eric Petroleum, which operates 750 conventional wells in northeastern Ohio, filed an amicus curiae brief supporting the Sutherland Farm landowners. The company, which notes it is engaged in litigation against Ascent in Columbiana County, opposes arbitration clauses in oil and gas leases. Eric Petroleum argues that courts, not arbitrators, should continue to resolve these cases, for uniform decision-making and fairness to landowners, who are at a disadvantage against large oil and gas companies.

Kathleen Maloney

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

Representing the Sutherland Farm landowners: Joshua O’Farrell, 330.492.8717

Representing Ascent Resources – Utica LLC: Matthew Blickensderfer, 513.651.6162

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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