Wednesday, Aug. 5, 2026
City of Akron v. David C. Stone, Case No. 2025-1384
Ninth District Court of Appeals (Summit County)
State of Ohio v. Cody Wahl and Gail Henry, Case No. 2025-1439
Sixth District Court of Appeals (Wood County)
Republic Services of Ohio Transportation LLC v. Patricia Harris, tax commissioner of Ohio, Case No. 2025-1451
Ohio Board of Tax Appeals
David Dornette v. Green Building Consulting LLC and Redknot Holding LLC., Case No. 2025-1637
First District Court of Appeals (Hamilton County)
Can Court Order Gun Forfeiture if Not Included in Indictment?
City of Akron v. David C. Stone, Case No. 2025-1384
Ninth District Court of Appeals (Summit County)
ISSUES:
- Does a trial court have the right to order the forfeiture of property if the government failed to file a forfeiture specification with the criminal charge?
- Does a local court rule limiting requests for all appellate court judges in a district to consider an appeals court panel decision violate the Ohio Constitution?
BACKGROUND:
In May 2024, David Stone and another driver were involved in a rear-end accident. The two then got into an argument in a retail business parking lot in Springfield Township, Summit County. Stone threw two punches, striking the other man in the face and head. Stone then threatened to kill the man with a gun.
Police intervened and arrested Stone. They searched his car and found a loaded handgun in a bag that was in the passenger seat. The city of Akron, which prosecutes cases for Springfield Township, charged Stone with two first-degree misdemeanors, aggravated menacing and assault, each punishable by up to 180 days in jail. Neither charge included any specification, particularly no forfeiture specifications.
Stone initially pleaded not guilty to both charges in Akron Municipal Court. After negotiations, Stone agreed to plead no contest to a minor misdemeanor disorderly conduct charge instead of aggravated menacing, and the assault charge would be dismissed.
The agreement also asked the trial court to find Stone guilty, have him pay a fine, complete an anger management course, and subject him to a “forfeiture hearing” for having a weapon. Stone pleaded no contest in August 2024, and shortly after, a magistrate conducted the forfeiture hearing.
At the hearing, the city argued that Stone used the firearm in the commission of the offense of aggravated menacing. The prosecutor stated that had the case gone to trial, the victim would have testified that Stone had threatened to shoot him with a gun. The firearm was properly seized and should remain in the police department’s possession, the city maintained.
Stone’s attorney argued there was no connection between the gun in a bag in Stone’s car and the altercation between the two men. No gun was brandished or revealed during the fight, and the victim had no knowledge that a gun existed until the incident was over. Stone’s attorney argued the gun should be returned to him.
The magistrate ruled the firearm was an “instrumentality” used in the crime of aggravated menacing, and it was also contraband, because it’s illegal to carry a loaded firearm in a vehicle. For both reasons, the gun was subject to forfeiture, and the police could keep it, the magistrate ruled. Stone appealed the magistrate’s decision to the trial court judge, arguing that neither the magistrate nor the trial court had the authority to order a forfeiture of the gun because the city’s complaint didn’t include a forfeiture specification.
The trial court rejected the argument and affirmed the magistrate’s decision. Stone appealed the decision to the Ninth District Court of Appeals, which affirmed the trial court’s decision. Stone requested that the Ninth District conduct an en banc review, maintaining the 3-0 decision by the panel of judges considering his appeal conflicted with a prior Ninth District opinion. The Ninth District panel refused to send the request to the rest of the appellate court, noting that since there are only five judges serving the Ninth District, the court’s local rules state that only 2-1 panel decisions can be considered by the full five-member appellate court.
Stone appealed to the Supreme Court of Ohio, asking it to both consider the forfeiture issue and the limit the Ninth District has placed on considering en banc appeals. The Supreme Court agreed to consider the case.
Court Couldn’t Order Forfeiture, Stone Asserts
Stone notes that Ohio courts have ruled that forfeitures aren’t favored, and the government must strictly comply with forfeiture laws. The General Assembly enacted the current forfeiture requirements, which appear in R.C. Chapter 2981. The law requires that the charging document in a criminal case must contain a forfeiture specification, he explains. It also requires the prosecution to prove by clear and convincing evidence that the property is either contraband involved in the offense, proceeds derived from the offense, or an instrumentality used to commit the offense.
A forfeiture hearing is the earliest opportunity a criminal defendant has to argue that the trial court has no authority to order a forfeiture, Stone notes. He argues the magistrate conflated Stone’s agreement to schedule a forfeiture hearing as part of his plea with agreeing that the municipal court actually had authority to order the forfeiture. He maintains this was his first opportunity to contest the process and to note that the charging documents didn't contain a forfeiture specification. He argues that neither the original charge nor the amended charge contained a forfeiture specification, which means the prosecutor failed to comply with the law.
Stone also argues that the gun wasn’t contraband used in the offense because the gun was in the car and played no role as either contraband or an instrumentality involved in the offense. He objects to the trial court’s conclusion that he waived the requirements that the city strictly comply with the law when he agreed to the hearing.
Refusal to Consider Appeal Unconstitutional, Stone Maintains
The Ninth District’s local rule on en banc consideration conflicts with the Ohio Rules of Appellate Procedure, making it unconstitutional, Stone asserts. The rules explain that an en banc decision is made by all full-time judges of an appellate district. The local rule assumes that a panel’s 3-0 decision means the majority of a five-member court has already ruled on the matter and wouldn’t change the outcome, Stone explains.
However, he argues the reason for en banc consideration is to determine if the current ruling conflicts with a prior ruling. Just because a panel hearing his case ruled 3-0 against him doesn’t mean all three panelists would agree the decision isn’t in conflict with a prior decision, he notes. And if considered by the whole five-member court, it is possible a judge who initially heard the appeal might see the case differently after conferring with all five judges in the district, he argues. The local rule should be modified to allow 3-0 decisions to be considered, he concludes.
Stone Trying to Back Out of Deal, Prosecutor Argues
The case isn’t about the municipal court’s authority, but rather the ability of a criminal defendant to back out of a plea agreement, the city prosecutor asserts. Stone engaged in negotiations with the prosecutor and bargained for an opportunity to enter a no contest plea. He was seeking to lower the charges to avoid civil liability to the victim. In those negotiations he refused to forfeit the gun, but then accepted an agreement to a forfeiture hearing, knowing the prosecution was seeking to retain his gun.
Stone can’t now argue that the prosecutor didn’t follow the procedural formalities, which left the court without authority to consider the matter. His argument that he would agree to a hearing but not allow the prosecution to make its forfeiture argument would render his plea deal meaningless, the city asserts. The trial court had jurisdiction to consider the matter and found that the gun was eligible for forfeiture, and the Supreme Court should affirm that decision, the prosecutor concludes.
En Banc Refusal Based on Facts, Not Rules, Prosecutor Adds
The prosecutor notes the Ninth District did point to its rule when rejecting Stone’s appeal, but also noted that Stone was wrong when arguing that it conflicted with a prior Ninth District decision. In its denial of his appeal, the Ninth District judges explained that the facts of the two cases were so different that there was no conflict in the resolutions. Whether the rule conforms with the statewide appellate rules doesn’t apply in Stone’s case, and its decision not to consider his appeal was warranted, the prosecutor concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Stone’s position was submitted by the Ohio Public Defender’s Office. The Ohio Association of Criminal Defense Lawyers also filed an amicus brief supporting Stone.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing David C. Stone: Joseph Shell, jshell@legaldefenders.org
Representing the City of Akron: Jaquenette Corgan, jcorgan@akronohio.gov
Does Reagan Tokes Act Apply to Findings of Insanity or Incompetence to Stand Trial?
State of Ohio v. Cody Wahl and Gail Henry, Case No. 2025-1439
Sixth District Court of Appeals (Wood County)
ISSUE: Does the maximum prison term imposed by the Reagan Tokes Law apply to the maximum prison term used for deciding the termination of a commitment for a defendant found incompetent to stand trial or not guilty by reason of insanity?
BACKGROUND:
Cody Wahl was indicted in July 2023 on counts of attempted murder, felonious assault, and domestic violence. The Wood County Common Pleas Court found Wahl not guilty by reason of insanity (NGRI). In November 2023, the trial court ordered his involuntary hospitalization and noted he was subject to the court’s jurisdiction for 11 years – the maximum time he could be sentenced to prison for the crimes.
In September 2022, Gail Henry was indicted in Wood County for felonious assault and domestic violence. In November 2023, the trial court found Henry wasn’t competent to stand trial. She was ordered to remain at a psychiatric hospital for up to eight years or until she was restored to competency.
In 2024, the trial court revised the orders in Wahl’s and Henry’s cases to impose longer periods of confinement based on the Reagan Tokes Act. The law requires courts to impose minimum and maximum prison terms for serious felonies. Based on the law, an offender is expected to be released once the minimum sentence is served, but the Ohio Department of Rehabilitation and Correction (DRC) can keep an offender incarcerated up to the maximum sentence for committing additional crimes or breaking rules. The trial court in these cases adjusted Wahl’s commitment period from 11 years to 16 ½ years and Henry’s commitment period from eight to 12 years.
Wahl and Henry each appealed the changes to their commitment periods. The Sixth District Court of Appeals consolidated the cases for review and upheld the trial court’s decisions in both. The Sixth District also determined that its ruling conflicted with a 2021 Eighth District Court of Appeals decision.
The Supreme Court of Ohio agreed to review the conflict between the appeals courts.
Statute Explains When Commitment Can Be Terminated
R.C. 2945.401 states that individuals who are committed for mental health reasons after being found NGRI or incompetent to stand trial are subject to the trial court’s jurisdiction until the final termination of their commitment. The final termination of a commitment occurs in certain circumstances, including:
“The expiration of the maximum prison term or term of imprisonment that the defendant or person could have received if the defendant or person had been convicted of the most serious offense with which the defendant or person is charged or in relation to which the defendant or person was found not guilty by reason of insanity[.]”
Tokes Sentencing Structure Applies to Those in Prison, Wahl and Henry Contend
Wahl and Henry argue that the Tokes sentencing structure applies only to people who are actually imprisoned, not committed to hospitals or mental health facilities. Individuals in prison and sentenced under Tokes can be kept there up to their maximum terms if DRC finds certain violations. Wahl and Henry note that the state cannot hold a person convicted of serious felonies in prison beyond their minimum term unless something else occurs, such as a violation of law or a rule, and DRC holds a hearing. The Tokes Act gives the DRC the authority to hold the person longer if it prevails with supporting evidence at a hearing.
Wahl and Henry maintain that they, however, are being subjected to a longer commitment based on no alleged violations, and they aren’t being given the same due process with a hearing. They also explain that a civil commitment is potentially indefinite. There is a separate process in R.C. 2945.401(A) to establish whether there is a need for further confinement, they note.
They contend in their brief that the Sixth District decision “short-circuits the additional acts, hearings, and findings required to exceed the ordinary statutory prison term under Reagan Tokes by simply imposing the Reagan Tokes maximum, without any distinction, or any consideration of the operation of the statutes themselves. In this context, it is worth considering that the Reagan Tokes provisions for extending the prison term beyond the presumptive release date only apply to ‘offenders’, which Appellants are not.”
Maximum Prison Time Same for Those Committed, State Counters
The Wood County Prosecutor’s Office notes that the Supreme Court in State v. Hacker (2023), which upheld the Reagan Tokes Act, explained that once a trial court imposes minimum and maximum prison terms, the offender’s sentence has been set. The prosecutor reiterates that under R.C. 2945.401, the final termination of a commitment occurs at “[t]he expiration of the maximum prison term or term of imprisonment that the defendant or person could have received if the defendant or person had been convicted of the most serious offense with which the defendant or person is charged or in relation to which the defendant or person was found not guilty by reason of insanity.”
The maximum prison term imposed under Tokes is certainly time that a person “could have received” had the person been convicted, the prosecutor maintains. That maximum prison term is what must be used to determine when a commitment can be terminated under the commitment statute, R.C. 2945.401, the prosecutor argues.
The prosecutor contends that the DRC’s authority to keep offenders in prison up to their maximum terms doesn’t change the meaning of “maximum prison time” as used in the commitment statute. The statute simply references the maximum prison time imposed by the trial court at sentencing, the prosecutor maintains. The maximum prison time mentioned in both the Tokes sentencing laws and the commitment statute have the same meaning, the prosecutor concludes.
State Attorney General Submits Brief, Will Argue Before Court
An amicus curiae brief supporting the Wood County prosecutor’s position was submitted by the Ohio Attorney General’s Office. The attorney general will also participate in oral argument, sharing time with the prosecutor.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Cody Wahl and Gail Henry: Michael Stahl, mstahl@stahlandstephenson.com
Representing the State of Ohio from the Wood County Prosecutor’s Office: Kristofer Kristofferson, kkristofferson@woodcountyohio.gov
Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov
Is Fuel That Powers Equipment on Waste Management Trucks Exempt From Sales Tax?
Republic Services of Ohio Transportation LLC v. Patricia Harris, tax commissioner of Ohio, Case No. 2025-1451
Ohio Board of Tax Appeals
ISSUE: To qualify for an exemption from sales taxes, is the fuel in a vehicle that is used for power takeoff equipment “attached to or incorporated in” the vehicle?
BACKGROUND:
Republic Services is the second largest provider of waste management and recycling in the United States. Republic Services of Ohio (RSO) Transportation is a transportation-only business that hauls waste and recyclables primarily in Ohio for affiliates of Republic Services. RSO Transportation serves commercial, industrial, and residential customers.
Trucks that RSO Transportation uses to move waste and recyclables are equipped with a power takeoff (PTO) system. The PTO equipment includes lift arms, rear-end loaders, front-end loaders, side loaders, compaction blades, and roll-off items. The equipment is attached to a truck and powered by the fuel in the truck engine. About 25% of the fuel is used for the PTO equipment.
Because RSO Transportation’s trucks are engaged in transportation for hire, state law allows for certain tax exemptions. The company filed claims with the Ohio tax commissioner for refunds of motor fuel excise taxes and sales taxes paid on diesel fuel purchases for the trucks. The appeal in this case involves the requests for refunds of sales taxes paid on fuel. The tax commissioner denied the company’s total request for $723,590 in refunds of fuel sales taxes paid from January 2018 through June 2018 and from September 2018 through September 2021.
RSO Transportation appealed the sales tax decisions to the Ohio Board of Tax Appeals (BTA), which consolidated the cases. In October 2025, the BTA upheld the tax commissioner’s decision denying sales tax refunds.
RSO Transportation appealed to the Supreme Court of Ohio, which must accept appeals of BTA decisions. Tax appeals are typically referred to a Supreme Court master commissioner for oral argument. However, RSO Transportation asked for oral argument before the justices, and the Supreme Court granted the request.
Trucking Company Argues Fuel Is Incorporated Into Vehicles
R.C. 5739.02 includes a sales tax exemption for the “repair, and maintenance of, parts for, or items attached to or incorporated in, motor vehicles” used in providing transportation for hire. The sales tax exemption for RSO Transportation was denied because the tax authorities concluded that the fuel used for the PTO equipment was not “attached to or incorporated in” the trucks.
RSO Transportation states that the BTA relied on definitions of “attach” and “incorporate” in Black’s Law Dictionary to rule that an item “must bind to or become part of the truck” to qualify for the exemption. The company contends that Black’s definitions of “incorporate” concern legal agreements, not fuel in trucks. More common meanings of the word are “to embody” or “to unite in or as one body,” the company maintains. It argues the PTO fuel is functionally incorporated into the trucks because the fuel is embodied in the vehicle, consumed by the vehicle to power the PTO equipment, and necessary for picking up and transporting waste and recyclables.
RSO Transportation notes that the tax authorities allow sales tax exemptions for oil, lubricants, and hydraulic fluids under the law. The company maintains that there is no distinction between those materials and fuel. Just like those fluids, the PTO fuel is consumed in the operation of the trucks and essential for operating the PTO equipment, the company argues.
Tax Commissioner Maintains That Fuel Doesn’t Bind to Trucks
The tax commissioner counters that the PTO fuel isn’t attached to or incorporated in the trucks. The fuel is a consumable substance that doesn’t temporarily or permanently bind to the trucks or their fuel tanks, the commissioner maintains. Nor does the fuel adhere to truck components, the commissioner adds. The commissioner instead describes the fuel as transient, being consumed by the trucks and refilled. Combustion of the fuel doesn’t transform it into a physical component of the truck, but rather converts the fuel into energy and other byproducts, the commissioner contends.
The commissioner also rejects the comparison of fuel to oil, lubricants, and hydraulic fluid.
“Republic’s attempt to draw a parallel between exempt industrial lubricants and fuel equally runs on empty,” the agency’s brief maintains.
Unlike fuel, those fluids “have an affinity for” clinging to the metal parts of the trucks, the commissioner argues. That characteristic binds them to the mechanical components that they lubricate, qualifying them for the sales tax exemption, the commissioner concludes.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Republic Services of Ohio Transportation LLC: Steven Dimengo, sdimengo@bdblaw.com
Representing Patricia Harris, Ohio tax commissioner, from the Ohio Attorney General’s Office: Raina Nahra Boulos, raina.nahraboulos@ohioago.gov
Can Court Award Attorney Fees to Builder Sued by Buyer After Settlement of Dispute?
David Dornette v. Green Building Consulting LLC and Redknot Holding LLC., Case No. 2025-1637
First District Court of Appeals (Hamilton County)
ISSUE: Does the American Rule, which requires each party to pay their own attorney fees, apply to a breach of a settlement?
BACKGROUND:
In September 2021, David Dornette contracted with Redknot Holdings, a custom homebuilder, to construct a residential property. The goal of the construction was to make the home meet the highest levels of LEED (Leadership in Energy and Environmental Design) certification for homes. As part of the process, Redknot contracted with Green Building Consulting to cover all registration fees and complete the documentation required for LEED certification.
Before the home was completed, Dornette and Redknot clashed over the quality of work being performed and the amount Dornette owed the builder. Under the terms of the construction contract, the parties were preparing to settle their differences through arbitration. The parties instead settled through mediation before the arbitration began. Green Consulting settled with Dornette separately and is no longer part of the case. The January 2024 settlement agreement with Redknot allowed the homebuilder to discontinue work on the home and Dornette to cease any further payment to the company. The settlement stated the agreement resolved all disputes “related to or arising from the contract, property, dispute, lien, and arbitration.”
Shortly after the settlement, Dornette requested that Redknot provide him with the LEED-related materials for the property. Redknot required Dornette to pay $6,700 for the documents. Dornette filed a lawsuit in Hamilton County Municipal Court against Redknot to obtain the documents. He argued the documents were of no value to the builder but important to him, specifically for tax purposes.
The two parties debated whether the case should be heard in municipal or common pleas court, and Redknot filed a counterclaim against Dornette. Ultimately, in November 2024, the municipal court granted summary judgment to Redknot. In a one-page order, the municipal court ruled Dornette breached the settlement agreement by filing a lawsuit against Redknot, and Dornette must pay Redknot’s attorney fees. Dornette appealed the decision to the First District Court of Appeals, arguing the settlement agreement didn’t prevent him from suing to get possession of the documents created for LEED certification. He also argued that the trial court wrongly awarded attorney fees.
The First District affirmed the trial court’s decision. Dornette appealed to the Supreme Court of Ohio, which agreed to consider the issue.
American Rule Prevents Attorney Fee Award, Homeowner Asserts
Dornette explained that Ohio follows the American Rule, rather than British common law, for the payment of attorney fees. Parties in a legal dispute are expected to pay their own attorney fees, but the American Rule has limited exceptions in which the losing party pays the winning party’s attorney fees.
Dornette notes that the First District has cited other Ohio appellate court cases that found that, in a breach of a settlement case, attorney fees are not “costs” or expenses as in a traditional lawsuit, but rather are compensatory damages for incurring legal costs after the parties agreed to settle. The First District’s opinion noted the Supreme Court of Ohio has not addressed the issue of whether a breach of a settlement is an exception to the American Rule.
Dornette argues there are three exceptions to the rule, and a breach of a settlement isn’t included. Parties pay their own attorney fees unless a statute creates a duty to pay the other party’s fees, when the losing party has acted in bad faith, or when the parties’ contract includes a provision shifting the fees to the party that loses a legal dispute. He maintains a settlement agreement is a contract and should be treated as any other contract. In a breach of contract case, each party is expected to pay their own legal costs, unless the court finds one of the three exceptions to the rule applies.
The General Assembly has created several exceptions to the rule through statutes and has allowed the winning party to recover attorney fees. However, the legislature hasn’t crafted a law allowing for attorney fees to be awarded in a breach of a settlement lawsuit, Dornette notes. The Court shouldn’t adopt lower court decisions allowing for fees and should only permit a fee award if the General Assembly acts to create the exception, he argues.
Redknot couldn’t prove it met any other exception to the rule, Dornette maintains. The homebuilder didn’t argue that Dornette acted in bad faith, and it didn’t seek to include a loser-pays provision in the settlement agreement. Redknot is a sophisticated business that would know how to craft a loser pay provision for a settlement agreement, Dornette notes.
He also argues that Redknot’s argument is that it is entitled to attorney fees just because he filed a lawsuit. Under Redknot’s logic, Dornette would have to pay Redknot’s fees even if he won the lawsuit, he asserts. This approach would make the concept of requiring a party to pay attorney fees for breaching a settlement by filing a lawsuit unworkable, he asserts.
Settlement Breach Justified Attorney Fee Award, Homebuilder Argues
In 2000, the Tenth District Court of Appeals issued its Shanker v. Columbus Warehouse Ltd. Partnership decision in which it explained why a party that breaches a settlement by filing an unsuccessful lawsuit should pay the winning party’s legal fees. Redknot argues that for 25 years, several Ohio courts have applied Shanker and awarded fees to those who defy settlement agreements.
Redknot explains settlement agreements differ from a typical contract. In a typical breach, for example, if a company contracts to sell a buyer widgets and doesn’t deliver them, the contract is breached. In that case, the subject of the breach is the failure to produce the widget, and attorney fees for pursuing a breach of contract lawsuit are “add-on” costs, Redknot suggests. A settlement agreement is a contract to end litigation. The benefit to each party is that there will be no more lawsuits or legal expenses, the company maintains. When Dornette sued Redknot, the agreement was breached, and the company expected that there would be no further legal costs, the company maintains. This is why in Shanker and the cases that followed, Ohio courts have considered attorney fees to be compensatory damages, the same as the damage caused by not providing a widget, and not as add-on costs that parties face in typical contract disputes, Redknot argues.
The settlement agreement between Dornette and Redknot allowed both parties to walk away from the contract. Dornette would owe no more money, and Redknot wouldn’t do any more work on his home, Redknot notes. Both parties agreed to drop all legal claims against each other, and Redknot agreed to release the lien it had placed on Dornette’s home to compel him to pay for the work. The essence of the agreement was to end all litigation, and the damage Redknot suffered when Dornette sued for the LEED materials was the attorney fees it paid to defend itself in court, the company argues. The awarding of attorney fees was appropriate, the company asserts. Because the fees were damages and not costs, the American Rule doesn’t come into play because the court was not shifting the fees to the losing party, the homebuilder 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 David Dornette: Aaron Herzig, aherzig@taftlaw
Representing Redknot Holdings LLC: Nicholas Schwander, ns@schwanlawfirm.com
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