Daily Court Reporter - News Supreme Court of Ohio heard oral arguments, including one whether a summary of an unrecorded call can preserve an appealable order
Supreme Court of Ohio heard oral arguments, including one whether a summary of an unrecorded call can preserve an appealable order
Dan Trevas, Supreme Court of Ohio
The Ohio Supreme Court heard four oral arguments on last week on Tuesday, May 16th, including one that considered whether the summary of an unrecorded call between an attorney and a judge can preserve an error for appeal.
The four cases to considered on Tuesday were streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.
Below is a summary of the four arguments heard on Tuesday. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the four cases available online at: http://www.courtnewsohio.gov/cases/previews/default.asp#.WJDE73-13x4
NWD 300 Spring LLC/Nationwide Realty Investors et al. v. Franklin County Board of Revision et al., Case no. 2016-0102
Ohio Board of Tax Appeals
Was the allocation appraisal method appropriate when valuing a downtown Columbus high-rise condominium for taxes?
To determine the tax value, did the Ohio Board of Tax Appeals unreasonably and unlawfully compare the property with others that were non-comparable uses and not in the same geographic or economic area?
Directly west of the location of the former Ohio State Penitentiary near downtown Columbus sits the North Bank Park Condominiums – a 20-story tower comprised of single-family units plus a five-story building with residential lofts and a parking garage. Nationwide Insurance Company developed the site through its subsidiary, Nationwide Realty Investors, which completed the 100-unit project in 2007.
The city of Columbus granted a 15-year property-tax abatement for improvements to the property, and the underlying land is subject to property taxes based on its value as if vacant. Up until 2011, the Franklin County auditor valued the land at $959,409. In an updated valuation for 2012-2014, the auditor reported the land value at $6,317,343.
For the 2013 tax year, 83 of the North Bank unit owners, including Thomas and Victoria Reidy and NWD 300 Spring LLC, filed complaints with the Franklin County Board of Revision, challenging the new tax valuation. Nationwide Realty arm NWD 300 Spring owned 15 of the unsold units at the time. In January 2015, the board of revision upheld the $6.3 million valuation for the North Bank land.
The residents appealed to the Ohio Board of Tax Appeals (BTA). They presented an appraisal valuing the land at $1.2 million, while the Columbus Board of Education, which intervened in the case, offered a $3.3 million appraisal. The BTA adopted the school board’s $3.3 million appraisal in December 2015.
The property owners appealed the decision to the Ohio Supreme Court, which must consider this type of case from the BTA.
Don Koprivec et al. v. Rails-To-Trials of Wayne County, Case no. 2016-0704
Ninth District Court of Appeals (Wayne County)
Is a claim of adverse possession of land because of lack of use for 21 years by the title owner valid if there is activity on the property by those with licenses to use it?
Does property granted to a railroad company revert back to the original landowners if the property is not used for railroad activity?
Three property owners in Wayne County claim they own a strip of land on or near their properties that was abandoned by a series of railroad companies, and that the principle of adverse possession gives them the right to block the current title owners from using the land to create a multi-use recreational trail.
In 2008, the non-profit Rails-to-Trails of Wayne County purchased a 66-feet wide strip of land eight miles long owned by Norfolk Southern Railway Company. It had purchased the railroad line from Consolidated Rail Corporation (Conrail). The property extended from the Summit County border to Orville in Wayne County.
Don and Carolyn Koprivec purchased about 64 acres abutting the unused railroad, referred to as the trail property, in 1981. In 1996, Brian and Laura Bilinovich purchased 129 acres that included a strip of the trail property running through it, and in 1998, Joseph and Michelle Koontz purchased 64 acres abutting the trail property. The Bilinovichs and Koontzs bought their property from Judith Wiley and her heirs. Wiley had been living on the land from 1941 until she sold it to the two families.
When Rails-to-Trails announced intentions to build a trail, the three families claimed they owned the land through “adverse possession” because they had been using it for at least 21 years without any interference from the railroad companies. The Bilinovichs and Koontzs reach the 21-year point by counting some of the time that Wiley owned the property and her use of it without any interference from the railroad.
Rails-to-Trials and the railroad companies dispute the exclusivity claim. Conrail noted it began to abandon the railroad line in 1987, but granted Sprint a license to install and maintain an underground fiber optic communications line along the south side of the tracks. Later that year, AT&T was granted similar permission to install a line under the north side. Conrail and Norfolk Southern entered into license agreements with Sprint and AT&T in 1991 and 1995 that allowed for continual maintenance of the lines and the property, and both agreements were filed in Wayne County’s real property records.
The two telephone companies made periodic upgrades and cleared brush with the last clearing project done by AT&T in 2007. The railroad also indicated the railroad property manager visited the area at least four times during the mid-1990s and early 2000s, with at least once telling Wiley not to trespass on the trail property, and on another occasion meeting with Brian Bilinovich to discuss selling the trail property that intersected his land.
Families Sue to Obtain Land
In 2011, the three families filed suit against Rails-to-Trails in Wayne County Common Pleas Court seeking to quiet the title to their land based on adverse possession. Rails-to-Trails filed a counterclaim to quiet title on its behalf and to sue the three families for trespassing.
The trial court pointed to the activities of Sprint and AT&T and found them to be evidence that interrupted the claim of exclusive use by the families. Without exclusive use, the families couldn’t claim adverse possession, the trial court reasoned, and deemed Rails-to-Trials the property owner. The families appealed to the Ninth District Court of Appeals.
The Ninth District reversed the trial court’s decision, finding that only two types of entities can claim to enter the land and defeat adverse possession – the “true title owners,” which would have been the railroad companies, or third persons with either their own claims to the title or permission to be on the premises by the land owner. The Ninth District cited the Sixth District Court of Appeals’ 2006 Cronin v. Standish decision, which found utility workers on the land to install underground utilities aren’t included in the definition of those having permission to be on the land. The Ninth District reasoned the telephone companies aren’t on the premises to possess the surface property, but only accessing property underground.
Rails-to-Trails appealed the Ninth District decision to the Supreme Court, which agreed to hear the case.
Lorain County Bar Association v. Kenneth Allen Nelson II, Case no. 2016-1830
The Board of Professional Conduct is recommending a two-year suspension with 18 months stayed for a Lorain County attorney who waited more than eight months to return a disputed fee.
A three-member panel of the board found Kenneth A. Nelson II violated six rules governing the practice of Ohio attorneys, including failure to cooperate with investigators with the Lorain County Bar Association. Nelson maintains the matter is a fee dispute with a client and that he should receive an entirely stayed suspension.
In 2015, Efren Vega was charged with conspiracy to possess with the intent to distribute heroin by federal authorities. Vega was incarcerated and instructed his girlfriend, Linda Sanchez, to hire Nelson. Sanchez met with Nelson and paid him $10,000 cash. Nelson placed the money in a cash box at his home. Nelson didn’t provide a written fee agreement to Sanchez or Vega and didn’t advise them that if his representation wasn’t completed they may be entitled to a refund of some or all of the fee. He also didn’t provide in writing that he had no professional liability insurance.
Nelson appeared in U.S. district court as Vega’s attorney, sought a continuance in the case, and met with Vega twice in jail over a two-week period. The day after his second meeting with Vega, Sanchez texted Nelson asking that he refund the fee because Vega felt Nelson’s charges were excessive for the service provided. Nelson promptly replied that he would prepare the bill. When Sanchez inquired about the bill a few days later, Nelson told her he was working on it, but had still not provided the bill when he officially withdrew as Vega’s attorney. When his withdrawal was approved, he told Vega he would finalize the bill and meet with Sanchez.
A month passed without a bill, and Sanchez notified Nelson that she was pursing disciplinary action against him and requesting that $9,000 of the $10,000 be returned. The Lorain County Bar Association hired attorney Leslie Gentile to pursue Sanchez’s continuance, and Gentile sent Nelson a notice of the complaint in September 2015. He was asked to respond within 20 days and didn’t, and Gentile sent him an email asking him if he intended to respond. In October, Nelson called Gentile to indicate he would file a written response three days later, but he didn’t file the response and at the end of October, Gentile presented Nelson with notice that she believed he committed multiple rule violations and that she intended to file a certified complaint with county bar association’s grievance committee. Nelson filed a formal reply to Gentile and the committee in March 2016, six months after Gentile first contacted him.
The day before responding to the complaint, Nelson sent Sanchez a check for $9,000.
The hearing panel found that Nelson’s placement of the $10,000 in a cash box and not a client trust account was a rule violation. Nelson had argued he was paid a “flat fee,” which indicated he earned the fee at the time he took the case and wasn’t required to deposit the cash in the bank account. The panel noted that in order to accept an “earned upon receipt” fee or “flat fee” an attorney must provide in writing to the client that the client may be entitled to a refund if the attorney fails to complete representation. Because Nelson admitted he didn’t provide the written statement, then he couldn’t accept a flat fee and was required to keep the money in the client bank account, the panel concluded.
The panel also found the delay in refunding the fee was a rule violation, although Nelson characterized it as a fee dispute. He calculated that he earned about $6,800 for the time he represented Vega. Sanchez disputed the amount claiming she was entitled to a $9,000 refund, which he paid and said he did “to put the matter to rest.” Even though he determined he earned $6,800, he acknowledged that meant he kept nearly $3,200 he had not earned in his cash box from the time he withdrew in July 2015 until he paid Sanchez in March 2016.
Nelson also acknowledged he didn’t file a response to Gentile’s inquiry until six months after it was initiated, but after a formal complaint was filed, he complied promptly with all disciplinary obligations. The panel found he violated the rules for failure to cooperate in a disciplinary matter.
The panel noted that Nelson had a prior disciplinary finding against him in 2015, which included two charges that appear in a pending case. He had a prior violation for failure to notify a client of not having liability insurance, and failed to promptly respond to requests from disciplinary investigators.
The board accepted the panel’s recommendation to suspend Nelson for two years with 18 months stayed on the condition that he complete six hours of continuing legal education on office management, comply with all record-keeping requirements, maintain liability insurance, and be supervised by a monitoring attorney.
State of Ohio v. Andrea Beasley, Case no. 2016-1020
First District Court of Appeals (Hamilton County)
ISSUE: Is a trial attorney’s undisputed summary of an unrecorded conference with the judge and prosecutor that is placed on the record sufficient to preserve an error for appeal?
In 2014 Andrea Beasley was stopped by an Amberley Village police officer in Hamilton County after he suspected her of driving her mother’s car without a license. The officer called a tow truck to remove the vehicle and conducted an inventory search of the car. He discovered a baggie of cocaine. When he asked Beasley if it was crack cocaine, she responded that it was probably powder, and she was charged with one count of cocaine possession.
Beasley filed a motion to suppress the evidence to exclude the cocaine, which was denied. On the day her trial was scheduled, Beasley’s attorney met with a Hamilton County prosecutor, and the parties agreed that Beasley would enter a no-contest plea so she could preserve her right to appeal the denial of the motion to suppress. Prior to accepting the plea, the trial court judge met with the attorneys in the judge’s chambers. The judge told the lawyers the trial court had a blanket policy of refusing to accept no-contest pleas.
The parties went back into open court, and Beasley’s attorney asked to add to the record a summary of the conversation in the chambers, including Beasley’s desire to plead no contest and the court’s policy against no-contest pleas. The attorney added that the state had no objection to the no-contest plea. When the trial court judge asked the prosecutor if he wanted to reply to Beasley’s attorney’s summary, the prosecutor declined. After placing the summary on the record, Beasley pleaded guilty and was sentenced to three years of community control.
Beasley appealed the conviction to the First District Court of Appeals with an attempt to challenge the rejection of the motion to suppress the evidence. However, the First District ruled that the summarization of the unrecorded conference wasn’t considered part of the record. It then ruled that by pleading guilty Beasley forfeited her right to appeal. The First District ruled that Beasley should have pleaded no contest and have the trial court refuse the plea on the record in order to preserve the issue. The First District stated that because Beasley pleaded guilty, it wouldn’t consider the merits of the motion to suppress challenge, and it affirmed her sentence. Beasley appealed the ruling to the Supreme Court, which agreed to hear the case.
Date Published: May 23, 2017