Spring, 2012 Volume 7, Issue 2

Fifth Annual Valentines Day Ball

The 5th Annual Valentine's Day Ball was held on February 11, 2012 at Fountain Bleau in Avon Lake. Over 110 guests attended the event and everyone had a great time. Our guests were treated to incredible hors d'oeuvres, a fantastic dinner, and an amazing dessert. This year we changed it up with martini tastings and games of chance! Everyone had a great time trying to beat the house and win raffle tickets for amazing prizes. Once again, Tim Lubbe amazed everyone with his Jaggar-like moves. Winners of the raffle prizes were: Jeanette Robinson won three cases of Christmas Ale and a gift certificate to Candid Expressions; Heidi Kuban won the beautiful jewelry donated by Peter & Company Jewelers; Jen Star won the Coach purse; Dave Keener won the gorgeous bracelet donated by Lisa Swenski and a gift certificate to Levit Jewelers; Scott Strait won the Apple ipad 2; and Wayne Nicol won the 55 plasma television. Congratulations to all of the winners! On behalf of the Executive Committee and the entire membership of the LCBA, I would like to offer a huge THANK YOU to the following for their support of the Valentine's Day Ball. Because of their generosity, we were able to raise some money for our charities, which will directly benefit members of our community. Signature Sponsor: First Place Bank Sponsors of the Raffles: Nurenberg, Paris, Heller & McCarthy Stumphauzer, O'Toole Richard Resendez for Lorain County Commissioner Piazza & Cooke-Szczepanski Co., LPA Attorneys At Law Gowri V. Hampole, Attorney at Law Frank Janik for Judge Domestic Relations Court Ted Kalo Lorain County Commissioner Lessing & Kryszak, Co., LPA Richard S. Ramsey for Judge Domestic Relations Court FirstMerit Wealth Division Kristina King, Attorney at Law Judge Thomas J. Elwell, Jr., Lorain Municipal Court Joel Fritz for Judge Domestic Relations Court John Miraldi for Judge Lorain County Common Pleas Lori Kokoski for Lorain County Commissioner Judge Mark J. Mihok, Lorain Municipal Court Table Sponsors: Barbara A. Butler & Associates Chris Cook for Judge Lorain County Common Pleas Community Foundation/Huntington National Bank PNC Bank Prizes: Friends of Lisa Swenski for Judge Levit Jewelers Peter & Co. Jewelers

Presidential Message Tom Theado

I am really excited to report that, after nearly a year of concerted hard work, your Executive Committee will soon present to our membership a series of amendments to our Association's Constitution, each aimed at improving the LCBA's ability to deliver more and better services to our members. In my previous articles I've emphasized that the primary goal your Executive Committee and I are pursuing this year is to noticeably improve the delivery of more and better benefits to our members. In that pursuit, we've come to focus on the structure of our Association's committees and sections, because by improving the way in which our committees and sections function we can most markedly improve the opportunities for our members to improve their practices and to associate with lawyers holding similar interests. The LCBA is now an association of nearly 500 professionals, each of whom expect value from their membership, and the time has come when we must put aside our acceptance of a sometimes too lackadaisical attitude in our expectations of how our committees and sections function. Now is the time to reinforce and support our committees and sections, so that they can better deliver the services we should expect from those vital components of our Bar Association. These efforts commenced quite soon after your Executive Committee took office, and continued with the Committee's meeting with our Association's Section and Committee Chairpersons in September of last year, to share proposals with the Chairs, and to obtain from the Chairs their insights and suggestions, with the goal that our sections and committees increase in their vitality and become even more important segments of our Bar Association. That meeting's results proved extraordinarily promising-the attendance was impressive, the discussion sincere, and the suggestions valuable, with a positive going-forward plan formed. At the conclusion of that meeting, I asked that all the Chairs go back to their section or committee, discuss the issues with their members, and then provide their responses on those issues. Based on those responses, your Executive Committee has drafted a set of proposed constitutional amendments, for presentation to our membership at our General Meeting in May, for voting at our Annual Meeting in June. The language of these amendments has not been finalized, and that's why I want to share with you the current drafts. Please share with me, or with any other member of our Executive Committee, whatever comments, questions, concerns, or edits you may have to suggest. One of the to-be-proposed constitutional amendments concerns what should be expected from any group of lawyers who wish to participate in a LCBA-sanctioned Section. Simply put, lawyers who want to gather and talk about mechanic's lien law can certainly do so but, if they're not willing to provide the Bar's membership minimal expectations such as regular meetings and CLE offerings, then they're just a club and should not be a sanctioned component of the Bar Association. So, here's the current text of this to-be-proposed constitutional amendment:
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Executive Committee: Thomas Theado - President Timothy Lubbe - Vice President Barbara Aquilla Butler - Treasurer Kurt Anderson - Secretary Joseph Cirigliano Andrea Kryszak Jennifer Riedthaler-Williams Daniel Gibbons Frank Janik

Lorain County Bar Association 401 Broad Street, Suite 205 Elyria, Ohio 44035 Phone: 440-323-8416 Fax: 440-323-1922 Email: lcba@windstream.net Web: www.loraincountybar.org

Every Section of the Lorain County Bar Association, in order to retain its status as a Bar-sanctioned Section, shall be expected to achieve the following goals during each calendar year: 1) Submit two articles on a topic within that Section's practice, for publication in the LCBA Newsletter; 2) Sponsor a seminar of at least three CLE-approved credit hours; alternatively, collaborate with and substantially assist one or more other Sections in sponsoring a seminar of at least six CLE-approved credit hours; 3) Conduct four meetings of the Section members annually; and 4) Submit nominations for the succeeding fiscal year's chairmanship to the LCBA's Executive Committee no later than April 1 of each year. Any Section, with the prior approval of the Executive Committee, may raise funds, by dues or otherwise, to meet that Section's expenses. Additionally, each Section shall aspire to: personally contact and welcome each new Section member within 30 days of their enrollment in the Section; conduct social and networking activities for Section members, LCBA members, and/or other groups as the Section considers appropriate; and otherwise strive to provide meaningful and engaging services to the Section members which enhance the organizational and public visibility of the Section, its members, and the LCBA. The Executive Committee knows its processes can also be improved, and accordingly has drafted three proposed amendments regarding itself. The first concerns required attendance: A member of the LCBA Executive Committee shall be automatically replaced upon either missing three meetings of the Committee in a fiscal year or three consecutive meetings. Another proposed amendment makes patent and formalizes what in the past has been too often a catch-as-catch-can process-LCBA officer succession: The members of the LCBA Executive Committee shall submit themselves to the vote of the membership at each Annual Meeting, to succeed to serving as LCBA officers, in the order each member came onto the Committee, first as Secretary, then Treasurer, then Vice-President, then President. The members shall serve through the succession program or they will be removed from the Committee. The final to-be-proposed amendment addresses an even murkier practice - recruitment of candidates to serve on the Executive Committee - and removes the practice from the President's sole discretion and authority, and places it in the membership and the Executive Committee: The Executive Committee shall send out a notification to the entire LCBA membership by the first Monday of each March, seeking nominations from the membership of candidates to serve on the Executive Committee. Self-nominations will be accepted. The Executive Committee shall choose from those nominated in composing the slate of Executive Committee candidates that is presented to the membership at the LCBA's General Meeting in May, and is voted upon by the membership at the LCBA's Annual Meeting in June. Additional nominations may be made by voting members of the LCBA, from the floor at the Annual Meeting. I again emphasize that these amendments are in draft form, and I urge you to please share with me, or with any other member of our Executive Committee, whatever comments, questions, concerns, or edits you may have to suggest. The improvements in these amendments should work, in better organizing and holding accountable the primary providers of Bar Association services to our members, ought go a long way in our delivering more and better member benefits. If these amendments are accepted by the Membership at our Annual Meeting in June, the changes thereby made will then go into effect prospectively.

A Message from the Lorain County Recorder Judy Nedwick

Greetings! I hope that all of you have been able to take advantage of this amazing weather. The Lorain County Recorder's Office has been received a higher than normal amount of documents requiring legal review. Many of these documents were prepared by or for homeowners attempting to release or satisfy their mortgage. Don't we all wish it was that easy? I thought I might take this opportunity to explain what my office does when we get a document that is outside the realm of normal recording requirements. A document filed in our office needs to comply with different sections of the Ohio Revised Code. The majority of the laws pertaining to the office are found in Section 317. As a county recorder, I am presented with over 130 different types of instruments to be filed. And while the ORC gives my office the freedom of not having a duty to inspect each record, we do make sure that statutory requirements are met when filing. If a document is received for recording and falls outside of the requirements of the Revised Code, the submitter has a choice. They can either take the document back, correct it, and resubmit the corrected instrument, or, insist that the document be filed as-is and force the issue to our legal counsel, the Lorain County Prosecutor's Office. If the submitter chooses to force the document, our office generates a request for review with one of the Assistant County Prosecutors. We write down the question, and include a copy of the document to be recorded. This package is then delivered to the county prosecutors office for review. The review process can take a reasonable amount of time, and depends on the current workload of the prosecutor's staff. My office will then contact the submitter to disclose the results. The prosecutor's response is legal advice to the recorder and protected by attorney-client privilege. The prosecutor will not provide legal advice to a document submitter. I strive to keep all of the citizens happy with the service we provide in the Lorain County Recorder's Office. Sometimes complicated issues arise with a document and it requires a legal review. This review really helps to protect the submitter, as well as the county, from recording a document in error. Your total satisfaction with the recording process is my goal. If you ever have any questions about a document and it's recording requirements, please let me know. My door is always open and I am happy to assist you.

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OVI, A Constant Challenge

Attorney Terrence R. Rudes
As practitioners know, OVI is one of the most frequently changing area of law. Changes come in the form of new or revised statutes, decisions by courts of all levels, and changes in science and testing. One of the changes was the approval of the Intoxilyzer 8000 (OH-5). Some 7 million dollars of the machines were purchased by Ohio with the intent of complying with national forensic testing standards by establishing dual with external calibration checks as part of each test sequence. This dual testing procedure has been recommended by experts and the federal government since the 1980's. The state also established a public website with the results of all breath tests on the Intoxilyzer 8000. The purchase produced a number of things of interest. Without going into detail on each, which would require large volume, a brief overview is presented. Dean Ward was the architect of the purchase, as head of the Alcohol and Drug testing program at the Department of Health. Mr. Ward wanted a portable machine and to that end, directed the committee to select a machine manufactured by CMI in Kentucky, instead of a machine manufactured in Ohio by National Patent Analytical Systems. Considerable controversy surrounded this purchase as the Intoxilyzer 8000 had been rejected by Tennessee as being unreliable and other states were involved in litigation over the Intoxilyzer 8000 in which CMI was refusing to cooperate. After the purchase of the new machines, Mr. Ward retired and later became an employee of CMI. One of the comments made during the discussions and hearings on purchase of the new Intoxilyzer 8000 was that defendants would not be able to challenge the new machine, as they do in other states, due to the Ohio Supreme Court decision in State v. Vega (1984) 12 Ohio St.3d 185, 465 N.E.2d 1303. That prediction did not seem to be correct. Several trial courts have allowed challenges to the Intoxilyzer 8000 distinguishing Vega based upon the Rules of Evidence. In some cases, the trial courts have held that the state has not established the reliability of the machine. One of the first and the most extensive of the cases, is State v. Nichole Gerome, Athen County Municipal Court Case No. 11TRC01909 decided May 25, 2011. In an extensive hearing, both the state and defense presented expert testimony. Although the Intoxilyzer 8000 was found to be sufficiently reliable to be admissible, the court's decision allows the defendant to challenge the weight of the test results at trial. Another significant case is State v. Reid, Circleville Municipal Court, case no. TRC-11-00716, decided 1-26-2012, which is also critical of the machine and found the results to be inadmissible. In State v. Kyle Johnson, Portage County Municipal Court, case no. R. 2011-TRC-4090, decided Jan 6, 2012, the state failed to call any witnesses to establish reliability of the Intoxilyzer 8000 even after the court continued the case for 90 days to allow the state to obtain a witness. When the state failed to produce a witness, the court suppressed the results of the breath test. Other courts have found that irregularities in the testing machine or testing procedure do not establish substantial compliance with regulations. In City of Lebanon v. Oliver McFarland, Jr., Lebanon Municipal Court case TRC 11-02982, decided January 30, 2012, the court found that a test result showed 19 sample attempts to obtain a result on the first test and 1attempt to obtain the second test and failure to have a calibration check between the two tests did not establish substantial compliance with the regulations. State v. Rachael Wallace, Mason Municipal Court Case No. TRC-11-01388, decided September 1, 2011, 7 the court stated: In this ease, the State has failed to prove that the testing procedure was in "substantial compliance" with the regulations. State Exhibit "A" )the Defendant's breath test report( shows an inaccuracy in the testing. The breath test report shows "7 sample attempts" after the first test yet shows only one sample attempt after the second test. Without any evidence from the State to refute this discrepancy, the breath test strongly indicates that the machine was flawed in this situation. Since there is a strong indication that the machine was flawed in this situation, the State has the burden to prove "substantial compliance' with regulations, and the State has failed to offer any evidence to prove that the test fell within "substantial compliance" of the required regulations, the Defendant's motion to suppress the results from the breath test is granted. The Department of Health Intoxilyzer 8000 website was heralded as a major step forward. Ohio joined several states who have databases available to the public with breath test information that allows review of test results without having to travel to the police station. Ohio posted more information from the breath tests on the website than were provided on the printout produced by the machine itself. When cases like McFarland and Walace came to the attention of the Department of Health, the department changed the website information removing several pieces of information. The changes effected all of the prior test results as well as future tests. The change has given rise to allegations of evidence tampering by the Department of Health, as the records were being used as evidence in several pending cases and the critical information was suddenly unavailable. The practice of OVI law, if nothing else, is never boring. Practitioners are never in a position to claim to know everything about OVI law. If you think you do, you haven't found the latest change.

County Law Libraries are a Great Value

Mary Kovacs, Lorain County Law Librarian
Most bar association members know that there is a law library in Lorain County, but many don't know that the library has been in existence for over 100 years. Early Ohio lawmakers recognized the need for the legal community and elected officials to have local access to legal materials. As a result, laws allowing each county to establish a law library were passed in 1872. Financial support for the libraries was provided by designating a portion of the fines, penalties and forfeited bail collected from the various courts within each county. That funding system remains in place today. The 88 county libraries in Ohio range in size from a collection of a few hundred volumes to collections of over 150,000 volumes. The law libraries were managed by private associations for most of their history. Since a law change in 2010, each is now managed by a public board whose five members are appointed by the county prosecutor, the common pleas court judges, the municipal court judges, and the county commissioners. The Lorain County Law Library is located on the first floor of the county administration building. The collection is made up of approximately 20,000 volumes, and includes anatomical models, medical charts, and a variety of electronic resources such as Westlaw, Loislaw, and Ohio Capitol Connect. Word processing, spreadsheet, and divorce planning software are also available. Anyone may use the books in the library free of charge between the hours of 8:30 a.m. and 4:30 p.m., Monday through Friday. The library offers many additional services to those who choose to pay a $100.00 annual service fee such as: -Access to the library computers, wireless network, and the Internet -Reference assistance and document delivery via fax or email -The ability to check out materials and equipment such as books, models, medical illustrations, projectors and projection screens -Use of the law library conference room for depositions or meetings In addition, the annual service fee allows users to access a variety of legal resources remotely from their home or office 24/7 through the law library website. Some of the resources available for remote use include Page's Ohio Revised Code Annotated, the Ohio administrative code, Ohio jury instructions, Ohio forms, Ohio cases, all 50 states cases and codes, and all federal cases and codes. Many legal treatises can also be accessed remotely. Treatise subjects include bankruptcy, criminal practice, employment law, personal injury practice, real estate law, construction law, family law, business law, and general litigation. A complete list of titles is available on the law library website at www.lorainlawlib.org or you can call the law library at (440)329-5567 to request a copy. Because the cost of legal materials and services can be prohibitive, it's important for legal practitioners to evaluate resources to determine which ones provide the tools that best suit their needs at the best possible price. Bar association members are invited to stop in the law library to take a look at what it has to offer. They might discover that it's exactly what they need.

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Tech tools vs. toys: What's the difference?

Joseph Marquette, Accellis Technology Group
With so many advancements in the world of technology, lawyers have thousands of options for technology tools throughout their practice. The pace at which new products are being introduced - all promising to save you time and money - has never been faster. The challenge is deciding which of those technologies are truly valuable to your business, and which ones are simply toys. This is not to say that toys are not a good thing, it's just that when you are considering which technologies to employ, it's important to understand and utilize the concept of return on investment or ROI. While most small and midsize law firms will not spend an inordinate amount of time breaking down a technology investment's financial return, there are ways to make sure your decisions will yield returns for you and your business. Evaluating the benefits of any technology investment can be broken down into three simple questions: 1. What problem do you expect this technology to solve? Make sure you know what you expect to accomplish or which problems you expect to solve prior to each technology purchase. 2. What are the real costs for recommending this technology? Whether you're considering an iPhone or a new server, make sure you think about all the potential costs that could be involved. Set up? Training? Maintenance? All of these costs can add up and affect your overall ROI. 3. How will you determine whether or not the product actually delivers the results you were expecting? Set a plan for measuring the results - time savings, money savings, improved workflow can all be gauged to be sure you've met your plan. By answering these questions first, you'll have a much better understanding of what you're buying and why. And if the answer is for fun - thats ok too. Everyone likes toys.

Introducing Spencer Ryan

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Spencer Ryan is your Lorain County Bar Associations Authorized Agent for Lawyers Malpractice Insurance. Before entering the insurance field, Spencer was licensed and practiced law in Lorain County, making him uniquely qualified to organize the complex coverage plans necessary in professional fields. For expert guidance in creating your next malpractice insurance plan, call Spencer Ryan at Ryan-St. Marie Insurance today. 440-322-3200 spencerryan@windstream.net Visit us online at ryanstmarieinsurance.com Visit us on Facebook

Jones v. Centex Homes: Contract, Tort, and The Death of the Limited Warranty?
Kurt D. Anderson, Esq.
On March 14, 2012, the Supreme Court of Ohio issued its decision in Jones v. Centex Homes, ___ Ohio St.3d ___, Slip Opinion 2012Ohio-1001, a 7-0 judgment with a majority opinion joined by 6 Justices, that may have a profound impact on construction defect litigation, and perhaps the entire realm of contract law. In Centex Homes, the Jones' discovered that various electronic devices did not work correctly in their newly-constructed home because the home's metal joists had become magnetized. When the problem was not remedied in a timely fashion, they sued for breach of contract, breach of express and implied warranty, negligence and failure to perform in a workmanlike manner. Centex Homes defended on the basis of the limited warranty provided in its sales agreement. The trial court and the Tenth Appellate District ruled that the limited warranty precluded the Jones' claims. The Supreme Court of Ohio reversed. Examining case law from 1966 forward, the high court concluded that "although the obligation to construct in a workmanlike manner may arise from a contract, the cause of action is not based on contract but on a duty imposed by law . . . we conclude that the requirement is not an implied warranty, but instead is a duty imposed by law . . . a home buyer's right to enforce that duty cannot be waived." (Id., at para. 9-14). The high court then remanded the case "for a trial on [plaintiffs'] tort claims that Centex Homes breached its duty to construct their homes in a workmanlike manner using ordinary care." (Id., at para.15). It seems difficult to square this decision with the traditional tort-contract dichotomy and the long-standing rule that "[i]n Ohio, a breach of contract does not create a tort claim. Generally, the existence of a contract action-excludes the opportunity to present the same case as a tort claim. A tort claim based upon the same actions as those upon which a claim of contract breach is based will exist independently of the contract action only if the breaching party also breaches a duty owed separately from that created by the contract, that is, a duty owed even if no contract existed." Textron Financial Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 37, 684 N.E.2d 1261 (9th Dist., 1996). Also not discussed by the Supreme Court was the impact of Ohio's economic-loss doctrine, which the Court applied in a construction defect context in Corporex Development & Construction Mgt. Inc. v. Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409. In Corporex, the high court held that "the economic-loss rule bars a building project owner from recovery of purely economic damages in tort against a subcontractor, based upon breach of contractually created duties" which included claims for "breach of contract, breach of express warranty, breach of implied warranty, negligence and failure to perform in a workmanlike manner." (Id., at para.1-4). In so holding, at para.11, the majority explained: Because the underlying duties are created by a contract to which [the owner] is not a party, no tort action lies in [the owner's] favor. Instead, [the owner] retains its right to file a breach of contract claim against . . . the contractor, for damages permitted under its contract, and [the contractor] may, in turn, recover any damages against . . . the subcontractor, permitted by the subcontract.[The owner] may not, however, recover in tort when [the subcontractor] has no duty in tort to protect [the owner] from purely economic damages . . . We will not adopt a rule that ignores basic tort law and thwarts the intentions of parties to a contract, who must be allowed to bargain freely to allocate the risks attendant to their undertaking, including the possibility of purely economic losses.
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The Court's decision emphasized prior case law that "no sound policy reasons exist to prevent the extension of this duty [of workmanlike construction] to all subsequent vendees as well" and grounded its analysis in products liability tort law developed in the 1970s and early 1980s before the economic loss doctrine was well-developed, as a barrier to the threat of all-consuming strict liability. Also not discussed is that many early cases involved contracts with no warranty provisions whatsoever, and thus a reasonable warranty was implied. But it is impermissible in contract law for the court to impose terms which alter those actually expressed in writing by the parties, in the absence of evidence of mistake or misrepresentation. Thus, in many construction defect cases, there may be a direct conflict between Centex Homes and Corporex that the Supreme Court will ultimately need to resolve. Unfortunately, the distinction appears not to be so much in legal analysis but in public policy-in Centex, the Court extended protections to individual consumers that it may not be willing to apply to commercial entities. But the Court provided no clear legal analysis that can be consistently applied in other contexts. Thus, rather than clearing the air, Centex Homes may have muddied the waters of construction defect litigation even further. With respect to limited warranties, the Court stated in dicta, at para.11: Centex Homes offered a detailed limited warranty. Although we see no legal impediment to such an arrangement, that issue is not squarely before us. We are only called upon to determine whether a home buyer can waive his right to enforce the builder's legal duty to construct the house in a workmanlike manner using ordinary care. In ruling that Centex Homes' limited warranty was unenforceable, the Court left unclear what effect such warranties will be given in the future. Moreover, the Court's decision also calls into question the enforceability of "as is" clauses. Consequently, in the wake of Centex Homes, the residential construction industry may face a series of very thorny questions: Is any limited warranty enforceable? If a consumer cannot waive protections granted by 'law, are limited warranties now unconscionable? Are " as is" clauses enforceable? And what legal framework applies to consistently answer these questions? The ruling could also have an impact on insurance coverage for defective construction claims, which is typically denied on the basis that defective workmanship arises out of a breach of contract, and thus is not an 'accident' or 'occurrence. A cause of action in negligence will much more susceptible to insurance coverage. The Supreme Court will soon address what constitutes an 'occurrence' in the construction context, in the pending case of Westfield v. Custom Agri Systems, Inc., Case No. 2011-1486, scheduled for oral argument on April 4, 2012. In the meantime, the conundrum remains: where's the line between contract and tort in Ohio?
Kurt Anderson is of counsel with the Cleveland law firm of Davis & Young, where he practices in insurance coverage and general commercial litigation.

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Failure to Record Properly Imposed Term of Postrelease Control In Court's Journal May Be Corrected by 'Nunc Pro Tunc' Entry
2011-0202. State v. Qualls, Slip Opinion No. 2012-Ohio-1111.Meigs App. No. 10CA8, 2010-Ohio-5316. Judgment affirmed. O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur. Lanzinger, J., dissents. Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1111.pd On March 20, 2012, the Supreme Court of Ohio held that when a trial court properly notifies a criminal defendant at the time of sentencing about the term of postrelease control to which he will be subject upon completing his prison sentence, but the court inadvertently omits mention of postrelease control in its journal entry recording the sentence, that omission can be remedied by means of a 'nunc pro tunc' (corrected) journal entry, and the defendant is not entitled to a new sentencing hearing. The court's 6-1 decision, authored by Justice Robert R. Cupp, affirmed a ruling of the Fourth District Court of Appeals. The case involved the sentencing of Eric Qualls of Meigs County, who was convicted of aggravated murder and kidnapping in 2002. At his sentencing hearing, Qualls received an aggregate term of from 33 years to life in prison. He was also orally advised by the court that, if he should be released from prison, he would be subject to an additional five years of postrelease control by the state. Qualls did not appeal the judgment of the trial court. In 2010, Qualls filed a petition in the Meigs County Court of Common Pleas asserting that he was entitled to a new sentencing hearing because the trial court had improperly sentenced him to a term of postrelease control for the crime of aggravated murder, which was contrary to law. In responding to that petition, the state discovered that the written entry in the trial court's journal recording Qualls' sentence had inadvertently omitted mention of postrelease control. The state filed a motion asking the court to correct that omission by recording a nunc pro tunc (in Latin, 'now for then') entry in its journal to accurately reflect the term of postrelease control the judge had actually imposed. Qualls opposed the state's motion. The trial court rejected Qualls' petition for a new sentencing hearing based on its finding that the term of postrelease control had been correctly imposed for his kidnapping conviction, not his aggravated murder conviction. The court also granted the state's motion to correct the trial record by journalizing the requested nunc pro tunc entry. Qualls appealed to the Fourth District Court of Appeals, which affirmed the actions of the trial court. In response to a motion by Qualls, however, the Fourth District certified that its ruling with regard to the sufficiency of a nunc pro tunc journal entry to correct the trial court's error was in conflict with a 2010 decision, State v. Lee, in which the Sixth District held that a defendant whose sentencing entry did not include postrelease control was entitled to a new sentencing hearing. The Supreme Court agreed to hear the case to resolve the conflict between appellate districts. In today's decision affirming the Fourth District, Justice Cupp acknowledged that in a line of prior decisions addressing a trial court's failure to impose a required term of postrelease control at the time of sentencing, or pronouncement of an incorrect term of postrelease control, the Supreme Court has held that a new sentencing hearing must be conducted. He pointed out, however, that in this case Qualls admitted that he was properly notified of a five-year term of postrelease control at the time he was sentenced, and the only error by the trial court was its failure to accurately reflect the sentence that was actually pronounced at trial in its journal entry. 'Our review of our many other postrelease-control precedents shows that the situation in this case ... differs from those other precedentswrote Justice Cupp. 'In no previous case in which a sentencing entry was silent as to postrelease control have we specifically considered the significance of proper postrelease-control notification at the sentencing hearing. Moreover, we have not specifically evaluated the efficacy of a trial court's use of a nunc pro tunc entry to correct a deficient sentencing entry when the sole error in imposing postrelease control was the failure to incorporate the notification that was given at the sentencing hearing into the entry of conviction. 'Here, where notification was properly given at the sentencing hearing, there is no substantive prejudice to a defendant if the sentencing entry's failure to mention postrelease control is remedied through a nunc pro tunc entry. Our precedents requiring a new sentencing hearing (either de novo or limited) to correctly impose postrelease control do not apply to this situation. The rationale underlying those decisions is that a sentence that does not properly impose postrelease control is void, and a remand for a new sentencing hearing is necessary, because the trial court's erroneous imposition of postrelease control must be
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corrected in a new hearing at which the defendant is present to receive notification that complies with the statutes.'But when the notification of postrelease control was properly given at the sentencing hearing, the essential purpose of notice has been fulfilled and there is no need for a new sentencing hearing to remedy the flaw. The original sentencing entry can be corrected to reflect what actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as the correction is accomplished prior to the defendant's completion of his prison term. Justice Cupp's opinion was joined by Chief Justice Maureen O'Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence ODonnell and Yvette McGee Brown. Justice Judith Ann Lanzinger entered a dissent stating that in her view Qualls' case should be remanded to the trial court for correction of the defective journal entry through the hearing process prescribed by the legislature when it enacted R.C. 2929.191, effective July 11, 2006. She noted that the Supreme Court held in a 2009 decision, State v. Singleton, that the R.C. 2929.191 hearing process must be followed to correct postrelease control errors that occurred after the law's effective date, but also held that the statute did not apply to errors, like the defective 2002 journal entry in Qualls' case, that occurred before the new law took effect. Justice Lanzinger wrote: 'I would overrule State v. Singleton ... and hold that the procedure enacted by the General Assembly to correct postrelease-control error may be applied retroactively. ... R.C. 2929.191 provides that a trial court may, after conducting a hearing with notice to the offender, the prosecuting attorney, and the Department of Rehabilitation and Correction, correct an original judgment of conviction by issuing a nunc pro tunc entry that includes statements that the offender will be supervised under R.C. 2967.28 after the offender leaves prison and that the parole board may impose a prison term if the offender violates postrelease control. ... R.C. 2929.191 specifically states that it applies when a court fails to include a statement regarding postrelease control. Because I agree with the General Assembly that the failure to include postrelease-control notification in a sentencing entry should be remedied by conducting a hearing pursuant to 2929.191, I would reverse the judgment of the court of appeals.

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Gathering Hope House Seeking Board Members

Gathering Hope House ('GHH') is dedicated to the idea that everyone can make a difference, even those who have been shunned by others as not worthy of respect and support because of their mental illness. GHH is a nonprofit, tax exempt organization serving Lorain County. Its mission is to 'encourage mental health consumers to join together as members, inspiring and supporting one another's personal growth and recovery. Further, this innovative agency challenges everyone in our community to develop compassion and acceptance of all. In its first six years of operation, GHH has continued to break new ground in the mental health field, fulfilling its vision to 'provide programs supporting health that emphasize acquisition of life skills, education, and advocacy. As a leader in the consumer-operated services movement, GHH employs many who have courageously battled mental illness and triumphed in their own recovery. They continue to collaborate with area universities to conduct research into the nature of recovery and the development of best practices. GHH assists members to improve their overall health through a variety of integrated health initiatives, including the operation of a state-of-the-art fitness center. As with any community organization, GHH depends on a citizens governing board to provide the foundation of leadership and oversight expected by funders and the community it serves. GHH is recruiting a few thoughtful and sincere individuals interested in making a real difference by volunteering to serve on its governing board. Individuals who have themselves received mental health services are welcome while preserving confidentiality of all personal history. No previous board experience is necessary, just a commitment to learn and provide a few hours a month to attend board and committee meetings. To find out more, contact Pam Harper, GHH board secretary at Pamharp10@gmail.com or (440) 647-6765.

JUNE A .WOOD RN, BC

Depression Abuse Eating Disorders School Problems
Sexual Parenting Stress Family,

/ Burnout Gay / Lesbian Batterers Intervention Program

Daytime, Evening & Saturday Appointments

Marital, Individual & Group Adolescents & Adults Alcoholism, Drugs & Codependency Sexual Problems Psychological & School Testing Anxiety, Phobias & Panic
Children,

Diana Santantonio, Ed. S. - Psychologist & Associates

30 years experience in long term nursing care. Defense or Plaintiff work. Medical records reviews. Liability evaluation. Risk management reviews.

440-323-5121
750 S. Abbe Rd. Elyria
We Accept Insurance / Medicare / Some Medicaid www.psychandpsych.com

woody21@ncwcom.com 440-865-9914
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Announcements
Authors Needed: Want to write an article for The Legal Times and receive free CLE credit for doing so? Contact Jeannie at the LCBA office for details. Congratulations are in order for Joseph Cirigliano who was elected as a new Director to the Board of Liberty Bank, N.A. The American Bar Association's Government and Public Sector Lawyers Division is seeking nominations for three national awards designed to recognize the extraordinary achievements of public lawyers: the Dorsey Award for an Outstanding Public Defender or Legal Aid Lawyer, the Hodson Award for Public Service, and the Nelson Award for Outstanding Service to the ABA. Nominations for these awards are due April 3, 2012. For more information, visit www.governmentlawyer.org. Congratulations (and thank you) to Paul Kocsis who volunteered to serve as co-chair of the LCBA Juvenile Law Section along with Magistrate Charlita Anderson-White. Douglas Brill is now located at 1001 Jaycox Road, Suite 1, Avon, Ohio 44011, phone: 440-536-8915; fax: 440-815-2105; email: doug@douglasbrillattorney.com.

Office Space
Office Sharing Available at the Executive Building, 300 4th Street, Elyria. Share conference room, reception area and kitchen. Arrangements can be made to share copy machine, fax, DSL and whatever additional cooperation you can think of. $100/month for conference room privileges; $175/month cubicle; $300/month small office; $400/month larger office. The prices include off street parking for you and your clients. If needed, there is space for your staff. Contact Jim Deery at 440-323-9500. Office Space for Lease or Sale at 124 Middle Avenue, Elyria. Suite 600: 2 private offices available for lease in Winter 2012. Conference room and receptionist area for sharing by lessees. Restroom by elevator. Sink and cabinet. Monthly rent is in $300s. Suite 203 is for lease or for sale. 1,624 square feet. Access just outside elevator on 2nd floor. Inside can be built to suit lessee. Availability and price negotiable. Private restroom and sink inside. If interested in either property, please call Randolph Roth at 440-284-3896.

Special Promotion for Lorain County Bar Association Members

2 Room Office Only $225/mo Two Offices Available 3 Room Office Only $325/mo Two Offices Available 4 Room Office Only $425/mo One Office Available One Year or Long Term Lease Available. All Utilities Included. You are Welcome in the Robinson Building! Please Call 440-506-2574

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Our Bar Association Continues to Serve the Greater Lorain County Community - Judicial Candidates Night!
The Lorain County Bar Association along with the Elyria NAACP, the Lorain County Federation of Women and the EHS Performing Arts Center sponsored our first Judicial (and Commissioner) Candidates Night for the general public. The forum presented a fantastic opportunity for the Lorain County community to hear from the judicial candidates. The candidates were given the opportunity to address the audience and the audience was provided time to ask questions of the candidates. This is just one more way your bar association is reaching out into the community to provide valuable services to the citizens of Lorain County. Thank you to all of the candidates that participated and to the LCBA members that attended the event.

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TRYING TO FIND A WAY TO GENERATE NEW BUSINESS? CONSIDER JOINING THE LCBAS LAWYER REFERRAL SERVICE
When I signed up for the lawyer referral program offered through the LCBA, I did not expect the response that I received. The program has exceeded my expectations. The program has proven to be one of the best choices in obtaining clients that I have made. Brian Dattilo The LRS has referred over 3300 matters since its inception in May 2009 (this figure does not include the pro bono referrals). The participating attorneys are quite pleased with the results of the referrals. We like it so much that we hope it would stay a secret and no one else finds out about it. James Deery On March 21, 2012, the LCBA referred 21 different people to attorneys that are on the LRS referral panels. One of those callers was a business owner in Mayfield Heights that needs an attorney to represent her company on a regular basis in the Lorain County courts. If you were a member of the LCBA referral service, you could have received that referral. When I joined the LCBAs Lawyer Referral Service, I never anticipated the number of calls I would receive. Although I do not take every case that is referred to me, the consultation fees alone would easily pay for the LRS fee. The referrals that I have taken have been good, solid cases and, in some instances, have led to other matters. Joseph McCafferty

What are you waiting for?

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2012 Seminars
04/19/12 04/27/12 05/11/12 05/17/12 05/22/12 06/15/12 06/21/12 06/28/12 08/10/12 3.25 3.00 1.00 2.00 1.50 1.00 1.00 3.00 5.00 12:00 p.m. 1:00 p.m. 11:30 a.m. 11:30 a.m. 11:30 a.m. 11:30 a.m. 11:30 a.m. 9:00 a.m. 9:00 a.m. An Afternoon with the Court of Appeals (featuring all five appellate court judges) Lunch is included courtesy of the Community Foundation of Lorain County Municipal Court Law Update The Ohio Supreme Court Writing Manual Review Computer Forensics, including Social Media Manage Your Online Presence to Grow Your Practice Intermediate Social Security/Disability Record Retention: What You Need to Know Resolving Will and Trust Contests Annual New Lawyers' Seminar at Common Ground

Committee/Section Meetings 04/04/12 04/11/12 04/12/12 04/19/12 04/30/12 12:00 noon 12:00 noon 4:30 p.m. 4:30 p.m. 8:00 a.m. New Lawyers Committee at LCBA offices Executive Committee, 4th Floor, Lorain County Justice Center Criminal Section at Moss' Restaurant Domestic Relations Section at Moss' Restaurant Ethics Committee, 3rd Floor, Lorain County Justice Center

LAW DAY 2012

The Lorain County Bar Association will be participating in National Law Day on Tuesday, May 1, 2012, by providing benefits for both our members and the community. Our activities include: Go Back to School Day - Our members will be in every high school in Lorain County to speak with students about a legal topic of their choosing (e.g. Law Day, what life is like as a lawyer, their area of practice etc.). Community Outreach - Lawyers are volunteering their time and talents to provide free legal advice to the general public in their areas of practice from 9:00 until 11:00 a.m. at Wood & Wine Restaurant, in Avon, Ohio. This program is a great way for the attorneys to market themselves to the community. Following the Back to School and Community Outreach programs, there will be an all-you-can-eat lunch buffet, consisting of soup, salad bar, wood-fired pizza and pasta. The essay contest focuses on cyber bullying this year and our speaker, Professor O'Neill from ClevelandMarshall College of Law, a frequent lecturer on the subject, will provide the keynote address, followed by the announcement of the Law Day Essay Contest winners. We hope you plan to attend the luncheon! If you have any questions or would like more information, please contact your Law Day Chairpersons Andrea Kryszak at 440-934-5330 or Jennifer Riedthaler-Williams at 440-329-5389.

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Introducing the LCBA CLE Season Pass

The LCBA is offering its members the best deal around for your CLE hours! Members now have the option to purchase LCBA CLE Season Pass - 12 hours of CLE for just $285 (that represents a savings of over $135!). With the CLE Season Pass, members get 12 hours of LCBA CLE programming that can be used anytime between January 1, 2012 and December 31, 2012. Heres how it works: 1. CLE Season Pass holders can register for CLE by using the event's printed registration form or by calling 440-323-8416. Please be sure to mention that you are a Season Pass holder. 2. CLE Season Pass holders must register in advance for programs to ensure that we will have appropriate materials and space available for all who attend. If you register at the door, a $15 on-site registration fee will apply. 3. Cancellation Penalty - CLE Season Pass holders must submit cancellations, at least one business day prior to a seminar. Failure to do so will result in a deduction from the members CLE Pass hours for that particular seminar. Cancellation notices can be emailed to lcba@windstream.net or faxed to 440-323-1922. 4. CLE Season Pass hours must be used by December 31, 2012. Any unused hours will be forfeited and may not be carried over or refunded. 5. CLE Season Pass hours are non-transferrable. The LCBA offered 18 seminars (44.75 CLE hours) during the 2010-2011 fiscal year. A sampling of programs previously presented include OVI law, foreclosure law, ethics, professionalism & substance abuse, domestic relations issues, juvenile law, probate law, etc. To take advantage of CLE Season Pass or if you have questions, contact the LCBA (440-323-8416).

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The Bar Association has developed relationships with a variety of vendors who are willing to offer our members discounts on products and services simply because they belong to the Lorain County Bar Association.
Bobels Office Products Founded in 1947, Bobel's is the largest privately-held office supply firm in the five county area of Lorain, Erie, Sandusky, Huron and Ottawa Counties. Bobel's considers personal service in the supply of office products and furnishings to be its specialty. Contact Bobel's to see what type of discount it can offer to you (440-960-7070). Cleveland Metropolitan Bar Association Is only $100! By taking advantage of this offer through the LCBA, there are no applications to fill out to join the CMBA. All you have to do is check the line item on the enclosed dues statement. You then pay the LCBA for both your LCBA dues and your CMBA dues ($125 and $100, respectively, for a total of $225). David Paul Photography David Paul's philosophy of photography is to capture that emotional moment which will make a photograph special for generations.Their photographers are especially adept at candid photography where people are relaxed and in their natural state of being. They combine elements of this 'photojournalistic' style with fashion photography. The results are albums, DVDs, and photographs which tell complete stories, which capture people's personalities. David Paul Photography is pleased to offer LCBA members at 15% discount on family and senior portraits and a 10% discount on weddings. Contact David Paul Photography at 440-371-3423. ELEMENTS salon Elements team of professional designers is highly trained to bring you fashionable and modern hair design, conservative to edge color and the latest must have make-up trends. Elements is happy to offer LCBA members a 15% discount on all services. Call to schedule your appointment today. They are located at 720 Avon Belden Road, Avon Lake (440-930-7895). Kathleen A. Hopkins & Associates Court Reporters Kathleen A. Hopkins has been in the court reporting business in Lorain County for over 35 years. The company is well-versed in all types of litigation, including medical and expert depositions. They offer microtranscription, E-Tran, and videotape services. They even have a conference room available to use free of charge for your depositions and they are conveniently located near the Lorain County Justice Center and the Elyria Municipal Court. Kathleen A. Hopkins is excited to offer LCBA members a 5% discount on your total bill for their court reporting services. Please call 440-323-5620 to schedule your depositions. Mama Jo Homestyle Pies Get that cozy holiday feeling any time of year with a delicious Mama Jo Pie. They offer 30 different flavors of pie and each is made fresh, never frozen. They also have a wide variety of fresh strudels and homemade cookies. Mama Jo Pies is happy to offer LCBA members a $20 gift card for $15. Contact the LCBA for details or to purchase one of these cards. Massotherapy Arts Center Leave all your problems outside the door, and enter the Massotherapy Arts Center where certified - licensed massage therapists are ready to soothe your muscles and help relieve your stress. In addition to various modalities of massage they also provide manicure/pedicure treatments and facials. Massotherapy Arts Center is located at 409 East Avenue, Suite C, Elyria (440-322-7032). When you call to schedule your appointment, make sure you identify yourself as an LCBA member and you will be rewarded with a 10% discount on all services. Miller & Proffitt Insurance Miller & Proffitt Insurance is proud to offer our membership a discount for its disability income insurance protection. Miller & Proffitt also offers business overhead expense insurance, hospital indemnity insurance, and personal accident insurance at very reasonable rates. Call them at 419-522-0622. Office Depot Office Depot is offering LCBA members deep discounts on all of your office supply needs. Sign up and you will receive 15-30% off copy paper, ink, toner and general supplies, and even deeper discounts on the items you purchase most often. You will also receive next day delivery and free shipping on orders over $50. For more information on the Office Depot Member Savings Program, please contact Benjy Szucs, at benjy.szucs@officedepot.com or 888-263-3423.
(continued on following page)

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Puffer's Floral Shoppe Puffer's Floral Shoppe, your local florist, offers professionally designed flower arrangements and gift baskets for all occasions paired with outstanding customer service. Puffer's can help you in flower delivery to Elyria and surrounding areas, and they can even handle flower delivery nationwide through its network of trusted florists. Need to send a last minute gift? It's no problem with Puffer's Floral Shoppe as they offer same day flower delivery at no additional cost. Puffer's is pleased to offer LCBA members a 10% discount on all local orders. Call Puffer's to place your order at 1-800-598-7418. Ridge Cleaners Ridge Cleaners is a family owned and operated business, dedicated to the highest level of quality and customer service. Ridge Cleaners offers dry cleaning and laundry services to alterations to garment and fur storage'they even offer at home pick-up and delivery service. Visit their website for a complete list of all of the services they offer (www.ridgecleaners.com). They have four convenient locations in Avon Lake and North Ridgeville. As a member of the LCBA, Ridge Cleaners will provide you with a 10% discount off its usual rates. Ryan-St. Marie Insurance (malpractice insurance) Spencer A. Ryan, as the Authorized Agent of the LCBA for professional liability insurance, is providing professional liability insurance to LCBA members at competitive rates. Spencer is a member of the LCBA and carries the distinction of being both a licensed attorney and as well as a licensed insurance agent. He is a lifetime resident of Lorain County and currently works as an insurance agent at Ryan-St. Marie Insurance Agency in Elyria. Spencer can be reached at 440-322-3200 or via email at spencerryan@alltel.net. Spring Valley Golf Club Spring Valley is proud to offer LCBA members 18 holes of golf plus a cart for only $25. Please be sure to call for a tee time and identify yourself as an LCBA member (440-365-1411). Spring Valley is located at 1100 Gulf Road in Elyria, Ohio. SQP Slutzkers Quick Print Center SQP Print Center is a family owned and operated business in Lorain. Their goal is to provide their customers with the highest quality printed products available. They are a full-service print shop which means they can do just about anything. SQP is offering LCBA members a 3% discount on all services. Call them for all of your printing needs. They are located at 721 Broadway in Lorain (440-244-0330). Super Printer Super Printer is one of Lorain County's finest full-service union print shops. They are Lorain County's largest printer of campaign materials. They can take care of all of your printing needs from business cards to Supreme Court pleadings. Nothing is too big or too small for Super Printer. Family owned and operated since 1981. Owners Mike and Karen Potts are pleased to offer LCBA members a 10% discount on all orders. They are located at 1925 North Ridge Road, Lorain, Ohio (440-277-0787). Symmetry Pilates At Symmetry Pilates, located at 37300 Detroit Road in Avon, you will have the opportunity to participate in a wide variety of Pilates and Pilates- inspired classes including, but not limited to, Classic Pilates Mat and Reformer, Tower, EXO Chair, Barre Classes, TRX Suspension Training, SPIN Pilates, SPIN Flex ,SPIN Yoga, Orbit, BodyBlade, and Pilates Arc. Personal Training is also available. As an LCBA member, Symmetry Pilates is offering you 10% off a 10 equipment package. Email: smmetrypilates@roadrunner.com; call: 440-934-9123. Vandemark Jewelers Vandemark Jewelers believes in the highest quality of fine jewelry presented in a friendly, relaxed atmosphere. If you are looking for something special and different, Vandemarks is a locally owned and operated store that gives personal attention to all our customers as they select the perfect gift for their loved ones. Vandemark's is pleased to offer LCBA members a 15% discount on all regularlypriced items, including repairs. Vandemark's is located at 244 East Broad Street in Elyria (440-322-1700).

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