2020 December Bar Briefs Magazine

The Magazine of the Dayton Bar Association | DECEMBER 2020 | Vol. 70, No. 4

Dayton

Bar Briefs HAPPY HOLIDAYS from the DBA

Barrister of the Month Anne C. Harvey Esq. pg 6

DBA HOLIDAY LUNCHEON Speaker Governor Michael DeWine pg 5

Dayton Bar Foundation Help Rebuild Other Foundations pg 12

CONTENTS

Dayton

Bar Briefs

December 2020 | Vol. 70, No. 4

Dayton Bar Association Board of Trustees

Features 4

TRUSTEES MESSAGE Mentoring Our Law Students; Making Our Profession Better

By Denise Platfoot Lacey Esq., Professor of Externships | UDSL

2020-2021

Fredric L. Young President

6

Merle F. Wilberding

BARRISTER OF THE MONTH: ANNE C. HARVEY ESQ.

By Masallay Kanu Esq. | Sebaly Shillito

+ Dyer

First Vice President

Caroline H. Gentry Second Vice President

8

CIVIL TRIAL & ADR Is a Change to Specific Jurisdiction on the Horizon?

By Callum Morris Esq. | FARUKI+

Denise L. Platfoot Lacey Secretary

Hon. E. Gerald Parker Jr. Treasurer

Rebecca M. Gentry

10 ESTATE PLANNING TRUST & PROBATE Traps for the Unwary 2.0

By Edward M. Smith Esq. | Nolan, Sprowl & Smith

Member–at–Large

Anne P. Keeton Member–at–Large

Justine Z. Larsen

16 FROM THE JUDGES DESK Musings Upon Retirement

By The Honorable Barbara P. Gorman | Montgomery County Common Pleas Court

Member–at–Large

Sean P. McCormick Member–at–Large

Hon. Mary Wiseman

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer.

18 DBA RISING STAR:

SHAWNA SORRELL ESQ.

By Zachary S. Heck Esq. | Taft Law 20 LABOR & EMPLOYMENT The COVID-19 Pandemic Has Sparked Employment Law Issues

By Gretchen Treherne Esq. | Jackson Lewis P.C. 22 REAL PROPERTY Upending the Status Quo: The Problem with Sponaugle

By Jonathan F. Hung Esq. | Green & Green Lawyers

24 ANNUAL HOLIDAY GIFT COLUMN Top 10 Gift Ideas

By Daniel Rafferty, Teaching & Research Assistant JD Candidate | UDSL

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy, Chief Executive Officer

Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 www.daybar.org

Fax: 937.222.1308

The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the DBA.

Departments 5

DBA HOLIDAY LUNCHEON Guest Speaker Ohio Governor Michael DeWine!

7

OHIO NOTARY SERVICES (ONS) UPDATE

12 2020-2021 DAYTON BAR FOUNDATION GIVING Giving Tuesday December 1st!

14 2020 WINTER CLE & EVENT CALENDAR 25 LAW RELATED ORGANIZATIONS 26 MEMBERS ON THE MOVE & CLASSIFIED ADS

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Dayton Bar Briefs December 2020

937.222.7902

DBA Annual Partners Sponsors of the DBA.

Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

Thank You 2020-2021 DBA Gold Partners FARUKI+

www.ficlaw.com With offices in Cincinnati & Dayton

FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

Thompson Hine LLP www.thompsonhine.com

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy, DBA CEO | jotchy@daybar.org | 937.222.7902 www.daybar.org

December 2020 Dayton Bar Briefs

3

Trustees Message

Mentoring Our Law Students Making Our Profession Better I

t is the end of the semester in which another cohort of third-year law students successfully

By Denise Platfoot Lacey, Professor of Externships completed an externship for course credit. As I review the student evaluations of their DBA Secretary externship experiences, it strikes me that even though the pandemic changed the semester University of Dayton School of Law in so many ways, some things always seem to remain consistent in students’ field experiences. dlacey1@udayton.edu | 937.229.4634 Namely, effective mentoring and supervision are critical to the students’ successful learning experiences. I wanted to share the five things that supervisors do in externships that students consistently report make their experiences valuable.

1. Supervisors give students a variety of substantive assignments. Students are usually eager to learn as much as they

can about the office’s work and the areas of law that interest them. Supervisors who find a variety of assignments that mesh with the students’ learning goals give the students a better overall experience. Students value diverse substantive lawyering tasks that allow them to contribute to the work of the office. Even those tasks that become routine for lawyers are usually new and worthwhile to students. When supervisors allow the students to participate in as many aspects of their work as possible, the students see a truer picture of the practice of law and gain confidence in their ability to engage in it.

2. Supervisors give students opportunities to observe.

One of the primary benefits of learning in an externship is the opportunity to observe the lawyering that cannot be seen or easily replicated in a classroom. That might include observing a court or ADR proceeding, sitting in on client meetings, or participating in staff meetings. Students want to see what lawyers do in these unfamiliar settings and how they do it. When supervisors can provide observational opportunities to the students, their learning becomes more valuable.

3. Supervisors give students guidance and feedback.

For some students, an externship is their first experience in a law setting of any kind. They often do not know what to expect and are not sure how to start new tasks. Supervisors who provide resources for students, such as suggestions of where to begin a task or examples of similar work that a student could review, help students successfully complete their work.

Similarly, supervisors who give specific feedback to students about the work they submit provide critical information to students which they can apply to future tasks. Feedback is most helpful when it specific, constructive, timely, regular, and supportive. Finally, supervisors who explain why they did something in a certain case or provide background about something the student observed provide necessary insights to students who might not otherwise fully understand the process or task.

Students thrive when supervisors create a safe environment that supports their learning.

4. Supervisors give students opportunities to network.

For students, meeting respected lawyers and judges - who often seem like commanding figures - can be intimidating. It is even more difficult to do when students do not have an existing support network who know and interact with lawyers or judges. Established supervisors have a network of colleagues that can benefit students. Supervisors who introduce students to other lawyers with whom they work (within or outside of their offices) help students develop the relationships that they will need when they transition to practice. Facilitating a phone call or inviting a student to come to a lunch with a colleague is relatively simple, but helps the students tremendously and demonstrates the collegiality that we aspire to have in the legal community.

5. Supervisors mentor students.

To be sure, mentors engage in the four previous practices, but mentors also do so much more. Mentors share the stories of their career path, reveal the challenges they have faced, give advice about transitioning to practice, warn against common pitfalls, recount “war”

continued on page 5

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Dayton Bar Briefs December 2020

937.222.7902

Join the DBA as we Welcome Guest Speaker

Ohio Governor Michael DeWine

December 10th | 12PM-1PM

Register Online! daybar.org

stories about mistakes and successes, and reflect on finding satisfaction in a law career. Moreover, mentors talk to students about the students’ goals, make time to answer the students’ questions, and reassure the students’ when their anxieties are palpable.

I cannot count how many times I have read a student’s externship evaluation in which the student expressed certainty that their supervisor was different than other supervisors because of the level of mentoring the supervisor gave the student. If only the students knew how many other students said the same.

We are fortunate in the Dayton Bar Association to have so many lawyers and judges committed to the growth of our next generation of lawyers. Many of you provide valuable learning experiences to our community’s law students whether it is through credit-bearing externships or other encounters.

I want to thank you for the support and guidance you give to our students. By helping students develop critical lawyering skills, you are assisting them as they transition to practice. As a result, our entire legal community benefits.

www.daybar.org

TRUSTEES MESSAGE: Mentoring Our Law Students Making Our Profession Better continued from page 4

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December 2020 Dayton Bar Briefs

5

Barrister of the Month

Anne C. Harvey Anne Harvey, LLC

D

ayton is the best place for independent and driven attorneys to grow and shine. Anne Harvey, this month’s Barrister of the Month honoree, is a testament of this.

Anne is a no nonsense, down to earth advocator leading the charge in Dayton’s legal community. She is a Dayton girl, through and through. She attended Miamisburg High School, and attended University of Dayton for undergrad and law school. During law school, she was a part of the Dayton Law Review and she was also a Legal Research and Writing teaching assistant. Anne first wanted to be a doctor when she was young. But when that career choice did not pan out, she choose to go with what was the next best option for her – law school!

After she graduated law school, she went to Texas to work at a large sized law firm as a business litigation associate. Thereafter, she moved back to Dayton where she worked at the Wright Patterson Air Force Base as a Civilian Trial Attorney. Since then she has sat as an Acting Judge in Miamisburg Municipal Court and Montgomery County Assistant Public Defender.

Now Anne owns her own Family Relations Law firm as a solo practitioner, specializing in divorces, custody disputes, father and grandparents’ rights, and other issues relating to families and children. She is also an OSBA Board Certified Specialist in the Field of Family Relations Law. In total, Anne has 29 years of experience as an attorney under her belt – meaning that she has spent more time in her life being a lawyer than not being a lawyer.

If her resume was not impressive enough, Anne also handles appeals cases at times for the Sixth Circuit as an Appointed Attorney under the Criminal Justice Act (CJA). Anne is adamant that lawyers have a greater responsibility to support, represent and uplift communities around them. She believes that the most important role lawyers should take at this time is promoting the affordability in legal services. The truth is – there are too many lawyers in the area and not enough individuals getting the legal services they need. Consequently, she encourages any lawyers who have the ability to give back to do so as often as possible.

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Dayton Bar Briefs December 2020

Anne believes that COVID-19 has brought a big culture change to the legal community, and will continue to do so throughout the future. For example, according to Anne, COVID has shown that there is no longer a need for big offices and the associated overheard costs.

She is hopeful that the adaptability aspect of the virus, and its transformative effect on our lives will provide lawyers with an opportunity to re-assess and revamp their practice moving forward.

For Anne, her role as Public Defender turned out to be the position where she learned the most about the law, due to the fast pace environment and opportunity to learn quickly on her feet. She encourages all new lawyers to consider public interest work while stressing the fact that big-law firm opportunities are not the only way to go after law school. Anne believes it is the responsibility of the legal community to support public interest and young lawyers. She also thinks that the legal practice would be better served if there as mentorship program where new lawyers are tasked with the responsibility of mentoring older lawyer; as opposed to the traditional model for mentoring programs. Anne thinks this would help foster friendship and avoid cynicism for the older lawyers.

Anne’s best advice to young lawyers is to watch out for excessive student loans and to not lose their heart and passion. Likewise, she stresses the importance of self-care for all lawyers of any age. Anne’s own version of self-care includes being active in her church; playing piano; and teaching herself Spanish. She even went to Costa Rica for a month to attend a Spanish language school. She is also a big fan of Thai food.

When asked what she loves most about Dayton, Anne said the biggest thing was the city’s tenacity and strength. Together, the Dayton community has come together time and time again. She also supports the position Dayton took as a sanctuary city, and loves the Dayton Contemporary Dance Company.

She has no interest in retiring any time soon but plans to shift her primary focus to custody cases and her appellate work when the time is right.

By Masallay N. Komrabai-Kanu Esq. DBA Editorial Board 2020 DBA Leadership Development Class Sebaly Shillito + Dyer masallaykanu92@gmail.com | 937.226.5613

937.222.7902

ONS

Notaries Go Remote: Ohio Partners with a Remote Online Notarization Provider

C

ovid-19 has certainly made its mark on our daily lives, whether personally or professionally. Lawyers have quickly adapted to the world of working from home, remote deposition taking, and even attending hearings via Zoom. Given the need to avoid excess in-person contact during the pandemic, notaries may be happy to hear that Ohio Notary Services has partnered with SIGNiX, a remote online notarization provider.

Virginia was the first state to formally legalize remote online notarization in 2011. Less than ten years later, forty states, including Ohio, have given the green light to remote online notarization. Ohio Notary Services has been asked several times for their recommendation of which service to use. After considering the options and conducting research, Ohio Notary Services announced its partnership

www.daybar.org

with SIGNiX last month. “SIGNiX provides notaries with everything needed to facilitate remote online notarizations in a safe, secure, and cost-effective manner, and we are thrilled to be partnering with them,” said C. Allen Nichols, Executive Director of Ohio Notary Services. “Unlike most other RON [remote online notarization] service providers, SIGNiX doesn’t compete with notaries for business; rather, SIGNiX gives notaries direct access to comprehensive solutions needed to conduct transactions and expand their business opportunities.”

Partnering with SIGNiX means that notaries in Ohio can perform their required duties remotely with confidence. SIGNiX provides notaries with access to technology that will allow them to validate identity credentials, protect documents, and capture video of all

participants that will act as irrefutable proof of any attempted fraud. Not only does remote notarization offer the potential for quick turnaround, it also provides a way for notaries to record and prove their authentication process.

It is easy to see how this remote service will benefit notaries well-beyond our current state of affairs. In the meantime, please stay safe and healthy.

By Jennifer A. Kirby Esq. DBA Editorial Board Surdyk, Dowd & Turner Co., L.P.A. jkirby@sdtlawyers.com | 513.206.9998

December 2020 Dayton Bar Briefs

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Civil Trial & ADR

Is a Change to Specific Jurisdiction on the Horizon?

By Callum Morris Esq. FARUKI+ cmorris@ficlaw.com | 937. 227.3700

F

or many of us, civil procedure was one of the first classes we took in law school. Moreover, one of the first things we learn in civil procedure is whether a court has the ability to hear a case -- jurisdiction. In that spirit, let me begin with a hypothetical.

I have purchased a brand new iPhone here in Dayton. Since it is the holidays, I go home to Indiana to visit my family. As we roast chestnuts over the open fire, I pull my phone out to see if I have any emails from work. I have 147, all from partners. In my panic my phone flies out of my hand into the fire, destroying it. The next day, I go to the Apple Store in Indiana and buy the exact same iPhone I bought in Dayton. Upon my return to Dayton, the iPhone unexpectedly explodes and injures me. Now, the question. Can I sue Apple in Dayton for the injuries suffered from the second iPhone?

In a case currently before the United States Supreme Court, petitioner Ford argues no. Ford, in Ford Motor Co. v. Montana Eighth Judicial District, 140 S. Ct. 917 (2020), looks to inject a proximate cause consideration into the minimum contacts test that determines whether a court has specific jurisdiction over a claim.

Before we go further, let's lay out the test for specific jurisdiction.

To determine whether specific jurisdiction comports with due process, a court must determine whether the three part minimum contacts test has been satisfied. First, the court must determine whether the defendant "purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."1 Second, "there must be an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum state and is therefore subject to the State's regulation."2 Third, jurisdiction may still be defeated if there are compelling reasons that the presence of some other consideration would render jurisdiction unreasonable due to concerns of "fair play and substantial justice."3 Ford now seeks to introduce a new causal test into the second prong of the minimum contacts test. The two plaintiffs in Ford, one in Montana and one in Minnesota, purchased used Ford vehicles that had been originally sold in Washington and North Dakota respectively.4 Over the years the vehicles were resold and ended up in Montana and Minnesota where alleged design flaws injured the plaintiffs. Ford tried to defeat jurisdiction in Montana and Minnesota by arguing that the second prong of the minimum contacts test requires the defendant's conduct in the forum give rise to the plaintiffs claim.5 Ford argues that the mere fact a plaintiff was injured in a Ford vehicle that plaintiff brought into a specific jurisdiction does not allow Ford to be haled into court in that jurisdiction because its actions did not bring the vehicle 8

Dayton Bar Briefs December 2020

there.6 Moreover, Ford argues that a "causal test" gives Ford a fair warning as to what activities will subject it to jurisdiction in particular States and Ford can structure its business activities accordingly.7 The Respondents argue it is not unreasonable to subject a defendant to suit when a defendant, like Ford, sells its products, not in isolation, but in an effort to cultivate a "market for its product[s]."8 The Respondents argue that a causal element in the minimum contacts test would deprive States of the ability to protect their citizens from harm or provide a forum for redressing injuries.9 Simply put, Ford's reading of the minimum contacts test would require a court to find a party's activity in the forum led to the specific injury at issue in a case. Returning to my phone hypothetical above, under Ford's reading I could sue Apple in California, where it is headquartered; China, where iPhones are manufactured; or, Indiana, where I first bought the phone. Under Respondent's reading, I could sue in all of those places, plus Ohio because Apple has cultivated a market in Ohio and should expect to be sued here for actions related to the very type of product that caused my injury.

While the Court appeared skeptical of Ford's causal test and its foundation in the Due Process Clause, the Court has arguably moved to limit the reach of State's in specific jurisdiction cases over the last several years. This is evident from Bristol-Meyers Squibb Co. v. Superior Court, where the Court held that a group of non-native plaintiffs could not sue Bristol-Meyer Squibb in California for injuries suffered elsewhere, even though a group of Californians had sued in State court alleging identical injuries and causes of action as the non-residents. continued on page 9

END NO TES: 1

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

2

Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017) (internal citation omitted).

3

Burger King Corp., 471 U.S. at 476-78.

4

Brief for Petitioner, pp. 5, 8.

5

Id. at 17.

6

Id. at 32-3.

7

Id. at 26-7.

8

Brief of Respondent, p. 13.

9

Id. at 3-4.

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CIVIL TRIAL PRACTICE & ADR: Is a Change to Specific Jurisdiction on the Horizon? continued from page 8 The Court held that, "the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment."10 Moreover, Justices Breyer and Alito noted in J. McIntyre Mach. v. Nicastro that the impact of the internet on determining who has an affiliation with a forum is growing more complex as the internet changes business practices.11 Let's return to my hypothetical one last time. What if I bought a phone in Indiana that was no longer sold in Ohio? What if Apple closed all of its Ohio stores, but still sold phones to a retailer who sold in Ohio? What if Apple's sales were solely through its website? What if Apple never directly advertised in Ohio, but had pop-ups or sponsored an e-sports team? All of these scenarios implicate concerns the Court has expressed and present real questions as to whether a Court has jurisdiction over a claim.

If Ford becomes precedent, jurisdictional questions in many cases will become ever more complex. Parties will spend more time at the outset of litigation determining whether the defendant's activities in the State were the direct cause of the plaintiff 's injuries. Yet even if this scenario does not come to pass, defendants should spend more time considering their jurisdictional arguments. Likewise, plaintiffs should be careful in assuring their jurisdictional foundation is proper. The Supreme Court has shown an openness to considering the contours of specific jurisdiction in an age where we are ever more connected to even the most far-flung locales. Litigators should keep an eye on the jurisdictional landscape over the next few years and carefully consider every aspect of their case's jurisdictional foundations.

END NO TES:

upcoming Chancery Club Luncheons

Join us monthly for our upcoming year of luncheons!

The Chancery Club will be held virtually until further notice and we still have lined up great speakers & content.

Grab lunch from your kitchen, or take a moment in your office to network and catch up with one another!

Virtual Chancery Club Luncheon Dates:

January 8th February 5th March 12th April 9th May 7th

RSVP to Chris: calbrektson@daybar.org

Bristol-Meyers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780-81 (2017) (internal citation omitted).

10

J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 887-890 (2011) (Breyer, J., concurring).

11

www.daybar.org

December 2020 Dayton Bar Briefs

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Estate Planning Trust & Probate

Traps for the Unwary 2.0

By Edward M. Smith Esq. Chair, EPTPL Section Nolan, Sprowl & Smith edsmith@nsslawyers.com | 937.228.7104

I

n February 2014, Three Traps for the Unwary appeared in Bar Briefs.

It addressed questions that arise frequently in our law practices.

Over the years, we have seen recurrence of the original Three Traps and more:

Trap No. 2 - Allowance for Support

Trap No. 1 - Election against the Will

The surviving spouse has a right of election under ORC § 2106.01 to upset the decedent’s will. This right does not apply to trusts, and is one reason to utilize an inter vivos trust. The election against the will has many sub-traps.

• The election must be made in person before the probate court judge or magistrate. In re Estate of Woods, 2011-Ohio1831, 193 0hio App. 3d 371 (2d Dist., 2011).

• The surviving spouse must make the election to upset the will within 5 months after the appointment of the executor.

ORC § 2106.06. Otherwise, there is a conclusive presumption of waiver.

• Make the election as soon as possible. The right of election dies when the surviving spouse dies.1 • Finally, the result of the election is an acceleration of remainder interests under ORC § 2106.01 (D). What this means is the surviving spouse forfeits any interest in the will and pour-over trust as a result of the election against the will. The surviving spouse cannot elect against the will and still receive benefits from the will or pour-over trust.2

The allowance for support is sometimes over-looked: • Do not overlook the allowance for support in the case of a pourover will to a trust which benefits the spouse. The allowance for support is a statutory right that arises under ORC § 2106.13.

Unlike the right to elect against the will which is presumed to be waived if not exercised in the five month election period, the allowance for support is considered a debt of the estate under ORC § 2117.25 (A)(3), entitled to priority. Nevertheless, ORC § 2117.25 (D)(1) expressly states that “claims for an expense of administration or for the allowance for support need not be presented.” ORC § 2106.13 (E) requires the fiduciary to pay it unless waived by a competent adult. Subsection (B) states that “the probate court shall order the distribution of the allowance for support.” Thus, the allowance for support is not a right exercised by election of the spouse but is a right the fiduciary of the estate has a legal duty to pay and which the probate must enforce.

• The allowance for support applies even in the case of a nonresident surviving spouse. See In re the Estate of Stringfellow, Case No. 2010 EST 02154 (Montgomery County Probate Court, 2010).

• It also applies even if the spouse dies after the decedent.

• If an election against the will is made the surviving spouse is still entitled to the allowance for support.

END NO TES: ORC § 2106.04.

ORC § 2106.01 (D) was amended to rectify this by eliminating the surviving spouse’s interest in the trust as well.

3 The OSBA Council of Delegates has approved a proposed amendment to ORC § 2117.06 (A) to allow service on an attorney for the fiduciary.

1 2

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Dayton Bar Briefs December 2020

continued on page 11

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EPTPL: Traps for the Unwary 2.0 continued from page 10

Trap No. 3 – Claims against an Estate in General

Ohio has a short claims period of six months from the date of death, even if no estate is opened. ORC § 2117.06. All claims must be made to an appointed fiduciary. A special administrator can be appointed to make a claim against an estate if a creditor senses the estate is not being opened promptly.

Trap No. 8 – Using the Ohio UPOA “Form”

In Wilson v. Lawrence, 150 Ohio St. 3d 368 (2017), the Court held that claims must be presented to the fiduciary, not a third party on behalf of the fiduciary. The problem with the case is the syllabus: “… delivery of the claim to a person not appointed by the probate court who gives it to the executor or administrator fails to present a claim against the estate.” Personal delivery should be verified, and an agent does not suffice. Attorneys who engage in litigation are used to filing with the court and serving under Civ. Rule 5. However, more is required under the Lawrence case. It is best to file with the Court, mail or deliver to the Executor and send the claim to the attorney. Verify that the executor or administrator received the claim. Some courts have held service on the attorney is insufficient. Finally, perfect the claim as quickly as possible.3

I do not advise using the statutory power of attorney form.6 Financial institutions want to see the specific powers in writing. They can reject the POA. Further, if your client desires to authorize the agent to create or change beneficiary designations, that authority is only valid if the document “expressly grants the agent the authority and if exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject…” ORC § 1337.42 (A) (4).7 If used, I suggest permitting such designations only to the client’s trust so as to coincide with the principal’s estate plan.

Trap No. 5 – Presentation of Claim as Condition for Claim Against Third Party

Trap No. 9 – Failing to Record a Transfer on Death Affidavit Before Death

Trap No. 4 – Presentation of the Claim

Sometimes claims are made against third parties for debts of the decedent. Embassy Healthcare v. Bell, 155 Ohio St. 3d 430 (2018) involved a nursing home claim against a surviving spouse for services rendered to the decedent. The suit was based on the “necessaries” statute, ORC § 3103.03. The Court reversed the 12th District (Warren County) and ruled the nursing home must first present its claim against the decedent’s estate before it can pursue a claim against the decedent’s surviving spouse. In the Bell case, no estate was opened, or attempted to be opened by the spouse or the creditor. It does not matter that the estate has no assets. In Brookville Enterprises, Inc. v. Seibel, 2020-Ohio-948 (2d Dist. 2020), the estate was opened, but the creditor nursing home simply failed to present its claim in a timely manner. The Court therefore followed the Bell case.

Trap No. 6 – Personal Injury Claims

Claims against a third-party who caused injury, but who has died should be filed in case the decedent has no insurance or the insurance is inadequate. A personal injury or wrongful death claim can still be filed against a fiduciary after the six-month time bar. See ORC § 2117.06 (G).4 However, there should be an affirmative allegation that plaintiff does not seek recovery from estate assets, but only from non-estate assets, such as a policy of liability insurance covering the deceased, against which any judgment may be enforced.5 Otherwise, it is possible the claim may be fatal.

Trap No. 7 – Beneficiary Designations at Financial Institutions Versus a Trust

The statute authorizing Transfer on Death (TOD) Affidavits for real property requires the Affidavit to be recorded prior to death.8 In addition, such transfers can only be made to a natural person or legal person, for example, the trustee of a trust. No per stirpes distribution is available.9 A much better alternative is a trust.

There are many traps in this practice area. We can avoid them by recognizing problems and being vigilant.

END NO TES: This statute may alleviate concerns of the dissent in the Bell case, supra, that an estate may need to be opened in every case in which there is a claim against a third party (e.g., guarantor, indemnitor, surety, etc.).

Nevertheless, the best practice may be to attempt to present a claim.

5 In re Estate of Bishop, 2004-Ohio-2197 (2d Dist., 2004) (claim on surety bond).

6 ORC § 1337.60.

7 See Hillier v. Fifth Third Bank, 2020-Ohio-3679 (2d Dist. 2020), litigated by Mr. Vollmar.

8 ORC §5302.22 (F).

9 ORC §5302.22 (G).

4

Payable on death (POD) accounts were addressed recently in an informative CLE presentation by Andy Vollmar in August 2020. ORC § 2131.10 permits such accounts “payable on the death of the owner to another person or to any entity or organization, referred to in such sections as the beneficiary.…” By reference to a named beneficiary, the statute appears to preclude a per stirpes distribution. The typical contract usually permits distributions only to named survivors and has residency requirements. Financial institutions do not want to be heir finders.

Therefore, in most situations, a revocable trust is the preferred vehicle of distribution, thereby permitting a per stirpes distribution through the trust and much more flexibility. If possible, lawyers should take the opportunity to review the beneficiary designation forms.

www.daybar.org

December 2020 Dayton Bar Briefs

11

Dayton Bar Foundation

Let Us Use Our Foundation to Help Rebuild Other Foundations

B

y the time you read this, we will be nearing the end of one of the more challenging years on record of modern human history. The reasons are many. Life as we know it has changed; for how long, no one knows. Everyone has been affected in one way or another over the past twelve months. You could say our respective “foundations” have at a minimum, been shaken. Notwithstanding these trying times, I ask you to consider supporting our collective “foundations” to help support those in need of equal access to justice and respect for the law.

According to Merriam-Webster, the word “foundation” has many definitions. The Dayton Bar Foundation (“DBF”) fits one definition – “an organization or institution established by endowment with provision for future maintenance.” The DBF was created in 1984 with the purpose “to serve as the Philanthropic Organization for the Greater Dayton Legal Community.” The DBF’s mission is “to improve Our Community by Promoting Justice and Respect for the Law.” The DBF relies upon friends and members of the Dayton Bar Association (“DBA”) for support. We, the members of the DBA, collectively fit another definition of foundation – “an underlying base or support.” The DBF is only as solid as its foundation, and thankfully over the past 36 years, its foundation has been strong.

Through you, the foundation of the DBF, the DBF has successfully furthered its mission. Over the last several years alone, the DBF awarded grants supporting organizations such as the Greater Dayton Volunteer Lawyers Project, Advocates for Basic Legal Equality, Legal Aid of Western Ohio, Access for Justice, Life Essentials Guardianship Program, Law & Leadership Institute, and Wills for Heroes.

Like you, the foundation of the DBF, and the DBF itself, these local community and charitable organizations, among others, have their own foundations – “a basis (such as a tenet, principle, or axiom) upon which something stands or is supported.” These foundations include, but are not limited to providing “innovative opportunities for attorneys to perform pro bono civil legal services to benefit persons with limited financial resources” and working “with high school students from underserved communities to educate them about and prepare them for careers in the legal profession.”

The programs, access, opportunities, and support provided by these organizations to individuals in our community are essential. Equal access to the law, the courts, as well as access to the education of law are bedrocks to our society. You, the foundation of the DBF, have provided overwhelming support over the years to allow these organizations to further their own foundations, and in turn, better individual lives in our community.

Over the last year, the figurative and literal foundations of many in our community have been shaken, shattered, and/or destroyed. As a result, the need to improve our community by promoting equal access to justice and respect for the law is high. We, the members of the DBA as the foundation of the DBF, have an opportunity to “build our Foundation” to help rebuild and strengthen the foundations of those in our community.

As a fellow DBA member and Secretary of the DBF, I ask you to consider making a year-end charitable contribution, in any amount, to the Dayton Bar Foundation.

“He who wishes to secure the good of others has already secured his own.” ~Confucius

12

Dayton Bar Briefs December 2020

By Adam C. Armstrong Esq. DBF Treasurer Bruns, Connell, Vollmar & Armstrong, LLC aarmstrong@bcvalaw.com| 937.999.6261

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm

 Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

937.222.7902

Your Gift Will Help

STRENGTHEN

Our Foundation.

T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community.

Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to: - Access for Justice - Advocates For Basic Legal Equality (ABLE) - Catholic Social Services of The Miami Valley - Greater Dayton Volunteer Lawyers Project (GDVLP) - Law & Leadership Institute - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Miami University Center Pre-Law Center - Wills for Heroes

DONATE online: daybar.org/foundation Make a donation now and help us make a difference through our programs.

Gifts may also be made in honor or in memory of family, friends or colleagues.

For more information about the Dayton Foundation:

DBF & DBA CEO Jennifer Otchy jotchy@daybar.org | 937-222-7902 = = = = = = = = = = = = = = = == = = = = = = = = = = = = = = = = = =

DETACH AND RE­T URN

=====================================

To: Dayton Bar Foundation, 600 Performance Place, 109 N. Main St., Dayton OH 45402-1129 I am pleased to support the Dayton Bar Foundation with a gift of:

 $50  $100  $250  $500  Other $________________________________ Method of payment:

 Check Enclosed  Charge my:

Expiration

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MASTERCARD

/

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Signature: ___________________________________________________________________________

My gift is

Name: _____________________________________________ (As you wish it to appear on our records)

Firm: ______________________________________________ Address: ___________________________________________ ____________________________________________ Phone: ____________________________________________ Email:_____________________________________________

(AS SHOWN ON CREDIT CARD)

 in memory of

 in honor of

_________________________________________________________________________________________________

Please notify: ____________________________________________________________________________________________________________________________________ December 2020 Dayton Bar Briefs 13 Address: ________________________________________________________________________________________________________________________________________

DAYTON

O u t o f T im e ? G o O n lin e !

Bar Association

D id Yo u K n o w ...

Contact DBA CLE Coordinator, Ashley Likens with questions regarding your CLE.

A ll J u d g e s , M a g is t r a t e s a n d A t t o r n e y s la s t n a m e s A -Z c a n c o m p le t e A L L C L E C r e d its O N L IN E T h r o u g h th e E n d o f 2 0 2 1 !

D u e t o C O V ID -1 9 , t h e O h io S u p re m e C o u r t h a s w a iv e d t h e c a p o n s e lf-s t u d y c o u r s e s + w e b in a r s .

alikens@daybar.org

www.daybar.org 937.222.7902

F o r M o r e I n f o : s u p re m e c o u r t .o h io .g o v /A t t y S v c s /C L E /

December 2020

T o R e g i s t e r : d a y b a r.c e 2 1 .c o m

MONDAY

TUESDAY

11pm-4:15pm | 3.0 Gen Hrs The Worker's Comp’ Practitioner as a Jack of All Trades

Speaker Joe Gibson provides Caselaw updates including COVID concerns & H.B. 81.

7 1pm-4pm | 2.75 Gen Self-Study Hrs 8 1pm-4:15pm | 3.0 Gen Hrs Self-Study Video Replay!

2019 Well-Being Skills for the Effective Lawyer

Judge Dankof’s Criminal Law Update

Speaker Judge Steven K. Dankof Sr.

WEDNESDAY

THURSDAY

2 9am-12:15pm | 3.0 Gen Hrs

3 9am-12:15pm | 3.0 Gen Hrs

Juvenile GAL Seminar

Appellate Practice Update

1pm-4:15pm | 3.0 Gen Hrs

Noon-1pm | 1.0 Gen Hrs Smacked: A Story of Corporate Fiduciary Services— White-Collar Ambition, Partnering with Attorneys, Addiction & Tragedy

15 9am-12:15pm | 3.0 Gen Hrs Labor and Employment:

Worker’s Comp, FMLA, ADA & Discrimination During COVID

Employee & employer’s rights under Ohio’s workers comp’ laws.

- Requests for medical leave - State & federal anti-discrimination laws, retaliation and procedural issues.

21 1pm-4pm | 2.75 Gen Self-Study Hrs Self-Study Video Replay!

1:15pm-4:30pm | 3.0 Gen Hrs Federal Practice:

4 1pm-4:15pm | 3.0 PC Self-Study Hrs Self-Study Video Replay!

Practical and Ethical Aspects of Managing Your Law Practice

Estate Planning, Trust and Probate:

Clients, and Other Advisors

Registration $50 - Includes Book!

9 9am-12:15pm | 3.0 Gen Hrs

10 Register Online!

2020 Annual Domestic Relations Institute pt. 2

Holiday Event

1pm-4:15pm | 3.0 Gen Hrs or 3.0 NLT Hrs

16 9am-12:15pm | 3.0 Gen Hrs Real Property Update

23

2019 Business Law Basics: Demystifying the Process: Practicing in Federal Court Forming Limited Liability Speakers Hon. Michael Newman, Companies and Preparing Glen McMurry & Daniel Gentry, will introduce the nuts and bolts of Common Business federal civil practice, while walking Contracts attendees through federal civil

11 9am-12:15pm 2.0 Gen Hrs incl. 1.0 Prof Conduct Hr Civil Trial:

DBA Virtual

Ohio Governor Michael DeWine

YLD NLT: Core Components

14

FRIDAY

17 9am-11am | 2.0 Gen Hrs

Common (But Not Simple) Financial & Tax Issues in Divorce

5pm-6pm | 1.0 Gen Hr Corporate Counsel Update

24

Discovery, Dispute Resolution, the Supreme Court, and Ethics Effective, efficient discovery practices, dispute resolution in a COVID-19 world, Supreme Ct Update (U.S. & Ohio) & ethics update for Ohio litigators.

18 9am-12:15pm | 3.0 Gen Hrs DBA Annual CLE Favorite!

Intellectual Property for General and Corporate Practitioners Organized by: Matthew Jenkins

25

DBA OFFICES CLOSED Happy Holidays!

procedures, sharing strategies and sharing their own experiences in court.

28 1pm-2pm

29 9am-10am | 1.0 Gen Self-Study Hr 30 9am-12:15pm | 3.0 PC Self-Study Hrs 319am-10:30am | 1.5 Gen Self-Study Hrs

Self-Study Video Replay!

Self-Study Video Replay!

1.0 NLT or Gen Self-Study Hrs

Managing a Law Practice from a Managing Partner's Perspective

2019 Mitigating Compassion Fatigue

Self-Study Video Replay!

Practical and Ethical Aspects of Managing Your Law Practice

3pm-4pm | 1.0 PC Self-Study Hr

Self-Study Video Replay!

Sentencing Disparities & Dangerous Perpetuation of Racial Bias

For a complete list of seminar details and to register: daybar.org

Self-Study Video Replay!

Covid-19: A Labyrinth of Leave – What Law Applies and When?

1pm-4:15pm | 3.0 Prof Conduct Self-Study Hrs

Self-Study Video Replay!

2019 Ethics Caselaw Review

@Dayton_Bar

@DaytonBarAssociation

DECEMBER 2020 CLE Tues. Dec. 1 | 1pm-4:15pm | 3.0 Gen Hrs

Wed. Dec. 16 | 9am-12:15pm | 3.0 Gen Hrs

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

Wed. Dec. 2 | 9am-12:15pm | 3.0 Gen Hrs

Thurs. Dec. 17 | 9am-11am | 2.0 Gen Hrs

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

M $70 | NL <2yrs & Paralegal $35 | PP & LS $0

Wed. Dec. 2 | 1pm-4:15pm | 3.0 Gen Hrs

Thurs. Dec. 17 | 5pm-6pm | 1.0 Gen Hr

The Workers' Comp Practitioner as a Jack of All Trades

Juvenile GAL Seminar

Corporate Fiduciary Services Partnering with Attorneys, Clients, and Other Advisors M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Thurs. Dec. 3 | 9am-12:15pm | 3.0 Gen Hrs

Appellate Practice Update

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Thurs. Dec. 3 | Noon-1pm | 1.0 Gen Hrs Special OMBAC CLE! $50 - Includes Book!

Smacked: A Story of White-Collar Ambition, Addiction & Tragedy Fri. Dec. 4 | 1pm-4:15pm | 3.0 Prof Conduct Self-Study Hrs Self-Study Video Replay!

Practical and Ethical Aspects of Managing Your Law Practice M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Mon. Dec. 7 | 1pm-4pm | 3.0 Gen Self-Study Hrs Self-Study Video Replay!

2019 Well-Being Skills for the Effective Lawyer M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Tues. Dec. 8 | 1pm-4:15pm | 3.0 Gen Hrs

Judge Dankof's Criminal Law Update M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

2020 Real Property Update

Common (But Not Simple) Financial & Tax Issues in Divorce

2020 Corporate Counsel Update M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Fri. Dec. 18 | 9am-12:15pm | 3.0 Gen Hrs

2020 Intellectual Property for General and Corporate Practitioners M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Mon. Dec. 21 | 1pm-4pm | 2.75 Gen Self-Study Hrs Self-Study Video Replay!

2019 Business Law Basics: Forming Limited Liability Companies and Preparing Common Business Contracts M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Mon. Dec. 28 | 1pm-2pm | 1.0 NLT or Gen Self-Study Hr Self-Study Video Replay!

Managing a Law Practice from a Managing Partner's Perspective M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Tues. Dec. 29 | 9am-10am | 1.0 Gen Self-Study Hr Self-Study Video Replay!

2019 Mitigating Compassion Fatigue M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Wed. Dec. 30 | 9am-12:15pm | 3.0 Prof Conduct Self-Study Hrs Self-Study Video Replay!

Practical and Ethical Aspects of Managing Your Law Practice

Wed. Dec. 9 | 9am-12:15pm | 3.0 Gen Hrs

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

Wed. Dec. 30 | 3pm-4pm | 1.0 Prof Conduct Self-Study Hr

Wed. Dec. 9 | 1pm-4:15pm | 3.0 Gen Hrs of 3.0 NLT Hrs

Sentencing Disparities & Dangerous Perpetuation of Racial Bias

2020 Annual Domestic Relations Institute Pt. 2

YLD NLT - Core Components

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Fri. Dec. 11 | 9am-12:15pm | 2.0 Gen Hrs, incl. 1.0 Prof Conduct Hr

Discovery, Dispute Resolution, the Supreme Court, and Ethics

Self-Study Video Replay!

M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Thurs. Dec. 31 | 9am-10:30am | 1.5 Gen Self-Study Hrs Self-Study Video Replay!

Covid-19: A Labyrinth of Leave – What Law Applies and When?

M $35 | NL <2yrs & Paralegal $15 | PP & LS $0

M $50 | NL <2yrs & Paralegal $25 | PP & LS $0

Tues. Dec. 15 | 9am-12:15pm | 3.0 Gen Hrs

Thurs. Dec. 31 | 9am-10:30am | 3.0 Prof Conduct Self-Study Hrs

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

2019 Ethics Caselaw Review

Workers' Comp, FMLA, ADA & Discrimination During COVID

Self-Study Video Replay!

M $105 | NL <2yrs & Paralegal $50 | PP & LS $0

Tues. Dec. 15 | 1:15pm-4:30pm | 3.0 Gen Hrs

Demystifying the Process: Practicing in Federal Court M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Speakers Hon. Michael Newman, U S District Court, Southern District of Ohio; Glen McMurry, Dinsmore & Shohl, LLP and Daniel Gentry, Coolidge Wall Co., LPA This program is designed to introduce attorneys to the nuts and bolts of federal civil practice. The panelists, including both practicing attorneys and members of the judiciary, will

Timed Agenda: • 1:15-3:15pm

Demystifying the Process: Practicing in Federal Court

• 3:15-3:30pm

Break

• 3:30-4:30pm

Ohio Rules of Civil Procedure Changes:

Evaluation of State Court Practice

tell how rules are going to evolve (i.e. initial disclosure, export report requirements, etc.) and they will walk attendees through federal civil procedures while discussing strategies and sharing their own experiences in court.

www.daybar.org

December 2020 Dayton Bar Briefs

15

From the Judges Desk

Musings Upon Retirement

I

n February, when I signed up to write this article, I had a plan: we would take a quick stroll through Montgomery County Court history from 1987 when I was appointed to the bench through 2020, as I retire. Then COVID-19 hit. A leisurely stroll through anything does not now seem to be relevant. But what to write about?

As may be the case with some of you, my brain is a bit addled with a combination of working from home and at the Courthouse – with masks and chapped hands, Zoom meetings, remote dockets and hearings, missing out-of-town grandchildren, and not seeing people that I am used to seeing regularly. We’ve all been there; we’re still there.

So, instead of my planned memory stroll, these are just some musings by a retiring Judge.

Perhaps it is part of “America’s story” that an Italian girl from the Bronx, whose dad and grandparents literally “came over on the boat” and through Ellis Island in search of a better life for their families, came to Dayton by way of Milwaukee, and served on the Montgomery County Common Pleas bench for 33 years.

My grandparents were neither educated nor wealthy. My grandfathers both worked as bricklayers eventually going into business together building houses in the Bronx. My dad, who came to America when he was about 6 years old, became a citizen on his father’s papers and served in the U.S. Army. He married my mom and with her raised four children, living in a house built by my grandfathers, all while he became a successful neighborhood doctor – and I mean neighborhood doctor – his office was the first floor of our home.

America’s story.

Back to Dayton

In 1974, the University of Dayton reopened its law school. I was a member of that first class. Our law school “facility” was the basement of the university’s library. Even that wasn’t ready for classes, so we spent our first two weeks going to random classrooms around

By The Honorable Barbara P. Gorman Montgomery County Court of Common Pleas barbara.gorman@montcourt.oh.gov | 937. 225.4392

campus. From that modest beginning, the school has grown in so many ways, becoming a moving force in the community. Today’s students don’t have to roam campus, but instead have the opportunity to pursue their education in the state-of-the-art Keller Hall.

For those in the first class, we took a chance on the law school, and the law school took a chance on us. We all seemed to survive and prosper. Through my time as an adjunct professor and as the mentor of several student ex-terns, I have seen the continued growth and excellence of the young lawyers being trained at the law school. I am a proud alumna.

It has been an honor and a privilege to serve the citizens of Montgomery County as a Common Pleas Judge for over three decades.

My husband, our children and their families, our extended families and friends have made all the difference. This journey would not have been possible without the support of so many people.

To the members of the DBA – you rock! I often praise the attorneys of Montgomery County. That praise is well-deserved. When it comes to our lawyers and how they interact with the court and each other, they are second-to-none for courtesy, professionalism, and ethical conduct. Our attorneys also give back to the community by giving volunteer hours to the Volunteer Lawyers Project and serving on non-profit boards, whether law related, social-service oriented, or focused on the arts.

Since March, lawyers have found even more unique ways to work together and represent their clients as “normal” fled our consciousness.

COVID-19 has wreaked havoc on the country and the Montgomery County Common Pleas Court is no different. The cooperation of lawyers working together and on behalf of their clients has been exceptional – but I wouldn’t expect less. We now hold remote proceedings. Face-to-face hearings are being held in courtrooms where masks, social distancing, Plexiglas and loud room air purifiers are the norm. All of these adaptations have been met with patience and grace by our legal community. continued on page 17

16

Dayton Bar Briefs December 2020

937.222.7902

FROM THE JUDGES DESK: Musings Upon Retirement continued from page 16

Since the start of the state of emergency declared by Governor DeWine, the County’s assistant prosecutors and criminal defense lawyers have stepped up as they deal with unique, critical problems such as speedy trial issues, jury trials in the time of pandemic, and defendants in jail under the specter of COVID-19. Our civil lawyers have demonstrated true professionalism in their willingness to cooperate with the court and each other when new deadlines and dates have needed to be set while continuing to zealously represent their clients.

The Court Itself

It has been an honor to begin my tenure with the likes of Carl Kessler, Bob Brown and Dick Dodge and leave the Court in the capable hands of our newest Judges, Gerald Parker, Mary Montgomery, and Helen Wallace. Without going over my word allotment, I cannot name every Judge I have served with on this bench. I, however, remember them all, as well as each Judge’s willingness to work together, to help each other out, to be part of something bigger than the individual judgeship, and to give up a part of his or her ego for the greater good of the Court.

The Employees

I cannot talk about the Court without talking about our employees. The citizens of Montgomery County cannot truly understand the dedication and devotion of the Court’s staff towards the mission:

www.daybar.org

Together we provide fair and efficient justice under the law for all.

This is not just a motto. It is a driving philosophy. Everyone from administration, the individual judicial offices, the magistrate’s office, case management services, support services, probation and pre-trial officers, IT staff, the civil stalking office, maintenance, and housekeeping services works towards this goal. Know that you are appreciated. I will miss you all and only ask for a cup of coffee if I stop by to visit. Best wishes to you all.

Of course, my own staff is part of the bigger constellation of employees, but they are personal to me. Starting with Michelle Roberts as my bailiff and ending with Diana, Amanda and Candee, I have been so fortunate for all the bailiffs, court reporters, judicial assistants, law clerks, and staff attorneys that worked with me over the years. Quite simply, I could not have done it without all of you.

Looking to the future, my husband and I would like to spend more time visiting with our out-of-town grandchildren. Hopefully, science will control the pandemic so that we can visit their homes in New York and Wisconsin in the not too distant future. Tutoring our clients at the Day Reporting Center will keep me in contact with the Courts. I will also remain active on the Boards of the Dayton YMCA, the Volunteer Lawyers Project, and the Bruner Literacy Center. Taking some classes at U.D. sounds like fun, and I like the idea of being able to sleep in when I want to do so.

Meanwhile, thank you all for my memorable experiences.

And for now, keep working hard, have some fun, mask up, wash your hands, social distance, and take care of yourselves. See you around. Maybe at a DBA meeting!

December 2020 Dayton Bar Briefs

17

DBA Rising Star

Shawna Sorrell Esq. O

Taft Law

ne of the greatest skills that an attorney can develop is empathy. Without the ability to understand and share the feelings of others, an attorney is limited in his or her ability to properly service clients and the community at large. This month’s Rising Star of the Bar is an up-and-coming attorney who credits empathy as the driving factor in her success: Shawna Sorrell.

Shawna was born in Middletown, Ohio, but moved around quite a bit. During her childhood, substance abuse and addiction issues were prevalent in her home, and she was eventually placed in foster care for a brief period. She lived in Tennessee and Colorado, but moved back to the Dayton area, where she attended Carlisle High School, and later the Miami Valley Career Technology Center where she studied legal assisting during her junior and senior year of high school. Upon graduation, she enrolled at Wright State University. At Wright State, Shawna studied psychology, and worked part time as a legal assistant for David Chicarelli and Dan Allnutt.

During this time, Shawna gained exposure to personal injury, family, and criminal law. But fundamentally, Shawna gained understanding of the valuable role that support staff serves in the legal practice. While working part time, shared by two attorneys, when “everything is an emergency,” Shawna learned how to prioritize and understand the urgency in which clients rely upon lawyers to help solve their problems. Frequently, she took these observations into her psychology classes and would appreciate the connections she made between the theoretical concepts discussed in the classroom, and the practice skills she developed in the real world.

In addition to pursuing her undergraduate degree and working part time as a legal assistant, Shawna took on jobs as a server at Cracker Barrel and later Roosters, where she worked as a server and bartender. “Both jobs taught me the importance of patience,” Shawna remembered. “You see a lot of people who are unreasonable and demanding when you work in the service industry, and you have to develop patience and the ability to prioritize or you will get run over. It taught me how to juggle a lot of things at once while also showing people respect and decency.”

After college, Shawna enrolled at University of Dayton School of Law on an academic scholarship. She chose UDSL so that she could remain close to home and maintain the flexibility to visit and spend time with family. During her time at UDSL, Shawna quickly rose to the top of the class. She earned CALI awards in classes such as Legal Writing, earned a spot on the law review, and developed friendships that she trusts will endure. During her 1L summer, Shawna worked at Casper & Casper, where she gained deeper exposure to worker compensation and personal injury work. During her 2L summer, she worked as a law clerk with Taft Stettinius & Hollister, where she eventually accepted an offer to join as an associate attorney following graduation. Shawna credits her summer at Taft with solidifying her belief that the practice of law was a good fit for her. Shawna valued the firm’s diverse areas of practice, as well as its commitment to gender advancement, diversity, and inclusion. During her summer, Shawna had the opportunity to dabble in multiple practice areas, including corporate work, litigation, government contracting, and labor and employment.

After graduating near the top of her class, Shawna sat for the bar and learned during her Taft orientation that she was assigned to the Labor and Employment practice group. Shawna hit the ground running and developed a strong practice where she counsels clients on employee hiring and termination, employment agreements, personnel policies, harassment, discrimination, wage and hour issues, ADA, FMLA, and worker’s compensation. Shawna enjoys the policy development side of her work, because to her, it is like a puzzle in trying to not only fit the pieces together, but to do so in a way that can maintain the client’s workplace culture and values.

Through this work, Shawna sees her life experiences and studies in psychology as invaluable: “When you work with a client that is dealing with a difficult employee continued on page 19 18

Dayton Bar Briefs December 2020

937.222.7902

DBA RISING STAR: Shawna Sorrell Esq. continued from page 18 or a workplace issue, having the life experience that I do and experience in the service industry where people live paycheck to paycheck really helps you understand the rationale behind why people make seemingly odd choices, and it also helps you to counsel your clients into how they can find an equitable resolution to avoid litigation.”

During her time with Taft, Shawna has learned the value of mentorship. She credits Jeff Mullins, Jennifer Hann Harrison, and Carolyn Davis as being monumental influences on how she approaches her practice. “Jeff, Jennifer, and Carolyn have taught me not only the substantive law, but also how to cultivate the attention to detail and practice considerations that are necessary for serving the client. I am lucky to have such great partners who always have their door open to bounce around ideas,” Shawna explained. “When new associates join the firm, I always make it a priority of mine to pay it forward and offer any advice and mentorship that I am able.”

In her spare time, Shawna serves on the associate boards for Big Brothers Big Sisters, and For Love of Children (“FLOC”). Shawna sought out opportunities to contribute to both organizations because of the meaning and impact they have in the community. Shawna recalls “I found FLOC first, because it was a mission that really resonated with me. Having grown up around substance abuse and addiction and being in foster care, I understand the difference people can make in the life of a child.

My first interaction with an attorney was when I was in foster care. I was 13 years old and felt

like no one ever listened to me because I was just a kid, which was incredibly frustrating when the adults in your life make erratic and irrational decisions, but he listened to me and I felt valued and heard.” Whether it is volunteering to stock Christmas gifts for underserved children, or contributing to FLOC’s “Blessings in a Bag” program where volunteers fill book bags on Friday’s with meals for children to enjoy over the weekend, Shawna is deeply attached to FLOC’s efforts to make our community a better place.

Likewise, Shawna’s work with Big Brothers Big Sisters helps children realize their potential through fostering meaningful relationships with volunteers throughout the community. Shawna has invested countless hours raising money for Big Brothers Big Sisters and spreading its message and awareness. Through her efforts, more and more people have volunteered and engaged with the program to improve the lives of Dayton children.

Shawna understands that being a lawyer is more than just the services you perform for a client. Being a lawyer is about the role you have in the community to make it a better place. Shawna hopes that anyone who has experienced hardships in their childhood, or who are currently experiencing those DAYTON Bar Association

hardships, knows that they can rely on her and the rest of the supportive and inclusive Dayton community. With the help of others, it’s possible to overcome negative circumstances in order to secure the future that you want. Whether it is in her law practice or her contributions to organizations like FLOC and Big Brothers Big Sisters, Shawna has taken her life experiences and understanding of the human condition to improve her community.

These qualities have made Shawna a great lawyer, and a well-deserving Rising Star of the Bar.

By Zachary S. Heck Esq. DBA Editorial Board Taft Law zheck@taftlaw.com | 937.228.2838

HERBERT M. EIKENBARY

Trust

What is The Eikenbary Trust?

Ad Index Daily Court Reporter....................5 Eikenbary Trust..........................19 Ferneding Insurance..................23 LCNB Bank..................................9 NFP/Rogers McNay Insurance.......7 OBLIC.............................back cover R.L. Emmons & Associates...........12 Trisha M. Duff - Mediations...........5

www.daybar.org

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance.

Individual loans, are available up to $6,000 at 4% interest, while grants up to $4,000 are also available.

To Apply: Jennifer Otchy,DBA Chief Executive Officer Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org December 2020 Dayton Bar Briefs

19

Labor & Employment

The COVID-19 Pandemic Has Sparked Employment Law Issues W hen the COVID-19 pandemic picked up speed in the United States in March 2020, so many questions arose amongst employers and employees alike about how to protect the health of employees and the business of employers. A small sampling of the impact of COVID-19 on employment law matters is set forth below.

Families First Coronavirus Act

On March 18, 2020, the Families First Coronavirus Act (FFCRA) was signed into law. The FFCRA expanded the Family and Medical Leave Act (FMLA) temporarily to cover leave and loss of income for certain situations related to COVID-19. The FFCRA requires certain employers to provide employees with sick leave or expanded family and medical leave for specified reasons related to COVID-19. One of those reasons is when the employee is quarantined pursuant to federal, state, or local government order of advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.

The other reason is when an employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19. If the employee is able to telework, he or she may not be eligible for leave under the FFCRA. The FFCRA applies to employers with 500 or fewer employees.

The provisions apply from the effective date of April 1, 2020, through December 31, 2020. The FFCRA provides tax credits related to the mandated paid leave. Employers may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

The CARES Act

Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act ON March 27, 2020. It contains a myriad of provisions intended to infuse economic relief to individuals and businesses affected by the COVID-19 pandemic. Among the many provisions of the CARES Act was the enhancement and expansion of unemployment benefits to millions of employees throughout the country who were unemployed or underemployed because of the pandemic. It extended 20

Dayton Bar Briefs December 2020

By Gretchen M.Treherne Esq. Co-Chair, Labor & Employment Jackson Lewis P.C. Gretchen.Treherne@jacksonlewis.com | 937.949.3846

unemployment insurance by thirteen weeks and provides a four-month enhancement of benefits. It made unemployment compensation available for those who were not traditionally eligible for regular unemployment benefits, including those with a limited work history. The CARES Act provided an additional $600 per week payment to each recipient of unemployment insurance for up to four months, which expired on July 31. 2020. The extended benefits relating to the eligible number of weeks will end on or before December 31, 2020. There are calls on Congress to pass another stimulus bill with provisions similar to some of the now-expired CARES Act provision. As of November 1, 2020, no such bill has been passed.

The Lost Wage Assistance (LWA) Program, which was enacted on August 21, 2020, provided grants to participating states to deliver up to $400 per week to unemployment recipients to supplement their unemployment benefits for a certain period of time. Ohio was approved to distribute weekly $300 LWA payments to eligible individuals for the weeks ending August 1 through September 5, 2020.

OSHA Guidance

The Occupational Safety and Health Administration (OSHA) has provided Guidance for Preparing Workplaces for COVID-19 (OSHA 39990-03 2020), which can be found here: https://www.osha.gov/Publications/OSHA3990.pdf. According to OSHA, a COVID-19 outbreak may cause workplaces to experience absenteeism, change in patterns of commerce, and interrupted supply and delivery. It advises that every employer develop an infectious disease preparedness and response plan.

The consideration for such plans may include: where, how, and to what sources of COVID-19 might workers be exposed; non-occupational

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LABOR & EMPLOYMENT LAW: The COVID-19 Pandemic Has Sparked Employment Law Issues continued from page 20 risk factors at home and in community settings; workers’ individual risk factors; and controls necessary to address those risks. Employers should plan for a potential reduced workforce due to absenteeism and the need for cross-training, social distancing, staggered work shifts, remote work, and other exposure-reducing measures.

Employers should also implement basic infection prevention measures, workplace controls., and administrative controls.

Ohio Immunity Law

On September 14, 2020, House Bill 606 was signed into law in Ohio. It grants civil immunity from certain COVID-19 related civil actions for healthcare providers, businesses, schools, individuals, and other entities. Protection from suit is provided where the claim asserts that an injury, death, or loss to person or property was caused by either the exposure to or the transmission of COVID-19. Suit may only be brought, according to the bill, if it is established that the

exposure, transmission, or contraction was by reckless conduct, intentional misconduct, or willful and wanton misconduct on the part of the person against whom the action was brought.

The provisions of the statute apply retroactively from March 9, 2020, through September 30, 2021.

The bill does not mean that employers and business owners should ease efforts they are taking to stop the spread of the COVID-19 virus. It is still important to follow the guidance of federal, state, and agencies relating to health precautions. In addition, the state bill does not absolve employers of their obligations under federal law, including the Occupational Safety and Health Act.

Employment Litigation During the Pandemic

According to a report from Lex Machina, the number of new employment lawsuits filed in federal court dropped dramatically amid the COVID-19 pandemic. Employees filed approximately 2,500 less lawsuits in the first three quarters of 2020, compared to 2018 and 2019.

The decline in harassment and discrimination cases may be tied to the shift of many jobs to remote. Another concern may be that certain

businesses are suffering financially and may not have the financial means to pay settlements or judgments.

But, the pandemic has also brought has also resulted in certain lawsuits that would not have been brought but for issues that have arisen as a result of the pandemic. As of the end of the third quarter in 2020, employees have filed 309 pandemic-related cases, 200 of which came in the third quarter alone. The majority of the lawsuits include claims that employees were retaliated against for reasons related to the virus. FMLA and FLSA claims were also prevalent, as well as claims of disability discrimination. Of the federal court complaints, 19 were filed in Ohio federal district courts. As of November 1, 2020, 36 COVID-19 related employment lawsuits have been filed in Ohio state courts (most before the immunity statute was passed).

As the COVID-19 pandemic rages on, it is important that we take measures to safely care for ourselves and the health of our employees, co-workers, clients, and customers.

EDITORS NOTE: This article is for informational purposes and is not intended to constitute legal advice.

The Honorable Mary L. Wiseman Receives UDSL Alumni Award

By Ebony D. Davenport Esq., Chair DBA Editorial Board

On behalf of the entire DBA, the Bar Briefs Editorial Board is thrilled to announce that Immediate Past DBA President, Judge Mary Wiseman, is the 2020 recipient of the University of Dayton School of Law’s (“UDSL”) Hon. Walter H. Rice Honorary Alumni Award. The award is presented to an individual who is not a graduate of UDSL, but who represents the ideals and values of the school through exemplary achievement. Past recipients of the award include fellow DBA members: Dale Creech, Richard Perna, Merle Wilberding, Charles Faruki, Richard Saphire, Bruce Snyder, Helenka Marculewicz, and Neil Freund.

The award recognizes significant contributions to the legal profession, the community at large, and UDSL. Judge Wiseman has served on the bench of the Montgomery County Court of Common Pleas (General Division) since 2007 where she also serves as the court’s Technology Committee Chair. Prior to her appointment to the bench, Judge Wiseman practiced complex civil litigation in state and federal courts nationwide. In the past, she has taught courses at UDSL and Sinclair Community College sharing her knowledge and wealth of experience with aspiring legal professionals. Judge Wiseman also served as a City Commissioner for the City of Dayton from 1998-2002 demonstrating her longstanding commitment to civic engagement and public service.

Judge Wiseman has maintained her focus on community engagement through her various advisory and board commitments. She has served on the Ohio Supreme Court Advisory Committee on Interpreter Services, the Greater Dayton Volunteer Lawyer’s Project, Legal Aid of Western Ohio/Advocates for Basic Legal Equality, the National Conference for Community & Justice of Greater Dayton, and The Entrepreneur’s Center of Dayton.

As President of the DBA, Judge Wiseman brought her years of experience to help propel the DBA forward and make the Dayton legal community more accessible for all. We are proud of Judge Wiseman’s continued achievements and wish her continued success in all of her endeavors. www.daybar.org

December 2020 Dayton Bar Briefs

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Real Property

Upending the Status Quo: The Problem with

Sponaugle

O

By Jonathan F. Hung Esq..

Chair Real Property Green & Green, Lawyers jfhung@green-law.com | 937.224.3333

n June 27, 2019, the Ohio Supreme Court in Farmers State Bank v. Sponaugle1 may have overturned decades of case precedent in foreclosure law and more alarmingly the ancient rules on what may and may not be raised on appeal.

The facts are simple enough. The plaintiff initiated the foreclosure action in the Darke County Common Pleas Court in 2013 for non-payment of a mortgage secured by the defendant owner’s real property.2 By an agreed entry, the trial court entered a decree of foreclosure in 2014 in favor of the plaintiff and awarded it the amount of $236,378.89 plus interest; however, if the owner paid $120,000 on or before August 23, 2014, the plaintiff would dismiss the action.3 The owner failed to do so and, after a bankruptcy action, the trial court granted summary judgment in the plaintiff ’s favor towards the end of 2015. 4 But then the procedural history gets messy. On January 12, 2016, the trial court entered a decree of foreclosure in the plaintiff ’s favor; however, the entry did not include amounts for the county treasurer’s lien for real property taxes or a calculation of the amount to which the holder of a certificate of judgment was entitled.5 The owner timely filed an appeal and received a stay of execution; however, they failed to file a bond to enforce the stay, so the real property went to a sheriff ’s sale on February 26, 2016.6 After the sheriff ’s sale but before confirmation of the same, the Second District issued an order to show cause as to why the appeal should not be dismissed for the lack of a final, appealable order.7 On April 18, 2016, the Second District dismissed the defendant owners’ appeal because the order at issue was not final and appealable because it lacked calculated damages related to the county treasurer’s and certificate holder’s claims.8 On April 21, 2016, the trial court confirmed the sheriff ’s sale, and the owner filed a timely appeal.9 On appeal, the owner argued that the trial court should not have confirmed the sheriff ’s sale because it was executed pursuant to an order that was not final and appealable.10 The Second District first concluded that the law-of-the-case doctrine precluded any argument as to whether the decree of foreclosure was actually final and appealable.11 It noted that the plaintiff failed to file any memorandum in response to its show cause order and did not appeal its decision to the Ohio Supreme Court.12 The Second District also concluded that, even if the plaintiff had done otherwise, the trial court’s January 12, 2016 entry did not include amounts of damages to which the 22

Dayton Bar Briefs December 2020

county treasurer and the certificate holder were entitled and should not have issued an order of sale.13 Citing to a copious body of case law from all Ohio districts, the Second District further concluded that, at the time of the sale, there were claims to be adjudicated, and therefore that the January 16, 2016 entry was not final and appealable. 14 The Ohio Supreme Court disagreed. Glossing over the fact that no party appealed the Second District’s opinion to dismiss the owner’s first appeal,15 it went on to conclude that the January 16, 2016 decree of foreclosure was final and appealable because it determined the rights and obligations of all parties, including the county treasurer’s and the certificate holder’s.16 continued on page 23 END NO TES: 157 Ohio St. 3d 151, 2019-Ohio-2518.

Id., ¶ 5.

3 Id., ¶ 6.

4 Id. 5 Id., ¶¶ 7-9.

6Id., ¶ 10.

7 Id., ¶ 11.

8 Farmers State Bank v. Sponaugle, 2d Dist. No. 16CA000002 (Apr. 18, 2016).

9 2019-Ohio-2518, ¶ 14.

10 Farmers State Bank v. Sponaugle, 2d Dist. No. 2016-CA-4, 2017Ohio-4322, ¶ 13.

11 Id., ¶ 16-18.

12 Id., ¶ 18.

13 Id., ¶¶ 20-30.

14 Id. 15 2019-Ohio-2518, ¶¶ 21-26.

16 Id.,¶¶ 28-32.

1 2

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REAL PROPERTY: Upending the Status Quo: The Problem with Sponaugle continued from page 22 Following its prior opinion in CitiMortgage, Inc. v. Roznowski, the Court found that the amounts owed to each interest holder was “ministerial” and easily calculable.17 The Court also found that because the foreclosure decree made reference to the county treasurer’s statutory rights to recover real property taxes and the judgment held by the certificate holder, it had in fact ruled upon the parties’ rights and obligations and that the absence of a money figure did mean the decree was not final and appealable.18 “Liability is fully and finally established when the court issues the foreclosure decree and all that remains is mathematics, with the court plugging in final amounts due after the property has been sold at a sheriff ’s sale.”19 The decision leaves many questions. R.C. 2323.07, which governs executions on property, requires that an order of foreclosure not only determine the rights and responsibilities of all parties but also the extent to their interest in the property.20 But what is the extent of a party’s interest in property if the amount to which they are entitled has not been reduced to a number? According to the Ohio Supreme Court, a party’s easily calculable amount of damages may be challenged at the second stage of a foreclosure action, which is the sale’s confirmation. But case law clearly limits an owner’s issues on such an appeal to whether a sale follows statutory procedure. Finally, as raised in Justice DeWine’s concurring opinion, the Ohio Supreme Court paid little attention to the fact that no party timely-appealed the Second District’s prior decision regarding whether the foreclosure decree was final and appealable. But does that not mean that such decision cannot be collaterally attacked, which the Ohio Supreme Court essentially permitted?

Ultimately, the Sponaugle opinion seems to raise more issues than it solves and upsets existing precedent. Whether the Ohio Supreme Court clarifies or narrows its opinion is yet to be seen.

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END NO TES: 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140.

2019-Ohio-2518, ¶ 32.

19 Id. 20 Id., ¶ 18.

17 18

www.daybar.org

December 2020 Dayton Bar Briefs

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Annual Holid

With the never-ending stream of curveballs life keeps throwing these days, it might be hard to come up with the right gift for that legal professional in your life whoâ&#x20AC;&#x2122;s at the end of their rope. Luckily for you, this intrepid researcher has managed to curate the perfect list of 2020-appropriate gifts (that may be just what you need in your own life as well.) May the holidays be ever in your favor!

$899+

Oru Folding Kayak

By Daniel Rafferty Teaching and Research Assistant JD Candidate May 2022 University of Dayton School of Law

https://www.orukayak.com/pages/compare

Are you itching for adventure after months of being trapped indoors? Is your car not equipped to carry big recreational equipment? With an Oru folding kayak, now you can get the same wilderness experiences without the hassle of rooftop carriers or bumbling around with bulky buoyant boats.

Choose between five models to find the best fit for your adventure.

$399+

reMarkable 2 Paper Tablet

$250+

Are paper notebooks a thing of the past? You be the judge! Now you can take handwritten notes that are easily convertible into text, all on an eye-friendly display that looks and feels like paper! You can also read and review electronic documents, which includes taking notes directly on PDFs. And the best part? All your notes will be organized and accessible on any devices you choose.

Step into the future today!

https://www.gorillabow.com/products/gorilla-bow-travel

https://remarkable.com/store/remarkable-2

$260-310 per screen

Mobile Pixels Trio Laptop Monitors

https://www.mobilepixels.us/products/trio

Have you found yourself lacking the virtual real estate needed to stay productive in an increasingly online world? Well put your FOMO (fear of missing out) to rest, because now you can double or triple your available screen space! Imagine having Lexis, Westlaw, Microsoft Word and Instagram all pulled up simultaneously or your digital notes easily available next to a full-screen zoom meeting. Suddenly your workload seems a little bit more manageable.

Gorilla Bow Home Gym

Never miss a strength workout just because youâ&#x20AC;&#x2122;re spending your life zooming at home or holed up in your office. This collapsible, ultra-portable system delivers a total-body workout anywhere you need it, and with the assorted strength bands it can deliver up to 350lbs. of tension. The company also provides a wealth of different exercises on their website so you can target whatever muscle groups you need.

day Gift Ideas $130

Unbreakable Walking Stick Umbrella

https://unbreakableumbrella. com/unbreakable-walkingstick-umbrella-standard/

Are you in need of a sturdy yet discrete method of self-defense that doesn’t sacrifice style or function? Well look no further! This umbrella protects against rain and everything else, providing whacks just as strong as a steel pipe but weighing less than 2 lbs!

$70

“Scales of Justice” Decanter

https://www.homewetbar.com/ scales-of-justice-custom-decanterset-with-rocks-glasses-gift-forlawyers-p-7528.html

Do you constantly find yourself in need of some…apple juice…when you get home for a long day in court, yet lack a quality, legal-themed carafe to drink from? Well now the universe has tipped the scales in your favor with this chic set of glassware, allowing you to unwind with all the…cider…you need.

$12

$120

Insults and Comebacks for All Occasions

Prepdeck Food Organizer https://prepdeck.com/products/prepdeck

https://www.amazon.com/Knock-50108Insults-Comebacks-Occasions/p/1601060580

Lawyers love process. If you’re anything like me, navigating your kitchen at mealtimes can be very inefficient. But now you can meal prep with ease, slicing, chopping, juicing, or managing ingredients in a neat and self-contained system that makes cleanup a breeze! And it all folds up so it isn’t an eyesore on your countertop.

Are you constantly walking out of oral arguments wishing you’d had the perfect, pithy one-liner for “esteemed” counsel? Well now you can add some wordplay preparation to your legal arguments.

Who needs to win friends and influence people when you can obliterate them with a witty retort?

$10

$75

Multifunctional Zipper Leather Business Manager Bag https://tiptoplike.com/products/mobileoffice?variant=33112577474698

It’s time to upgrade your padfolio. Find storage for anything, including keys, cell phone, pens, tablet, notebook, folders, business cards and more, all inside a durable faux leather waterproof package.

Additionally, with a wireless power bank and a transformable tablet/ phone stand, you can create a functional mobile workstation anywhere you go.

How to Have Impossible Conversations

https://smile.amazon.com/dp/B07X7KF3KX/

Immerse yourself in the straightforward, practical, and conversational techniques that are necessary for every discussion, no matter how radioactive the topic. Learn everything from the fundamentals for good conversations to the expert-level techniques needed for dealing with hardliners and extremists, as well as the subtle art of instilling doubts and opening minds.

! y o j En

GLreater D aytonOV olunteer L awyers aw -R elated rganizations Dayton Bar Foundation

T

he Dayton Bar Foundation (DBF) is a 501(c)(3) charitable organization and serves as the philanthropic arm of the Dayton Bar Association. The Foundation was formed exclusively for charitable and educational purposes with the object of using its resources to foster the integrity of the legal profession, to facilitate the administration of justice, to defray the administrative expenses of providing pro bono legal services to indigent persons, and to aid lawyers in need.

A gift to the DBF will continue to provide support for programs in the community that further our interest in promoting justice and respect for the law. All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions. We encourage you to donate to the DBF below.

Consider donating to the Dayton Bar Foundation on Giving Tuesday, December 1st, to help us continue strengthening our local community: https://www.daybar.org/donations

#DBAGivesBack

#GivingTuesday

University of Dayton School of Law

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Dayton Bar Briefs December 2020

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M embers O n T he M ove

BRUSH

MILLER

ANDRESS

NEWMAN

Miller Walker & Brush is extremely proud to announce that Michael Brush, Michael Miller and Jessica Andress have been honored by Super Lawyers for 2021. Brush was selected to the 2021 Ohio Super Lawyers list for Criminal Law for the 4th year in a row. Miller was recognized by the 2021 Ohio Super Lawyers list for Family Law for his 12th consecutive year. Andress was selected to the 2021 Ohio Rising Stars list for the 2nd year in a row. Only 5% of attorneys in Ohio receive these prestigious honors. Each honor is reserved for those lawyers who exhibit excellence in practice.

The Ohio State Bar Foundation (OSBF) is pleased to announce that the Honorable Michael J. Newman is the recipient of the 2020 Ritter Award. This award is given each year to recognize an Ohio attorney’s accomplishments in attaining and promoting the highest standards of professionalism, integrity, and ethics in the practice of law, while assisting other attorneys, the courts, and the public to improve the justice system in Ohio.

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you!

• News of CLE presentations & political announcements are not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad: publications@daybar.org | 937-222-7902

Reach your targeted audience and advertise with the DBA!

DBA Classified Ad Rules

• Classified ads are accepted each month, September through July 1 • Copy and payment must be received by the first day of the month preceding the month of publication • Bar Briefs Editorial Board reserves the right to refuse any ad • Classified ads of greater length are allowed • Members: $20 per 25 words | NonMembers: $30 per 25 words • Additional $5 for DBA reply box

December Classifieds EXPERIENCED CIVIL/BUSINESS LITIGATION ATTORNEY NEEDED Green & Green, Lawyers, an AV-rated regional firm with offices in Dayton's Performance Place, is accepting applications from well-credentialed attorneys with three to five years' experience in civil litigation and business law. Applicants with expertise in torts, municipal liability, employment, construction, business transactions and commercial law preferred. Strong academic credentials, research and analytical ability and excellent oral and written communication skills required. We offer a supportive work environment, competitive compensation, parking and participation in health, retirement and disability plans. Please forward c.v., writing samples, references and compensation expectations to Green & Green, Lawyers, 109 N. Main St., Suite 800, Dayton, OH 45402.

www.daybar.org

LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at: daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com

MEDIATION.ARBITRATION Dennis J. Langer Retired Common Pleas Judge LangerMediation.com (937) 367-4776

MEDIATIONS Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett

December 2020 Dayton Bar Briefs

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