State ex rel. McGirr v. Winkler (Slip Opinion) , 152 Ohio St. 3d 100 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McGirr v. Winkler, Slip Opinion No. 2017-Ohio-8046.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2017-OHIO-8046[THE STATE EX REL.] MCGIRR v. WINKLER, JUDGE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. McGirr v. Winkler, Slip Opinion No.
2017-Ohio-8046.]
Prohibition—Prohibition is a proper remedy to prevent vexatious abuse of
process—Writ granted.
(No. 2017-0474—Submitted May 16, 2017—Decided October 5, 2017.)
IN PROHIBITION.
________________
Per Curiam.
{¶ 1} This case is the latest chapter in the ongoing campaign by disbarred
attorney Stanley M. Chesley to shelter assets from his judgment creditors. In this
original action, Connie McGirr and 18 other judgment creditors (“the creditors”)
seek a writ of prohibition to halt an action for an assignment for the benefit of
creditors (“the ABC action”) pending before respondent, Hamilton County Probate
Judge Ralph Winkler.
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{¶ 2} Judge Winkler has filed a motion to dismiss the petition. In addition,
intervening respondent, Eric W. Goering, as assignee of Waite, Schneider, Bayless
& Chesley Co., L.P.A. (“WSBC”), has filed a motion for judgment on the
pleadings. The creditors have filed a motion to strike a memorandum filed by
Goering in support of Judge Winkler’s motion to dismiss. And lastly, Goering has
filed a motion to clarify or modify this court’s stay order.
{¶ 3} For the reasons set forth herein, we deny the motions and grant a
peremptory writ of prohibition.
Background1
{¶ 4} In December 2004, the creditors filed a lawsuit alleging that Chesley
and three other attorneys had stolen millions of dollars in settlement funds while
representing them. On August 1, 2014, the Kentucky trial court ruled that Chesley
was jointly and severally liable for $42 million. The Kentucky Court of Appeals
affirmed the judgment in all respects. Chesley v. Abbott, Ky.App. Nos. 2014-CA-
001725-MR, 2014-CA-001900-MR, and 2014-CA-001984-MR, 2017 WL 943973(Mar. 10, 2017).
{¶ 5} On March 21, 2013, the Supreme Court of Kentucky permanently
disbarred Chesley for his conduct in the underlying representation. Kentucky Bar
Assn. v. Chesley, 393 S.W.3d 584 (Ky.2013). Before he was permanently
disbarred, Chesley was the president and sole shareholder of WSBC. On April 15,
2013, Chesley executed a wind-up agreement, pursuant to which Thomas Rehme
agreed to hold the shares of WSBC in trust for the purpose of winding up
operations.
1
For the purpose of deciding Judge Winkler’s motion to dismiss, we are required to accept all the
factual allegations in the complaint as true. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192,
532 N.E.2d 753 (1988). With respect to Goering’s motion for judgment on the pleadings, we
consider the complaint and the answer. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 569, 664 N.E.2d 931 (1996). In deciding Goering’s motion, we have relied only on
allegations that Goering has admitted or not contested.
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{¶ 6} On June 23, 2015, Boone County Circuit Court Judge James R.
Schrand ordered Chesley to transfer his beneficial interest in the WSBC shares to
the creditors. Chesley has not transferred the shares to the creditors.
{¶ 7} On August 30, 2016, Rehme incorporated “Thomas F. Rehme,
Trustee, Inc.” as an Ohio for-profit corporation. Two days later, on September 1,
2016, he transferred the WSBC shares to the new corporation. On September 9,
the corporation executed a “Deed of Assignment for the Benefit of Creditors”
transferring the WSBC shares to Goering. On September 12, 2016, Rehme filed
the deed in probate court, commencing the ABC action.
{¶ 8} On April 7, 2017, after Judge Winkler denied their motion to dismiss,
the creditors commenced the present action for a writ of prohibition. At the same
time, they filed a motion for an emergency stay of the ABC action.
{¶ 9} On April 12, 2017, Goering, as the assignee of WSBC, filed a motion
in this court for leave to intervene. The next day, Judge Winkler filed a motion to
dismiss the prohibition case. On April 17, 2017, this court granted the emergency
stay and also granted Goering’s motion for leave to intervene. 148 Ohio St.3d 1439,
2017-Ohio-1411, 72 N.E.3d 653.
{¶ 10} On April 24, 2017, the same day the creditors filed their brief in
opposition to the motion to dismiss, Goering filed a pleading captioned
“Memorandum in Support of Judge Winkler’s Motion to Dismiss.” Then, four days
later, Goering filed an answer and a separate motion for judgment on the pleadings.
The creditors responded with a motion to strike Goering’s memorandum supporting
Judge Winkler’s motion. Lastly, on May 4, 2017, Goering filed an emergency
motion for clarification or modification of this court’s stay order.
The motion to strike
{¶ 11} S.Ct.Prac.R. 4.01(B) provides, “If a party files a motion with the
Supreme Court, any other party may file a response to the motion within ten days
from the date the motion is filed, unless otherwise provided in these rules or by
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order of the Supreme Court.” (Emphasis added.) Thus, the Rules of Practice
expressly authorized Goering to file his memorandum in support of Judge
Winkler’s motion to dismiss, and it was filed within ten days of the motion. We
therefore deny the motion to strike.
The motions to dismiss and for judgment on the pleadings
{¶ 12} In order to dismiss a complaint under Civ.R. 12(B) for failure to state
a claim, it must appear to the court that the plaintiffs can prove no set of facts in
support of their claims that would entitle them to relief. O’Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus. Likewise, a Civ.R. 12(C) motion for judgment on the pleadings presents
only questions of law. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574,
582, 752 N.E.2d 267 (2001). In this case, the two motions present the same
question of law: whether Judge Winkler lacks jurisdiction to preside over the ABC
action.
{¶ 13} There are three elements necessary for a writ of prohibition to issue:
the actual or imminent exercise of judicial power, the lack of authority for the
exercise of that power, and the lack of an adequate remedy in the ordinary course
of law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40
N.E.3d 1138, ¶ 13. However, if the absence of jurisdiction is patent and
unambiguous, then the petitioner need not establish the third prong, the lack of an
adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118
Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15. “Absent a patent and
unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction
can determine its own jurisdiction, and a party challenging the court’s jurisdiction
has an adequate remedy at law by appeal.” State ex rel. Enyart v. O’Neill, 71 Ohio
St.3d 655, 656, 646 N.E.2d 1110 (1995).
{¶ 14} In this case, the first element is not in dispute: Judge Winkler is
plainly exercising, or is about to exercise, judicial power. State ex rel. Vanni v.
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January Term, 2017
McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 7. Judge
Winkler and Goering, in their respective motions, contend that the second element
is likewise not in dispute, because Judge Winkler has clear statutory jurisdiction
over the ABC action. We agree.
{¶ 15} The Ohio Revised Code establishes a comprehensive scheme
governing voluntary assignments for the benefit of creditors, under the jurisdiction
of the probate court. R.C. Chapter 1313. The probate court assumes jurisdiction
upon the filing of the transfer deed (so long as the filing occurs within ten days of
its execution). R.C. 1313.01. The probate court then has the authority to, among
other things, appoint and remove trustees, R.C. 1313.03, remove an assignee,
1313.07, appoint appraisers, 1313.15, and order the private sale of property,
1313.24. And as R.C. 2101.24(A)(2)(a) and (b) make clear, the probate court’s
jurisdiction over a particular subject matter is exclusive when the Revised Code
expressly confers jurisdiction over that subject matter upon the probate court and
not upon any other court or agency.
{¶ 16} The evidence establishes that the transfer deed from the trust
corporation to Goering was filed with the probate court within ten days of its
execution, which is all that is necessary to vest the probate court with jurisdiction.
{¶ 17} The creditors challenge Judge Winkler’s jurisdiction on three
grounds. First, they contend that Judge Winkler lacks jurisdiction because Judge
Schrand in Kentucky has already declared the wind-up agreement to be a sham and
ordered Chesley to transfer his interest in WSBC to the creditors. But even
assuming that it applies, res judicata is an affirmative defense the validity of which
a second tribunal has jurisdiction to decide. State ex rel. Lipinski v. Cuyahoga Cty.
Common Pleas Court, Probate Div., 74 Ohio St.3d 19, 20-21, 655 N.E.2d 1303(1995); State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 162, 370 N.E.2d 479(1977).
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{¶ 18} Second, the creditors argue that permitting Judge Winkler to proceed
with liquidating WSBC despite Judge Schrand’s orders would violate the Full Faith
and Credit Clause, Article IV, Section 1 of the U.S. Constitution. However, we
agree with the Supreme Court of Colorado that an assertion of finality based on the
Full Faith and Credit Clause is “in effect a plea of res judicata based upon a foreign
judgment” and that the second court has jurisdiction to decide the applicability of
that plea. Leonhart v. Thirteenth Judicial Dist. Court, Sedgwick Cty., 138 Colo., 1,
6-8, 329 P.2d 781 (1958).
{¶ 19} Third, the creditors argue that the ABC action is an “end run” around
fraudulent-transfer litigation already pending before a federal court and the federal
case should take precedence. The jurisdictional-priority rule provides that as
between state courts of concurrent jurisdiction, the tribunal whose power is first
invoked acquires exclusive jurisdiction to adjudicate the whole issue and settle the
rights of the parties. State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-
67, 985 N.E.2d 450, ¶ 9. The rule does not apply to proceedings in federal court.
Wellman v. Salt Creek Valley Bank, 10th Dist. Franklin No. 06AP-177, 2006-Ohio-
4718, ¶ 8.
{¶ 20} In sum, we conclude that Judge Winkler does not patently and
obviously lack jurisdiction over the ABC action. The creditors have an adequate
remedy at law by way of appeal from any order Judge Winkler may issue, including
an order denying the motion to dismiss for lack of jurisdiction. However, our
analysis does not end there.
{¶ 21} Prohibition is also a proper remedy to prevent vexatious abuse of
process. See Commercial Savs. Bank v. Wyandot Cty. Court of Common Pleas, 35
Ohio St.3d 192, 519 N.E.2d 647 (1988); State ex rel. Stark v. Summit Cty. Court of
Common Pleas, 31 Ohio St.3d 324, 511 N.E.2d 115 (1987). In our judgment, the
conduct of Chesley and WSBC warrants this extraordinary relief.
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January Term, 2017
{¶ 22} Goering and WSBC admit the existence of the judgment against
Chesley, Judge Schrand’s transfer order, and Chesley’s noncompliance with that
order. And while disputing the substance of the order, they concede the authenticity
of the September 25, 2015 judgment entry in which Judge Schrand found that
Chesley continues to maintain control over WSBC, declared the wind-up
agreement “a sham,” and found that Chesley
is utilizing WSBC and its existence during what is supposed to be a
wind-up period, to prevent Plaintiffs, his judgment creditors, from
executing on their Judgment. The Court finds he is taking action to
render himself insolvent while directing assets to WSBC, including
fees from the Fannie Mae Litigation and tobacco litigation, and the
transfer of $59 million from his personal accounts to WSBC.
{¶ 23} The record evidence demonstrates a pattern of misuse of the judicial
process in Ohio by Chesley and WSBC to obstruct collection efforts and conceal
Chesley’s ongoing control of WSBC. On February 6, 2017, for example, Hamilton
County Visiting Judge Richard A. Niehaus imposed a $10,000 sanction against
Chesley for filing frivolous objections to domestication of the Kentucky judgment,
objections that were “interposed for the purpose of delay and to cause a needless
increase in the cost of litigation.”2 Abbott v. Chesley, Hamilton C.P. No.
EX1600448, 5 (Feb. 6, 2017).
{¶ 24} The record also contains evidence to suggest that the ABC action,
ostensibly filed to discharge WSBC’s debts, was itself the product of fraud. United
States District Court Judge Robert Cleland has imposed a temporary restraining
order barring Chesley, Rehme, WSBC, and their agents from taking any actions to
2
Judge Niehaus also levied a $2,500 sanction against Chesley’s counsel, Terry Serena.
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transfer or distribute WSBC funds. McGirr v. Rehme, S.D.Ohio No. 1:16-cv-464
(Sept. 19, 2016). According to Judge Cleland,
This filing [of the ABC action in probate court] followed Rehme’s
attempt to transfer all assets of WSBC to a new “Assignee,” Mr. Eric
Goering. The Court notes that this transfer was without
consideration, and that this transfer appears to be with the intent to
frustrate the judgment creditors. * * *
It is not lost on the Court that WSBC appears to be forum
shopping. The Court finds the timing of this purported transfer
particularly troubling, as this filing comes while a motion for
preliminary injunction is pending, after a two day hearing, and a
motion for leave to amend the complaint to assert new causes of
action is also pending.
{¶ 25} Over a year ago, we granted a writ of prohibition to prevent
Hamilton County Common Pleas Court Judge Robert Ruehlman from presiding
over an action filed by Chesley to prevent collection of the judgment. State ex rel.
Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396. WSBC
was a party in that prohibition action and in the underlying trial court litigation.
And the record in that case is replete with examples of abusive litigation tactics.
{¶ 26} In the trial court action underlying the Ruehlman case, Chesley and
WSBC sought declaratory and injunctive relief to prevent the creditors from
domesticating or enforcing their Kentucky judgment in Ohio, forms of relief the
common pleas court was without jurisdiction to provide. Id. at ¶ 64, 80. When the
creditors sought to secure their judgment in Kentucky by requesting―and
receiving―an order compelling Chesley to transfer his interest in WSBC, Chesley
8
January Term, 2017
and WSBC moved to have the creditors’ Kentucky counsel held in contempt in
Ohio.3
{¶ 27} What makes this all the more egregious is that the creditors’ attorney,
who was named as a defendant in the common pleas case, was licensed in Kentucky
but not Ohio and had taken no action to enforce the judgment in Ohio. Id. at ¶ 5,
13. It was only after the Kentucky attorney commenced a prohibition action in this
court that Chesley and WSBC voluntarily dismissed their claims against her, so that
Judge Ruehlman could file a “suggestion of mootness” in the prohibition case. Id.,
149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, at ¶ 35.
{¶ 28} On October 19, 2015, Judge Schrand granted a motion for a show-
cause order against Chesley and scheduled a contempt hearing for October 29,
2015, expressly commanding Chesley to appear in person. Id. at ¶ 38. When
Chesley failed to appear, Judge Schrand issued a warrant for his arrest on a charge
of contempt for failure to appear. Id. Chesley responded by suing Hamilton County
Sheriff Jim Neil in the Hamilton County Court of Common Pleas to enjoin him
from enforcing the arrest warrant in Ohio. Id. at ¶ 39.
{¶ 29} In addition to the conduct described above, we take judicial notice
of Chesley and WSBC’s actions in a fee-collection action by WSBC against a
former client, at which Chesley (not Rehme) appeared as the firm’s representative.
See Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, 191 F.Supp.3d 743,
746 (S.D.Ohio 2016). Only after approving a settlement and dismissing the case
did District Court Judge James Carr learn about the wind-up agreement, the Boone
County judgment against Chesley, Judge Schrand’s determination that the wind-up
agreement was a sham, and Chesley’s noncompliance with the order to transfer his
interest in WSBC to the judgment creditors. Judge Carr issued a show-cause order,
3
We can consider this document because it was placed into the record by Chesley and WSBC.
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writing that “ ‘I feel tricked, and complicit, albeit unwittingly so, in chicanery,
duplicity, and mendacity.’ ” Id., quoting the show-cause order.
{¶ 30} Judge Carr ultimately granted motions to withdraw the show-cause
order. Id. However, he was unsparing in his criticism. Of Judge Schrand’s finding
that the wind-up agreement was a sham, he wrote:
[T]he Sham Finding casts a bright light on the tenacity with which
Chesley has sought, and continues unrelentingly to seek, to retain
money that he and his confederates stole from their former client
victims.
***
Someone * * * should have told me before trial about the
Wind-Up Agreement and Turn-Over Order. Had someone told me
about those documents, I would not feel that, however unwittingly,
I have helped a bandit to escape.
(Emphasis sic.) Id., 191 F.Supp.3d at 747, 749-750.
{¶ 31} Finally, we note that Chesley and WSBC have also used the courts
of this state to intimidate the creditors by suing them for money damages. See
Chesley v. Probate Estate of Abney, Hamilton C.P. No. A1602508.
{¶ 32} In Commercial Savs. Bank, we recognized that we lack original
jurisdiction to issue an injunction to prevent the filing of future abusive lawsuits.
35 Ohio St.3d at 194, 519 N.E.2d 647. But we will issue a writ of prohibition to
halt ongoing litigation that is shown to be vexatious. In our judgment, this
extraordinary relief is warranted in this case due to its long and egregious litigation
history. WSBC has admitted all the essential facts of that history, even as it spins
its actions differently.
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January Term, 2017
{¶ 33} We therefore deny the motions to dismiss and for judgment on the
pleadings and grant a peremptory writ of prohibition.
The motion for clarification/modification
{¶ 34} As previously noted, this court granted an emergency stay of the
ABC action on April 17, 2017. 148 Ohio St.3d 1439, 2017-Ohio-1411, 72 N.E.3d
653. On May 4, 2017, Goering filed an “Emergency Motion” to clarify or modify
the stay. In the motion, he claims that the stay is preventing him from taking a
number of time-sensitive actions to preserve WSBC assets, including:
• Paying the monthly rent on the storage space housing WSBC’s
client files;
• Paying the storage costs for vehicles owned by WSBC;
• Submitting WSBC’s tax returns to the Internal Revenue Service by
September 15, 2017;
• Depositing a $500,000 attorney-fee award check and disbursing 10
percent to co-counsel; and
• Pursuing attorney fees in ongoing litigation.
{¶ 35} No modification of this court’s stay can override the restraining
order imposed by District Court Judge Cleland barring Chesley, Rehme, WSBC,
and their agents from taking any actions to transfer or distribute WSBC funds. We
therefore deny the motion for modification.
Conclusion
{¶ 36} For the reasons stated, we deny the motions to strike, to dismiss, for
judgment on the pleadings, and for modification, and we hereby grant a peremptory
writ of prohibition barring further proceedings in the ABC action.
Motions denied
and writ granted.
O’CONNOR, C.J., and O’DONNELL, KLATT, and FISCHER, JJ., concur.
DEWINE, J., dissents, with an opinion joined by KENNEDY and FRENCH, JJ.
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WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for
O’NEILL, J.
_________________
DEWINE, J., dissenting.
{¶ 37} No proposition is more fundamental to our writ jurisprudence than
this one: an extraordinary writ will not lie when there is an adequate remedy at law.
The only exception is that we will issue a writ of prohibition regardless of the
existence of an adequate remedy at law when a court patently and unambiguously
lacks jurisdiction. It is a set of rules that we have cited over and over again and that
we apply in case after case. See, e.g., State ex rel. Adams v. Gusweiler, 30 Ohio
St.2d 326, 329, 285 N.E.2d 22 (1972); State ex rel. Lewis v. Moser, 72 Ohio St.3d
25, 28, 647 N.E.2d 155 (1995); State ex rel. Durrani v. Ruehlman, 147 Ohio St.3d
478, 2016-Ohio-7740, 67 N.E.3d 769, ¶ 13, 17.
{¶ 38} The majority concludes that “Judge Winkler does not patently and
obviously lack jurisdiction over the ABC action” and that “[t]he creditors have an
adequate remedy at law by way of appeal from any order Judge Winkler may issue
* * *.” Majority opinion at ¶ 20. By our rules, that should end the matter. Yet
today, the majority decides that for this case, it will apply different rules. That’s
too much for me to swallow, so I dissent.
{¶ 39} A writ of prohibition “prevents an inferior court from exceeding its
jurisdiction.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265(2001). It has long been recognized that a writ of prohibition is “ ‘to be used with
great caution and forbearance for the furtherance of justice, and for securing order
and regularity in all the tribunals where there is no other regular and ordinary
remedy.’ ” State ex rel. Nolan v. ClenDening, 93 Ohio St. 264, 270, 112 N.E. 1029(1915), quoting 32 Cyc. 598. The writ is “issued only in cases of necessity arising
from the inadequacy of other remedies.” State ex rel. Henry v. Britt, 67 Ohio St.2d
71, 73, 424 N.E.2d 297 (1981).
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{¶ 40} Blowing past these restraints, the majority justifies its expansion of
the writ of prohibition by citing two cases from the 1980s. In those cases, this
court—with no discussion about whether the lower court had exceeded its
jurisdiction or whether the relators had an adequate remedy at law—extended the
writ of prohibition to stop what it saw as the vexatious conduct of litigants.
Commercial Savs. Bank v. Wyandot Cty. Court of Common Pleas, 35 Ohio St.3d
192, 519 N.E.2d 647 (1988); State ex rel. Stark v. Summit Cty. Court of Common
Pleas, 31 Ohio St.3d 324, 511 N.E.2d 115 (1987). Both cases involve facts far
different from those at issue here. In the 30 years since their release, we have never
relied upon them to issue a writ in a case like this one, where a party had an adequate
remedy by way of appeal and the court did not lack jurisdiction.
{¶ 41} This court is understandably frustrated with Stanley Chesley’s
actions in evading payment to his former clients. But it is far from clear that the
radical action taken by this court today does anything to help these creditors. The
primary obstacle to their collection efforts has been Chesley’s 2013 transfer of his
beneficial interest in his former law firm, Waite, Schneider, Bayless & Chesley Co.,
L.P.A. (“WSBC”), to his friend, Thomas Rehme. A fraudulent-transfer action that
seeks to recover the assets transferred to Rehme is pending in federal court. The
district court has found that the former clients have a likelihood of success on the
merits. McGirr v. Rehme, S.D.Ohio No. 1:16-cv-464, 2017 WL 1426456, at *5
(Apr. 21, 2017). And significantly, for our purposes, the court has issued an
injunction that prevents Rehme, WSBC, Chesley, and their agents and assignees
from “assign[ing], disburs[ing], distribut[ing], transfer[ring] or tak[ing] any action
related to any asset of WSBC, including money, outside of basic office expenses;
[and] negotiat[ing] or enter[ing] into any agreements pertaining to income due
WSBC and/or Chesley.” Id. Thus, by federal-court order, Eric Goering, the
assignee of WSBC’s assets in the Hamilton County probate-court proceedings, is
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barred from taking any action that would dissipate the assets available to creditors
while the fraudulent-transfer action is pending. Id. at *1, 5.
{¶ 42} All of this makes it particularly troubling that this court would bend
its rules so far to issue a writ in this case today. Quite simply, this court’s action
accomplishes little.
{¶ 43} At the end of the day, what we have here is a court, frustrated by a
litigant who won’t play by the rules, choosing to respond by ignoring its own rules.
Such a response hardly furthers the rule of law.
{¶ 44} Because I believe that consistent with our longstanding principles,
the extraordinary writ of prohibition should be reserved for those times when there
is no remedy available at law or a court has patently and unambiguously exceeded
its jurisdiction, I respectfully dissent.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
_________________
Dinsmore & Shohl, L.L.P., and Brian S. Sullivan, for relators.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James S.
Ginocchio and Christian J. Schaefer, Assistant Prosecuting Attorneys, for
respondent.
Robbins, Kelly, Patterson & Tucker, L.P.A., Michael A. Galasso, and
Jarrod M. Mohler, for intervening respondent, Eric W. Goering.
_________________
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