Opinion
Case No. 2:08-cv-554.
November 20, 2008
OPINION AND ORDER
This matter is before the Court for consideration of the following filings: a motion to appoint a commission (Doc. # 6) filed by Plaintiff, a notice of supplemental authority (Doc. # 420) filed by Plaintiff, memoranda in opposition (Docs. # 459, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 476, 479) filed by various defendants, and a reply memorandum (Doc. # 482) filed by Plaintiff. For the reasons that follow, the Court finds the motion to appoint a commission well taken in part.
I. Background
As this Court has previously noted, Plaintiff, Rockies Express Pipeline LLC, is a natural gas pipeline company that is in the business of constructing and using pipelines to transport natural gas in interstate commerce for public consumption. Of interest here is the company's current project of constructing an approximately 1,679 mile-long natural gas pipeline running from Rio Blanco County, Colorado to Monroe County, Ohio. The first two portions of this pipeline project are already in service, with the properties involved in this action falling within the third portion of the project, the REX East Pipeline Project.
On May 30, 2008, Plaintiff obtained a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission. Having obtained this certificate, Plaintiff now seeks to continue effectuating its pipeline construction project by acquiring permanent easements and temporary work spaces during construction and restoration phases across numerous parcels of land that constitute the defendant properties in this litigation. Plaintiff therefore initiated this case on June 6, 2008, properly joining separate pieces of property in this single action regardless of the fact that most of the properties are not owned by the same landowners. See Fed.R.Civ.P. 71.1(b). Plaintiff has twice amended its complaint, and the latest pleading names fifty-two defendant properties that remain in this litigation. (Doc. # 490.)
Early in the case, Plaintiff filed a motion to appoint a commission to determine compensation awards related to the defendant properties. (Doc. # 6.) After a period of necessary delay, the parties have completed briefing on the motion, which is now ripe for disposition.
II. Motion to Appoint a Commission
Federal Rule of Civil Procedure 71.1(h) provides that "[i]n an action involving eminent domain under federal law, the court tries all issues, including compensation," subject to several specific exceptions. Fed.R.Civ.P. 71.1(h)(1). One such exception, which is inapplicable here, is "when compensation must be determined .^.^. by any tribunal specially constituted by a federal statute to determine compensation." Fed.R.Civ.P. 71.1(h)(1)(A). A second exception, applicable when no such tribunal exists, permits a compensation determination "by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission." Fed.R.Civ.P. 71.1(h)(1)(B).
This latter exception does not create an entitlement to a jury trial. The wording of the rule removes the right of the Court to try the issue of compensation when a jury demand exists, but it also provides for the Court to create a commission to substitute for a jury. This is a permissible scheme in light of the well-settled axiom that "[t]here is no federal constitutional right to a jury trial in eminent domain proceedings." 13 James W. Moore, Moore's Federal Practice § 71.1.02[4][a], at 71.1-17 to 71.1-18 n. 24 (citing United States v. Reynolds, 397 U.S. 14, 18 (1970)). See also id., § 71.1.11[1][c], at 71.1-48 (explaining that because "there is no constitutional or statutory right to a jury trial in condemnation proceeding," then "the availability of a jury trial is based solely on Rule 71.1"). Thus, although Rule 71.1(h) permits a jury trial, "the Rule does not establish an unequivocal right to a jury trial, but rather provides only that any party may demand a jury trial on the issue of just compensation, and that the district court retains the discretion under certain circumstances to deny a jury demand and refer the matter to a commission." Id., § 71.1.11[c], at 71.1-48.
The threshold issue presented by Plaintiff's motion to appoint a commission is whether the motion properly targets all of the defendants remaining in this litigation. In reliance on Rule 71.1(h), numerous defendants have requested a jury trial in this proceeding. Notably, not all defendants have done so, which means that there is no precursor jury demand to function as a potential gateway to a commission as contemplated by Rule 71.1(h)(1)(B). Thus, Plaintiff's request in its motion for the appointment of a commission to determine the compensation awards to all defendant landowners is overbroad. The Court therefore DENIES the motion to appoint a commission as it relates to the following defendants/landowners:
(1) Defendant 4.895 Acres of Land, More or Less, in Butler County, Ohio (Jack and Brigette Cornett);
(2) Defendant 3.7 Acres of Land, More or Less, in Fairfield County, Ohio (Richard and Susan Paulus);
(3) Defendant .26 Acres of Land, More or Less, in Fairfield County, Ohio (James Baechle, II);
(4) Defendant .7 Acres of Land, More or Less, in Guernsey County, Ohio (National Nominee Group, Inc.);
(5) Defendant 13.25 Acres of Land, More or Less, in Monroe County, Ohio (Dale and Stella Forni);
(6) Defendant 1.53 Acres of Land, More or Less, in Muskingum County, Ohio (Unknown heirs of Wilva Roach; William M. Roach; Lyle Vanhorn; Unknown heirs of Corbet Vanhorn; Theresa Vanhorn; Vanna Vanhorn; Sonja Shia);
(7) Defendant 1.42 Acres of Land, More or Less, in Pickaway County, Ohio (Huntington Mortgage Group);
(8) Defendant 2.32 Acres of Land, More or Less, in Pickaway County, Ohio (David Hedges);
(9) Defendant 4.41 Acres of Land, More or Less, in Warren County, Ohio (Harold Richeson; Ken Richeson);
(10) Defendant 2.19 Acres of Land, More or Less, in Warren County, Ohio (Fenco Development Company);
(11) Defendant 2.64 Acres of Land, More or Less, in Warren County, Ohio (Warren County Park District); and
(12) Defendant 7.426 Acres of Land, More or Less, in Warren County, Ohio (Dean and Nancy Mowrey).
The Court notes that several defendants filed an original answer with a jury demand, but apparently never filed an answer with a jury demand to Plaintiff's first amended complaint. These defendants are:
(1) Defendant 4.895 Acres of Land, More or Less, in Butler County, Ohio (Jack and Brigette Cornett);
(2) Defendant 3.7 Acres of Land, More or Less, in Fairfield County, Ohio (Richard and Susan Paulus);
(3) Defendant .26 Acres of Land, More or Less, in Fairfield County, Ohio (James Baechle, II);
(4) Defendant 13.25 Acres of Land, More or Less, in Monroe County, Ohio (Dale and Stella Forni);
(5) Defendant 1.53 Acres of Land, More or Less, in Muskingum County, Ohio (Unknown heirs of Wilva Roach; William M. Roach; Lyle Vanhorn; Unknown heirs of Corbet Vanhorn; Theresa Vanhorn; Vanna Vanhorn; Sonja Shia);
(6) Defendant 2.32 Acres of Land, More or Less, in Pickaway County, Ohio (David Hedges); and
(7) Defendant 2.19 Acres of Land, More or Less, in Warren County, Ohio (Fenco Development Company).
In this Court's October 24, 2008 Order, the Court identified these defendants (with a scrivener's error regarding the Fenco defendant) and ordered them to file an answer with or without a jury demand to the first amended complaint by October 31, 2008. (Doc. # 443, at 6-7.) Of these defendants who failed to file an answer to the first amended complaint, the Court will try their compensation issue, if compensation is warranted, unless they obtain leave of Court to file a jury demand. Their failure to file a second answer seeking a jury constitutes an apparent withdrawal of the jury demand.
This defendant is set for a December 16, 2008 compensation hearing, which in the absence of a jury demand will be a trial to the Court.
For these identified landowners, only the Court can determine their just compensation awards, unless a landowner obtains leave of Court to file a jury demand and thus proceed before either a jury or a commission. See 13 James W. Moore, Moore's Federal Practice § 71.1.11[1][e], at 71.1-52 ("Under Rule 71.1(h)(1), if a jury trial is not demanded by any party, and Congress has not authorized a tribunal, then the court must, by default, conduct a bench trial. The court does not have authority to refer the matter to a commission in the absence of a demand for a jury trial." (footnotes omitted)).
Other defendant landowners also fall outside the scope of Plaintiff's motion. The Court notes that the most recent amended complaint names an additional twelve defendant properties that were not included in prior pleadings. (Doc. # 490.) Because the motion to appoint a commission predates these landowners' involvement in this litigation and because-unlike other landowners added via the prior amended complaint (Doc. # 396) — the parties have not proceeded as if the commission motion encompasses these additional defendants, the Court cannot construe Plaintiff's motion as targeting the following defendants:
(1) Defendant .972 Acres of Land, More or Less, in Belmont County, Ohio (Alfred L. Vettel and Nancy S. Vettel Trust);
(2) Defendant 7.334 Acres of Land, More or Less, in Belmont County, Ohio (Marvin Steed);
(3) Defendant .342 Acres of Land, More or Less, in Belmont County, Ohio (Ronald and Juanita Thornberry);
(4) Defendant 2.141 Acres of Land, More or Less, in Clinton County, Ohio (Charles Carmichael);
(5) Defendant 4.476 Acres of Land, More or Less, in Clinton County, Ohio (Michael D. Cole);
(6) Defendant 10.513 Acres of Land, More or Less, in Pickaway County, Ohio (Thomas and Linda Scothorn);
(7) Defendant 3.338 Acres of Land, More or Less, in Pickaway County, Ohio (James and Cynthia Peters);
(8) Defendant .753584 Acres of Land, More or Less, in Fairfield County, Ohio (Betty L. Kull Trust; Walter Frederick Kull Trust A; Walter Frederick Kull Trust B);
(9) Defendant 7.211 Acres of Land, More or Less, in Perry County, Ohio (Christopher and Margaret Snider);
(10) Defendant .646 Acres of Land, More or Less, in Guernsey County, Ohio (Donald Wayne Duche Living Trust; Elizabeth Ann Duche Living Trust);
(11) Defendant 104.634 Acres of Land, More or Less, in Perry and Muskingum Counties, Ohio (Ohio Power Company); and
(12) Defendant 7.939 Acres of Land, More or Less, in Muskingum County, Ohio (Franklin Real Estate Company).
For these identified landowners, only the Court can determine their just compensation awards, unless a landowner answers with a jury demand or later obtains leave of Court to file a jury demand and thus proceed before either a jury or a commission.
This leaves Plaintiff's motion to appoint a commission pending against only those defendant landowners who have made a jury demand. See 13 James W. Moore, Moore's Federal Practice § 71.1.11[1][d], at 71.1-49 to 71.1-50 ("The language of [Rule 71.1(h)] indicates that a commission may only be appointed as an alternative to a jury trial. Absent a demand for a jury trial, the court lacks authority to appoint a commission."). The following defendants comprise this group:
(1) Defendant 3.97 Acres of Land, More or Less, in Butler County, Ohio (Florence McKinley);
(2) Defendant 14 Acres of Land, More or Less, in Butler and Warren Counties, Ohio (Jay and Helen Real Estate; Jay and Helen Frick);
(3) Defendant 3.625 Acres of Land, More or Less, in Fairfield County, Ohio (Scott McClelland);
(4) Defendant 10.277 Acres of Land, More or Less, in Fairfield County, Ohio (Scott McClelland);
(5) Defendant 16.38 Acres of Land, More or Less, in Fayette County, Ohio (Paul and Nancy Robinson, Trustees of Paul L. And Nancy A. Robinson Revocable Family Trust; Arthur and Joan Gale, trustees of Gale Family Revocable Living Trust; Frank Hedges, Trustee of Helen Louise Hedges Revocable Living Trust; Susan Kirk);
(6) Defendant 7.73 Acres of Land, More or Less, in Guernsey County, Ohio (James and Carol Costello);
(7) Defendant 4.824 Acres of Land, More or Less, in Guernsey County, Ohio (Raymond and Carmen Grudier);
(8) Defendant 6.356 Acres of Land, More or Less, in Guernsey County, Ohio (Virgil and Mary Stillion);
(9) Defendant 2.19 Acres of Land, More or Less, in Guernsey County, Ohio (Paul and Cora Warehime);
(10) Defendant 4.16 Acres of Land, More or Less, in Guernsey County, Ohio (Tom Detweiler; Nancy Fargo);
(11) Defendant 6.81 Acres of Land, More or Less, in Guernsey County, Ohio (Donald Potts, Trustee);
(12) Defendant 2.932 Acres of Land, More or Less, in Guernsey County, Ohio (Jeffrey and Luan Danford);
(13) Defendant 3.58 Acres of Land, More or Less, in Guernsey County, Ohio (Jed Rumora, Trustee of the Jack and Nancy Rumora Trust; Lee jay Rumora, Trustee of the Jack and Nancy Rumora Trust; Matt Rumora, Trustee of the Jack and Nancy Rumora Trust);
(14) Defendant 13.65 Acres of Land, More or Less, in Guernsey County, Ohio (Mary Potts, Trustee);
(15) Defendant 10.98 Acres of Land, More or Less, in Guernsey County, Ohio (Eddie and Sharon Potts);
(16) Defendant 3.85 Acres of Land, More or Less, in Muskingum County, Ohio (Gary Dutcher);
(17) Defendant 4.6 Acres of Land, More or Less, in Muskingum County, Ohio (Katherine Staley Clarkson);
(18) Defendant 1.50 Acres of Land, More or Less, in Muskingum County, Ohio (Roger and Nancy Holland);
(19) Defendant 4.94 Acres of Land, More or Less, in Noble County, Ohio (John and Catherine Watson);
(20) Defendant 7.72 Acres of Land, More or Less, in Pickaway County, Ohio (James and Laura Burchfield);
(21) Defendant 15.24 Acres of Land, More or Less, in Pickaway County, Ohio (Ronald and Carol Bates);
(22) Defendant 6.773 Acres of Land, More or Less, in Perry County, Ohio (Hannah McClelland);
(23) Defendant 7.91 Acres of Land, More or Less, in Warren County, Ohio (Anna E. Alexander);
(24) Defendant 7.78 Acres of Land, More or Less, in Warren County, Ohio (Marilyn and Donald Slorp);
(25) Defendant 8.12 Acres of Land, More or Less, in Warren County, Ohio (Helen Earnhart);
(26) Defendant 5.72 Acres of Land, More or Less, in Warren County, Ohio (Jeffrey and Maureen McCarty);
(27) Defendant 1.36 Acres of Land, More or Less, in Warren County, Ohio (Larry Denny); and
(28) Defendant 7.509 Acres of Land, More or Less, in Warren County, Ohio (Pauline C. Forman Life Estate).
This defendant is set for a December 17, 2008 compensation hearing.
Having identified those defendants properly within the scope of Plaintiff's motions to appoint a commission, the Court can now turn to the merits of that motion.
Under Rule 71.1(h), "[i]f a party has demanded a jury, the court may instead appoint a three-person commission to determine compensation because of the character, location, or quantity of the property to be condemned or for other just reasons." Fed.R.Civ.P. 71.1(h)(2)(A). Under the totality of the circumstances of this litigation, the Court concludes that appointment of a commission is warranted.
The character, location, and quantity of the property involved support appointment. If travel to a property is deemed warranted, the commission may proceed to that property with notably greater ease and expense than that of a jury and the requisite court staff that would have to accompany the jury. The number of properties involved and the remoteness of many of these properties from the courthouse thus weigh in favor of a commission. Moreover, if circumstances warrant holding a compensation hearing in the county in which a property is located, regardless of whether a visit to that specific property is made, it will be considerably easier and less expensive for commissioners rather than jurors to travel. The significant number of individual properties involved weighs in favor of smaller, more efficient proceedings that will reduce the duration of hearings and the associated costs to the parties involved.
This Court also recognizes that other just reasons exist in support of appointing a commission. A commission experienced with the issues surrounding this litigation will be able to provide for reasonably uniform compensation awards, where one jury or multiple juries may be less uniform in reasoning and the resulting awards.
Appointment of a commission will also enable the parties to conclude their dealings more quickly than would jury trials while concurrently serving to further judicial economy. Although involving multiple parties and multiple pieces of property, resulting in a need for multiple just compensation awards, the instant litigation is but one case on the Court's docket. The Court has already noted in this case that each landowner will receive a separate compensation proceeding in order to avoid confusion and to produce each compensation award as quickly and effectively as possible. What this means from a practical standpoint is that this one case could present the Court with at least twelve bench trials and twenty-eight jury trials, without even counting the newly added dozen defendants. Inserting these jury trials into the Court's existing schedule of trials, hearings, and other civil and criminal proceedings means that many if not most of the landowners would experience unfortunate but unavoidable delays-some of which could prove considerable-before obtaining just compensation. That would not be an acceptable result. The parties are entitled to a prompt and fair disposition of these proceedings.
It must be emphasized that the Court's calendar alone is not dispositive of the appointment decision, but is simply one notably limited factor that this Court has weighed in deciding to appoint a commission. See 13 James W. Moore, Moore's Federal Practice § 71.1.11[1][d], at 71.1-51 (asserting that "`calendar congestion' does not, at least by itself, justify appointment of a commission" (citing United States v. Hall, 274 F.2d 856, 859 (9th Cir. 1960))). Cognizant of the concern that use of a commission could even conceivably prolong the proceedings, this Court shall endeavor to ensure that the commission discharges its duties in an expeditious and efficient manner. This case generally and no compensation proceeding specifically shall be permitted to languish on the docket; there will be no unnecessary delay.
Having weighed the foregoing considerations, the Court in its discretion concludes that appointment of a commission is in the best interests of the parties and is therefore warranted. The Court therefore GRANTS Plaintiff's motion to appoint a commission in regard to the select defendants identified above. In regard to several of these defendants, however, the decision to employ a commission is of course conditioned on Plaintiff taking the property at issue. As the Court noted in its October 24, 2008 Order, the Court elected to avoid piecemeal decisionmaking in regard to the commission issue. (Doc. # 443, at 8.) The Court recognizes that the addition of twelve new defendants in the second amended complaint has defeated this goal.
III. Prospective Commissioners
Having concluded that the use of a commission is appropriate if and when necessary, the Court is empowered to appoint three commissioners. Fed.R.Civ.P. 71.1(h)(2)(A). The Court may also appoint "up to two additional persons to serve as alternate commissioners to hear the case and replace commissioners who, before a decision is filed, the court finds unable or disqualified to perform their duties." Fed.R.Civ.P. 71.1(h)(2)(B). Importantly, "[b]efore making its appointments, the court must advise the parties of the identity and qualifications of each prospective commissioner and alternate, and may permit the parties to examine them." Fed.R.Civ.P. 71.1(h)(2)(C).
In selecting prospective commissioners and alternates, this Court has considered the guidance provided by the 1985 Advisory Committee Note to former Rule 71A (now Rule 71.1):
The amended Rule does not prescribe a qualification standard for appointment to a commission, although it is understood that only persons possessing background and ability to appraise real estate valuation testimony and to award fair and just compensation on the basis thereof would be appointed. In most situations the chairperson should be a lawyer and all members should have some background qualifying them to weigh proof of value in the real estate field and, when possible, in the particular real estate market embracing the land in question.
Although not required to do so, the Court has also considered the appointment of residents of the counties involved, cognizant that "there is some danger in appointing local realtors in that they `may use their own expertise and not act as a deliberative body applying constitutional standards.'" 13 James W. Moore, Moore's Federal Practice § 71.1.11[1], at 71.1-55 to 71.1-56 (quoting United States v. 3,928.09 Acres of Land in McCormick, 12 F.R.D. 127, 129 (W.D.S.C. 1951)). Additionally, the Court has recognized that "there is no reason why attorneys may not be appointed as commissioners, and indeed, an entire panel of lawyers is not improper." Id. at 71.1-56.
Guided by these considerations, the Court advises the parties of its intent to appoint the following individuals as commissioners and alternates:
(1) Gerald Hinkle;
(2) Craig Paynter;
(3) Gregory Travalio (Chairperson);
(4) James Trifelos (Alternate); and
(5) Wesley Untied (Alternate).
The qualifications of each potential commissioner and alternate commissioner are set forth in the five attachments filed concurrently with this Opinion and Order. This Court has selected each individual for his expertise in property law generally and eminent domain specifically, coupled with each individual's reputation for integrity, fairness, and competence, as well as that individual's willingness to serve on the commission and produce notably prompt just compensation awards.
The same concerns govern prospective commissioners and prospective alternates. See 13 James W. Moore, Moore's Federal Practice § 71.1.12[1], at 71.1-55 ("The alternates, if any, are to be appointed at the same time and in the same manner as the regular commissioners.").
Although a discretionary decision, the Court will permit any party to examine the prospective commissioners and alternates. Any party seeking to conduct such an examination must file a request for examination by November 26, 2008. Said request should specifically identify the prospective commissioner(s) to be examined. If a timely request for examination is made, the Court will promptly schedule an in-court hearing and permit the requesting party to conduct a relevant and reasonable examination.
The parties should remain cognizant that they cannot suggest appointees, but may object to a prospective commissioner or alternate for good cause. Fed.R.Civ.P. 71.1(h)(2)(C). A party's right to object is subject to the following Orders:
(1) Any party who does not seek to examine a prospective commissioner by filing a timely examination request, but who nonetheless seeks to object to that prospective commissioner, must file an objection to that prospective commissioner by November 26, 2008. Failure to file a timely objection will result in a forfeiture of the right to object to that prospective commissioner. 13 James W. Moore, Moore's Federal Practice § 71.1.12[1], at 71.1-55 ("Any objection must be addressed to the court, and not to the commissioners, and a failure to object constitutes a waiver of the right to do so." (citing United States v. Wallace, 201 F.2d 65, 67 (10th Cir. 1952))). Thus, a party who fails to pursue examination and who fails to file an objection cannot later object on any basis, including any ground discovered or developed during the examination of a prospective commissioner by another party during examination. A party who fails to pursue examination but who files an objection cannot later object on any other basis, including any ground discovered or developed during the examination of a prospective commissioner by another party during examination.
(2) Any party who files a timely examination request can (but is not required to) file a concurrent objection. That party will be permitted to object at the examination hearing.
(3) An objection lodged by any party at any time should be specific and complete, presenting any and all grounds and support for the objection so that no additional briefing or argument is necessary. The failure to raise or explain any ground for objection shall constitute a forfeiture of that ground.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to appoint a commission. (Doc. # 6.) The parties shall proceed in accordance with this Opinion and Order and, in the absence of any request for examination of a prospective commissioner or alternate, the Court shall proceed to file an Order appointing the commissioners and setting forth their duties and obligations in this litigation.
IT IS SO ORDERED.
QUALIFICATIONS OF GERALD FRANKLIN HINKLE, II
Certified General Real Estate Appraiser No. 431768
The Robert Weiler Company
41 South High Street
Suite 1010
Columbus, Ohio 43215
EDUCATIONAL BACKGROUND
1992 — Bachelor of Arts Degree Ohio Northern University, Ada, Ohio 2002 — Law Degree Capital UniversityAppraisal Institute Courses and Seminars:
— Appraisal Institute Course 550: Advanced Applications — Appraisal Institute Course 530: Advanced Sales Comparison and Cost Approaches to Value (Challenged and Passed) — Appraisal Institute Course 520: Highest and Best Use and Market Analysis — Appraisal Institute Course 500: Advanced Residential Form and Narrative Report Writing — Appraisal Institute Course 1A1: Real Estate Appraisal Principles — Appraisal Institute Course 8-2: Residential Valuation — Appraisal Institute Course SPP: Standards of Professional Practice Parts A, B, and C. — Appraisal Institute Course 1BA: Capitalization Theory and Techniques — Appraisal Institute Course 2BA: Advanced Capitalization Theory and Techniques — Appraisal Institute: Depreciation Analysis — Appraisal Institute: Residential Construction — Appraisal Institute: Industrial ValuationAPPRAISAL EXPERIENCE
March — 2005 — Present: Appraiser, The Robert Weiler Company. Sept. 1996 — March — 2005: President, C.R.E.S.T. Real Estate Services, Ltd. Sept. 1996 — March — 2005: Appraiser, Anthony F. Mollica and Assoc. Residential, Commercial, Industrial, and Multi-Family Properties Sept. 1992 — Sept. 1996: Staff Appraiser, Charles R. Porter Company. Residential, Commercial, Industrial, Multi-Family PropertiesORGANIZATIONS
— ASA Designation, American Society of Appraisers, Senior Member, Urban Real Estate. — SRA Designation, Appraisal Institute, Senior Residential Appraiser — MAI — Candidate for Designation, Appraisal Institute — CRE — Nominated for Membership with The Counselors of Real Estate — Licensed Salesperson, Columbus Board of Realtors — NAR — National Association of Realtors — OAR — Ohio Association of Realtors — CBR — Columbus Board of Realtors — CBA — Columbus Bar Association — OSBA — Ohio State Bar Association — ABA — American Bar Association —EXPERIENCE
Sponsored by the Appraisal Institute, selected as Ohio's representative for 1997. Participated in the Appraisal Institute Summer Conference, June 1997 as a member of the Young Advisory Council in Washington D.C.SIGNIFICANT APPRAISAL EXPERIENCE AND MAJOR CLIENTS SERVED
I have performed appraisals on single and multi-family projects (4 to 800 units); subdivision analysis; industrial warehouses, distribution centers, and manufacturing facilities; hotels and motels; general and medical office buildings; fast-food and sit-down restaurants: and small neighborhood and large single-tenant (big box) retail users for lending institutions, attorneys, tax officials, and condemnation actions.
In addition, I have prepared appraisal reports on special use properties such as sewage treatment and reclamation facilities, golf course communities, bowling alleys, bakeries, daycare centers, car dealerships (new and used), nurseries, car washes, churches, marinas, and special use manufacturing facilities.
Significant appraisals performed include:
• Campus Partners for Community Redevelopment: Redevelopment of the southern Ohio State University campus district. • Ohio Department of Transportation: State Route 250 widening. • City of Dublin: Property appraisals on industrial, commercial, and residential properties for road widening/extensions and bridge construction (Emerald Parkway). • US 33 Bypass: Landowners affected by the condemnation action. • Southland Lanes Bowling Center • 60,000 /- SF Rhodes Furniture Store: Tax Appeal • Mount Carmel Medical Health Clinic • Proposed Tuttle Road extension • Steak n' Shake: Sale/Leaseback • Rose Garden Nursing Home: Medicaid Funded Nursing Facility • Southland Lanes Bowling Center • Village of Galena Waste Water Reclamation Facility • 415-Room Adam's Mark Hotel, Columbus, OhioConstruction Law Services include representing clients in all aspects of construction, with a particular emphasis on public sector litigation and contracting. Representative Experience
Other Professional Experience Bar Admissions Education Achievements and Awards Professional Memberships and Community Service Speeches and Publications Columbus Business First Lead Counsel as Special Counsel for City of Columbus in eminent domain proceedings by which properties were acquired on which to construct the Ohio State University Gateway project, contributing significantly to the timely acquisition of properties Currently serving as Special Counsel to Ohio Attorney General representing The Ohio State University on contractor claims, surety takeovers, and on the replacement of defective work emanating from the construction of complex project known as Phase I and Phase II of the $150 million Larkins Hall Recreation Facility Currently representing Ashland County in a lawsuit alleging unworkmanlike work performed on standing seam metal roof on County jail facility Successfully represented a drywall subcontractor in claims against owner and general contractor arising out of the construction of a $40 million corporate headquarters building in the central Ohio area Successfully represented a municipal joint venture and its participant municipalities in claims arising out of the design and construction of a sanitary sewer wet-well and lift station Represented Liberty Township in construction of recreation center, township firehouses, community building and active park facilities Assisted Northern Area Water Authority municipal joint venture and its participant municipalities in site acquisition and construction of a $20 million water treatment and distribution network Successfully represented Lake Erie area Water District in claims against design professional where allegations centered on the negligent design of intake facility Special Outside Counsel to Ohio Ohio Attorney General U.S. District Court, Southern District of Ohio U.S. Court of Appeals, Sixth District Denison University (B.A., 1979) U.S. Supreme Court The University of Akron (J.D., 1982) AV® Peer Review Rated* Listed in The Best Lawyers in Columbus Bar Association, America, Eminent Domain and former Chair of the Construction Condemnation Law Law Committee (2002 — 2004) Listed in Ohio Super Lawyers, Ohio Bar Association, Construction/Surety, 2004-2005, Construction Law Committee 2007-2008 American Bar Association, Forum on the Construction Industry Columbus Lawyers Club "Competitive Bidding"- Builders Exchange of Central Ohio Ohio Township Association, February 2, 2007 Western Reserve Academy Alumni Association (2001-2002) "Construction Claims Issues" — Ohio Prosecuting Legal Advisor — Liberty Township, Attorneys Association, Delaware County, Ohio 2006 Summer Workshop (1987 — present) "Strong Oversight Can Get Leadership Columbus Class of 2001 Community Centers Built" Leadership Delaware County Class , of 1994 (Participant 1995 1996) March 2, 2004GREGORY M. TRAVALIO 7958 Stanburn Road Dublin, Ohio 43016
EDUCATIONAL BACKGROUND:Undergraduate Legal : University of Pittsburgh, 1965-69 B.A. English, 1969 : University of Pittsburgh School of Law, 1972-75 J.D. 1975, Magna Cum Laude Class standing: 1 out of 150 Columbia University School of Law LL.M., 1979 PROFESSIONAL HONORS AND BAR MEMBERSHIPS:
Associate Editor, Comments — University of Pittsburgh Law Review
Order of the Coif
Judge David Stahl Award — highest academic average in graduating class
C.J.S. Scholarship Award
Federal Bar Association Award
Ohio Judicial Conference Outstanding Service Award, 1994
Proctor and Gamble Faculty Excellence Award in Corporate and Commercial Law, 1998
First Year Professor the Year Award 2005-06
Ohio State Bar Association Award for Contributions to Ohio law and the Ohio bar, 2006
The Ohio State University Faculty Distinguished Service Award 2007
Admitted to Pennsylvania Bar, 1975
Admitted to Ohio Bar, 1984
WORK EXPERIENCE:
Educational:
Director of Clinical Programs The Moritz College of Law of the Ohio State University 2005-2008 Associate Dean for Professional Relations The Moritz College of Law of the Ohio State University 2001-2004 Lawrence D. Stanley Professor of Law The Ohio State University College of Law 1999-Present Professor of Law The Ohio State University College of Law 1984 — 2008 Associate Dean for Academic Affairs The Ohio State University College of Law 1989 — 1992 Associate Professor of Law The Ohio State University College of Law 1981 — 1984 Assistant Professor of Law The Ohio State University College of Law 1978 — 1981 Associate-in-Law Columbia University School of Law, 1977-78. Responsible for teaching Legal Writing and Research course for first year students. Professional:
Presently of counsel, Isaac Brant Ledman and Teetor
Columbus, OH. Practice specialties: Consumer and Commercial Law
Attorney, Wolf, Block, Schorr and Solis-Cohen
Philadelphia, Pa. 1975-77. Practice
consisted primarily of corporate, commercial, and banking work.Military:
Infantry Officer, U.S. Army, 1970 — 71
Judge Advocate General's Corps, U.S. Army Reserve, 1982-2006 (retired with the rank of Colonel). Awarded Legion of Merit
Graduate, U.S. Army War College, 1996.
PUBLICATIONS:Books:
NORDSTROM ON SALES AND LEASES OF GOODS, Aspen Law and Business (2d Ed. 2000) (with Clovis and Nordstrom).
OHIO CONSUMER LAW, Anderson Publishing Co. (2003).
OHIO CONSUMER LAW, Lexis-Nexis Co. (Cumulative Supplement) (2004).
OHIO CONSUMER LAW, 2006 Edition, Lexis-Nexis Co. (2006).
OHIO CONSUMER LAW, 2007 Edition, Lexis-Nexis Co. (2007).
OHIO CONSUMER LAW, 2008 Edition, Lexis-Nexis Co. (2008).Articles:
Suffer the Little Children — But Not in my Neighbor-hood: A Constitutional View of Age Restrictive Housing, 40 Ohio St. L.J. 295 (1979).
International Protection of Marine Mammals, 5 Col. J. of Env. Law 199 (1979) (co-author).
Clearing the Air After the Battle: Reconciling Fairness and Efficiency in a Formal Approach to Section 2-207, 33 Case Western Reserve L. Rev. 327 (1983).
The UCC's Three "R's": Rejection, Revocation and (The Seller's) Right to Cure, 53 U. Cinn. L. Rev 931 (1984).
Pay Up or Shut Down: Some Cautionary Remarks on the Use of Conditional Entitlements in Private NuisanceCases, 38 U. Fla. L. Rev. 209 (1986).
Now You Have It, Now You Don't: The Depository Bank's Rights of Charge-Back and Set-Off, 30 Ariz. L. Rev. 719 (1988).
Values and Schizophrenia in Intercollegiate Athletics, 20 Capital L. Rev. 587 (1991) (symposium).
Measuring Seller's Damages for Breach of Long-Term Gas Purchase Contracts, 14 Eastern Min. L. Inst. 23-1 (1994).
Development of Consumer Protection in the United States and the Implications for the Economically Emergent Countries, 11 Journal of Institute of Social Sciences, Pai Chai University 93 (1995).
Terrorism, International Law, and the Use of Military Force, 18 Wisconsin International Law Journal 145 (2000).
Terrorism, State Responsibility and the Use of Military Force, 4 Chicago Journal of International Law 97 (2003).Book Chapters (all completed in conjunction with the Editorial Board of The Ohio Jury Instruction Committee):
Chapter 362, OHIO JURY INSTRUCTIONS, "Uniform Commercial Code — Sale of Goods" (Anderson Pub. Co.) (with Al Clovis and Robert J. Nordstrom).
Chapter 329, OHIO JURY INSTRUCTIONS, "Lemon Law" (Anderson Publishing Co.)
Chapter 369, OHIO JURY INSTRUCTIONS, "Uniform Commercial Code — Secured Transactions" (Anderson Pub. Co.).
Chapter 525, OHIO JURY INSTRUCTIONS, "Drug Offenses" (Anderson Pub. Co.) (with John Bender).
Chapter 253, OHIO JURY INSTRUCTONS, "Contracts" (Anderson Pub. Co.) (2001).
Chapter 351, OHIO JURY INSTRUCTIONS, "Product Liability" (Lexis Nexis Pub. Co. (2004)) (with Ray, Sigmier, and Strubbe).
Chapter 255, OHIO JURY INSTRUCTIONS, "Consumer Sales Practices Act" Lexis Nexis Pub. Co. (2007)) (with Deal, Hess, Lynsky, and Debinski).
Chapter 525, OHIO JURY INSTRUCTIONS, "Lending Practices" Lexis-Nexis Pub. Co. (2008) (with Deal, Hess, Lynsky, McMurray, and Debinski)
Other:
Cumulative Supplement, NORDSTROM ON SALES AND LEASES OF GOODS (2d Ed. 2000) (with Clovis and Nordstrom).
COURSES TAUGHT:
Property
Contracts
Commercial Paper
Sales
Law and Economics
Civil Litigation Clinic
Legal Writing
Criminal Punishment Philosophy Seminar
Seminar in the Law and Use of Military Force
Comparative Sales Law (US, British, and EU law)
Comparative Sales and Product Liability Law (US, British, and EU law)
TEACHING MATERIALS:
Selected and edited materials for Seminar in Criminal
Punishment Philosophy.
Selected and edited materials on Ohio Consumer Law for course in Consumer Law.
Contributed to teaching materials for course in Interprofessional Care of the Patient/Client.
Selected and Edited materials for Seminar in Law and the Use of Military Force (with LTC Eben Trevino).
Selected and Edited materials for Comparative Sales Law.
Selected and Edited materials for Comparative Sales and Product Liability Law
SELECTED LAW SCHOOL POSITIONS:
Chair, Appointments Committee 1983-84
Chair, Library Director Search Committee 1984-85
Chair, Administration Committee 1985-86
Chair, Academic Affairs Committee 1988-89
Chair, Library Director Search Committee 1990-91
Chair, Academic Affairs Committee 1993-95
Director, College of Law Summer Law Program at Oxford 1997.
Chair, Administration Committee 1998-99
Director, College of Law Summer Law Program at Oxford, 2000.
Chair, Academic Affairs Committee 2000-2001
Director, College of Law Summer Program at Oxford 2006.
SELECTED UNIVERSITY POSITIONS:
Alternate Faculty Member to University Judicial Panel, 1979-80
Alternate Faculty Member to University Senate, 1982-85
Faculty Representative to University Senate, 1985-88
Board of Directors, Ohio Ag Law Institute, 1984-87
Member, University Rules Committee, 1985-87; Chair, University Rules Committee 1986-87
Member, University Athletic Council, 1987-91; Vice-Chair, University Athletic Council, 1989-90
Member, University Golf Course Greens Committee 1987-90
Chair, University Special Committee on "Where Tenure Resides," 1987-88 (University presidential appointment)
Member, University Legislative Affairs Committee, 1991-1994
Chair, University Legislative Affairs Committee, 1993-1994
Board of Directors, Ohio State University Faculty/Staff Assistance Program, 1989-93
Member, University Fiscal Committee 2005-2008; Chair, University Fiscal Committee, 2005-2006; 2006-2007
BAR LEADERSHIP AND OTHER POSITIONS:
Consultant to the Office of Disciplinary Counsel of the Ohio Supreme Court (1980-82).
Chair, Ohio Judicial Conference U.C.C. Jury Instruction Drafting Committee, 1988-Present.
Staff Judge Advocate, 83 U.S. Army Reserve Command, 1994-96. Staff Judge Advocate, Joint Reserve Unit, US Central Command, 1996-2002. Executive Officer (IMA) to the Judge Advocate General, U.S. Army, 2002-2005; Commandant (IMA) U.S. Army Judge Advocate General's School 2005-2006.
Editorial Advisor, Ohio Judicial Conference Jury Instruction Editorial Board, 1992-Present.
Member, Ohio Supreme Court Futures Commission, Task Force on Structure and Organization of the Courts, 1998-2000.
Chair, Ohio State Bar Association Committee on Legal Education 2000-2004; Member, Ohio State Bar Association Committee on Commercial Law and Bankruptcy.
Member, Ohio State Bar Association CLE Advisory Commission, 2002-2005.
Member, Organizing Committee, Ohio Institute on the Legal Profession (Glenmoor Institute).
Master, Franklin Inns of Court, 2002-Present.
Fellow, Ohio State Bar Foundation, 2002-
Council of Delegates, Ohio State Bar Association 2003-2005; 2007-present
Council of Delegates Screening Committee 2003-2005
Fellow, Columbus Bar Foundation, 2004-
Board of Governors, Columbus Bar Association 2004-2006
Columbus Bar Association Pro Bono Task Force 2005-2006
Columbus Bar Association Ad Hoc Committee on Hurricane Victim Relief 2005
Ohio Supreme Court Commission on Professionalism 2007-2008
SELECTED ACTIVITIES, PAPERS, PRESENTATIONS, ETC. (partial list):
Taught course in Fair Housing to Real Estate Institute of Dept. of Administrative Science, Ohio State University, 1978-81.
Videotape on Fair Housing for Ohio Dept. of Commerce and Ohio Bd. of Realtors for statewide distribution for realtor instruction, 1980.
Extensive interview on local PBS television station to discuss Age Discrimination in Housing, 1981.
Presentation to Ohio bankers and creditors on "Security Interests and Extending Farm Credit", 1985.
Presented continuing legal education course for Columbus Bar Association on "Soldier's and Sailor's Civil Relief Act and Veterans' Re-employment Rights", 1990.
Symposium participant, Capital Law School, Problems in Intercollegiate Athletics, 1991.
Lecture to law faculty from various Korean universities on comparative consumer protection, Pai Chai University, August 1994.
Presentation to judges of Commercial Arbitration Court of the Ukraine on U.S. commercial law, December 1994.
Presented lectures in Kiev, Ukraine to judges from the High Commercial Arbitration Court on various aspects of American Commercial law, February 1995.
Presentation to members of the Reserve Officers Association on Recent Developments in The Law of Armed Conflict. December 1996.
Presented paper on Terrorism and the Use of Military Force to Judge Advocates from the US Central Command and the Legal Advisor to the Chairman of the Joint Chiefs of Staff. February 1997.
Presenter, "The Consumer Credit Reporting Reform Act of 1996".
Discussion and Seminar sponsored by the Creditor Education Coalition. February 1998.
Presentations to Union County attorneys and real estate professionals on Recent Developments in Ohio Contract Law, October, 1998; New Cases in Contract and Real Estate Law, September, 1999; August 2000.
Presentation to Judge Advocates from the US Central Command and representatives from the Department of Defense and the Department of State on The Threat of World Terrorism and the Use of Military Force in Response. Participated in a panel discussion on the topic led by the Deputy Counsel to the Secretary of Defense. January 1999.
Presenter, "Recent Developments under the Fair Credit Reporting Act" Discussion and Seminar sponsored by the Creditor Education Coalition. February 1999.
Attended First Glenmoor Justice Institute, October, 1999.
Presenter, "Electronic Signatures and Writings," Ohio Magistrates Association, September, 2000.
Workshop, "Information Warfare and the Law of War" Ohio State University College of Law, 2001
Presentation, "Information Warfare and the Law of War" Ohio State University Veterans' Association, Spring 2001
Panelist, "Legal Aspects of the War on Terrorism," Michael E. Moritz College of Law, The Ohio State University, Spring 2001
Panelist, "The War Against Terrorism and International Law," Ohio State Bar Association, October 2001
Presenter, "The Domestic and Constitutional Basis for Military Tribunals," Franklin Inns of Courts, February 2002
Presenter, "The History and Legality of Military Commissions," Ohio State University Veterans Association, August 2002
Panelist, "The Aftermath of September 11th: Military Commissions," Michael E. Moritz College of Law, The Ohio State University, September 2002.
Organizer and Presenter, "The State of CLE in Ohio," Franklin Inns of Court, January 2003.
Panelist, "International Law and the War in Iraq," War and Our World Forum, OSU-Mansfield, April 2003.
Presenter, Faculty Brown-bag on Teaching Skills in Traditional Courses, Spring 2003
CLE, Western Ohio Legal Services, "Sales Law in the 21st Century" and "Attacking Consumer Arbitration Provisions," Spring 2003.
Presenter, "Integrating Law and Economics in Teaching Consumer Law," Conference on Teaching Consumer Law, University of Houston Law Center, May 2004.
Panelist, Ohio Supreme Court Review, Franklin Inns of Court, January 2005.
Presenter, "Mandatory Arbitration Provisions in Consumer Contracts," Judges' Day, Moritz College of Law, October 27, 2005
Speaker, "Recent Developments in Contract Law" October 21, 2005, Union County Attorneys and Brokers
Moderator and Panelist, U.S. "PATRIOT" Act, Ohio State Bar Association, October 21, 2005
Speaker, "The Status of Detainees in the Global War on Terror," Federal Bar Assn., November 17, 2005
Panelist, "Torture and Detainees in the War on Terror," Moritz College of Law, April 10, 2007
Speaker, "The Ohio Consumer Sales Practices Act" to Union County Attorneys and Contractors, September 2007.
Speaker, "Legal Developments in Domestic and International Law Since 9/11", Columbus Torch Club, October 2007.
OTHER:
Faculty, Josephson's Bar Review Course, Culver City California, 1982-85.
Arbitrator, National Arbitration Forum, 2000-present
Occasionally serve as consultant or expert witness on matters of commercial or contract law.JAMES N. TRIFELOS Attorney at Law 555 South 30th Street T 740.328.7399 Heath, Ohio 43056 F 740.788.8448 jimtrifelos@earthlink.net
PROFILE
Experienced, insightful and motivated attorney, with over twenty-five years of successful litigation experience, delivers poignant written, verbal and negotiation outcomes. Analytical thought process, coupled with strong interpersonal skills, contributes to proven track record in complex negotiations. Extensive experience in contract, corporate, real estate and government law. A career of diversity and complexity, resulting in the ability to adapt to multiple situations.EXPERIENCE ATTORNEY AT LAW, TRIFELOS LAW OFFICE, NEWARK/HEATH, OHIO 1985 TO PRESENT
Extensive experience in all types of real estate transactions including foreclosure, quite title, appraisal, eminent domain and partition actions. Preparation of numerous commercial and residential real estate contracts and negotiation of the same. Analysis of proposed real estate projects so as to advise and consult regarding maximum potential. Vast experience with real estate developers, agents, brokers and financial professionals regarding proposed real estate developments, acquisitions, lease transactions and financing of real property.
Twenty-three years of successful litigation experience.
Keen and well-seasoned analytical, negotiating, and counseling skills yield successful outcomes in highly conflicting commercial, real property, insurance and business disputes.
Twenty plus years of legal experience in corporate governance, finance, litigation and governmental related matters, disputes and resolutions requiring a high degree of confidentiality and security.
Excellent counseling skills. Provides professional advice, counsel and representation to thousands of clients, including individuals, corporations, partnerships, and businesses, requiring strong drafting, counseling, analytical, advising, organizational and client interaction skills. Interpretation and litigation regarding various governmental regulations and statutory provisions, successful track record in litigating complex legal matters.
Advanced representation of the County Commissioners, County Auditor, Board or Civil litigation regarding complex insurance disputes, real estate disputes and contract issues and business disputes.
Certified Mediator, Licking County, Ohio, Common Pleas Court, for purposes of resolving high profile and complicated litigation disputes at the request of the Common Pleas Court Judiciary with a 90-95% success rate. Representation of county government, various township governments, corporations and individuals regarding real estate issues dealing with zoning matters, variances and land use permits, as well as litigation of real estate issues.
Comprehensive experience in document preparation and advising clients regarding wills, powers of attorney, estates and other probate matters.
Extensive experience in personal injury law — thousands of insurance disputes brought to successful resolution.
Vast training, education and litigation experience regarding environmental issues and related matters concerning environmental contaminant Mastered courtroom procedure.
SPECIAL MASTER, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF OHIO 2007 TO PRESENT
Appointed by Federal Judiciary for case by case management and disposition of federal foreclosure proceedings on behalf of the U.S. District Court, Southern District, Columbus, Ohio.
FLORIDA REAL ESTATE BROKER, STATE OF FLORIDA 2005 TO PRESENT
Real estate development in the state of Florida, primarily in the central east coast region of the state.
ASSISTANT LICKING COUNTY PROSECUTOR, NEWARK, OHIO 1985 TO 1987
Advanced representation of the County Commissioners, County Auditor, Board of Elections, County Treasurer and various Boards of Township Trustees. Civil litigation, legal research, development of appellate briefs and presentation of appellate oral arguments.
ASSISTANT CITY OF COLUMBUS PROSECUTOR, COLUMBUS, OHIO 1983 TO 1985
Successful (90% conviction rate) prosecution of criminal defendants in jury trials as well as trials to the Court. Member of trial skills committee (research and development of detailed areas of the law as it pertained to criminal prosecution).
EDUCATION
Capital University Law School, Columbus, Ohio — JURIS DOCTOR OF LAW, 1983 (top quartile ranking). Admitted to the state of Ohio Bar in November, 1983. The Ohio State University, Columbus, Ohio — Bachelor of Science in Business Administration, 1980 (top 5% ranking-College of Administrative Sciences); President's Scholarship, Pacesetter's Award, Summa Award
SKILLS
Mastery of Courtroom Procedure and Litigation in various Courts of Ohio. Public speaking and presentation. Strong verbal, written and interpersonal skills. Extensive negotiation and mediation skills.
REFERRALS
Honorable Gregory L. Frost
United States District Court Judge, Southern District of Ohio
Joseph P. Kinneary U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
614.719.3000
frost chambers@ohsd.uscourts.gov
Jeffery D. Boyd, Esq.
Executive Director, Ohio Association for Justice
395 East Broad Street, Suite 200
Columbus, Ohio 43215
614.341.6800
jeffb@oajustice.org
State Representative Jay Hottinger
Ohio House of Representative
77 South High Street, 13th floor
Columbus, OH 43215-6111
614.466.1482
district71@ohr.state.oh.us Employment Education Miscellaneous
Wesley K. Untied Attorney-at-Law Home Address: Office Address: 4650 Granview Road 32 North Park Place Granville, Ohio 43023 Newark, Ohio 43023 Schaller, Campbell Untied Newark, Ohio Partner/Attorney 1/1/92 to present. Areas of Practice: Probate: Wills, Trusts, Estate and Trust Administration Real Property: Residential, Land Use, Oil and Gas Schaller, Hostetter Campbell Newark, Ohio Associate Attorney 11/4/85 to 12/31/91 Capital University Law School Columbus, Ohio Juris Doctor 1985 * Law Review * National Moot Court Team The Ohio State University Columbus, Ohio Bachelor of Science 1982 (Major: Agricultural Economics) Rural landowner (involved in small family farm operation) Sportsman/Conservationist Licensed to Practice in: State of Ohio United States Supreme Court U.S. District Court for the Southern District of Ohio