In re Everitt

[Cite as In re Everitt, 2010-Ohio-6710.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Fourth Floor
Columbus, OH 43215
614.387.9860 or 1.800.824.8263
www.cco.state.oh.us
IN RE: PATTY EVERITT
PATTY EVERITT
Applicant
Case No. V2009-40633
Commissioners:
Gregory P. Barwell, Presiding
Elizabeth Luper Schuster
Randi Ostry LeHoty
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On March 5, 2009, the applicant, Patty Everitt, filed a compensation
application as the result of an assault which occurred on December 12, 2008. On June
19, 2009, the Attorney General issued a finding of fact and decision finding the applicant
qualified as a victim of criminally injurious conduct but denying reimbursement of a Civil
Protection Order (C.P.O.) attorney fee the applicant incurred. The Attorney General
stated the C.P.O. did not physically separate the parties as is required by R.C.
2743.51(F)(4). On June 23, 2009 and July 23, 2009, the applicant submitted requests
for reconsideration. On August 24, 2009, the Attorney General rendered a Final
Decision finding no reason to modify the initial decision. On August 31, 2009, the
applicant filed a notice of appeal from the August 24, 2009 Final Decision of the
Attorney General. Hence, a hearing was held before this panel of commissioners on
November 19, 2009 at 10:05 A.M.
{2}Assistant Attorney General Mark Zemba appeared via video teleconference
and Assistant Attorney General Amy O’Grady appeared in person on behalf of the state
of Ohio. Neither the applicant nor her attorney appeared at the hearing. Assistant
Case No. V2009-40633 - 2 - ORDER
Attorney General Mark Zemba made a brief statement for the panel’s consideration.
The Attorney General’s position is that the statute in question is clear and unambiguous;
the C.P.O. was to physically separate the parties for attorney fees to be compensable.
The C.P.O. in question has an exception where they could be in the same location in
Michigan and therefore the attorney fees are not compensable. Whereupon, the
Attorney General rested its case.
{3}Former R.C. 2743.51(F)(4) states:
“(4) ‘Allowable expense’ includes attorney’s fees not exceeding two thousand
five hundred dollars, at a rate not exceeding one hundred fifty dollars per hour,
incurred to successfully obtain a restraining order, custody order, or other order
to physically separate a victim from an offender, if the attorney has not received
payment under section 2743.65 of the Revised Code for assisting a claimant
with an application for an award of reparations under sections 2743.51 to
2743.72 of the Revised Code.”
{4}We look to the plain language of the statute to determine the legislative
intent. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d
519. We apply a statute as written when its meaning is unambiguous and definite.
Portage Cty. Bd. Of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d
478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. Of Edn.
(1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463. Finally, an unambiguous statute must
be applied in a manner consistent with the plain meaning of the statutory language.
Burrows, 78 Ohio St.3d at 81, 676 N.E.2d 519.
{5}The provision of the Civil Protection Order in question in pertinent part
states:
“As an exception to this order, the parties may have contact in the State of
Michigan due to their son-in-law’s serious illness.”
{6}From review of the file and after careful consideration of the information
presented at the hearing, we find the attorney fees incurred for the civil protection order
Case No. V2009-40633 - 3 - ORDER
are compensable pursuant to former R.C. 2743.51(F)(4). This decision is reached
based upon the unique fact situation presented in this case. The Civil Protection Order
in question prohibits the offender from in any manner coming in contact with the
applicant or following, stalking, harassing or contacting the applicant at her residence,
business, or place of employment. Furthermore, the C.P.O. orders the offender to stay
away from the victim and not be present within 500 feet of her. Accordingly, this
provision complies with the requirement contained in former R.C. 2743.51(F)(4) to
“physically separate” the victim from the offender.
{7}However, during the pendency of the litigation the applicant and offender’s
son-in-law became gravely ill in Michigan. At the time of the hearing for the C.P.O. it
was likely that the son-in-law would not survive and the limited exception was included
in the order so that both parties could attend the funeral service. We believe this
narrow, fact specific exception should not prohibit the payment of attorney fees for an
otherwise legally compliant C.P.O. This decision is confined to this narrow fact
situation and should not be considered precedent for broadening the scope of the
physical separation provision of R.C. 2743.51(F)(4). Therefore, the August 24, 2009
decision of the Attorney General is reversed.
IT IS THEREFORE ORDERED THAT
{8}1) The August 24, 2009 decision of the Attorney General is REVERSED
and judgment is rendered in favor of the applicant;
{9}2) This claim is remanded to the Attorney General for calculation and
payment of the award;
{10}3) This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
Case No. V2009-40633 - 4 - ORDER
{11}4) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
GREGORY P. BARWELL
Presiding Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
_______________________________________
RANDI OSTRY LE HOTY
Commissioner
ID #I:\VICTIMS\2009\40633\12-17-09 panel decision.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Summit County Prosecuting Attorney and to:
Filed 1-14-10
Jr. Vol. 2274, Pgs. 136-139
Sent to S.C. Reporter 10-6-11