Exhibit A

Supreme Court of Ohio Clerk of Court - Filed May 20, 2016 - Case No. 2016-0790

Exhibit B

Exhibit C

CASE_D SCR 2010 CV 08476

CASE_TYPE CV DOCKET_CODE

FORMSGEN YES WORDDOC YES

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION

NICHOLE JOHNSON et al,

Plaintiff(s), -vs- MARY E. MONTGOMERY et al,

Defendant(s).

CASE NO.: 2010 CV 08476 JUDGE FRANCES E. MCGEE DECISION, ORDER AND ENTRY OVERRULING DEFENDANT THIRTY-EIGHT THIRTY INC. dba THE LIVING ROOM’S OBJECTIONS TO MAGISTRATE'S DECISION ON JUNE 20, 2013; OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE’S DECISION FILED JUNE 20, 2013, AND ADOPTING MAGISTRATE’S DECISION

These matters came to be heard on both Defendant Thirty-Eight Thirty Inc. dba The

Living Room’s and Plaintiff Nicole Johnson’s Objections to the Magistrate’s Decision of

June 20, 2013.

Defendant Thirty-Eight Thirty, Inc. d/b/a The Living Room’s Objections to

Magistrate’s Decision on June 20, 2013, was filed July 2, 2013. Plaintiff’s Brief in

Opposition to Defendant Thirty-Eight Thirty, Inc. d/b/a The Living Room’s Objections to

Magistrate’s Decision on June 20, 2013 was filed on July 9, 2013. On July 16, 2013,

Defendant Thirty-Eight Thirty, Inc. d/b/a/ The Living Room’s Reply in Support of its

Objections to the Magistrate’s Decision filed on June 20, 2013, was filed.

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ELECTRONICALLY FILEDCOURT OF COMMON PLEASWednesday, June 25, 2014 11:36:32 AMCASE NUMBER: 2010 CV 08476 Docket ID: 19208490GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO

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Plaintiff’s Objection to the Magistrate’s Decision filed June 20, 2013, was filed on

July 3, 2013. On July 17, 2013, Defendant Thirty-Eight Thirty, Inc. d/b/a The Living

Room’s Memorandum Contra to Plaintiff’s Objections to the Magistrate’s Decision filed

on June 20, 2013, was filed.

These matters are properly before the Court.

I. FACTS AND PROCEDURAL HISTORY

A. Alleged Facts

On July 4, 2010, Defendant Mary Montgomery (Defendant Montgomery or

Montgomery) was involved in a rear end collision with a vehicle being driven by Plaintiff

Joshua Staeuble (Plaintiff Staeuble or Staeuble). Plaintiff Nichole Johnson (Plaintiff

Johnson or Johnson) was a passenger in Staeuble’s vehicle. The accident occurred on

eastbound Interstate 70 in Montgomery County, Ohio. The Complaint alleges that

Defendant Montgomery was employed by Defendants The Living Room, Thirty-Eight

Thirty Inc. dba The Living Room (Defendant The Living Room or The Living Room), and

Michael C. Ferraro (Defendant Ferraro or Ferraro) as a dancer. Plaintiff submits that

Defendant Montgomery worked at The Living Room during the evening of July 3, 2010,

through the early morning hours on July 4, 2010. Plaintiff alleges that Defendant

Montgomery became intoxicated while working. Plaintiff further alleges that Defendants

The Living Room and Ferraro have a policy of encouraging dancers to drink alcohol while

working.

B. Procedural History

Pursuant to Ohio Rule of Civil Procedure 53, an Order of Reference and with the

consent of all parties the present case proceeded to a jury trial presided over by Magistrate

David H. Fuchsman. On June 11, 2013, a jury was empanelled. On June 17, 2013, the trial

concluded. Magistrate Fuchsman filed the Magistrate’s Decision on June 20, 2013.

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At trial there were several motions for either directed verdicts or default judgments

made by the parties. In the course of the trial, the Court granted Plaintiff Nichole

Johnson’s (nka Nichole Johnson-Staeuble) motion for default judgment on her claims

against Defendant Mary Montgomery for negligence and willful and wanton misconduct.

The Court also granted Defendants Thirty-Eight Thirty dba The Living Room and Michael

C. Ferraro’s motion for a directed verdict as to Plaintiff Johnson’s Dram Shop Act claim

and piercing the corporate veil claim. The Court did not grant Defendants’ directed verdict

motion as to Plaintiff Johnson’s negligence claim.

Defendants objected to the Magistrate overruling their motion for a directed verdict

as to the negligence claim. Plaintiff Johnson objected to the Magistrate granting a directed

verdict as to the Dram Shop Act and piercing the corporate veil claims.

Plaintiff State Farm Insurance Company also alleged a Dram Shop Act claim against

Defendant Thirty-Eight Thirty Inc., dba The Living Room. The Magistrate directed a

verdict as to Plaintiff State Farm’s Dram Shop Act claim against Defendant Thirty-Eight

Thirty Inc, dba The Living Room. However, the Court allowed Plaintiff to amend its

pleadings to conform to the evidence, allowing a negligence claim relating to State Farm’s

subrogation claim to proceed. This amendment was made over the objection of Defendant

Thirty-Eight Thirty Inc.

Ultimately, the jury returned a verdict in favor of Plaintiff Johnson and against

Defendants Montgomery and Thirty-Eight Thirty dba The Living Room.1 The jury’s total

compensatory damages award was for $2,854,645.55. The jury found that Johnson was

entitled to $819,525.55 in past medical expense damages, $120,000.00 for past pain and

suffering, $15,120.00 for past lost wages, $220,000.00 for future medical expenses and

$1,680,000.00 for future pain and suffering. The jury further found that Defendant Mary

Montgomery and Defendant Thirty-Eight Thirty Inc. dba The Living Room were each 50%

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negligent. The jury returned a verdict in favor of Plaintiff Johnson and against Defendant

Mary Montgomery in the amount of $1,427,323 for compensatory damages, and $50,000

in punitive damages. The jury also returned a verdict in favor of Plaintiff Johnson and

against Defendant Thirty-Eight Thirty Inc. dba The Living Room in the amount of

$1,427,323 in compensatory damages. Additionally, the jury awarded State Farm

Insurance Company $29,029.25, against Defendant Thirty-Eight Thirty dba The Living

Room.

On June 20, 2013, Magistrate Fuchsman entered onto the record his Magistrate’s

Decision in which he recommended the following:

1) The Court enter Judgment in favor of Plaintiff Nicole Johnson and against

Defendant, Mary E. Montgomery , in the amount of $1,427,323.00 for

compensatory damages, plus statutory interest from the date of judgment;

2) The Court enter Judgment in favor of Plaintiff Nicole Johnson and against

Defendant Mary E. Montgomery in the amount of $50,000.00 for punitive

damages, plus statutory interest from the date of judgment;

3) The Court enter Judgment in favor of Plaintiff Nicole Johnson and against

Defendant Thirty-Eight Thirty Inc., dba The Living Room in the compensatory

damage amount of $1,427,323.00, plus statutory interest from the date of

judgment;

4) The Court enter Judgment in favor of Intervening Plaintiff State Farm Insurance

Company and against Defendant Mary E. Montgomery in the amount of

$29,029.25, plus statutory interest from the date of judgment;

5) The Court enter Judgment in favor of Intervening Plaintiff State Farm Insurance

Company and against Defendant Thirty-Eight Thirty Inc., dba The Living Room

1 Plaintiff Joshua Staeuble dismissed his action, with prejudice, in open court.

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in a compensatory damage amount of $29,029.25, plus statutory interest from

the date of judgment;

6) The court costs in this action to be divided equally between Defendants Mary E.

Montgomery and Thirty-Eight Thirty Inc., dba The Living Room; and

7) That Plaintiff Joshua Staeuble’s claim be dismissed with prejudice.

II. LAW AND ANALYSIS

A. OBJECTIONS TO MAGISTRATE’S DECISION

1. Defendant Thirty-Eight Thirty Inc., dba The Living Room’s Objections

Defendant Thirty-Eight Thirty Inc., dba The Living Room has raised the following

objections to Magistrate Fuchsman’s Decision:

a. The Magistrate erred in overruling The Living Room’s Motion for a

Directed Verdict on the claims by all other parties sounding in negligence

b. The Magistrate erred in his jury instructions by giving instructions on

“Negligence”, “Foreseeability”, “Proximate Cause”, “Intervening and

Superseding Cause”, “Two or More Defendants”, “Multiple Defendants”,

and “Damages” to the extent that these instructions related to the alleged

negligence of The Living Room and to all of the Jury Interrogatories

c. The Magistrate erred in failing to submit to the jury two of The Living

Room’s requested jury instructions

d. The Magistrate erred in failing to submit two of The Living Room’s

requested jury interrogatories both of which inquired upon determinative

issues

e. The Magistrate erred in limiting the direct examination of the police

officers to only the information set forth in the police reports

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2. Plaintiff Nicole Johnson’s Objection

Plaintiff Nicole Johnson contends that the Magistrate erred in granting a directed

verdict on the issue of piercing the corporate veil.

B. STANDARD OF REVIEW- OBJECTIONS TO MAGISTRATE’S DECISION

Effective July 1, 2006, the amended version of Civ. R. 53 provides the procedural

guidelines for a trial court, in its discretion, to utilize Magistrates in handling civil actions.

The provisions for a trial court’s review of a Magistrate’s decision and any written

objections to the Magistrate’s decision are set forth in Civ. R. 53(D)(4). Notably, pursuant

to Civ. R. 53(D)(4)(a), “[a] [M]agistrate’s [D]ecision is not effective unless adopted by the

court.” The pertinent portion of the Staff Note to the July 1, 2006 Amendment specifically

highlights the intent that “Civ. R. 53(D)(4)(a), like sentence one of former Civ. R.

53(E)(4)(a), confirms that a [M]agistrate’s decision is not effective unless adopted by the

court.” Id.

Pursuant to Civ. R. 53(D)(3)(b)(i), a fourteen-day deadline governs the initial filing

of any written objections to a Magistrate’s Decision. If written objections are filed, a ten-

day deadline from that filing date governs the filing of any additional objections by other

parties. See Civ. R. 53(D)(3)(b)(i). Objections are required to be specific and state

particularly all grounds for the objection. Civ. R. 53(D)(3)(b)(ii). The potential

requirement of an evidentiary transcript or affidavit is addressed by the provisions of Civ.

R. 53(D)(3)(b)(iii). If timely written objections are presented, the trial court is mandated

to rule on those objections. Civ. R. 53(D)(4)(d). The pertinent portion of Civ. R.

53(D)(4)(d) expressly provides:

In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the [M]agistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the [M]agistrate.

Civ. R. 53(D)(4)(d).

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However, regardless of whether timely written objections were filed, Civ. R. 53(D)(4)(a)

impliedly mandates that a trial court perform a review of a Magistrate’s decision. This is

consistent with precedents addressing the predecessor version of Civ. R. 53:

The trial court, as the ultimate finder of fact, must make its own factual determinations through an independent analysis of the issues and should not adopt the findings of the [Magistrate] unless the trial court fully agrees with them. The court’s role is to determine whether the [Magistrate] has properly determined the factual issues and appropriately applied the law, and, where the [Magistrate] has failed to do so, the trial court must substitute its judgment for that of the [Magistrate].”

Inman v. Inman, 101 Ohio App.3d 115, 118, citing DeSantis v. Soller, 70 Ohio App.3d 226,

232. The Second District Court of Appeals has further clarified that “because the trial court

must conduct a de novo review, ‘the trial court may not properly defer to the [M]agistrate in

the exercise of the trial court’s de novo review.’” Crosby v. McWilliam, 2nd Dist. No. 19856,

2003-Ohio-6063, ¶ 35, quoting Quick v. Kwiatkowski, 2nd Dist. No. 18620, 2001 Ohio App.

LEXIS 3437 at * 9 (Aug. 3, 2001). The Court is required to conduct an independent review

of all findings of fact and issues of law. See Civ. R. 53(D)(4)(d). This rule exists

notwithstanding the general rationale for a plain error standard of review to factual findings.

See generally Dewitt v. Myers, 2nd Dist. No. 08-CA-86, 2009-Ohio-807.

Regardless of whether timely written objections are filed, Civ. R. 53(D)(4)(b)

provides that the trial court may properly select from multiple courses of action with

regard to a Magistrate’s Decision. See Staff Note to July 1, 2006 Amendment, citing

Johnson v. Brown, 2nd Dist. No. 2002- CA-76, 2003-Ohio-1257, ¶ 12. Specifically, Civ. R.

53(D)(4)(b) provides:

Whether or not objections are timely filed, a court may adopt or reject a [M]agistrate’s [D]ecision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a [M]agistrate.

Id. Furthermore, “[a] court that adopts, rejects, or modifies a [M]agistrate’s decision shall

also enter a judgment or interim order.” Civ. R. 53(D)(4)(e).

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C. OBJECTIONS OF THE PARTIES

1) The Magistrate erred in overruling The Living Room’s Motion for a Directed

Verdict on the claims by all other parties sounding in negligence.

At the conclusion of Plaintiff’s and Intervening Plaintiff State Farm Insurance

Company’s case-in-chief, and renewed at the close of evidence, Defendant The Living

Room made a Motion for a Directed Verdict seeking dismissal of all claims in this action.

Magistrate Fuchsman sustained the Motion for a Directed Verdict as to Plaintiff Johnson

and State Farm’s Dram Shop act claims, but overruled The Living Room’s Motion for a

Directed Verdict on the negligence claims. Defendants argue that the Magistrate erred in

not sustaining the Motion for Directed Verdict as to all other negligence claims.

Specifically Defendants argue that they have no liability under any other negligence claim

because Ohio’s Dram Shop Act is the only method for any third-party recovery against a

liquor permit holder for injuries caused by an intoxicated person.

A Court can only grant a motion for a directed verdict “if, after construing the

evidence most strongly in favor of the party against whom the motion is directed,

‘reasonable minds could come to but one conclusion upon the evidence submitted and that

conclusion is adverse to such party.’ The ‘reasonable minds’ test mandated by Civ.R.

50(A)(4) requires the court to discern only whether there exists any evidence of

substantive probative value that favors the position of the nonmoving party.” Civ.R.

50(A)(4); Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St. 3d 512, 514

(Ohio 2002), citing Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69, 23

O.O.3d 115, 430 N.E.2d 935. A motion for a directed verdict presents a question of law,

rather than a question of fact, thus the standard of review is de novo. Wagner v. Roche

Laboratories (1996), 77 Ohio St. 3d 116, 119, 671 N.E.2d 252; Cleveland Elec. Illum. Co. v.

Pub. Util. Comm. (1996), 76 Ohio St. 3d 521, 523, 668 N.E.2d 889, 891.

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ORC 4399.18, Ohio’s Dram Shop Act, provides in pertinent part:

no person, ……who suffers personal injury, death, or property damage as a

result of the actions of an intoxicated person has a cause of action against any

liquor permit holder or an employee of a liquor permit holder who sold beer

or intoxicating liquor to the intoxicated person unless the personal injury,

death, or property damage occurred on the permit holder's premises or in a

parking lot under the control of the permit holder and was proximately

caused by the negligence of the permit holder or an employee of the permit

holder. A person has a cause of action against a permit holder or an employee

of a permit holder for personal injury, death, or property damage caused by

the negligent actions of an intoxicated person occurring off the premises or

away from a parking lot under the permit holder's control only when both of

the following can be shown by a preponderance of the evidence:

(A) The permit holder or an employee of the permit holder knowingly

sold an intoxicating beverage to ………..

(1) A noticeably intoxicated person ….

(B) The person's intoxication proximately caused the personal injury,

death, or property damage. ORC Ann. 4399.18.

In overruling Defendant’s Motion for a Directed Verdict as to the remaining

negligence claim, Magistrate Fuchsman noted that if Ms. Montgomery were a simple

patron, a regular customer, then the Dram Shop Act would clearly preclude any negligence

claim against Defendants. However, Ms. Montgomery was not a simple patron, she

worked at the living room in some capacity2 and this distinction significantly muddies the

waters. Ms. Montgomery worked as a dancer at The Living Room. As part of her duties,

it was argued that Ms. Montgomery was encouraged to drink and to allow customers to

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purchase drinks for her. It was further argued that the drinks purchased for Ms.

Montgomery were priced higher than that same drink would be for a customer, this

benefiting Defendant by gaining more profit on the beverages sold. Defendants argued

that the higher drink prices for dancers was too discourage them from drinking, despite

Defendant Ferraro testifying that some of the dancers needed alcohol to be able to dance

and that proceeds from the dancer drinks made up a healthy portion of his profits.

While a cursory reading of ORC 4399.18 would appear to limit a Plaintiff’s mode of

recovery, “[t]he interpretation and application of statutes must be viewed in a manner to

carry out the legislative intent of the sections." Lesnau v. Andate Enters., 2000 Ohio App.

LEXIS 2720, 19, 2001 WL 40794 (Ohio Ct. App., Montgomery County June 23, 2000),

citing United Tel. Co. v. Limbach (1994), 71 Ohio St. 3d 369, 372, 643 N.E.2d 1129.

Defendant having benefitted from the sale of the alcohol to Ms. Montgomery now attempts

to hide behind the Dram Shop Act to avoid liability. Like the Magistrate, this court cannot

conceive that this was the intent of the legislature in drafting ORC 4399.18. To so find

would fly in the face of decency and fairness.

And it would seem that Magistrate Fuchsman and this Court are not alone in so

finding. The Second District Court of Appeals has addressed ORC 4399.18 on multiple

occasions. In Cummins v. Rubio and other cases, after citing ORC 4399.18 which refers to

an intoxicated person, the Court noted that “[i]n order to recover against a permit holder

for injuries caused by an intoxicated patron of an establishment, the injured party must

bring the claim under R.C. 4399.18 or 4399.01.” Cummins v. Rubio, 87 Ohio App. 3d 516

(Ohio Ct. App., Greene County 1993) (emphasis added), see also Lesnau v. Andate Enters.,

2000 Ohio App. LEXIS 2720 (Ohio Ct. App., Montgomery County June 23, 2000),

Cattabiani v. Purvis, 1996 Ohio App. LEXIS 4952 (Ohio Ct. App., Montgomery County

Nov. 15, 1996), and Lock v. Oney's Pub, 1996 Ohio App. LEXIS 4856 (Ohio Ct. App.,

2 Whether Ms. Montgomery was an employee or an independent contractor is immaterial for the present purposes.

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Montgomery County Nov. 8, 1996). In the present case, Ms. Montgomery was clearly not a

patron. If Montgomery were a simple patron, without question the Dram Shop Act would

be the sole remedy available. The fact that Montgomery was in some manner employed by

The Living Room and it was argued encouraged by The Living Room and/or Ferraro in

some manner to drink alcohol while on the job presents a unique fact situation.

The Eighth District Court of Appeals addressed a similar issue with a strikingly

similar fact pattern. In Siegel v. Jozac Corp, Plaintiff was an employee of Defendant

working as a waitress at the Crazy Horse Men’s Club. Siegel v. Jozac Corp., 2001 Ohio

App. LEXIS 3306 (Ohio Ct. App., Cuyahoga County July 26, 2001).3 As part of her job

duties, Plaintiff was encouraged to order alcoholic beverages and drink with the patrons.

Id. One night, as Plaintiff was on her way home after work, she was injured in a single

vehicle accident. Id. Plaintiff sustained severe injuries for which she filed for Workers

Compensation benefits. Id. Plaintiff’s claim for Workers Compensation benefits was

denied on the basis that her consumption of alcohol was not in the course and scope of her

employment. Id. Plaintiff appealed that decision through the Industrial Commission, the

trial court and eventually to the Court of Appeals. Id. While the trial court upheld the

decision of the Industrial Commission, the Eighth Appellate District reversed the trial

court, holding that Plaintiff was entitled to receive Workers’ Compensation Benefits. Id.

In so holding the Eighth District found that Defendant caused Plaintiff to become

intoxicated and then expected or allowed her to drive home. Id. The Court stated that

Defendant could not “then turn a blind eye when that same employee gets into her vehicle

and drives home intoxicated, jeopardizing her life and the lives of other motorists.” Id.

After construing the evidence most strongly in favor of Plaintiff, reasonable minds

must find that Plaintiff’s negligence claim was still viable. This Court finds no error in

Magistrate Fuchsman’s refusal to direct a verdict against Plaintiff for the claim of

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negligence. Not only does justice so require, but so too does public policy. Accordingly,

Defendant The Living Room’s first objection to the Magistrate’s decision is

OVERRULED.

2) The Magistrate erred in his jury instructions by giving instructions on

“Negligence”, “Foreseeability”, “Proximate Cause”, “Intervening and

Superseding Cause”, “Two or More Defendants”, “Multiple Defendants”, and

“Damages.”

Defendant The Living Room argues that the Magistrate did not fully instruct the

jury on the claim of Negligence. Specifically, Defendant argues that the Magistrate’s

negligence instruction was simply an abstract instruction and that the jury should have

also been specifically instructed as to Defendant’s Montgomery’s negligence, failure to

assure clear distance, and how it differs from The Living Room’s ordinary care negligence.

Within the jury instructions, Magistrate Fuchsman instructed the jury that

Defendant Montgomery was negligent in the operation of her vehicle, that her negligence

was a proximate cause of Plaintiff’s damages, and that her conduct was reckless, willful and

wanton. As for Defendant The Living Room, the jury was instructed as to the claim of

negligence, including a possible proportionate share of damages to be split between

Defendants. The Living Room maintains that jury instructions as to the specific nature of

Montgomery’s legal duties was essential to separate Montgomery’s duties owed to Plaintiff

from the duties owed to Plaintiff by The Living Room. Plainly stated, The Living Room

notes that its common law duties to Plaintiff were separate and distinct from the statutory

duties owed to Plaintiff by Montgomery but the manner in which the jury was instructed

does not make that distinction clear. The Living Room argues that the given instructions

were likely misapplied by the jury, resulting in the jury linking or attributing Montgomery’s

negligence to it.

3 The Ohio Supreme Court declined to hear an appeal on this case.

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The Ohio Jury Instructions tells us that “[t]he duty of the judge to provide a

complete general instruction that outlines the issues, accurately explains the law on each

issue, and furnishes adequate general information and advisory help, is one of law.” 1 OJI

CV 101.69. We are further instructed that “[t]he fewer instructions the better. No

instruction should be given unless it is both necessary and applicable to the fact situation

at hand.” Id.

In the present case, the jury was explicitly instructed by Magistrate Fuchsman that

Defendant Montgomery was negligent, that her negligence caused damage to Plaintiff and

that her conduct was reckless, willful and wanton. The negligence, proximate cause and

injury portions of Plaintiff’s case against Defendant Montgomery was already determined

and not before the jury. The only issues presented to the jury in relation to Defendant

Montgomery were the percentage of compensatory damages attributable to Montgomery,

whether or not Montgomery should be accessed punitive damages and if so, in what

amount.

This Court finds that the Magistrate correctly instructed the Court. It had already

been determined that Montgomery was negligent and that the negligence was a proximate

cause of the injury to Plaintiff. For the Court to then instruct the jury on the Montgomery’s

specific negligence that is not an issue for their determination would cause confusion and

is unnecessary. Because Montgomery’s negligence was already determined and was not an

issue presented to the jury, it seems improper to instruct them on that negligence.

Accordingly, Defendant The Living Room’s second objection to the Magistrate’s decision is

OVERRULED.

3) The Magistrate erred in failing to submit to the jury two of The Living Room’s

requested jury instructions.

Defendant The Living Room argues that Magistrate Fuchsman erred in not

providing the jury with its proposed instruction 20, addressing assured clear distance, and

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proposed instruction 21, addressing driving while under the influence. For reasons stated

supra, Defendant The Living Room’s third objection to the Magistrate’s decision is

OVERRULED.

4) The Magistrate erred in failing to submit two of The Living Room’s requested

jury interrogatories.

The Living Room submits that the Magistrate erred in not submitting its proposed

interrogatory four, which questioned the jury as to whether they find by a preponderance

of the evidence that Montgomery was under the influence of drugs and alcohol at the time

of the accident, For reasons stated supra, Defendant The Living Room’s objection to the

Magistrate’s decision to exclude its proposed interrogatory four is OVERRULED.

The Living Room also submits that the Magistrate erred in not submitting its

proposed interrogatory six which asks the jury to in a narrative describe the manner and

nature of the Defendant The Living Room’s negligence. Civ.R. 49(B) discusses

interrogatories in relation to general verdicts and provides in pertinent part:

"The court shall submit written interrogatories to the jury * * * upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves." (Emphasis added.)

While it is required of a trial court to submit interrogatories once they have been requested

by a party, the trial court has discretion as to the content of the interrogatories submitted

to the jury. Frank W. Schaefer v. C. Garfield Mitchell Agency, 82 Ohio App. 3d 322, 340

(Ohio Ct. App., Montgomery County 1992), see also Cincinnati Riverfront Coliseum v.

McNulty (1986), 28 Ohio St.3d 333, 28 OBR 400, 504 N.E.2d 415.

Ultimately, the jury was presented with seven interrogatories. Interrogatory one

questioned whether The Living Room was negligent. Interrogatory two questioned whether

The Living Room’s negligence was a direct and proximate cause of Plaintiff’s damages.

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Interrogatory three questioned the total amount of compensatory damages. Interrogatory

four questioned the percentage of damages attributable to The Living Room and to Mary E.

Montgomery. Interrogatory five questioned whether the injury involved was permanent.

Interrogatory six questioned the amount of punitive damages against Defendant

Montgomery. Finally, Interrogatory seven questioned Plaintiff State Farm’s damages.

The Living Room’s question posed in its proposed interrogatory six asking the jury

to write a narrative describing the manner in which The Living Room was negligent seems

to this Court to be an invitation for error. The primary question of whether The Living

Room was negligent was addressed in submitted Interrogatory one. Asking the jury to

describe specifically how The Living Room was negligent is superfluous.

Defendant The Living Room’s objection to the Magistrate’s decision to exclude its

proposed interrogatory six is OVERRULED.

Accordingly, Defendant The Living Room’s fourth objection to the Magistrate’s

decision is OVERRULED in its entirety.

5) The Magistrate erred in limiting the direct examination of the police officers

to only the information set forth in the police reports.

Defendant The Living Room suggests that the Magistrate erred in placing “unfair

restrictions” upon the testimony of Sergeant William Dulaney and Officer Shawn Waler.

Magistrate Fuchsman permitted only the information that was contained within the police

reports to be testified to by Sergeant Dulaney and Officer Waler. The Living Room

proffered that had it been permitted, Officer Waler would have testified that Mary

Montgomery was not exhibiting slurred speech, an odor of alcohol, bloodshot eyes, nor

impairment of her gait. Further, Officer Waler would have testified that he did not conduct

any field sobriety tests as he did not feel she was impaired in any manner and he had no

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probable cause to arrest her for operating a motor vehicle under the influence of drugs or

alcohol.

Outside the presence of the jury on June 14, 2013, the parties discussed The Living

Room’s anticipated witnesses to be called to testify. The Living Room eventually

determined that it would be calling to the stand Sergeant Dulaney and Officer Waler.

Plaintiff objected and argued that she relied on The Living Room’s representation that it

would not be calling any witnesses and to allow The Living Room to call these witnesses

was an unfair surprise and trial by ambush.

Ohio Rule of Evidence 611 (A) provides that “[t]he court shall exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence so as

to (1) make the interrogation and presentation effective for the ascertainment of the truth,

(2) avoid needless consumption of time, and (3) protect witnesses from harassment or

undue embarrassment.” Ohio Evid. R. 611 (A). Keeping in mind the broad discretion of

the Magistrate in controlling the proceedings towards a fair resolution, the Court finds no

error in the Magistrate’s ruling that Sergeant Dulaney and Officer Waler be limited to

testifying only to matters contained within the police reports. Both The Living Room and

Johnson were in possession of the police report in anticipation of trial and there is no

unfair surprise in allowing Sergeant Dulaney and Officer Waler from testifying to the

information contained within the reports. However, because Plaintiff was not prepared for

Sergeant Dulaney or Officer Waler to testify on the stand allowing them to testify to

anything outside the police reports would be unfair surprise.

Defendant The Living Room’s fifth objection to the Magistrate’s decision is

OVERRULED.

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6) The Magistrate erred in directing a verdict on the issue of piercing the

corporate veil.

Plaintiff Johnson’s sole objection is that Magistrate Fuchsman erred in directing a

verdict as to piercing the corporate veil. "’Piercing the corporate veil’ is ‘[t]he judicial act of

imposing personal liability on otherwise immune corporate officers, directors, or

shareholders for the corporation's wrongful acts.’" City of Springfield v. Palco Inv. Co.,

2013-Ohio-2348, P75 (Ohio Ct. App., Clark County 2013), citing Minno v. Pro-Fab, Inc.,

121 Ohio St.3d 464, 2009 Ohio 1247, 905 N.E.2d 613, ¶ 8, quoting Black's Law Dictionary

(8th Ed.2004) 1184. “In certain circumstances, the corporate form may be disregarded and

the corporate veil may be pierced, for the purpose of allowing creditors to reach the

personal assets of the corporation's individual shareholders.” City of Springfield v. Palco

Inv. Co., 2013-Ohio-2348, P75. "[P]iercing the corporate veil is the 'rare exception' that

should only be 'applied in the case of fraud or certain other exceptional circumstances.'"

Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, ¶ 26, 2008 Ohio 4827, 895 N.E.2d 538;

quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 475, 123 S.Ct. 1655, 155 L.Ed.2d 643

(2003). The party seeking to pierce the veil has the burden of proving that the veil should

be pierced. Id. There is a three prong test set forth by the Ohio Supreme Court to be used

in deciding whether it is appropriate to pierce the corporate veil.

The corporate form may be disregarded and individual shareholders held

liable for wrongs committed by the corporation when (1) control over the

corporation by those to be held liable was so complete that the corporation

has no separate mind, will, or existence of its own, (2) control over the

corporation by those to be held liable was exercised in such a manner as to

commit fraud or an illegal act [or a similarly unlawful act] against the person

seeking to disregard the corporate entity, and (3) injury or unjust loss

resulted to the plaintiff from such control and wrong.

18

Belvedere Condominium Unit Owners' Ass'n v. R.E. Roark Cos., 67 Ohio St. 3d 274 (Ohio

1993), 1993 Ohio 119, 617 N.E.2d 1075, at paragraph three of the syllabus, as modified by

Dombroski v. Wellpoint, Inc., 119 Ohio St. 3d 506 (Ohio 2008).

It is not disputed that the first and third prongs of the Belvedere/Dombroski

analysis were met. Plaintiff does however, dispute the Magistrate’s finding that the second

prong of the analysis was not met. The Belvedere/Dombroski requirements limit

instances in which the corporate veil is pierced to situations where a shareholder uses his

complete control to engage in specific egregious acts. Acquisition Servs. v. Zeller, 2013-

Ohio-3455, P1 (Ohio Ct. App., Montgomery County Aug. 9, 2013).

In making a determination, the court must look to the alleged specific egregious act.

In the present case, Plaintiff alleges that Defendant Michael Ferraro, via Defendant The

Living Room, required Defendant Montgomery to consume alcohol while dancing,

resulting in her becoming intoxicated and eventually driving home intoxicated. While not

to discount the tragic accident and injuries of Plaintiff, the claim levied against The Living

Room is a simple negligence claim. The Second Appellate District has held that Courts

should “apply [the] limited expansion [of Dombroski] cautiously toward the goal of

piercing the corporate veil only in instances of extreme shareholder misconduct.” Id., at

P47. While Plaintiff makes compelling arguments, this Court cannot find the negligence

present in this case to be of an extreme or egregious enough nature to justify piercing the

corporate veil.

Plaintiff Johnson’s objection to the Magistrate’s decision is OVERRULED.

III. Conclusion

After duly considering these matters, Defendant Thirty-Eight Thirty, Inc. d/b/a

The Living Room’s Objections to Magistrate’s Decision on June 20, 2013, and Plaintiff’s

Objection to the Magistrate’s Decision filed June 20, 2013 are both OVERRULED in

their entirety. The Magistrate’s Decision is hereby ADOPTED in its entirety.

19

Judgment is granted as follows:

1) Judgment in favor of Plaintiff Nicole Johnson and against Defendant, Mary E.

Montgomery, in the amount of $1,427,323 for compensatory damages, plus

statutory interest from the date of this judgment;

2) Judgment in favor of Plaintiff Nicole Johnson and against Defendant Mary E.

Montgomery in the amount of $50,000 for punitive damages, plus statutory

interest from the date of this judgment;

3) Judgment in favor of Plaintiff Nicole Johnson and against Defendant Thirty-

Eight Thirty, Inc. dba The Living Room in the amount of $1,427,323 for

compensatory damages, plus statutory interest from the date of this judgment;

4) Judgment in favor of Intervening Plaintiff State Farm Insurance Company and

against Defendant Mary E. Montgomery in the amount of $29,029.25, plus

statutory interest from the date of this judgment;

5) Judgment in favor of Intervening Plaintiff State Farm Insurance Company and

against Defendant Thirty-Eight Thirty, Inc. dba The Living Room in the amount

of $29,029.25, plus statutory interest from the date of this judgment;

6) Court costs of this action to be divided equally between Defendant Mary E.

Montgomery and Defendant Thirty-Eight Thirty, Inc. dba The Living Room.

7) Plaintiff Joshua Staeuble’s claims are dismissed with prejudice.

SO ORDERED:

JUDGE FRANCES E. MCGEE

This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the filing to the e-Filing account "Notifications" tab of the following case participants: MICHELLE L HOLIDAY (216) 781-2600 Attorney for Plaintiff, Nichole Johnson RYAN H. FISHER (216) 781-2600 Attorney for Plaintiff, Nichole Johnson DENNIS P MULVIHILL (216) 781-2600 Attorney for Plaintiff, Nichole Johnson RYAN H. FISHER (216) 781-2600 Attorney for Plaintiff, Joshua Staeuble DENNIS P MULVIHILL (216) 781-2600 Attorney for Plaintiff, Joshua Staeuble MICHELLE L HOLIDAY (216) 781-2600 Attorney for Plaintiff, Joshua Staeuble JONATHAN B FREEMAN (937) 223-1201 Attorney for 3rd Party Plaintiff, Thirty Eight Thirty Inc STEVEN J ZEEHANDELAR (614) 458-1200 Attorney for Defendant, State Farm Insurance Company JEFFREY D SLYMAN (937) 454-5544 Attorney for Defendant, Thirty Eight Thirty Inc JONATHAN B FREEMAN (937) 223-1201 Attorney for Defendant, Thirty Eight Thirty Inc JONATHAN B FREEMAN (937) 223-1201 Attorney for Defendant, Living Room JEFFREY D SLYMAN (937) 454-5544 Attorney for Defendant, Living Room

2

JEFFREY D SLYMAN (937) 454-5544 Attorney for Defendant, Michael C Ferraro JEFFREY D SLYMAN (937) 454-5544 Attorney for Defendant, Thirty Eight Thirty Inc JONATHAN B FREEMAN (937) 223-1201 Attorney for Defendant, Thirty Eight Thirty Inc ROBERT H. STOFFERS (614) 228-5931 ext 209 Attorney for 3rd Party Defendant, Western Heritage Insurance Company Copies of this document were sent to all parties listed below by ordinary mail: MARY E MONTGOMERY 2464 ARGYLE DRIVE COLUMBUS, OH 43219 (937) 460-2103 Defendant JANE AND JOHN DOES ENTITIES THAT CONTRIBUTED TO PLAINTIFFS HARM UNKNOWN ADDRESS DAYTON, OH 45422 Defendant XYZ CORP ENTITIES THAT CONTRIBUTED TO PTLFS HARM UNKNOWN ADDRESS DAYTON, OH 45422 Defendant WESTERN HERITAGE INSURANCE COMPANY CO ANTHONY WASHINGTON PRESIDENT OR HIS NOMINEE 9200 EAST PIMA CENTER PARKWAY SUITE 350 SCOTTSDALE, AZ 85258 3rd Party Defendant STELLA AUZENNE, Bailiff (937) 225-4368 AUZENNES@montcourt.org

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Type: Decision

Case Number: 2010 CV 08476

Case Title: NICHOLE JOHNSON vs MARY E MONTGOMERY

So Ordered

Electronically signed by fmcgee on 2014-06-25 11:36:46 page 22 of 22

Exhibit D