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Ex-DeBartolo workers' suit will go back to trial court



Published: Thu, March 29, 2007 @ 12:00 a.m.



DeBartolo Realty had challenged the rulings of the trial and appellate courts.

By MICHELE C. HLADIK

VINDICATOR CORRESPONDENT

COLUMBUS -- A lawsuit filed by two former employees of the DeBartolo Realty Corp. heads back to trial court.

The Ohio Supreme Court unanimously agreed Wednesday the matter should be returned to the trial court for further consideration.

In 2003, Gary O'Nesti and Leon Zionts filed the suit and argued they were each entitled to receive 8,100 shares of DeBartolo Realty stock under a "change of control" vesting provision in the company's employee stock incentive plan.

A similar case involving 27 other former DeBartolo employees ended in the employees' favor when the Mahoning County Common Pleas Court ruled DeBartolo's 1996 merger with Simon Properties Group set in motion provisions of the company's stock incentive plan.

The O'Nesti and Zionts lawsuit referenced the case known as Agostinelli v. DeBartolo Realty.

The trial court granted a motion for summary judgment in favor of O'Nesti and Zionts.

DeBartolo appealed, however, and the 7th District Court of Appeals affirmed the trial court's decision.

During oral arguments before the high court last November, the pair was represented by Cleveland lawyer Timothy Shimko.

Lawyer's argument

Shimko argued the facts of the case couldn't be disputed, including that the pair signed the same contract as the other 27 and should be afford the same outcome.

According to the decision, O'Nesti and Zionts "share two characteristics with the Agostinelli plaintiffs: They were employed by the same company and they were subject to the same stock incentive plan. That is the sum of their commonalities."

"O'Nesti and Zionts did not actively participate in or have any control over the Agostinelli suit," Justice Maureen O'Connor wrote in the high court's decision. "There are no facts showing a special relationship between [O'Nesti and Zionts] and the Agostinelli plaintiffs that would allow [O'Nesti and Zionts] to enjoy the benefit of the judgment rendered in the earlier action while preventing DeBartolo from raising defenses unique to them."

DeBartolo was represented before the high court by Cleveland attorney Thomas Kilbane.

Kilbane argued the pair had worked for the company six years after the 27 employees in the Agostinelli lawsuit.

Kilbane also argued the company should have been able to present new issues for the O'Nesti and Zionts lawsuit.

The high court agreed and said the pair did not show evidence that they should be on the same level as those in the Agostinelli suit.

"They cannot bar appellants, DeBartolo Realty Corporation and DeBartolo Property Management, Inc., from presenting additional defenses," Justice O'Connor wrote.




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