Our firm practices extensively in the First Amendment arena. Thus, it was with great interest that we saw this article on the SCOTUS Blog on U.S. Supreme Court nominee Neil Gorsuch’s First Amendment jurisprudence.
A quick summary:
In many ways, Gorsuch’s opinions in this area are similar to those of the late Justice Antonin Scalia – with the possible exception that Gorsuch has been more willing to find not only that the First Amendment has been violated, but also that defendants were not entitled to qualified immunity in those cases.
It appears the First Amendment will continue to have solid backing from SCOTUS with Justice Gorsuch on the Court.
We are pleased to pass along this press release from the office of Governor John Kasich that was just posted a few minutes ago. It tells us that our very own Curt C. Hartman — “of counsel” to this firm since its inception — is being appointed to the Hamilton County Common Pleas Court.
Mr. Hartman is an extraordinary litigator. He primarily has handled this firm’s appellate practice, including convincing the United States Supreme Court three times to accept cases of this firm, and winning each 9-0. He also has handled numerous cases before the Ohio Supreme Court, Ohio’s many appellate Courts, and 6th Circuit Court of Appeals.
“We are sad to lose such a capable litigator from our ranks,” said Finney Law Firm owner Christopher P. Finney. “But we are thrilled for the people of Hamilton County to have such a capable judge on the bench. It is to the considerable credit of Governor Kasich that he recognized the talent of Curt Hartman and elevated him to this important position. Congratulations to our own Curt C. Hartman!”
Mr. Hartman will be sworn in before month’s end. Stay tuned for details of the ceremony.
Every parcel of real property in Ohio undergoes a major “reappraisal” by the County Auditor’s office every six years and then a minor “update” in the three years in the middle of that six-year cycle. Different counties in Ohio are on a different six year and three year cycle.
Below are listed the counties that went through a major “Reappraisal” in 2016 (that new value first appearing on the January 2017 tax bill) and a minor “update” in 2016 (that new value also first appearing on the January 2017 tax bill).
The other thing important about the valuation cycle is that regardless of whether another tax complaint was brought previously, every property owner has the right to challenge his property’s assessment before the Board of Revision in the new triennial.
The schedule of counties starting a new triennial this year follows:
Reappraisal Counties
Adams
Columbiana
Hancock
Hocking
Holmes
Lawrence
Meigs
Monroe
Paulding
Scioto
Tuscarawas
Washington
Update Counties
Carroll
Champaign
Clark
Fairfield
Logan
Marion
Medina
Miami
Ross
Union
Wyandot
A common question I get is whether an employer must pay an employee for their accrued but unused vacation when they leave employment. If an employee has left under difficult circumstances, such as an involuntary discharge, there can easily be a dispute about post-employment issues like this.
Under Ohio law, accrued vacation is considered an earned benefit that the employee has a legal entitlement to. Therefore, an employee’s right to pay for vacation that was not used during employment will normally survive the employee’s termination or resignation, and payment will be owed.
I say “normally” because an employer can change this through a written policy that is clearly communicated to employees, in an employee handbook or otherwise. If the employer promulgates a policy stating that any unused vacation pay is forfeited when employment ends, that policy is legally enforceable, notwithstanding the general rule.
Employers should carefully consider whether to have a blanket policy like that, however, as it can lead to some harsh results. And some employees who are planning to quit, being aware that their vacation pay will be lost when they leave, will simply take their vacation right before they resign – and quit without notice as soon as they return.
For some employers, a sensible middle ground may be to have a policy stating that vacation pay is forfeited only under certain circumstances – such as if an employee is discharged “for cause,” or if she or he leaves without giving two weeks notice.
Please contact us to discuss what makes the most sense for your business, or if you have questions about you right to vacation pay.
Hamilton County Common Pleas Judge Steven E. Martin
In a case expected to be appealed to Ohio’s Supreme Court, Hamilton County’s First District Court of Appeals upheld the ruling of Common Pleas Judge Steven Martin in Vontz v. Miller, et al., 2016-Ohio-8477, that the fifty percent owner of a closely held corporation owes her co-owner a heightened fiduciary duty of “utmost good faith.”
Two siblings share ownership of a beer and wine distributorship – both owning fifty percent of the shares of the company. Thus, argued Miller, neither has a controlling ownership. However, in this instance, the company’s board consisted of Vontz, Miller, and Miller’s husband and two children. Thus, while Vontz is a fifty percent shareholder, the board is dominated by Miller.
Vontz, in an effort to balance control of the company, had sought to call a shareholder meeting to elect a new board. Miller refused. Vontz then brought suit against his sister and her family.
Judge Martin issued an injunction to force a shareholder meeting. Miller and her family appealed. Arguing, in part that Miller, as a fifty percent owner (i.e. less than a majority owner) did not owe a fiduciary duty to her brother who also owned exactly fifty percent of the company. Absent a fiduciary duty to her brother, Miller should not be required to attend or otherwise acquiesce to a shareholder meeting.
The court found that where, as here, one owner dominated the board and refused to adhere to corporate formalities (e.g. holding shareholder meetings where that owner’s family could be removed from the board), then the heightened fiduciary does attach – despite the semantic arguments over whether there can ever be a “controlling shareholder” where two owners each hold fifty percent ownership:
Because Miller so dominated the corporation that she was in control to the exclusion of Vontz, the unusual facts of this case demonstrated that Miller was the controlling shareholder, even though she owned only 50 percent of the voting shares.
…
Under her heightened duty of good faith and loyalty, she had an obligation of fairness to Vontz. Her duty required her to act for his benefit by protecting his right to vote for the election of new directors. She breached that duty because, as Vontz clearly demonstrated, he was unable to exercise his voting power due to a freeze-out by Miller.
The Court of Appeals, while ordering modifications to some of the particulars of Judge Martin’s ruling, upheld the substance of Martin’s ruling.
Closely held corporations bring with them unique challenges, particularly when the owners are family as well as business partners. Finney Law Firm, can help you avoid these pitfalls ahead of time and navigate through them if a challenge has already arisen.
Preble County Common Pleas Court Judge David Abruzzo
It is a common maxim that you are always liable for your own torts. Meaning, if someone is injured as the result of your own negligence, you will be liable, even when acting through a corporation or limited liability company.
A recent 12th District Court of Appeals case out of Preble County (Whitson v. One Stop Rental Tool and Party, et al. CA 2016-03-004) illustrates one major caveat to the maxim: parties to a contract can agree to hold the other party harmless for negligence, nonetheless, “contract clauses that relieve a party from its own negligence, while generally upheld, are not favored by the law and are to be strictly construed.”
Richard rented a bounce house from One Stop Rental Tool and Party. While Richard was unloading the bounce house from his pickup truck, the strap he was pulling broke and Richard fell out of the truck, onto the ground, suffering serious injuries.
Richard and his wife sued One Stop alleging negligence, loss of consortium, and malicious conduct (alleging that One Stop disregarded the probability that Richard would be injured in such a manner).
The rental agreement included a Release that read in relevant portion:
I understand and acknowledge that the activity to be engaged in through my rental of an inflatable, interactive amusement device, brings with it both known and unanticipated risks to guests, my invitees, and myself. Those risks include, but are not limited to fallings, slipping, crashing, and colliding and could result in injury, illness, disease, emotional distress, death and/or property damage to myself or my guests and invitees. I voluntarily release, indemnify, hold harmless and discharge One Stop Tool Rental, Inc. from any and all liability claims, demands, actions or rights of actions, whether personal to me or to a third party which are related to[,] arise out of or are in any way connected with my rental of the unit, including those allegedly attribute[d] to negligent acts or omissions. I agree to reimburse any reasonable attorney’s fees and costs which may be incurred by One Stop Rental Tool Rental, Inc. in the defense of any such liability claim, demand, action or right of action.
And a Hold Harmless Clause:
HOLD HARMLESS AGREEMENT. Customer agrees to assume the risks of, and hold Dealer harmless for, property damage and personal injuries, including death and dismemberment, caused by the equipment and/or arising out of Dealer’s negligence.
Preble County Common Pleas Judge David NAbruzzo, a no nonsense judge whom we have had the pleasure of appearing before, granted summary judgment against Richard, finding that the release and hold harmless clauses barred his claims, but allowing the wife’s loss of consortium claim to proceed.
The Court of Appeals noted that, “Richard did not read either document before signing them.”
Business owners should take this opportunity to review your contracts to determine if a hold harmless clause or mutual release clause are necessary; and make sure that such clauses will survive being “strictly construed” by the court. For consumers, this should serve as a reminder to read and understand the contract before signing.
Often the lease will provide the answer to this question, but in Ohio, absent a provision in the lease, R.C 5301.11 provides the default rule:
The lessee of a building which, without fault or neglect on his part, is destroyed or so injured as to be unfit for occupancy, is not liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant. The lessee thereupon must surrender possession of such premises.
The first sentence of the statute provides that if the fire was not the fault of the lessee (tenant), the tenant is freed of her obligation to pay rent. However, the second sentence provides one condition, in order to be freed of her obligation to pay rent, the tenant must surrender possession of the premises.
Case law in Ohio on this point goes back to 1890, “[b]ut, to secure the benefit of the statute, the tenant must surrender or yield up all that remains of the premises embraced in the lease, without any purpose or intention of resuming possession thereof. The legislature has absolved the tenant from an onerous obligation, but the burden is removed only upon his compliance with the statutory condition.” Gay v. Davey, 47 Ohio St. 396, 402, 25 N.E. 425 (1890).
This makes perfect sense. The tenant is given the power to decide how to proceed, either maintain the lease while the necessary repairs are made and returning to the home, or unilaterally decide to terminate the lease – with the requirement that the tenant fully surrender possession of the premises (i.e. remove her belongings and with the understanding that she will not have a right to return after the repairs are made).
But the law does not allow the tenant to have it both ways. She cannot for example, stop paying rent but leave her personal property at the home, expecting to “restart” the lease once the repairs are made.
As noted above, R.C. 5311.01 is the default rule for both residential and commercial lease in Ohio, but the lease may provide a different provision. As always, read the lease.
Finney Law Firm can assist in drafting and enforcing your residential and commercial leases. Click here to contact us online or call (513) 943-6655 to speak with attorney Christopher P. Finney.
As a recent Wall Street Journal article pointed out, for any number of reasons, both legitimate and otherwise, we have seen a proliferation of service and assistance animals. From miniature horses as therapy animals to small dogs carried by airline passengers, to the more common seeing eye dog, Americans are ever more empowered to assert their entitlement to service and assistance animals.
Landlords are reporting questionable claims of disability that they suspect are aimed at getting around no pet clauses and pet deposits in leases. What is a landlord to do in the face of a suspicious claim of disability?
As part of the effort to protect people with disabilities from discrimination, the Fair Housing Act and the Americans with Disabilities Act limit a landlord’s ability to investigate requests for accommodations for service and assistance animals, but not all questions are foreclosed. This is a good thing and reflects our shared values because we want to encourage people with disabilities to get the necessary treatment and services; we want to open the opportunity for a full life to all. But we also don’t want people to make false claims of disability to obtain an improper benefit or unnecessary accommodation. To do so only serves to detract from those who truly suffer.
Recently a client called us needing help. The client owns a single family rental property and does not allow her tenants to keep animals. The tenant called in October about relaxing the no pets rule because he wanted to get his daughter a puppy for Christmas. The landlord declined. One week later, the tenant called again, this time to claim a need for an assistance animal and to request an accommodation.
The landlord had no prior knowledge of any disability and was obviously suspicious that this sudden need for an accommodation was simply a ruse to get around the no pets rule. She turned to us to determine what she should do. The landlord wanted to do the right thing, she wanted to comply with the law. But she also did not want to be taken advantage of.
After discussing the facts with the client and reviewing relevant statutory and case law, we sent a letter to the tenant explaining that the landlord had no prior knowledge that any member of the tenant’s family suffered from any disability, and asked for some documentation to establish (i) the existence of the disability and (ii) how the animal will provide a service or alleviate some symptom of the disability. We also asked for information about the specific animal they intended to bring into the home.
Not so surprisingly, the tenant never responded to our request for information, and no animal (service or otherwise) was brought into the home.
Note that landlords can be found in violation of the Fair Housing Act and Americans with Disabilities Act for even seemingly innocuous questions. If your tenant requests a disability related accommodation, you should consult an attorney about your specific facts and circumstances before making any investigation into the request for an accommodation. More information from the Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity can be found here.
If you have questions about your obligations under the Americans with Disabilities Act and the Fair Housing Act, use our secure contact page, or call Julie Gugino at 513-943-5669.
First, we hear pretty regularly from Realtors, investors, and lenders of incredibly ingenious and devious wire fraud attempts. And indeed some of these endeavors succeed. These are happening with greater and greater regularity in every community in the nation by fraudsters throughout the globe.
Second, we got this alert from our underwriter, First American Title Insurance Company today:
Fridays before holiday weekends represent an exponentially higher risk to fall victim to WIRE FRAUD.
Criminals know our business and have learned to take advantage of a busy agent’s desire to provide customer service and quickly move transactions to conclusion before the banks close for a long weekend.
NEVER ACCEPT WIRE INSTRUCTIONS VIA EMAIL without utilizing call-back verification procedures to a known, safe phone number. Don’t fall victim to wire fraud.
Enjoy a safe and secure holiday weekend.
So, to our clients and friends, we caution you to be safe out there!
Relating to Christopher P. Finney’s presentation on February 16th, 2017 before Cincinnati’s Lawyers’ Club entitled “Mr. Finney goes to the United States Supreme Court,” we wanted to present several links for those wanting to do further study on the topic.
First, as background, SCOTUSblog.com exists for the purpose, in part, of compiling and presenting key links for United States Supreme Court cases, from briefs, to oral argument transcripts and audio recordings, as well as in dept commentary. So, most of our links are just back to their site, for which we are greatly appreciative.
Some are links to original documents on the Finney Law Firm scribd.com site.
