Our firm prides itself on being full-service. That is, we create value for our clients in matters ranging from routine contract drafting to complex litigation. However, our representation of clients in litigation isn’t just limited to the trial level – we also handle appeals (click here for more on our trips to the Supreme Court of the United Statesand Ohio Supreme Court). After all, if judges always got it right, the rate of overturned decisions would be zero.

Appellate practice is procedurally complex

Appealing a judgment requires adherence to an entirely new set of rules, separate from those involved in lower-court litigation. These rules often involve strict deadlines and harsh penalties for non-compliance. One common though rarely-discussed aspect of the appellate process is the post-judgment bond. Ohio Civ.R. 62 gives courts discretion to impose a bond on a non-prevailing party in litigation pending appeal. That is, if you are a party to litigation and you lose, you may be required to secure a bond in the full amount of the judgment (or more) to prevent the other side from seizing your assets while you pursue an appeal.

One case requiring a post-judgement bond to stay collections pending appeal

Although a rather extreme illustration, one such example of the post-judgment bond scenario is the Gibson’s Bakery v. Oberlin College case. There, Gibson’s Bakery sued Oberlin College alleging that Oberlin officials supported the narrative that the Bakery had a long history of racism and discrimination after a shoplifting incident involving an Oberlin student and, ultimately, suspended their long-standing business relationship. The loss of this business was paralyzing to the Bakery, and a jury returned a verdict in favor of the Bakery for more than $30 million, including compensatory and punitive damages, as well as attorneys’ fees. Oberlin sought a stay of execution of the judgment amount under Civ.R. 62 (so as to prevent Gibson’s Bakery from seizing their bank accounts, equipment, etc. in satisfaction of the judgment) while they pursued an appeal. The court ultimately granted Oberlin’s motion, but conditioned the stay on Oberlin obtaining a bond in excess of $36 million, the full amount of the judgment plus three years’ interest.

Why are post-judgment bonds required?

“The purpose of a stay pending appeal is to preserve the status quo.” Monarch Constr. Co. v. Ohio Sch. Facilities Comm’n, Franklin C.P. No. 02CVH04-4222, 2002-Ohio-2957, ¶14. The idea is that, if the losing party pursues an appeal, they at least believe that the court made an error and that they should not be held responsible for the full amount of the judgment or at all. Accordingly, they would be prejudiced if, for instance, the prevailing party was permitted to execute the judgment against them and then the decision was ultimately overturned (i.e., the appellate court, for whatever reason, finds that the prevailing party was not entitled to the judgment in the first place).

But what about the prevailing party, who would otherwise be forced to wait (potentially, several years) to collect on a judgment that will likely be upheld, at which time the losing party may no longer have assets to cover the amount of the judgment? Enter Civ.R. 62(B)”

When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.


. . . an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in a sum that is not less than, if applicable, the cumulative total for all claims covered by the final order, judgment, or decree and interest[.]

Exceptions to the rule

The requirement of a post-judgment bond (or “supersedeas” bond) should not be taken for granted. Courts have found that, in some cases, no bond is required at all if there is adequate security for the prevailing party. See, e.g., Irvine v. Akron Beacon Journal, 147 Ohio App. 3d 428, 451-52 (9th Dist. 2002) (upholding the trial court’s finding that “the Plaintiffs are adequately secured by the Defendant’s solvency and well-established ties to Akron, Ohio and that, therefore, the Defendants are not required to post a bond at this time.”); Lomas & Nettleton Co. v. Warren, 11th Dist. No. 89-G-1519, 1990 Ohio App. LEXIS 2720 (June 29, 1990) (holding that “the posting of a supersedeas bond is not mandatory to stay an execution in all cases”); Whitlatch & Co. v. Stern, 9th Dist. No. 15345, 1992 Ohio App. LEXIS 4218, at *25 (Aug. 19, 1992) (“[U]nder appropriate circumstances, the trial court may exercise its discretion and stay the execution of judgment without requiring the appellant to post a supersedeas bond.”).

Additionally, the government is never required to post a bond. Civ.R. 62(C) (“When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.”).

Finally, no bond may be required where the appeal arises out of an administrative decision wherein no money damages are at issue (for instance, a zoning appeal). Trademark Homes v. Avon Lake Bd. of Zoning Appeals, 92 Ohio App. 3d 214, 634 N.E.2d 685, 1993 Ohio App. LEXIS 6239 (Ohio Ct. App., Lorain County 1993) (finding that a supersedeas bond under R.C. 2505.06 is required only where a judgment was rendered for money damages), dismissed, 69 Ohio St. 3d 1449, (1994).

What if the losing party does not or cannot post the bond?

Unfortunately, indigence is often not an excuse recognized by courts. Instead, “R.C. 2505.11 provides a mechanism for substituting the supersedeas bond requirement in connection with an appeal.”GPI Distribs. v. Northeast Ohio Reg’l Sewer Dist., 8th Dist. Cuyahoga No. 106806, 2018-Ohio-4871, ¶ 27 (rejecting appellant’s argument that it could not post bond because it was indigent). That is, “[a] conveyance of property may be ordered by a court instead of a supersedeas bond in connection with an appeal” (i.e., in lieu of money). R.C. 2505.11.

If the movant/appellant fails to post a bond, when required, no stay of execution is perfected and the trial court retains jurisdiction, thus, rendering dismissal of the appeal appropriate.See generallyDennisonv. Talmage, 29 Ohio St. 433 (1876) (dismissing appeal for failure to pay bond); Collins v. Millen, 57 Ohio St. 289 (dismissing appeal for failure to pay bond). See alsoHoward v. Howard, 2d Dist., 1989 Ohio App. LEXIS 3643, *5-6 (Sept. 19, 1989), citing State ex rel. Klein v. Chorpening, 6 Ohio St. 3d 3 (1983) (“Until and unless a supersedeas bond is posted the trial court retains jurisdiction over its judgment as well as proceedings in aid of the same.”).

Let us help in your appellate matter

We are proud of our appellate success in Ohio, Kentucky and Federal Courts, including important against-the-odds victories at:

  • the United States Supreme Court (we had lost the issue three times in the trial courts of Southern Ohio and twice in the 6th Circuit Court of Appeals, and yet won 9-0 at the Supreme Court on an important First Amendment issue) and
  • Ohio Supreme Court (we lost at the trial court and then lost 3-0 in the appeals court, but won 7-0 at the Ohio Supreme Court on an open meetings issue).

The above authorities provide just a glimpse of how the appellate process can be tricky.

If you’d like to discuss your rights and responsibilities on appeal, please don’t hesitate to contact Casey Taylor ((513) 943-5673 ) or Brad Gibson ((513) 943-6661).

Attorney Casey A. Taylor

We’ve all heard of bankruptcy being used as a shield to protect against creditors’ attempts at debt collection. However, in the practice of law especially, the automatic stay is no longer an issue reserved for those who file bankruptcy, nor does it exist solely within the confines of the bankruptcy courts. Sure, the bankruptcy court generally governs matters involving the “stay” but, particularly in our increasingly adversarial society, these issues tend to bleed over into other legal proceedings as well, such that every litigator (and perhaps every litigant) should be apprised of the ways in which the automatic stay could impact them and their claims.

The bankruptcy petition triggers the automatic stay – imaginary armor that then cloaks the debtor (the person who files bankruptcy), halting all collection efforts by creditors (those seeking to collect money from the debtor).  Uponfiling bankruptcy, a debtor is immediately protected by the automatic stay which prohibits, among other things, “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case. . . .” 11 U.S.C. § 362(a)(6). The automatic stay imposes on creditors an affirmative dutyof compliance. Sternberg v. Johnston, 595 F.3d 937, 943 (9th Cir. 2010).

In other words, once you file bankruptcy, your creditors (whether that be the telephone company merely seeking to collect a past-due bill, or someone intending to sue you on a $1 million tort claim) are no longer allowed to take any steps toward recovering that which they think you owe them, in court or otherwise. They cannot call you, they cannot send you a letter threatening action against you if you refuse to pay, they cannot file a lawsuit against you, and they cannot continue to pursue claims that are already pending against you without explicit relief from the bankruptcy court in which your petition is filed. Violating the automatic stay is a very serious offense that often results in an award of damages and attorney’s fees against the violating party.  11 U.S.C. 362(k).

Perhaps you represent a defendant in a contract case, your client filed for bankruptcy (invoking the stay), and the plaintiff’s attorney then serves you with discovery request asking your client to admit that he owes the money sought in the lawsuit. The automatic stay protects your client. Or, maybe you are a passenger who was injured in a car accident, and you are preparing to sue the at-fault driver (a debtor in bankruptcy) for reimbursement of medical expenses. The automatic stay likely prevents you from doing so.

In a practical sense, the affirmative duty of compliance placed on creditors even goes beyond just monitoring their own conduct to ensure that they are not violating the stay – it imposes a duty to police against others, namely courts, violating the stay, as well. This may seem a harsh result, but the Sixth Circuit has explicitly held that creditors cannot sit idly by and allow stay violations occur. See generally Wohleber v. Skurko, 2019 Bankr. LEXIS 653 (6th Cir. March 4, 2019).

In the Wohleber case, the husband-debtor was subjected to a post-petition sentencing hearing arising out of a pre-petition contempt proceeding (i.e., he failed to pay a property settlement previously ordered by a domestic relations court and the hearing was to determine his consequences). At the hearing, the debtor was put in jail until he paid the amount ordered by the domestic relations court (also pre-petition). The husband-debtor later argued that the wife-creditor and her attorney violated the automatic stay by allowing the sentencing to proceed. The bankruptcy court, initially, rejected this argument on the grounds that neither the wife-creditor, nor her attorney took any affirmative action to collect the debt post-petition. However, the Sixth Circuit reversed, holding that the wife-creditor and her attorney had an affirmative duty to “prevent the use of the sentencing hearing and [subsequent confinement] of the [debtor-husband] to coerce payment of the dischargeable property settlement.” Id., at *44.

In sum, the automatic stay is not a concept reserved for bankruptcy courts and the attorneys who practice primarily within it. Instead, it intersects with nearly every area of the law and, frequently, in litigation.  Because the stakes are so high for stay violations and missteps can be costly, it is important that creditors (or potential creditors, or their counsel) are in-tune with what the stay means and the type of conduct it prohibits. It is likewise important for debtors to know their rights so that they can recognize improper conduct if and when it occurs to their detriment.


For assistance with all of your commercial litigation needs, contact Casey A. Taylor at 513.943.5673 or Bradley M. Gibson at 513.943-6661.

Many times, liability in car accidents is not in question. For example, in Ohio, if someone rear ends you, they are almost always cited for failure to maintain an assured clear distance ahead (often abbreviated as “ACDA”) codified in O.R.C. 4511.21(A). Liability is much easier to prove where the allegedly at-fault driver has been cited. That proof may come even easier where the at-fault driver has admitted to the charges or paid the fines associated therewith. In cases where liability is not at issue, the claim becomes primarily a question of damages (i.e., medical bills, lost wages, pain and suffering, etc.), which can often (though not in every case) be resolved with the at-fault driver’s insurance company without the need for litigation. See (LINK TO PI/MED MAL CONSIDERATIONS ENTRY) for more information on statutes of limitation and other considerations.

However, there are instances where liability is in question, especially where no citations have been issued.  The other driver and/or his or her insurance company may dispute that it was his or her actions that caused the accident. Or, perhaps more often, they may argue that you were “comparatively negligent” (i.e., partially at fault). Ohio exercises a Modified Comparative Fault rule, meaning if the plaintiff’s liability exceeds that of the defendant, he or she may be barred from recovery. See O.R.C. 2513.33. Stated simply, if you are deemed to be 51% or more negligent, you can be absolutely barred from recovery – you get nothing. See Power v. Boles, 110 Ohio App. 3d 29, 44-45 (10th Dist. 1996). If you are deemed to be 50% or less negligent, you can still recover, but your recovery is determined according to your percentage of fault. See id.  For example, if you are in an accident and suffer $100,000.00 of damages, but you are deemed to be 40% liable, you may only receive $60,000.00.

Because the percentage by which you are deemed to have been comparatively at fault may operate to bar any recovery or drastically reduce your recovery, this is often a factor to which we give significant weight when evaluating your claims and negotiating with the other driver’s insurance company. In the foregoing example, you may not be thrilled with the idea of only recovering 60% of your damages, and understandably so. However, this exposes you to some risk because, if a jury ultimately determines that you are even more at fault and, thus, assigns to you 55% of the liability, you could end up receiving nothing. Accordingly, any possibility that you could be assigned a portion of the fault may likely warrant some serious consideration.

Attorney Casey A. Taylor

Consider this scenario:

You were recently involved in a car accident that was not your fault. You were injured and have, therefore, incurred some medical expenses and had to take some time off of work, resulting in lost wages. Your injuries have hindered you from engaging in your normal day-to-day activities. You’ve started to receive medical/ambulance bills, letters from insurance companies, etc.

Or perhaps you think you may have a claim for medical or dental malpractice…

What do you do next? How do you go about getting compensated for your injuries?

Unfortunately, these situations are all too common. The underlying incident itself is a continuous source of stress, and trying to navigate the process of submitting an insurance claim or filing a lawsuit becomes even more overwhelming. Most people, understandably, don’t know the statute of limitations on a personal injury or medical/dental malpractice claim, nor do they understand how subrogation interests work or what “subrogation” even means (LINK TO SUBROGATION BLOG ENTRY). This is where having an experienced and knowledgeable attorney to represent your interests and help you navigate these processes can truly be invaluable.

Statute of Limitations

First, the law requires you to bring any claims you have within a certain period of time, referred to as a “statute of limitations.” For personal injury and medical/dental malpractice claims, the statutes of limitations are relatively short. If you aren’t aware of this, it is easy to miss out on your opportunity to bring your claims. In Ohio, you have two years for personal injury and only one year for medical/dental malpractice. O.R.C. 2305.10(A); O.R.C. 2305.113(A).

When Time Starts to Accrue and the Discovery Rule

For personal injury claims, such as a car accident, the clock generally starts to run the moment that the incident occurs.  However, for medical/dental malpractice, the law recognizes a “discovery rule.”  The discovery rule operates to toll the statute of limitations so that it does not begin to run until you “discover” the negligence that gives rise to the claim. See Oliver v. Kaiser Cmty. Health Found., 5 Ohio St. 3d 111, 113 (1983). The discovery rule is justified in these types of cases because “[t]hat [the plaintiff] has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.” Rotella v. Wood, 528 U.S. 549, 556 (2000). In simpler terms, you may not even know something is wrong (for example, that your doctor missed a diagnosis or left a surgical instrument inside of you during an operation) until months or even years later – the law does not hold that time during which you didn’t know anything was wrong against you.  However, the discovery rule does not extend to “a plaintiff’s ignorance of his legal rights,” but only “his ignorance of the fact of his injury or its cause.” Id. at 555-56. Accordingly, courts will not recognize “I didn’t know about the statute of limitations” as an excuse for failing to bring your claim(s) within that allotted time period.

Okay, so you’re still within the statute of limitations… now what?

Creating Value for Our Personal Injury and Medical/Dental Malpractice Clients

Depending on the extent of your injuries, the amount of damages, whether liability is at issue, the current level of evidentiary support, etc., our firm often recommends varying and dynamic approaches to these situations. In some cases, a demand letter sent to the negligent party and/or its insurance provider is often the best first route. In a demand letter, we outline your claims, your evidence, your damages, etc., and offer to release that party from the viable claims you have against it in exchange for a certain amount (which we can help you reasonably determine based on somewhat universal methodology often used by legal professionals and insurance companies alike). However, in some cases, a demand letter is not feasible or would likely be futile. In this instance, or in the event that the at-fault party fails to respond to the demand letter (which sometimes happens), we may suggest moving forward with litigation. We can also help you determine whether your claims will require the testimony of an expert witness (some cases require expert physician testimony, an accident reconstructionist, an economist, etc. to prove your claims and/or damages), as well as discuss other strategic considerations. In any event, we are able to shift the burden and stress off of you (the client) and assume that burden for you.

We take over the preliminary steps, such as contacting insurance companies, requesting and reviewing medical records and billing statements, etc.  If we are able to successfully negotiate a settlement on your behalf, we can also handle drafting or reviewing settlement offers/releases and take care of paying any subrogation liens you may have against you.  Perhaps most significantly, we are often able to do so on a contingency basis (meaning that you pay little to nothing out of pocket – our legal fees come out of the amount we recover on your behalf and only in the event that we are successful in getting you something). If you have been involved in an accident or think you may have a claim similar to those discussed in this entry, please do not hesitate to reach out to us.

Attorney Casey A. Taylor


We have previously written on the different types of deeds (Real Estate 101: Different Types of Deeds in Ohio, Kentucky, and Indiana), as well as how costly it can be to breach your covenants under a general warranty deed (Real Estate 101: Breach of General Warranty Covenants Can Be Costly Mistake).  Perhaps the most common breach occurs when you transfer property that is encumbered in some way, such as by an easement or lien, and that easement or lien is not excepted from the deed. However, one of the less discussed components of a general warranty deed is the covenant to defend. Whether you are the grantor or grantee with respect to a general warranty deed, you should be aware of when this duty arises, and what it means, in order to protect yourself, your rights, and your checkbook.

Statutory duty to defend in “short form” general warranty deeds

R.C. 5302.06 states:

In a conveyance of real estate, or any interest therein, the words “general warranty covenants” have the full force, meaning, and effect of the following words: “The grantor covenants with the grantee, his heirs, assigns, and successors, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that he has good right to sell and convey the same, and that he does warrant and will defend the same to the grantee and his heirs, assigns, and successors, forever, against the lawful claims and demands of all persons.

(Emphasis added). This means that a grantor who conveys property under a general warranty deed promises to defend the grantee and the grantee’s title against all “lawful claims and demands” of others.

What are “lawful claims and demands”?

Unfortunately, Ohio law does not provide much guidance as to what “lawful claims and demands” encompasses – this is not a defined term under the statute, nor have the courts ventured to define it in this context. A lawsuit is generally defined to be “the lawful demand of one’s right.” Ludlow’s Heirs v. Culbertson Park, 4 OHIO 5 (1829).

Additionally, in various contexts, Ohio courts have provided the following guidance as to each of the terms separately:

  • State ex rel. Grant v. Brown, 39 Ohio St. 2d 112, 116 (1974) (“To say of an act that it is ‘lawful’ implies that it is authorized, sanctioned, or at any rate not forbidden, by law.”);
  • La Fon v. City Nat’l Bank & Trust Co., 3 Ohio App. 3d 221, 223 (10th Dist. 1981) (adopting the definition of “claim” as “to assert . . . to state; to urge; to insist . . . a right or title.”);
  • Crozier, v. First National Bank of Akron, 9th Dist. Summit No. 10140, 1981 Ohio App. LEXIS 13717, *6-7 (defining “claim” as “a ‘broad comprehensive word’ that includes ‘an assertion’ and ‘a cause of suit or cause of action.’”); and
  • Eighth Floor Promotions v. Cincinnati Ins. Cos., 3d Dist. Mercer No. 10-15-19, 2016-Ohio-7259, ¶ 26 (“‘Demand’ is defined as ‘the assertion of a legal right or procedural right.”).

Thus, read collectively, a “lawful claim or demand” can be defined as “an authorized or unforbidden assertion of a right.”

Do we first have to ascertain is a “claim or demand” is lawful before duty to defend arises?

However, courts have found that the term “lawful” does not require the “claim or demand” to be meritorious before the duty to defend is triggered since this would essentially render the covenant meaningless. See Sediqe v. I Make the Weather Prods., 6th Dist. Lucas No. L-15-1250, 2016-Ohio-4902, ¶ 29 (holding that the claim or demand as it relates to the underlying duty, e.g., that the property is not free from encumbrances as warranted, need not be proven or successful before the duty arises, as “such a rule would render the duty to defend ineffective and eliminate the grantor’s right to control the defense against the claim.”). Thus, for example, a party claiming to have a lien on conveyed property need not prove the validity of their lien before the grantor’s duty to defend the grantee against such claim arises. The idea is that the grantor will step in before it gets to that point in order to defend the grantee’s title against such claims.

Does a suit have to be filed to trigger a duty to defend?

Indeed, the party asserting the claim likely isn’t even required to file suit to trigger the grantor and grantee’s respective rights and obligations under the general warranty deed. As discussed (Here), the Court in Hollon v. Abner, 1st Dist. Hamilton No. C960182, 1997 Ohio App. LEXIS 3814 (Aug. 29, 1997) did not require that the party asserting the adverse, “lawful claim or demand” bring suit before the grantor’s duties under the general warranty deed arose. In fact, the Court awarded the grantee attorney’s fees as damages in a suit initiated by the grantee because the grantee would not have incurred those fees had the grantor lived up to his obligations under the general warranty deed.


If you are a grantee under a general warranty deed and someone asserts a claim against your property (even if they haven’t yet filed suit), the first step to getting your grantor to defend your title as warranted is by informing the grantor that someone is asserting such a claim. As a grantor, if you receive notice that someone is asserting a claim against property that you conveyed by general warranty deed, proven or not, you will want to step up sooner rather than later. A delay in honoring your covenant to defend likely only exacerbates your grantee’s attorney’s fees (especially if your grantee has to file suit to defend his or her own title), for which you will ultimately be responsible.

As first-year law students and many even outside of the legal community know, the “statute of frauds,” codified in Ohio R.C. 1335.04, requires that any interest in land be evidenced by a writing.

Principle of Part Performance

But this general principle is not without exception. One of the more commonly referenced exceptions is part performance. Sites v. Keller, 6 Ohio St. 483, 489-490 (1834) (“Whenever an agreement has been partly performed, and the terms of it are satisfactorily found, it will be enforced notwithstanding the statute.”); Shahan v. Swan, 48 Ohio St. 25, 37, 26 N.E. 222 (1891) (“[I]f the acts of part performance clearly refer to some contract in relation to the subject matter in dispute; its terms may then be established by parol.”).

Other exceptions

However, lesser-known exceptions exist, as well, and are frequently neglected in the statute of frauds discussion. This has resulted in a misunderstanding among many as to the scope of the statute of frauds and when it precludes a claimed interest in land. Specifically, there are two types of equitable trusts that effectively circumvent the harsh consequences of requiring strict compliance with the statute of frauds: a constructive trust and a resulting trust.

Ohio Constructive Trust

“A constructive trust arises by operation of law against one who through any form of unconscionable conduct holds legal title to property where equity and good conscience demands that he should not hold such title.” Dixon v. Smith, 119 Ohio App.3d 308, 319, 695 N.E.2d 284 (3d Dist. 1997). Where one “who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means . . . either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy,” equity will create a constructive trust. Ferguson v. Owens, 9 Ohio St.3d 223, 225, 459 N.E.2d 1293 (1984).

Additionally, at least one Ohio court has suggested that, “[d]espite the above cited language . . . a constructive trust may exist even where there is no evidence that the title to the property was obtained by improper means.” McGrew v. Popham, 5th Dist. No. 05 CA 129, 2007-Ohio-428. ¶¶ 17-19, citing Groza-Vance v. Vance, 162 Ohio App. 3d 510, 520 (10th Dist. 2005). The creation of a constructive trust is premised upon the unjust enrichment that would result if the person holding legal title to the property were allowed to retain it. Ferguson, at 226.

Ohio Resulting Trust

The Ohio Supreme Court has also recognized “a resulting trust as one that the court of equity declares to exist where the legal estate in property is transferred or acquired by one under circumstances indicating that the beneficial interest is not intended to be enjoyed by the holder of the legal title.” Univ. Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 772 N.E.2d 105, 2002-Ohio-3748, at ¶ 56, citing First Natl. Bank of Cincinnati v. Tenney, 165 Ohio St. 513, 515, 138 N.E.2d 15 (1956). This concept is easily understood in the purchase-money context – “where property is transferred to one person but another pays the purchase price, the law presumes a resulting trust exists in favor of the person paying for the property.” Hollon v. Abner, 1st Dist. No. C960182, 1997 Ohio App. LEXIS 3814, at *5 (Aug. 29, 1997); Perich-Varie v. Varie, 11th Dist. No. 98-T-0029, 1999 Ohio App. LEXIS 3990, at *7-*8 (Aug. 27, 1999).

For example, in the Perich-Varie case, the court found that where an individual had been making the mortgage payments on property legally held in his former in-laws’ names, he had a full ownership interest in the property. This was true even though the in-laws argued that the mortgage payments were merely “rent” and even though he had only paid $12,000 of the $33,000 mortgage on the property. Perich-Varie, at * 4-5, * 10-11. To eliminate any inequity (after all, that’s what a resulting trust is all about), the Eleventh District required the lower court to order that the mortgage first be satisfied so that the in-laws were not obligated under a mortgage on a property in which they had no interest. Id., at * 14.


As you can see, constructive and resulting trusts represent some pretty significant departures from the rigid statute of frauds in the name of “equity.”  While a lot of confusion, disagreement, and, ultimately, litigation can be avoided by putting matters involving real property in writing, those who find themselves in a situation where their interest has not been reduced to writing are not necessarily without recourse if one of these equitable remedies applies.


Many are surprised to learn that, if they receive a settlement or reward on a personal injury or medical malpractice claim, they are required to essentially “pay back” any party that paid medical bills on their behalf. This is called subrogation, and insurers may have both a contractual and an equitable right to it. Blue Cross & Blue Shield Mut. of Ohio v. Hrenko, 72 Ohio St. 3d 120, 647 N.E.2d 1358 (1995); Warmack v. Arnold, 195 Ohio App. 3d 760, 765 (1st Dist. 2011).

For example, if Joe gets rear-ended and suffers $10,000 worth of medical expenses (note: this is separate and apart from any property claim he may have for damage to his vehicle), $5,000 of which are paid by his auto insurance, $4,000 of which are paid by his health insurance, and $1,000 of which he pays out of pocket, Joe is required to pay his auto insurance and health insurance companies back for any amounts they paid on his behalf (here, $5,000 and $4,000 respectively).

This information often leads to a certain degree of panic to the tune of “What if I don’t get any settlement or I lose my case? Do I still have to pay them back?!” The answer is no. If you haven’t signed any sort of release interfering with the insurer’s rights, the insurer is free to pursue payment from the at-fault party. If there is a lawsuit filed, the insurer should be put on notice of that action and can protect their own interests accordingly.

The idea is just that an insured generally cannot interfere with the insurer’s right to subrogation, so any settlement ultimately needs to be approved by the insurer. See generally Chemtrol Adhesives, Inc. v. American Mfgrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 537 N.E.2d 624 (1989) (explaining that where an insured releases his rights to claim injury under a settlement agreement, the subrogation rights of the insurer are effectively barred).  Perhaps the most common instance where an insurer refuses to consent to a settlement is where the settlement amount is less than what the insurer paid and, thus, would not compensate it. See, e.g., Erie Ins. Co. v. Kaltenbach, 130 Ohio App. 3d 542 (10th Dist. 1998) (requiring the insured to pay back the insurer in the full amount of the settlement where the insured accepted settlement of $4,462 despite subrogation liens totaling $5,000).

However, in many cases, insurance companies are actually willing to reduce the amount they will accept in satisfaction of their subrogation lien if it will help to inspire a settlement. This sometimes results in the injured/insured walking away with more money in his or her pocket.

Navigating the waters of insurance settlements, releases, subrogation liens, subrogation reductions, etc. can be tricky. This is where having an attorney with knowledge and experience in these matters can create immense value. Our firm has successfully handled various types of personal injury and medical malpractice claims. I would be happy to discuss with you any claims you believe you may have to determine if we can create value for you.

Casey Taylor write on Ohio commercial real estate brokerage liens
Casey Taylor, attorney

Our firm has previously written on the creative ways one can shield his or her personal assets through the corporate or limited liability structure. As noted in that entry (Link Here), “Ohio courts and courts throughout the nation have been pretty vigilant in protecting the corporate veil of owners of corporations and limited liability companies.”  However, this general principle is not without a couple of narrowly drawn exceptions, explored below.

Formation of LLCs

The Finney Law Firm deals regularly with clients and other parties that are organized as limited liability companies (“LLCs”) or corporations.  After all, these entities are fairly simple to create – one must simply fill out an online form or two, submit a relatively small fee to the Secretary of State, and they are then able to transact business without fear of personal liability, right? Maybe not.

The powerful “corporate veil” protection of an LLC

Generally, an LLC member cannot be held personally liable for the torts or contractual obligations of the LLC solely by virtue of his or her membership in the LLC. City of Lakewood v. Ramirez, 2014-Ohio-1075, ¶ 11 (8th Dist. 2014). Thus, if an LLC defaults on its obligations under a contract, an adverse party cannot obtain judgment against the LLC members’ or managers’ personal assets.  It is for this reason, along with its ease of formation, that the LLC structure is so desirable to many. And, most of the time, it succeeds in its purpose of precluding judgment against the members’ personal assets.

Narrow exceptions

However, there are two sets of circumstances under which the limited liability structure does not shield members from personal liability.

1.   Piercing the corporate veil

The first is where the court deems it proper to “pierce the corporate veil,” thereby removing that protection of limited liability.

[I]n order to pierce the corporate veil and impose personal liability upon [members or managers], the person seeking to pierce the corporate veil must show that: (1) those to be held liable hold such complete control over the corporation that the corporation has no separate mind, will, or existence of its own; (2) those to be held liable exercise control over the corporation in such a manner as to commit fraud or an illegal 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.

Stewart v. R.A. Eberts Co., 2009-Ohio-4418, ¶ 16 (4th Dist. 2009), citing Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., 67 Ohio St. 3d 274, ¶ 3 of the syllabus, 617 N.E.2d 1075 (1993).  The idea behind piercing the corporate veil is that there is so little separation between the individual and the LLC, that they can almost be considered “alter-egos” such that it is not unreasonable to hold the member or manager of the LLC personally liable for the debts, obligations, and/or liabilities of the LLC.

2.  Member’s own acts, ommisions or fraud

The second instance where a member can be held personally liable notwithstanding the limited liability structure is where the members’ own acts or omissions constitute fraud. R.C. 1705.48; See also Deitrick v. Am. Mortg. Solutions, Inc., 2007-Ohio-839, ¶ 19 (10th Dist. 2007) (finding that a “corporate officer can be individually liable in tort if the promises contained in the contract are fraudulent” and “even if he commits the fraud while in the course of his corporate duties”); Stewart, at ¶ 30 (“[N]either the corporate shield, nor a shield of limited liability insulates a wrongdoer from liability for his or her own tortious acts.”). Additionally, this second instance is not contingent upon the first (i.e., a litigant who seeks to hold an LLC member personally liable for the member’s own fraud need not first pierce the corporate veil in order to do so).  Yo-Can, Inc. v. Yogurt Exch., 149 Ohio App. 3d 513, 527 (7th Dist. 2002) (“[P]laintiffs need not pierce the corporate veil to hold individuals liable who allegedly personally commit fraud.”).


Thus, while the LLC or corporate structure are very successful at providing owners/members with a great deal of protection the overwhelming majority of the time, one shouldn’t make the mistake of thinking his or her personal assets are entirely immune regardless of the circumstances.

How do I obtain an Ohio commercial real estate broker lien?

Attorney Casey Taylor

First, let’s be clear: There is no lien right for real estate brokers for property consisting solely of between one and four residential units. (O.R.C §§1311.85 and .86).

However, licensed real estate brokers do have lien rights in transactions involving commercial properties, i.e., anything other than between one and four residential units.  (O.R.C §§1311.86).

The lien rights extend to brokerage contracts for the provision of services for selling, purchasing, and leasing.  (O.R.C §§1311..86(A) and (B)).  They do not appear to cover the provision of property management services.

What is a lien?

In one sense, a lien does not get you anything more than the contract rights you already have: You have a signed listing agreement, you have earned your commission, you can sue in a court of competent jurisdiction, and you can thus get paid the amount of money you are owed.

But as a practical matter, lien rights are tremendously powerful in “turning the tables” on a property owner, giving quick, inexpensive and powerful leverage to the Realtor to resolve a commission dispute.

Why is a lien important?

Leverage often is the “whole ballgame.”  So often, (a) debtors will avoid debts they clearly owe just because they can, for purposes of the time-value of money (by delaying the payment, they can use your money in the interim) and (b) the reality is that most creditors will not go to the trouble and expense of hiring and paying an attorney to collect the sums owed to them.

Litigation can cost as little as $20,000 per case, up to hundreds of thousands of dollars for a vigorously-contested action.  So, the question for a Realtor claiming a commission is: Can I “check” or “checkmate” a property owner (seller or landlord) into recognizing, dealing with and paying my claim without the two years and tens of thousands of dollars in legal fees needed to vindicate that right?

A lien is a powerful tool — it encumbers real property

A lien is an encumbrance on real property.  In most cases, real property encumbrances have the same priority of the order of filing, i.e., the first-filed is paid first from the sale proceeds, the second, second and so forth.  (Ohio mechanics liens are the major exception to this rule, dating back to the date of first work on a project.)

This gives the lien holder two distinct advantages, many times powerful advantages: (a) their claim is secured against the real estate (i.e., the owner cannot further squander the equity in the property by a sale or mortgage) (b) the claimant has placed a cloud on the title with what may still be a disputed claim, effectively preventing the owner from selling or mortgaging the asset until the earlier of (i) the statutory expiration of the lien or (ii) the judicial disposition of the claim and the lien rights.

Thus, as a practical matter if the property owner wants to sell his property or take out a new mortgage or refinance an existing mortgage, he will have to “deal with” the Realtor’s claims before doing so.

A broker’s lien is unilateral — it does not require the owner’s signature or consent

Contrary to what many clients ask of us in a simple contract or tort claim (“please lien their property”), in most circumstances a lien cannot be placed against real property until either (a) the owner signs a voluntary instrument such as a mortgage or (b) the conclusion of litigation, which usually takes years.  In the meantime, a defendant can sell and mortgage the property, or otherwise encumber it, and then squander the asset without concern for the plaintiff’s claims.  (This is constrained by concerns about fraudulent conveyance issues that will be discussed in another blog entry later.)

The right to place a unilateral lien against real estate is very narrow, being limited to government liens (such as tax liens, assessments, environmental liens, etc.) and mechanics liens (for work done on real property and materials delivered to real property for incorporation therein).

Commercial brokerage lien rights

O.R.C. §1311.86 provides such unilateral lien rights for the collection of a commission in commercial transactions in specific circumstances set forth in the statute.  Being a unilateral filing, means that the Realtor claiming the lien simply signs and files a piece of paper in the Hamilton County Recorder’s office.  It does not require a signature (on the lien filing) of the property owner.

Statutory requirements

Because the lien arises from the statute, strict compliance with the statutory mandates will be required.  F. W. Winstel Co. v. Johnston, 103 Ohio App. 525, Paragraph 1 of the Syllabus (1st Dist. 1957).         These are set forth in O.R.C. §1311.86:

  • It is for written brokerage contracts only (O.R.C. §1311.86(A) and (B)).
  • It is for “for services related to selling, leasing, or conveying any interest in commercial real estate” (O.R.C. §1311.86(A)) and “for services related to purchasing any interest in commercial real estate.” (O.R.C. §1311.86(B)).
  • “The lien is effective only if the contract for services is in writing and is signed by the broker or the broker’s agent and the owner of the lien property or the owner’s agent.”   (O.R.C. §1311.86(A) and (B)).
  • The lien is for the broker only, not his salespersons.  (O.R.C. §1311.86(C)(1).
  • The lien amount is either the brokerage commission due, or if due in installments only that portion due on conveyance.  (O.R.C. §1311.86(C)(2) but in the case of commercial leasing, (O.R.C. §1311.86(C)(3).
  • Only the property subject to the brokerage agreement can be liened.  ((O.R.C §§86(C)(5)).
Lien contents

To perfect a lien, the following steps must be followed:

  • The claimant must prepare, sign and have acknowledged (notarized) an affidavit containing each of the following: (a) name of the broker who has the lien, (b) the name of the owner of the lien property, (c) a legal description of the lien property, (d) the amount for which the lien is claimed, (e) the date and a summary of the written contract on which the lien is based, and the real estate license number of the broker. R.C. 1311.87(B)(2).
  • Additionally, the lien affidavit must state that the information contained in the affidavit is true and accurate to the knowledge of the broker. Id.
Lien deadlines

The timeframes within which a commercial broker’s lien must be filed are:

  • For a sale of liened, the Affidavit must be recorded prior to the conveyance of the property. R.C. 1311.86 (B)(3).
  • For a purchase of liened property the Affidavit must be recorded within ninety days after the conveyance of the property. R.C. 1311.86 (B)(4).
  • For liens based upon a leasing commission, the Affidavit must be recorded within ninety days after a default by the owner in payment. R.C. 1311.86 (B)(5).
Notice to property owner

One other requirement not to overlook:  “On the day the lien affidavit is recorded, the broker shall provide a copy of the lien affidavit to the owner of the lien property and, where a contract for the sale or other conveyance of the lien property has been entered into, to the prospective transferee, where known, either by personal delivery or by certified mail, return receipt requested. O.R.C. 1311.86 (B)(6).

Be careful — “Slander of title” claims can be nasty

If one files a lien against real property that is later determine to have been in bad faith, the lien claimant can find himself the target of a suit for a cause of action known as “slander of title.”  Slander of title is the tort of impairing title to someone’s real estate without a reasonable basis therefor. McClure v. Fischer Attached Homes, 2007-Ohio-7259, ¶ 21, 882 N.E.2d 61 (Clermont Co. C.P. 2007), citing Green v. Lemarr, 139 Ohio App. 3d 414, 433 (2d Dist. 2000).

The really bad part of a slander of title claim is that it can include an award to the property owner of an award of his attorneys fees and a punitive damages amount. Additionally, the commercial brokerage lien statute specifically allows for the prevailing party to recover its attorney’s fees. O.R.C. 1311.88(C) (“[A] court may assess the nonprevailing parties with costs and reasonable attorney’s fees incurred by the prevailing parties.”). However, in cases involving general slander of title claims (i.e., outside of the commercial brokerage lien context), the attorney’s fees have been limited to the those “necessary to counteract a disparaging publication,” and did not include those incurred in prosecuting the slander of title. Cuspide Props. v. Earl Mech. Servs., 2015-Ohio-5019, ¶ 40 (6th Dist. 2015).

Thus, we recommend moving forward with the filing of an affidavit for a commercial broker’s lien cautiously, only where the broker is certain of the merits of his position and even then still willing to withstand the possible claim for slander of title from an owner.


The Finney Law Firm is privileged to have many real estate brokerage clients, including commercial Realtors.  The commercial lien right is a very powerful one, and one that we think is under-utilized in commission disputes.

Consider one of our attorneys to assist you in such a dispute, including the use of the right to a commercial lien.

Our firm sometimes receives inquiries about areas of the law that few even consider until they are facing a potential lawsuit. Recently, one of those inquiries was whether one can be responsible for his or her tree falling and harming another or their property.

Generally, land owners do not owe a duty with regard to harm caused to another as a result of some natural condition of the land, provided that the harm occurs outside of the land. Heckert. V. Patrick, 473 N.E.2d 1204, 1206 (Ohio 1984). However, there are some exceptions with regard to injuries resulting from falling trees and/or branches. Id. at 1207.

“[A]n owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property.” Id. For example, “a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm arising from the condition of trees near the highway.” This duty of an urban landowner includes a duty to inspect the tree to make sure that it is safe. Id. This is because urban landowners are thought to have fewer trees – thus, it is not too great of a burden to do so. See id.

However, for rural landowners, who potentially own entire forests of trees, an affirmative duty to inspect the trees would likely amount to a very heavy burden. Id. Therefore, the Ohio Supreme Court has adopted a distinction between rural and urban landowners in this respect. Id. As such, rural landowners have no duty to inspect trees growing on their property adjacent to rural highways, or to ascertain defects that may result in injury to someone travelling on the highway, but, to the extent a rural landowner has “knowledge, actual or constructive, of a patently defective condition of a tree,” that landowner must exercise reasonable care to prevent harm. Id. Constructive knowledge can result from the appearance of the tree, thereby giving notice to an owner that the tree is not in good shape and could fall. In recognition that the distinction between rural and urban areas may not always be an easy one to make as suburbia continues to grow and expand, the Court also provided a list of factors to be considered when making such determination, including “the location of the highway, its size and type, as well as the number of people utilizing it.” Id. at 1208.

Courts have generally applied the law as it relates to rural landowners to cases involving trees falling onto neighbors’ property (i.e., the landowner will be liable to the neighbor where the landowner has actual or constructive knowledge that the tree is defective. See Johnston v. Filson, 2014-Ohio-4758 (12th Dist. 2014) (granting summary judgment to a landowner upon finding that the landowner did not have actual or constructive notice of the tree’s condition); Motorists Mut. Ins. Co. v. Flynn, 2013-Ohio-1501 (4th Dist. 2013) (finding that photographs of a tree significantly leaning toward the neighbor’s house presented a genuine issue of material fact as to whether a reasonable person should have known that the tree posed a danger); Wertz v. Cooper, 2006-Ohio-6844 (4th Dist. 2006) (granting summary judgment in favor of landowner for damage resulting from the landowner’s tree falling onto its neighbor’s property because the neighbor failed to establish that the landowner had either actual or constructive knowledge of a patent dangerous condition of the tree).

So while, in most cases, you will not have an affirmative duty to go out and inspect every single tree on your property, actual or constructive (visible) notice that the tree is not in good shape could create liability if that tree were to fall and cause harm. The lesson? Don’t ignore unhealthy or potentially problematic trees/limbs.