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PROPERTY TAX VALUATION: Ohio Supreme Court Continues to Enforce Plain Meaning of Recent Amendments

Author By Finney Law FirmPosted on

As has been discussed in numerous posts on our firm’s blog, see here, here, and here, the changes to Ohio’s property valuation law enacted in 2012 are slowly coming into effect as the Ohio Supreme Court has been consistently ruling that the changes made by the legislator mean exactly what they say.

Notably, R.C. 5713.03 was amended specifically to require that real property be valued for taxation purposes, “as if unencumbered.” But auditors and school boards have resisted calls to apply the plain meaning of “as if unencumbered” to include leases, arguing that “as if unencumbered” refers only to liens or easements.

Yesterday (May 22, 2018) the Ohio Supreme Court weighed in again on the question in Lowe’s Home Centers, Inc. et al. v. Washington County Board of Revision, et al., Slip Opinion No. 2018-Ohio-1974, that “it is plain that a lease is an encumbrance and that R.C. 5713.03’s directive to value the realty ‘as if unencumbered’ means to value the realty as if it were free of encumbrances such as leases.” Id. at ¶19.

In Lowe’s, the County’s appraiser compared leased fee properties to the subject property to ascertain the value, and made adjustments to account for the leases. The Board of Tax Appeals adopted the value proposed by the County’s appraiser, but appeared to rely on a case decided prior to the amendments to R.C. 5713.03, thus leaving some question whether the Board of Tax Appeals analyzed the lease adjustments.

Unquestionably, the changes, aimed mostly at commercial property valuation, bring with them new challenges for Ohio’s auditors and school boards (the major recipient of property tax dollars). And there are certain to be calls for new amendments to undo some or all of the recent changes.

The deadline for filing Board of Revision Challenges has passed for this year. To learn about the Board of Revision process in preparation for next year, watch Chris Finney’s presentation here. Contact us here if you have questions about your commercial property valuation.

Cincinnati’s Gang of Five Admits to Additional Sunshine Law Violations

Author By Finney Law FirmPosted on

As part of their responses to the first round of discovery in our Open Meetings lawsuit, Cincinnati City Council Members PG Sittenfeld, Chris Seelbach, Wendell Young, Tamaya Dennard, and Greg Landsman – the Self-Proclaimed “Gang of Five” – have now admitted to additional Sunshine Law violations: other meetings conducted via text message, and whispering and texting to each other during City Council meetings.

Thus far, the Gang of five have only responded to our requests for admission, still outstanding are responses to our interrogatories and requests for documents. The City asked for, and we granted, an extension of time to respond to the interrogatories and document requests. Those responses will shed even more light on the topics of discussion during the illegal meetings and result in the production of additional text message correspondence between the Gang of Five.

What is unquestionable now is that the question of firing the City Manager was not the first time the Gang of Five discussed public business outside the public eye, in clear violation of Ohio’s Sunshine Laws and the Cincinnati City Charter.

Next steps are to obtain the additional written discovery responses and then depose the Gang of Five under oath.

What Does Kentucky Law Say About General Contractor Liability for Faulty Construction?

Author By Finney Law FirmPosted on

How much liability, if any, do general contractors have for faulty construction when subcontractors are also involved in a project? The answer to this question depends not just on the circumstances of the case but also on the state where the project is taking place.

In recent years, Kentucky law has been tougher on general contractors in these cases than other states, which has led some construction law observers to argue the state’s Supreme Court should consider revisiting the issue.

When a general contractor hires a subcontractor, there is always an expectation that the subcontractor will perform its work in a high-quality manner. Shoddy work performed in a negligent way not only creates a higher likelihood of property damage and construction defects, but could also cause significant harm to the general contractor’s reputation.

General contractors often left on the hook

Unfortunately, Kentucky law is unfavorable to policyholders in some types of construction cases.

In 2010, for example, the Kentucky Supreme Court ruled the faulty workmanship of a subcontractor on a construction project cannot be accidental. This was in the case of Cincinnati Ins. Co v. Motorists Mut. Ins. Co., which set the unusual precedent that in cases involving shoddy construction, general contractors essentially hire a subcontractor with the expectation that the work performed will be subpar.

Other states have repeatedly gotten this issue right over the years, which means it may be time for the Kentucky Supreme Court to take another look at the decision and overturn its ruling. The vast majority of state supreme courts have ruled that faulty workmanship can be (and typically is) accidental, which means it’s considered a covered “occurrence.”

When the Kentucky Supreme Court issued its Cincinnati ruling, it pointed to several other states that applied similar rules. Five of those states — Arkansas, Colorado, North Dakota, South Carolina and West Virginia — now apply the opposite rule in these cases.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Finney Law Firm files suit to obtain Public Records related to Secret Payoffs made by Clerk of Courts Aftab Pureval

Author By Finney Law FirmPosted on

As part of his political “house cleaning” when he first took office, Aftab Pureval paid severance packages to outgoing employees and required that they sign non-disclosure agreements. Local government watchdog Mark Miller asked for copies of these records, only to be ignored by Aftab Pureval.

Now, six weeks after Pureval received the request, and with no response whatsoever from Pureval, Finney Law Firm filed suit to force the release of the requested records.

It is expected that the records will show that Pureval used attorneys other than his official statutory counsel in drafting these agreements, and that the agreements are legally unenforceable; that they were simply a means of coercing former employees into silence as he prepared his run for higher office.

Read the complaint below or click here to view it on Scribd.

[scribd id=377796673 key=key-tff3AszQ6iZyPzYNIFo4 mode=scroll]

What Are Deceptive Trade Practices, and How Are They Covered Under Kentucky Business Law?

Author By Finney Law FirmPosted on

The term “deceptive trade practices” encompasses any type of advertising or labeling intended to somehow mislead or deceive consumers. Kentucky has extensive consumer protection laws — in addition to federal laws — to protect consumers from suspicious or disingenuous advertising and sales tactics. There are also mechanisms to punish companies that engage in these practices.

While Kentucky is not one of the states that has adopted the Uniform Deceptive Trade Practices Act, it still has plenty of statutes in the Consumer Protection and Criminal sections of its revised statutes. These laws prohibit companies from intentionally misleading consumers.

Businesses that violate these regulations could be forced to pay remedies, such as reasonable attorney’s fees, fines worth hundreds of dollars and, in severe cases, imprisonment for the owners.

Additional consumer protections

Beyond the laws that Kentucky and the federal government have established to prevent businesses from purposefully deceiving customers, there are plenty of other means for consumers to protect themselves and exercise their rights. This is important, as state laws are limited in terms of the remedies they can provide after a scam has already occurred.

Consumer protection offices are scattered throughout the state and provide Kentuckians with up-to-date information on scams in those specific areas. Local residents can report individuals or businesses in their area who engage in misleading business practices by filling out paperwork and submitting it to one of these offices.

Additional resources include www.consumeraction.gov, a federal website developed with the intent of providing consumers with another outlet to report wrongdoing. The Better Business Bureau also keeps an eye on misleading practices.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Ohio Employment Law: Can Your Social Media Post Violate Your Non-compete or Non-solicitation Agreement?

Author By Stephen E. ImmPosted on

Social media sites such as Facebook and LinkedIn are commonly used by employees to provide updates about their professional careers and business activities. When posting about such things, most people probably don’t think about whether they might be breaching a contract they made with a previous employer. They should.

There have recently been several cases filed by former employers against ex-employees, alleging that the employees have violated a non-competition agreement or non-solicitation agreement through their social media posts. In one such case, filed in Minnesota, an employee who had left her employer to work for a competitor filed a post on LinkedIn about her new job, inviting people in her social network to contact her for a “quote,” telling them that her new company was the “best,” and inviting them to “connect” with her. The court held that this “post” was really a sales pitch on the employee’s part, and that it violated the terms of a non-solicitation agreement she had with her previous employer.

In another case, an employee was sued by his former employer for sending a LinkedIn invite to his former co-workers to join his network. Anyone who accepted the invite would see a job posting for the employee’s new employer. His former employer considered this to be a “solicitation” by the former employee of its current employees, in violation of a clause in  the employee’s non-solicitation agreement. Here, the court found that the employee had not violated his agreement, ruling that the post was simply a “status update” rather than a “solicitation,” despite the link to the job posting.

These cases illustrate that merely accepting or sending a friend request on Facebook, or updating a LinkedIn profile, will not violate a non-compete or non-solicitation agreement. However. social media posts aimed at a specific population, or focused on former colleagues or customers, may be actionable. Former employees bound by non-compete or non-solicitation agreements should be very careful when using social media platforms, especially if they intend to engage in promotional activity. Anything more than a mere status update or generic invitation to join a social media group may get the employee in serious legal trouble.

Therefore, employees who have signed non-compete or non-solicitation agreements should understand the scope and reach of those agreements before engaging their social media network. And employers seeking to enforce their contractual rights should be mindful of activity their ex-employees may be engaged in on social media.

Finney Law Firm Files Suit for Public Records

Author By Finney Law FirmPosted on

Today, Finney Law Firm filed suit against the self-proclaimed “gang of five” – PG Sittenfeld, Chris Seelbach, Wendell Young, Tamaya Dennard, and Greg Landsman – seeking production of public records they are withholding in violation of Ohio’s Public Records Law.

On April 9, 2018, Finney Law Firm submitted a public records request on behalf of Mark Miller, to each member of the “gang of five” seeking production of all communications between each of them and any other member of council from March 1, 2018 to March 19, 2018 regarding Harry Black or John Cranley.

This morning, attorneys for the City produced 10 pages of group text messages between all five members, but made clear that they refuse to produce text messages or emails other than the group-messages. As Cincinnati Enquirer attorney, Jack Greiner, told the Cincinnati Business Courier, this is contrary to the requirements of the Public Records Law, R.C. 149.43:

Jack Greiner, an attorney at Graydon Head & Ritchey who represents other Cincinnati media organizations in public records and open meetings matters, said state law requires that public records be kept, that communications between officials are a public record and text messages qualify as communications.

“The format shouldn’t matter,” Greiner said. “The city has a records retention schedule that would cover those. The city has to figure out how they’re going to retain that information and archive it.”

You can read the complaint below or on Scribd here.

 

[scribd id=376746523 key=key-KDMKBBP0yJvZtvUqNh9n mode=scroll]

Cincinnati Releases Batch of Illegal Meeting Text Messages

Author By Finney Law FirmPosted on

This morning the City of Cincinnati released a collection of text messages exchanged between five Cincinnati Councilmembers that made up a series of illegal meetings regarding the question of whether and how to terminate the City Manager.

While the City has yet to produce all of the responsive records, this production demonstrates the need for our lawsuit and injunction to force compliance with the Open Meetings Act. Unfortunately, because the City continues to withhold additional records, our client will be forced to bring another suit against the City and the rogue members to force compliance with the Public Records Act.

You can read the text messages on Scribd or below:
[scribd id=376698656 key=key-45W4n9CmI6tNLgrqLLaZ mode=scroll]

Ohio Employment Law: Supreme Court changes longstanding overtime rule

Author By Stephen E. ImmPosted on
Stephen E. Imm, Labor and Employment Attorney

The Fair Labor Standards Act (“FLSA”) is the Federal law that requires most employers to pay at least the “minimum wage” to their employees, and to pay employees 1 1/2 times their “regular” rate of pay (called “overtime pay”) when they work more than 40 hours a week.

However, there is a long list of “exemptions” to the overtime requirements contained in the FLSA. In other words, various types of employees – such as outside salespeople, executives, and professionals, just to name a few – are exempt from the requirement that workers be paid overtime for working in excess of 40 hours in a week.

Since 1945, it had been the law that these “exemptions” to the overtime requirement were to be “narrowly construed.” This generally meant that workers were considered to be covered by the Federal overtime law unless it was very clear that they fell within one of the listed exemptions. Doubts about whether or not a particular type of worker fell within an “exemption” would be resolved in favor of the worker, rather than the employer – i.e. such workers would not be considered “exempt,” and would be entitled to overtime.

That 70-year old rule was abruptly changed earlier this month by the US Supreme Court, in a case called Encino Motorcars, LLC v. Navarro. There, in a 5 to 4 decision, the Court threw out the “narrow construction” rule that had limited the applicability of exemptions to the overtime requirement. Courts are now instructed to interpret exemptions “fairly” instead of “narrowly.”

This decision will have literally enormous implications on overtime lawsuits. As a general matter, the ruling will make it more difficult for employees to prove that they fall into one of the exemptions provided by the FLSA, and thus more difficult to prove that they are owed overtime pay. In the final analysis, fewer workers than before are likely to be considered “exempt” from the overtime requirement, which could prove to be a major boon to employers.

If you have any questions about your rights or obligations under the FLSA, either as an employer or as an employee, it is critically important that you consult with a competent employment law attorney. This is an area in which it is extremely easy to make a costly mistake if you are not careful!

For more information, contact Stephen E. Imm at (513) 943-5678.

Review of Ohio House Bill No. 446

Author By Eli N. Krafte-JacobsPosted on

Powers of attorney are written authorizations to represent or act on another person’s behalf.  The person granting the authorization is the principal and the person to whom authorization is granted is the agent.  A standard power of attorney gives the agent the authority to act immediately and identifies the specific powers that the agent may exercise.  In the case of springing powers of attorney, the document will identify the triggering event that gives the agent the authority to act at some point in the future.

These documents can be immensely useful for a principal suffering from an incapacity, which is to say, an individual who: (1) has an impaired ability to receive and evaluate information, (2) is missing, (3) is detained, be it in the penal system or otherwise, or (4) is outside of the United States and unable to return.  Notwithstanding the cause of the principal’s incapacity, the agent (if given the relevant authority in the power of attorney) may make financial decisions for the principal, purchase or sell property on behalf of the principal, make healthcare decisions, etc.  All of those actions, however, are prevented when the relevant bank, title agency, or healthcare provider wrongfully rejects a lawful power of attorney.

Lawful powers of attorney are often rejected for inane reasons including preparing the power of attorney more than six months prior to the date that the agent presents it or naming a second or successor agent.  Responding to the concerns of the constituency, members of the Ohio House of Representatives recently sponsored House Bill (H.B.) No. 446, which operates to remedy the all-too-common practice of rejecting lawful powers of attorney.  The bill does not alter language in the Ohio Revised Code, but rather, it adds the following to Chapter 1337:

(A)       As used in this section, “acknowledged” means verified before a notary public or other individual authorized to take acknowledgements.

(B)       A person shall not refuse to accept an acknowledged power of attorney for a transaction, or require an additional or different form of power of attorney for any authority granted in a statutory form power of attorney, unless one of the following applies:

  • The person has actual knowledge of the termination of the agent’s authority or of the power of attorney.
  • The person in good faith believes that the transaction is outside the scope of the authority granted to the agent in the power of attorney.
  • The person in good faith believes that the power of attorney is not valid.

(C)       A person that fails to comply with this section is subject to both of the following:

  • A court order mandating the acceptance of the power of attorney;
  • Liability for reasonable attorneys’ fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

On January 16, 2018, the Ohio House of Representatives referred H.B. 446 to the Civil Justice Committee, which is where the bill remains today.  The Committee held its first hearing regarding the same on January 24, 2018.

The primary sponsors of the bill are Rep. William Seitz (R) and Rep. John Rogers (D).  The co-sponsors are Rep. Nickie Antonio (D), Rep. John Becker (R), Rep. John Boccieri (D), Rep. Nicholas Celebrezze (D), Rep. Teresa Fedor (D), Rep. Bernadine Kent (D), Rep. Michael Sheehy (D), and Rep. Kent Smith (D).

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