Finney Law Firm attorney Curt C. Hartman Thursday night presents to Empower U Ohio on Ohio Open Meetings and Public Records. It is at 7 PM at the Deer Park Community Center, 7640 Plainfield Road.
The Finney Law Firm, led by Mr. Hartman encyclopedic knowledge of Ohio’s Open Meetings and Public Records laws, has a robust practice in the area of Ohio Open Meetings and Public Records, leading to greater accountability on public records.
The details on the class are here.
While Ohio law allows individuals to represent themselves in court (pro se), non-lawyers may not represent others. This prohibition extends to non-lawyers who are the sole member of a limited liability company or sole shareholder of a corporation.
While for many small businesses there may seem to be no distinction between the sole shareholder/member and the entity itself, the law recognizes the distinction – indeed such recognition is the foundation of corporate existence – and it is important to recognize and respect that same distinction.
We recently handled a case involving two defendants, both of which were limited liability companies. The statutory agents for both defendant entities were non-lawyer members of the respective companies (perfectly legal and acceptable); and the statutory agents for both companies attempted to make “pro se” filings in the case. These filings were stricken by the Court, and treated as if neither defendant had appeared or answered the complaint in the case. Ultimately, the judge entered default judgment in our client’s favor and against the defendants.
Further, the Ohio Supreme Court has held that such attempted “pro se” representation warrants civil fines and sanctions for “unauthorized practice of law.” See Disciplinary Counsel v. Kafele, 843 N.E.2d 169, 174, 108 Ohio St.3d 283, 288, 2006 -Ohio- 904, ¶ 20 (Ohio,2006), finding a $1,000.00 fine appropriate where a non-lawyer member of an LLC made filings and attempted to represent the LLC in a lawsuit, and Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166 (Ohio,2013) assessing a $6,000.00 fine for such unauthorized practice of law.
If your small business has a legal issue, hire an attorney to make sure you and your business are protected.
As our readers know, Ohio’s Public Records laws have been rendered somewhat less effective than previously by recent Ohio Supreme Court rulings, making the pursuit of such cases more difficult. As a result, public agencies are even more reluctant to produce public records.
Thus, comes today’s announcement from State Auditor David Yost that his office has implemented a process as a part of State audits of public entities. Now they will accept and investigate complaints about non-compliance with public records requests, and make a negative notation in their audit reports for failure to comply.
You may read that story in today’s Columbus Dispatch here.
We are used to seeing cruiser camera videos of DUI arrests, and other police activities on the evening news. This is so, at least in part, because Ohio public records law provides that these videos are public records.
But as we reported here, at least Ohio’s 12th District Court of Appeals ruled in May of last year that these videos are not public records under Ohio law, meaning citizens and news organizations have no right to obtain them. This conflicts with rulings of the Ohio Supreme Court and other Ohio appellate districts.
With the protection of the 12th District opinion, the Ohio State Highway Patrol is apparently now broadly taking the position that cruiser camera videos are not public records. Today’s Enquirer reports here that the newspaper has filed a direct mandamus action before the Ohio Supreme Court to force a ruling on the issue.
The Enquirer is seeking the cruiser cam video, the 911 tape, and the police report of an incident in January of this year involving a police chase from Warren County into Hamilton County. The Ohio Highway Patrol apparently did not cite a legal basis for the denial of the records, as the law requires, but rather simply said it was acting at the request of the Prosecutor, which is not an exception to production under the law.
We anxiously await a clear pronouncement from the Ohio Supreme Court on the topic. The last public records decision we received from the Ohio Supreme Court took 11 ½ months after full briefing for them to make a decision, so it may be a while.
Can the voters of a State take from the legislature the prerogative to draw lines of legislative districts and place it in the hands of an independent redistricting commission?
That is the issue squarely before the United States Supreme Court in Arizona State Legislature v. Arizona Redistricting Commission, heard at oral argument on March 2.
The United States Constitution at Article 1 Section 4 seems to place the responsibility for setting the “Times., Places and Manner” of elections in the hands of the several legislatures, but the question is whether the electors of a State can modify that right by ballot initiative.
It’s a simple but important question. The answer should be in hand no later than the end of May.
It is a Herculean accomplishment for an appellate attorney to have a case accepted at the United States Supreme Court. After all, they take only about 75 cases per cycle out of more than 10,000 petitions requesting that they take a case. That’s a 99.3% rejection rate. Most attorneys go through their entire career never asking to have a case accepted at the Supreme Court. A tiny fraction of those applying ever have one accepted.
Thus, lightening struck two times in the first year of the Finney Law Firm when the Supreme Court accepted and reversed two cases from the 6th Circuit Court of Appeals for our clients.
As we addressed here, this year the Finney Law Firm had another petition before the U.S. Supreme Court, a First Amendment case addressing yard sign regulation in the City of Garfield Heights, Ohio. That case has virtually identical legal issues to another case before the Supreme Court, Reed v. Town of Gilbert that was heard on oral argument on January 12th of this year. A decision in the Reed case is expected before the end of April. Thus, we wrote in our certiorari petition to the Supreme Court that the Court should dispose of the Garfield Heights case in the same manner as the Reed case.
Friday, that petition was considered in conference by the US Supreme Court. And … all we can say with certainty is they did not deny the petition, as the Court does with 99% of the petitions before it. Rather, it appears to us at present that they agree with our argument that the case mirrors the Reed case, and is holding our petition pending disposition of that case.
If so, it’s not quite like having another oral argument at the Supreme Court as we did just after Easter of last year, but it is still an utterly remarkable accomplishment.
Congratulations to attorney Curt Hartman and our Public Interest law team on this great achievement, three times in two years!
In yet another important First Amendment decision emanating from the case of Susan B. Anthony List v. Driehaus, the 6th Circuit Court of Appeals today upheld the decision of the trial court granting summary judgment to the Susan B. Anthony List on the defamation claim portion of the litigation. That decision is here.
As background, the matter commenced with an administrative proceeding before the Ohio Elections Commission, where Congressional Candidate Steve Driehaus claimed that the Susan B. Anthony List made certain false statements in the 2010 Congressional election, namely that Driehaus supported legislation that included the spending of taxpayer monies for abortion.
The Susan B. Anthony List then proceeded into Federal Court, claiming that prosecution under Ohio’s “False Claims” statute violated its First and Fourteenth amendment rights. That matter eventually ascended to the United States Supreme Court on standing grounds, wherein Plaintiffs prevailed 9-0 and the matter is now proceeding before the 6th Circuit on appeal on the substantive issues.
But Driehaus filed a counterclaim in the Federal action, claiming that the statements of the Susan B. Anthony List defamed him. District Court Judge Timothy Black initially sided with Driehaus in allowing the defamation claim to proceed to trial, but later reversed himself and dismissed the case on Summary Judgment initiated by Susan B. Anthony List.
That ruling on the Summary Judgment was on appeal before the 6th Circuit and is the subject of today’s opinion wherein the 6th Circuit sustained the ruling, but on alternate grounds.
It is an important First Amendment and defamation law pronouncement from the 6th Circuit.
As part of our commitment to “Make a Difference” for our community, Finney Law Firm has become a corporate sponsor of the Empower U adult education series.
Empower U has existed for six years, and puts out some of the very best information to citizens who want to be informed in their civic and personal affairs. The classes are free to attendees.
Visit their web site and course offerings here.
High-income taxpayers need to be aware of the Net Investment Income Tax (NIIT). The NIIT is a tax passed in 2010 to help pay for the Affordable Care Act, a.k.a. ObamaCare. Below is a summary of the NIIT, and a few planning opportunities to consider to avoid/minimize NIIT.
The NIIT applies at a rate of 3.8% to certain net investment income of individuals, estates, and trusts that have income above certain thresholds. The NIIT went into effect for tax years beginning on or after January 1, 2013.
Individuals will owe the tax if they have Net Investment Income and also have modified adjusted gross income over the following thresholds:
| Filing Status | Threshold Amount |
| Married filing jointly | $250,000 |
| Married filing separately | $125,000 |
| Single | $200,000 |
| Head of household (with qualifying person) | $200,000 |
| Qualifying widow(er) with dependent child | $250,000 |
At this time, the threshold amounts are not indexed for inflation.
In general, estates and trusts are subject to the NIIT if they have undistributed Net Investment Income and also have adjusted gross income over the dollar amount at which the highest tax bracket for an estate or trust begins (for tax year 2014, this threshold amount is $12,150).
In general, investment income includes, but is not limited to: interest, dividends, capital gains, rental and royalty income, non-qualified annuities, income from businesses involved in trading of financial instruments or commodities, and businesses that are passive activities to the taxpayer (meaning the taxpayer does not “materially participate” in the business). To calculate your Net Investment Income, your investment income is reduced by certain expenses properly allocable to the income.
To the extent that gains are not otherwise offset by capital losses, the following gains are examples of items taken into account in computing Net Investment Income: (i) gains from the sale of stocks, bonds, and mutual funds; (ii) capital gain distributions from mutual funds; (iii) gain from the sale of investment real estate (including gain from the sale of a second home that is not a primary residence); and (iv) gains from the sale of interests in partnerships and S corporations (to the extent the partner or shareholder was a passive owner).
The NIIT does not apply to any amount of gain on the sale of a personal residence that is excluded from gross income for regular income tax purposes.
In order to arrive at Net Investment Income, Gross Investment Income (items described in items 7-11 above) is reduced by deductions that are properly allocable to items of Gross Investment Income. Examples of deductions, a portion of which may be properly allocable to Gross Investment Income, include investment interest expense, investment advisory and brokerage fees, expenses related to rental and royalty income, tax preparation fees, fiduciary expenses (in the case of an estate or trust) and state and local income taxes.
Some planning opportunities to consider to help avoid/minimize the NIIT include: (i) receiving the purchase price from a sale of your closely held business or real estate over more than one year; (ii) generating losses to offset gains; (iii) renting property to your business; (iv) lending money to your business; and (v) take an active role in your closely held business.
The statute of limitations for a medical malpractice claim is one year. In other words, you will lose your right to seek compensation for medical malpractice if you fail to file your claim within the one-year period. While this is simple enough on its face, the right to recover on a medical malpractice claim often turns on precisely when that one-year statute begins to run. A recent case out of Ohio’s Fifth District Court of Appeals explains how Ohio courts determine this important date.
In Kelly v. Aultman Physician Center, Jaquayla Kelly sued a physician group for medical malpractice claiming that she suffered complications arising from the physicians’ negligent treatment. The physicians had placed a Mirena intrauterine device (“IUD”) in Kelly’s uterus for contraceptive purposes in June of 2008. Over the next 18 months, Kelly intermittently returned to the physicians complaining of abdominal pain. Eventually, in April of 2010, it was discovered that the IUD had pierced Kelly’s uterine cavity. As a result, Kelly underwent a total abdominal hysterectomy, removal of both ovaries and fallopian tubes, bilateral gutter abscess removal, appendectomy, and removal of multiple pelvic abscesses. Kelly then developed septic shock and multi-organ system failures, ultimately requiring her to spend four days on a ventilator in the intensive care unit and another two weeks in the hospital before she recovered.
In September of 2012, Kelly saw a legal advertisement on television advising viewers of complications related to the use of the Mirena IUD device. Kelly sought legal advice based on the commercial and her lawyers were able to obtain medical records documenting the alleged malpractice in early 2013. Kelly then filed her medical malpractice claim in March of 2013.
The trial court dismissed Kelly’s medical malpractice claim, finding that she filed the claim beyond the one-year statute of limitations period under R.C. 2305.113. On appeal, Kelly argued that the one-year statute of limitations did not begin to run until she acquired medical records containing evidence of the malpractice in early 2013. Thus, she claimed that the statute had not elapsed when she filed the claim in March of 2013.
The Fifth District Court of Appeals noted that the one-year period commences to run (a) when the patient discovers, or should have discovered, the injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later. The appellate court further noted that the Ohio Supreme Court previously held that under the discovery rule, a “cognizable event” triggers the running of the statutory time. A “cognizable event” is something that should alert a reasonable patient that an improper medical procedure, treatment or diagnosis has taken place. Constructive knowledge of facts, rather than actual knowledge of their significance, is enough to start the statute running. The Fifth District explained that “the statute of limitations in a medical malpractice case will be triggered even if a potential plaintiff has not uncovered all relevant facts to constitute her cause of action to trigger the running of the statute of limitations. Thus, the occurrence of a cognizable event makes it incumbent upon that individual to investigate his or her case completely.”
In applying this analysis to Kelly’s case, the court determined that the discovery of the complications caused by the IUD and the resulting major surgery in April of 2010 was the cognizable event that triggered the statute of limitations. According to the court, the events in April 2010, “should have given Kelly reason to believe or at least investigate her claim that malpractice may have been committed in the placement of the IUD or during her treatment of her complaints with the IUD.” Because Kelly filed her medical malpractice claim in 2013 (after the one-year statute expired in April 2011) the Fifth District affirmed the trial court’s dismissal of Kelly’s medical malpractice claim.
This case highlights the grave consequences that may befall a patient who delays pursuing a medical malpractice claim. A person injured by a physician’s malpractice must commence his or her lawsuit within one year of the date that person discovered, or should have discovered reason to believe that malpractice may have been committed. If you believe you may have suffered an injury as a result of medical malpractice it is imperative that you seek representation immediately. The process of obtaining medical records and an independent review of the records takes time, and generally must be done before a lawsuit can be commenced. Our litigation team can obtain the necessary information to evaluate your case, and will diligently seek compensation from negligent parties. Please do not hesitate to contact us if you have reason to believe you have suffered from medical malpractice.