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Category Archives: Business & Civil Litigation

Eminent Domain and Transportation/Utility Easements

Author By Casey A. JonesPosted on

Scenario:

You own a home or commercial property, and you receive a letter from the Department of Transportation, Duke Energy, or another utility provider seeking a temporary or permanent easement over your property for purposes of constructing a utility pole, water lines, traffic signals, etc.

Do you have to agree? What are your options?

The reality is that if a governmental or public utility company wants an easement over your property, they will – in almost every circumstance – get it, through litigation if all else fails. However, that does not mean that you have to agree to everything they are asking of or offering to you.

The easement sought may be a “taking” (on a temporary or permanent basis) of the right to use your property as you wish, the right to access certain areas of your property, or of parking spots for your customers. It could mean lengthy construction that may deter customers or make it difficult to see or access your business. Each of these situations have a value, tangible or otherwise, to you as the property owner.

Given the likelihood of the requesting entity eventually obtaining the easement (i.e., the right to use the property) that it seeks, via eminent domain proceedings or otherwise, attempting to fight the “taking” through litigation may or may not be the best option or strategy for you. If you have received one of these letters or “offers,” we would be happy to discuss your options and whether there are certain terms that we should focus on for purposes of negotiation. We have had great success with negotiating compensation (netting the client substantially more, even accounting for any legal fees) and/or addressing concerns over potential damage to the property, ensuring that the client is afforded adequate protections so that they will be made whole in such event, among other concerns.

Temporary or permanent easements can have a lasting impact on you, your property, and your business, and it is important to make sure you are covering your bases in negotiating reasonable and favorable terms, ensuring as much protection as possible, and yes – receiving adequate compensation. We understand this, as do the companies seeking the easement. They are generally receptive to negotiating the terms so that the parties can have an amicable agreement in place to allow the necessary improvements, while minimizing any adverse effects to the owners’ ability to use and prosper from their property. However, it helps to have an experienced attorney on your side to help advise you and present your negotiated terms in a manner most likely to be effective.

For assistance in assessing your options or negotiating easements, please contact Casey A. Jones, Esq. at [email protected] or (513) 943-5673.

Residential Foreclosures: The Procedural, Pre-suit Pitfalls

Author By Diana L. EmersonPosted on

Pursuing a residential foreclosure is not for the faint of heart. The foreclosure process is fraught with procedural pitfalls – many of which arise even before initiating the formal legal process in court.

This is especially true in the case of a residential mortgage foreclosure, where a borrower (“debtor”) has defaulted upon his or her mortgage payments and the mortgagee (“creditor”) is attempting to collect the entirety of the loan through a judicial sale of the debtor’s residential property.

The creditor must not file immediately upon the debtor’s defaulted payment. Instead, the creditor should understand what pre-suit obligations he or she may have by reviewing (1) the contractual requirements under the note and mortgage, (2) the statutory requirements under R.C. §1349.78, and (3) any regulatory requirements that may be applicable to the loan.

Failing to abide by any of these pre-suit requirements may be fatal to a foreclosure action.

Before initiating a formal foreclosure action, it is paramount that a creditor reviews the note and mortgage for any contractual pre-suit requirements. Although it is not common, some notes and mortgages require written notice of actual acceleration of amounts due in the event of default. Regardless of whether this provision is or is not included, reviewing the note and mortgage should be the first step any creditor takes towards pursuing a residential foreclosure.

After reviewing any contractual pre-suit requirements, a creditor must then review his or her statutory pre-suit requirements. Under §1349.78, a creditor is required to send a cure letter to the debtor if: (1) the debt is secured through a mortgage lien on the debtor’s residential real property, (2) the debt is not in the first mortgage position, and (3) the debt has been accelerated or is in default according to the terms of the promissory note. This letter must be sent at least thirty days before the initiation of a foreclosure action, and must include specific language outlined in R.C. §1349.78.

Depending upon the type of loan, there may also be regulatory pre-suit requirements.  These requirements are often applicable when the loan is backed by the federal government.

Once a creditor has completed these pre-suit requirements, they can then begin preparing the complaint and pursuing formal legal action against the debtor.

As demonstrated, foreclosure actions are procedurally complex – even before filing the formal suit against the debtor. Failure to abide by any of the above-mentioned requirements could result in the ultimate dismissal of the subsequent foreclosure action.

Rethinking Service of Process: Key Takeaways from Ohio Supreme Court’s Latest Decision on Proper Service

Author By Ashley L. DuckworthPosted on

In August 2024, the Ohio Supreme Court issued an opinion in Ackman et al. v. Mercy Health West Hospital, LLC, et al. reaffirming the principle that a party’s active participation in litigation does not waive the affirmative defense of insufficient service of process, provided the defense is properly raised. This decision, which builds upon and reinforces the earlier case of Gliozzo v. Univ. Urologists of Cleveland, Inc., could have significant implications on litigation strategy and assertion of affirmative defenses

The Case Background

Ackman arose out of a medical malpractice and wrongful death lawsuit filed against a doctor, his employer, a hospital, and Medicare. The doctor and employer responded with an answer asserting the affirmative defenses of insufficiency of process and insufficiency of service of process. Over two years later, they sought summary judgment, arguing that the case was not timely initiated because the doctor had not been served with the complaint. The plaintiff opposed, asserting that the doctor had waived the defense by actively participating in the litigation.

The Ohio Supreme Court, referencing its opinions in Gliozzo v. Univ. Urologists of Cleveland, Inc. and First Bank of Marietta v. Cline, clarified that a party does not waive the defense of insufficient service of process simply by participating in the litigation, as long as the defense is preserved in the pleadings.

The Court emphasized that it is the plaintiff’s responsibility to ensure proper service, and failure to do so according to the Civil Rules, especially in relation to statutes of limitations, can result in the case being dismissed, regardless of the defendant’s engagement in the litigation.

Potential Implications for Litigation Strategy

  1. Strategic Use of Service of Process Defenses and Litigation Tactics: Defendants can now assert with greater confidence a defense based on insufficient service, even after prolonged litigation. The ruling unequivocally establishes that active participation in the case does not automatically waive this defense, provided it is properly raised within the appropriate timeline. As part of their broader litigation strategy, defendants may strategically delay raising this defense knowing that failure to properly serve a complaint can later serve as a dispositive ground for dismissal.
  2. Increased Importance of Service of Process: This ruling underscores the critical importance of properly effectuating service and adhering to procedural rules and deadlines. Litigators must ensure that all potential affirmative defenses, notably insufficiency of service of process, are raised in the initial responsive pleadings. Plaintiffs must also be diligent in completing service within the prescribed timeframe to avoid dismissal on such grounds.
  3. Risk of Dismissal for Plaintiffs. For plaintiffs, this ruling serves as a reminder that the window for correcting service issues is narrow and high stakes, as failure to perfect service could result in the loss of an entire case. In this case, Ackman, service was not effectuated within the required time frame, and refiling would have been outside the statute of limitations, leading to the dismissal of the claim on summary judgment grounds with no opportunity to refile or correct the service. Litigators must be vigilant in ensuring proper service at the outset, particularly in complex or multi-party actions, to avoid the risk of dismissal and the permanent loss of the claim.

The Ackman’s Decision in the Evolving Landscape of Service of Process Law

This Ohio Supreme Court decision in Ackman significantly contributes to the ongoing discourse surrounding the service of process in Ohio. This ruling builds upon and extends prior case law, particularly in light of procedural challenges posed by the COVID-19 pandemic. A 2021 case, CUC Properties v. SmartLink Ventures, Inc., raised concerns regarding the validity of service when USPS return receipts included notations such as “Covid 19” or “C19.” In that case, the First District Court of Appeals determined that such notations failed to meet the requirements of Civ. R. 4.1 for valid service of process, stressing the need to adhere to procedural rules even amidst pandemic-related disruptions.

The CUC Properties decision highlights that while innovative solutions were necessary during the pandemic, courts cannot compromise due process protections. The recent Ackman ruling reinforces this principle, highlighting the consequences for failing to effectuate proper service, even when a party has otherwise participated in the litigation.  As the Ohio Supreme Court emphasized, certainty in litigation is paramount, and defendants are under no obligation to assist plaintiffs in fulfilling their duty to perfect service. This decision marks a critical point for litigators, urging them to ensure procedural rigor to avoid jeopardizing their cases due to service-related missteps.

For further discussion on the impact of COVID-19 on service of process, see a related article here: Hamilton County Court of Appeals rules that certified mail practice during pandemic is not effective service of process – Finney Law Firm.

Additionally, the full court opinion can be found here: Ackman v. Mercy Health West Hosp., L.L.C..

“Incorporation clauses” tighten written contracts to their written terms

Author By Julie M. GuginoPosted on

The elements of a contract include the following: an offer, an acceptance, contractual capacity, consideration (the bargained-for legal benefit or detriment), a manifestation of mutual assent, and legality of object and of consideration.  Kostelnik v. Helper (2002), 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St. 3d 366, 369, 575 N.E.2d 134.

Many contracts contain incorporation clauses.  Black’s Law Dictionary (5th Ed. 1979) defines “incorporation by reference” as the “method of making one document …become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein.”

Incorporation clauses are legal provisions referencing other documents or agreements, which are then considered part of the contract. This means that the terms and conditions of the referenced document are incorporated into the contract by reference. The purpose of the incorporation clause is to avoid the need to repeat the same information in multiple documents and to ensure that all parties are aware of the terms and conditions of the referenced document. Further, incorporation clauses are often provided in a Contract to preclude the addition of outside evidence to determine the terms of the Contract.

Almost all contracts that we sue on HAVE an incorporation clause that says two things: (a) before and during: All agreements between the parties are incorporated into this contract and there are no other agreements between the parties and (b) after: All amendments to this agreement must be in writing and signed by both parties or they are ineffective.  Contract integration calls for a prior understandings to be rejected in favor of a subsequent one containing a complete agreement. TRINOVA Corp. v. Pilkington Bros. P.L.C., 70 Ohio St.3d 271, 275 (1994).

An “integration clause is nothing more than the contract’s embodiment of the parol evidence rule, i.e., that matters occurring prior to or contemporaneous with the signing of a contract are merged into and superseded by the contract.” Rucker v. Everen Securities, Inc. (2002), 102 Ohio St.3d 1247, 2004-Ohio-3719, 811 N.E.2d 1141, ¶ 6. The rule prevents a party from introducing extrinsic evidence of negotiations occurring before or while the agreement was being finalized. Bellman v. American Internatl. Group, 113 Ohio St. 3d 323, ¶ 7 (2007).

There are exceptions to the law surrounding integration clauses and contracts. The parol evidence rule does not prohibit a party from introducing parol or extrinsic evidence for the purpose of proving fraudulent inducement. Drew v. Christopher Constr. Co., Inc. (1942), 140 Ohio St. 1, 23 Ohio Op. 185, 41 N.E.2d 1018, paragraph two of the syllabus. Specifically,

The principle which prohibits the application of the parol evidence rule in cases of fraud inducing the execution of a written contract * * * has been regarded as being as important and as resting on as sound a policy as the parol evidence rule itself. It has been said that if the courts were to hold, in an action on a written contract, that parol evidence should not be received as to false representations of fact made by the plaintiff, which induced the defendant to execute the contract,  they would in effect hold that the maxim that fraud vitiates every transaction is no longer the rule; and such a principle would in a short time break down every barrier which the law has erected against fraudulent dealing.

Fraud cannot be merged; hence the doctrine, which is merely only another form of expression of the parol evidence rule, that prior negotiations and conversations leading up to the formation of a written contract are merged therein, is not applicable to preclude the admission of parol or extrinsic evidence to prove that a written contract was induced by fraud. Annotation, Parol-Evidence Rule; Right to Show Fraud in Inducement or Execution of Written Contract (1928), 56 A.L.R. 13, 34-36.

“It was never intended that the parol evidence rule could be used as a shield to prevent the proof of fraud, or that a person could arrange to have an agreement which was obtained by him through fraud exercised upon the other contracting party reduced to writing and formally executed, and thereby deprive the courts of the power to prevent him from reaping the benefits of his deception or chicanery.” 37 American Jurisprudence 2d (1968) 621-622, Fraud and Deceit, Section 451.

The Ohio Supreme Court explained further in Galmish v. Cicchini, stating,

However, the parol evidence rule may not be avoided “by a fraudulent inducement claim which alleges that the inducement to sign the writing was a promise, the terms of which are directly contradicted by the signed writing. Accordingly, an oral agreement cannot be enforced in preference to a signed writing which pertains to exactly the same subject matter, yet has different terms.” Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St. 3d 265, 533 N.E.2d 325, paragraph three of the syllabus. In other words, “the parol evidence rule will not exclude evidence of fraud which induced the written contract. But, a fraudulent inducement case is not made out simply by alleging that a statement or agreement made prior to the contract is different from that which now appears in the written contract. Quite to the contrary, attempts to prove such contradictory assertions is exactly what the parol evidence rule was designed to prohibit.” Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court) (1989), 23 Akron L.Rev. 1, 7.

Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 29.

Thus, ” the rule excluding parol evidence of collateral promises to vary a written contract does not apply where such contract is induced by promises fraudulently made, with no intention  of keeping them * * *.” 37 American Jurisprudence 2d, supra, at 623, Section 452. However, the parol evidence rule does apply “to such promissory fraud if the evidence in question is offered to show a promise which contradicts an integrated written agreement. Unless the false promise is either independent of or consistent with the written instrument, evidence thereof is inadmissible.” Alling v. Universal Mfg. Corp. (1992), 5 Cal. App. 4th 1412, 1436, 7 Cal. Rptr. 2d 718, 734. Another common exception is that parol evidence will be permitted to clarify mistaken or ambiguous terms.  Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St. 3d 546, 555 (2009).

The parol evidence rule, however, does not bar evidence of a subsequent agreement, modification of an agreement, or waiver of an agreement by language or conduct. Paulus v. Beck Energy Corp., 7th Dist. No. 16 MO 0008, 2017-Ohio-5716, ¶ 41. Additionally, the parol evidence rule does not apply to the introduction of a subsequent agreement between one party and a third party to determine issues unrelated to the meaning of a contract term. Wells Fargo Bank, N.A. v. Horn, 142 Ohio St. 3d 416, 416 (2015).

Another exception is proof of a “condition precedent to a contract.” Beatley v. Knisley, 183 Ohio App.3d 356, 2009-Ohio-2229, 917 N.E.2d 280, ¶ 15 (10th Dist.). “[A] condition precedent is one that is to be performed before the agreement becomes effective. It calls for the happening of some event, or the performance of some act, after the terms of the contract have been agreed on, before the contract shall be binding on the parties” Mumaw v. W. & Southern Life Ins. Co., 97 Ohio St. 1, 11, 119 N.E. 132, 15 Ohio L. Rep. 455 (1917).

The purpose of the parol evidence rule (and thereby the purpose of integration clauses) is to protect the integrity of written contracts and prevent a party from introducing extrinsic evidence of negotiations occurring before or while the agreement was being finalized. See Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 2000 Ohio 7, 734 N.E.2d 782 (2000).

Thus, apart from these limited exceptions, incorporation clauses carry significant teeth with the courts; they are enforceable.

 

 

 

 

Private Cause of Action for Zoning Violations in Ohio

Author By J. Andrew GrayPosted on

Introduction

Is your neighbor violating a county, township, village, or city zoning ordinance? Have you reported the violation to your local government, but the local government refuses to take action? If your neighbor’s violation affects your property value, you may be able to sue directly and enforce the zoning code.

In this article, I will be discussing the right of private landowners to sue under and enforce county, township, village, and city zoning codes against nearby property owners or users, specifically those who are impacting the landowner’s property value or rights.

Background

Zoning ordinances, codes, and regulations are laws enacted by local governments, such as counties, townships, villages, and cities. Zoning laws are designed by local governments to control what a landowner may do with their property and how the property can by improved or changed. The most impactful form of zoning laws relate to land use; for example, a property zoned for a residential land use can only be used for homes, apartments, or condominiums, restricting the landowner from opening a commercial use like a store. Some zoning laws further restrict the intensity of land uses, stopping a landowner from building an apartment within a zone designated for single-family homes. Further, zoning laws can affect the size and placement of buildings, fences, and other improvements through maximum building height restrictions, minimum setback requirements, and minimum parking requirements.

As a general rule, most zoning ordinances, building and housing codes, and other local laws cannot be enforced by a private party. Typically, the local government is the only party with “standing” to enforce such a law. “Standing” is the legal term for the right of a person to file a lawsuit. However, some state laws create a private cause of action to stop or prevent a zoning violation, granting a landowner standing to sue a neighbor or adjoining landowner, as discussed below.

Statutes

Three Ohio statutes grant private landowners the right to sue for a neighbor’s violation of a zoning ordinance – R.C. 713.13 for landowners in cities and villages, R.C. 519.24 for townships, and R.C. 303.24 for counties. These statutes allow private landowners to sue for an injunction against neighbors acting in violation of the zoning statutes if the private landowner is or would be “especially damaged by such violation… .”[1] Injunctions are remedies which do not provide for damages, or monetary relief, but are court orders which directs a party to act or not act in a certain way. For example, if your neighbor is running a business out of their garage, an injunction could force the neighbor to close the business or move it to a different location.

Legal Standing to Sue

In order for a private landowner to have standing to sue for zoning violations, the statutes require that landowners be “especially damaged” by the zoning violation they are trying to enjoin. Ohio courts have fleshed out several avenues by which a landowner can show special damages from a zoning violation sufficient to grant standing to sue.

Lowered property values constitutes special damages; the landowner’s or an appraiser’s testimony that the landowner’s property value has diminished is sufficient to prove standing.[2] Additionally, Ohio courts have found that a landowner has established special damages from a zoning violation where the “character of the neighborhood would be affected in a different manner from other [similar] properties by the proposed use.”[3] Finally, a landowner has a special injury and standing to bring suit where the zoning violation interferes with the landowner’s use and enjoyment of their land.[4]

While R.C. 303.24, R.C. 519.24, and R.C. 713.13 grant a landowner the right to sue for a neighbor’s violation of a zoning statute, whether an injunction is granted is determined by the circumstances, including the costs of compliance with the law and the harm to the landowner created by the violation.[5]

Conclusion

If you need help with local zoning codes or real estate law in Ohio, wish to enforce a local zoning law as discussed in this article, or would like to learn more about zoning and other property codes, contact Chris Finney 513.943.6655, Jessica Gibson 513.943.5677, or J. Andrew Gray 513.943.6658 today.

[1] R.C. 303.24; R.C. 519.24; R.C. 713.13.

[2] Conkle v. S. Ohio Med. Center, 4th Dist. Scioto No. 04CA2973, 2005-Ohio-3965, ¶ 14.

[3] Ameigh v. Baycliffs Corp., 127 Ohio App.3d 254, 262, 712 N.E.2d 784 (6th Dist.1998), see also Verbillion v. Enon Sand & Gravel, LLC, 2021-Ohio-3850, 180 N.E.3d 638, ¶ 46-47, appeal not accepted for review 166 Ohio St.3d 1414, 2022-Ohio-554, 181 N.E.3d 1209.

[4] Miller v. W Carrollton, 91 Ohio App.3d 291, 296, 632 N.E.2d 582 (2d Dist.1993).

[5] Garcia v. Gillette, 11th Dist. Ashtabula No. 2013-A-0015, 2014-Ohio-1868, ¶ 29.

May I “stay” collections of a judgment pending the outcome of an appeal?

Author By Christopher P. FinneyPosted on

As clients “play out” the path of their litigation, they may plan on delaying the consequences of a possible loss at trial court for a year or two by “appealing all the way to the Supreme Court.”  Comfortable that they can postpone payment of any possible judgment 24 to 36 months into the future, they continue with the path of defending a suit, they have figured out — before we ever speak about it.

“Stay” typically requires a supersedeas bond; otherwise judgment collections may proceed

However, it’s not that simple.  As a fairly firm proposition of law, there is no “stay of execution” pending the outcome of an appeal unless and until the party against whom judgment is obtained has posed a supersedeas bond in the full amount of the “cumulative total for all claims covered by the final order.” R.C. §2505.09.

… 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 involved, except that the bond shall not exceed fifty million dollars excluding interest and costs, as directed by the court that rendered the final order, judgment, or decree that is sought to be superseded or by the court to which the appeal is taken.

In other words, after a party to a case obtains a monetary judgment against another party (typically, but not always, a plaintiff obtains a judgment against a defendant), absent a “stay” issued by the Court, the party holding the judgment may pursue collections against the party against whom judgment has been rendered while the appeal is being briefed, argued and decided.  This means that the prevailing party may pursue foreclosure against real property, garnishment of bank accounts, attachment of wages and other collections actions, notwithstanding the slow process of a pending appeal that the opposing party believes will reverse the trial court judgment.

How a supersedeas bond is obtained

The bond can be issued by a private surety, such as an insurance company.  But the insurance company wants to take zero risk in the issuance of that bond, so they will do so only upon posting of proper security such as cash, accounts containing stocks and bonds, or real estate with sufficient equity.  And the outcome of this is that the eventual bankruptcy of the losing party, hiding of assets, dissipation of assets, death of the losing party, and other intervening events will not impair the collectability of the judgment by the prevailing party.

Posting of real estate as security

Another avenue to a “stay” order is the conveyance of property of adequate value with the Clerk of Courts, R.C. § 2505.11.  And, under 2505.12, exempt from the bond-posting provisions are (i) fiduciaries who already have posted bonds, with surety in accordance with law, (ii) the state of Ohio and its political subdivisions, and (iii) public officers of the state and its political subdivisions who were sued only in their official capacity.

How it really plays out

How does this, then, typically play out?  First, I find that losing defendants don’t just want to “write a check” to pay the judgment.  Rather, they ignore it until collections actions are taken.  Second, I have found that losing parties willfully ignore the plain language of Revised Code §2505.09 and ask for a bond amount less than the “cumulative total for all claims covered by the final order.”  This request, in our experience, is routinely denied.

Then, there are circumstances in which the losing party simply can’t pay the judgment amount and therefore also can’t post a bond in that amount.  In that circumstance, the losing defendant has the option to declare bankruptcy.  In other circumstances, the losing party has no identifiable assets, but he must honestly submit to a judgment debtor examination and tell the prevailing party’s attorney the location of his assets.  It is a bad idea — one we routinely reject — for a losing party to transfer assets to avoid collections upon loss in litigation.  What this means, for example, is moving around assets for the purpose of avoiding the prevailing party from collecting is as bad of an idea as it is appealing.

So, when Gibson Bakery sued Oberlin College for defamation and obtained a $25 million judgment, the Judged ordered a stay of execution pending appeal only upon the posting of a $36 million bond.  Last week, a $1.8 billion judgment was rendered against the National Association of Realtors and two other defendants.  Because the matter litigated is under the Sherman Antitrust Act, the damages are to be tripled, likely bringing the judgment amount to $5.4 billion.  One of the Defendants is a Berkshire-Hathaway company, which certainly has the cash sitting around for that, but will they post that for just one of their subsidiaries and to pay the freight for all of the defendants?  For most parties, including the other two defendants, they simply would not have the assets available to them to post a supersedeas bond of that magnitude.

As litigants want to be on the “offense” in collections, as the defense — against a diligent prevailing party — is no fun and there are few places to turn to avoid “paying up.”

Conclusion

In your business affairs as well as your litigation, be prepared to accept the accept the consequences of your decisions.  In litigation, those consequences can be both unexpected and expensive.  If your plan is to postpone collections until appeals are exhausted, that may mean posting a bond for the value of the judgment.

Big Finney Law Firm “Tree Case” win upheld by 1st District Court of Appeals

Author By Christopher P. FinneyPosted on

On November 3, 2023, we won a big victory for our client, a humble carpenter who lives in Clifton, at the First District Court of Appeals of Ohio.  In the decision, the Appeals Court affirmed a verdict in our client’s favor for the removal of a large tree from his property without his permission.

At trial, our firm not only proved the trespass and actual damages but also proved malice by the Defendant by “clear and convincing evidence,” entitling the client to receive as part of his award reasonable attorneys fees and expenses for taking the case to trial.

A copy of Friday’s appellate court decision is here.

Background

We regularly counsel our clients on the time, expense and sometimes disappointing outcomes in civil litigation.  It is a major part of the challenges our firm and our clients face in court.  And typically small dollar cases — regardless of how just the cause may be — are just not worth pursuing.

Nonetheless,  in 2019 we met with client William Chapel at his property and discussed the removal of his 50+ foot black walnut tree by his neighbor without permission.  He came home from work one day, and the tree was gone, it was taken down, along with an old wood screening fence that had been on his property, all without his permission.  We believed in the case and in the client, so we accepted the case.

Scorched earth strategy of defendants

It is typical in litigation that opposing counsel does not intend to win on the merits of their case, but rather by running out the clock and running the bill to heights that the amount in dispute will not justify, hoping our firm and our clients will “just go away.”   Well, we never “go away.”

Victory at trial court

We here wrote about the $222,836.53 verdict that was rendered in our client’s favor last December before the trial court for the removal of that tree, the majority of that verdict being punitive damages, attorneys fees and out-of-pocket expenses associated with the exhaustive litigation path chosen by the Defendants.

Conclusion

In addition to the $222,836.53 award at the trial court, the Court indicated that attorneys fees and expenses incurred in collections matters and in appellate work would supplement the award, so this week we will be preparing a supplemental fee application,  hoping to finalize the significant win for our client, and the delivery of justice to our community.

Thanks to our able and persistent team of Christopher Finney, Julie Gugino, and Jessica Gibson who saw this case through to the end.

Protective Orders –> No thank you (or at least be cautious)

Author By Christopher P. FinneyPosted on

In litigation, parties may exchange thousands of documents, some of which may contain sensitive information about personal matters, privileged documents and documents containing sensitive financial and tax information.  As a result, many times parties want to enter a “Protective Order” from the Court that allows for such documents to be produced with varying levels of agreed confidentiality protection.  In this blog entry, we explore (a) the true and fundamental need for such protections (usually most of it it is just a waste of time) and (b) some of the abuses we have experienced under such Orders.

In short, (a) they should not be entered casually — but carefully and thoughtfully, (b) there needs to be escape or corrective clauses for inappropriate unnecessary designation of documents as confidential, and (c) there should be penalties on counsel for abusing the Protective Order privileges.

What is a Protective Order?

Typically, a Protective Order allows one party or the other to designate documents as “confidential,” and those documents so designated are protected from public release.  Further, when sharing them with expert witnesses and other third parties (such as a technical consultant for organizing electronic discovery).  That makes sense.  The parties should not post on social media or circulate to competitors truly confidential business plans, financial documents and tax documents.

That’s fine as far as it goes, but then the Protective Order typically provides that filing any such document with the Court must be under seal.  To me, this runs contrary to the principle that trials in the U.S.A are to be held in the public.  Shielding the truth from public view should be done with caution, sparingly.  But beyond that is the hassle of carefully making sure you follow the correct procedures.  It drives up the cost of litigation, and the penalties for making an innocent mistake.

And then, beyond all of those protections, are production “for attorney eyes only.”  Huh?  We can’t share certain documents with our clients?  Ridiculous in 99.997% of instances.  What is so confidential that our own clients can’t be part of information sharing to develop their claims or defenses?  Really?

Further many times Protective Orders contain “claw back” provisions wherein documents that are privileged from disclosure (such as attorney-client or spousal privilege documents) can be (or must be) returned as if unseen, and copies not retained.

Digging your own grave.

There is nothing so deadly in the law as concessions and admissions you yourself make, and a Protective Order is of the type that the Judge will say: “Well, you agreed to this.”  Thus, a Protective Order is a grave you have dug for yourself.  Sign on with great caution.

Judges hate discovery disputes.

Judges are busy with other things, criminal trials, search warrants, temporary restraining orders, and on and on.  The rules of discovery are fairly clear and the parties should play fair.  But they don’t.  And then we must burden a Judge — who might have a murder trial in front of us — with playground disputes about non-production. It’s tedious and unproductive, but sometimes necessary.  But this is complicated when a party thoughtlessly agrees to handle documents in a certain way that later becomes impractical or burdensome.  Asking the Judge to unwind a dispute over the designation and use of documents as defined and prescribed by a Protective Order is more burden for the Court, a burden with which they don’t want to deal, and may simply refuse to address.

Judges are mixed on requiring Protective Orders.

As a result, I generally oppose the use of most protective orders — it just increases the cost and time for litigation.  We are talking tens of thousands of wasted dollars and years of wasted time. So, the request for a Protective Order then ends up before a Judge.

In one active case I have now, we are litigating against a “pay lake” operator.  He has five small lakes, and charges the public to fish in them, and charges for works, beer, coke and chips.  That’s about the level of privacy and complexity of his finances.  “He sells worms, for God’s sake, I say.”  He insisted that his financials and tax returns be disclosed under a Protective Order.  Huh?  What is secret and confidential about selling worms and renting the right to fish in stocked lates at $15 per day?  But sure enough, the issue of a protective order was pursued through the Magistrate and further into the Common Pleas Court with Objections to Magistrate’s decision – attorneys can and will fight over everything.  Fortunately, in this already expensive litigation, the Court rejected the requirement for a Protective Order, allowing us to access the documents sought without restrictions.

In a second case, a personal injury case against a major public utility, the utility sought and obtained (and as discussed below, abused) the Protective Order, complicating already overly-expensive litigation.

Discovery abuse.

Then, once a Protective Order is in place, invariably opposing counsel will abuse his privileges under the Protective Order:

  • In the case of the public utility defendant noted above, they designated 1,500 pages of materials that they themselves previously had posted on line.
  • In another case, the Defendants marked more than 200 entirely blank pages as “Confidential.”
  • In a recent case, the Protective Order had been entered that included the right to designate hyper-sensitive documents as “For Attorneys Eyes Only.”  The case was about residential (Single Family Home) property management.  The opposing attorney designated Quick Books records of the financials of the properties as “for attorneys eyes only.”  Now, this was ridiculous.  What is so hyper-sensitive that we could not share property management financial details with our own client?  It was ridiculous.

Confusion about use at trial.

Then, the funniest thing we had recently in a case with a Protective Order: The Order allowed use of the documents marked as “confidential” for “litigation purposes,” which to me means using them as Exhibits at depositions and at trial.

Well, opposing counsel threw a fit about me using a document — a second purchase contract that came after the one being contested at trial — as an Exhibit at Trial.  Huh?  If that’s not “litigation purposes,” I don’t know what is.

Well, the Judge agreed with me and we were able to use it at trial, but not after significant (15+ minutes) or discussion before the Judge and the Judge slobbering all over himself apologizing that this super-secret document had to come into the record.

One more thing to argue about.

The point of this blog entry is that I don’t like to use Protective Orders and they only should be requested — and permission granted — when they really are needed.  Otherwise, they become one more thing the client pays to draft, negotiate and then endlessly argue over as the litigation progresses.

Just say “no.”

 

 

Judge Robert Ruehlman

The case of the $222,836.53 tree — yet another win, this one with punitive damages and attorneys fees!

Author By Christopher P. FinneyPosted on

Today brought to a Finney Law Firm client a judgment for $222,836.53 for trespass onto his residential property and the removal of a tree and a portion of a wooden fence.

It’s been a big week for the Finney Law Firm in many ways, closing out yet another record year for the law firm.  And today we got our second huge, years-in-the-works victory in one week.  The Cincinnati/Alarms Registration case (final entry linked here) was five years in the making and this new “tree” case took 39 months to bring to conclusion.

The win was significant for several reasons.  First, this was the last civil trial for Hamilton County, Ohio Common Pleas Judge Judge Robert Ruehlman, the longest-ever serving Judge on the Hamilton County Common Pleas bench.  He retires from the bench January 2, 2023.    Second, awards of punitive damages and attorneys fees are fairly uncommon (either cases settle or the requisite legal standard is not met for punitive damages).  But, the Judge ruled that such standard for proof of the case and an award of attorneys fees was met by Plaintiffs, and was met by “clear and convincing evidence.”

A copy of this “tree case” order is here.  Congratulations to our client, William Chapel, and to our team consisting of Christopher Finney, Julie Gugino, Jessica Gibson and Kimi Richards, along with our expert witnesses and A/V consultant (Kevin Lewis and Media Stew!) for a wonderfully executed case from intake and filing to trial and judgment.

Now on to collections!

 

Judge Wende Cross issues Order granting final Class Action Settlement in Cincinnati Alarms Case

Author By Christopher P. FinneyPosted on

A big win was had today in Court for two classes of Cincinnati taxpayers.

After more than four years of litigation — through Common Pleas Court, the Court of Appeals, an attempt for Ohio Supreme Court review and back — today Hamilton County Common Pleas Court Judge Wende Cross signed the Order Approving Class Action Settlement in the case of Andrew White et al. v. City of Cincinnati, Ohio, Hamilton County, Ohio Common Pleas Court Case No. A1804206 (known as the “Alarms Tax Case”).

Background

The Order established a common fund of $3,277,802.25 from illegal alarms registration fees  (NOTE: not false alarm fees) collected by the City of Cincinnati from 2014 to present.  That nearly $3.3 million fund is to pay refunds to those who paid the illegal tax and attorneys fees incurred in the litigation.  The litigation in this matter was led by Maurice Thompson of the 1851 Center for Constitutional Law.  Finney Law Firm and attorneys Christopher Finney and Julie Gugino served as co-counsel.

As we explain in more detail here, Judge Cross certified two classes to receive refunds (a) residential and (b) non-residential payors of the Cincinnati alarms tax.  The City charged residential alarm-system-owners $50 per year to register their systems and commercial owners $100 per year to register their systems.  Last fall, the 1st District Court of Appeals unanimously ruled the tax illegal under Ohio law and unconstitutional, overruling a trial Court ruling on the same subject.  In March of this year, the Ohio Supreme Court preserved that victory for Cincinnati property owners when it refused to accept discretionary review of the case.

Making a difference

“Making a difference” for our clients is the mission of Finney Law Firm and its capable attorneys.  In this case, we successfully enjoined the enforcement of the illegal tax and achieved more than seven years of refunds for payors.  The victory was won under both state law (the assessment was an illegal tax) and the U.S. Constitution (the tax was an infringement on free speech rights by preventing or making more difficult reporting of crimes to the police).

How to get your refund

If you were a Cincinnati alarm registration payor at any time from 2014 to today, you should already have received a postcard, email or voicemail about the refund.  If we have a current address for you (i.e., you received the postcard), you should be receiving a refund by by February 21, 2023.

If you have not gotten a mailed postcard, please make sure we have your name and current address (and the address for which the alarm tax was paid) (will post information shortly of where to write with this info).  Write to [email protected] with this information: your name, the payor’s name, your address, and the property for which the alarm registration fee was paid.

 

 

 

 

 

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