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Category Archives: Business & Civil Litigation

Knowing who to sue: Pre-Suit Discovery vs. John Doe Defendants in Ohio

Author By Casey A. JonesPosted on

It’s easy to assume that, in order to file a lawsuit, you must necessarily know who you are suing and what you are suing for. This is only partially true.

It is actually not at all uncommon for a party to know that they have been wronged in some manner and know that they have viable legal claims as a result of that wrong, yet not know the identity of the party from whom to seek redress. When this situation arises, there are a couple of options.

Doe Defendants

Civ.R. 15(D) states:

“When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words ‘name unknown,’ and a copy thereof must be served personally upon the defendant.”

These unknown defendants will often be identified as “John Doe” or “Jane Doe.”

Petition for Pre-Suit Discovery

On the other hand, Ohio law provides with a process by which they can file a “Petition for Discovery,” which is filed like a complaint but, practically speaking, is more akin to a motion asking the court to order another party to produce certain documents or divulge certain information in response to an interrogatory.

The pre-suit discovery process is governed by R.C. 2317.48, which states:

When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought.

Ohio courts have clarified that “R.C. 2317.48 is available to obtain facts required for pleading, not to obtain evidence for purposes of proof.” Marsalis v. Wilson, 149 Ohio App. 3d 637, 642 (2d Dist. 2002). In other words, this is not a free pass for a party to determine whether he or she has a claim or weigh how strong it may be; it is a limited opportunity to ascertain facts that must be alleged in a proper pleading relative to a claim for which the party already has a good faith basis. In nearly every instance, the missing information being sought is the identity of a potential party.

Civ.R. 34(D) further governs this process with regard to requests for documentation. See generally Huge v. Ford Motor Co., 155 Ohio App. 3d 730 (2004). “R.C. 2317.48 and Civ.R. 34(D) work in tandem to govern discovery actions.” Id., at 734. In order to take advantage of this Rule, the party must first make reasonable efforts to obtain the discovery voluntarily. The petition must include:

(a) A statement of the subject matter of the petitioner’s potential cause of action and the petitioner’s interest in the potential cause of action;

(b) A statement of the efforts made by the petitioner to obtain voluntarily the information from the person from whom the discovery is sought;

(c) A statement or description of the information sought to be discovered with reasonable particularity;

(d) The names and addresses, if known, of any person the petitioner expects will be an adverse party in the potential action;

(e) A request that the court issue an order authorizing the petitioner to obtain the discovery.

Civ.R. 34(D)(1). The court will issue an order for the discovery if it finds:

(a) The discovery is necessary to ascertain the identity of a potential adverse party;

(b) The petitioner is otherwise unable to bring the contemplated action;

(c) The petitioner made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.

Civ.R. 34(D)(3). Note that, under Civ.R. 34(D), that the discovery is needed “to ascertain the identity of a potentially adverse party” is not just a practical effect but, rather, a requirement of the Rule.

Which is best?

If a party can reasonably identify and is merely missing the name of the adverse party or parties or believes they can obtain information from the unnamed parties via discovery once the action is filed, naming a “Doe Defendant” under Civ.R. 15(D) is likely the most efficient route. However, if additional information or documentation is necessary to even begin to identify the adverse party, an action for pre-suit discovery may be warranted.

Statute of Limitations Implications

One common misconception is that an action for pre-suit discovery under R.C. 2317.48 and/or Civ.R. 34(D) or, alternatively, naming a Doe Defendant somehow preserves or tolls the statute of limitations until the party can be identified and the ultimate action (or amended action) brought against them. This is not the case. In 2010, the Supreme Court of Ohio issued its decision in Erwin v. Bryan, holding that it could not, “through a court rule, alter the General Assembly’s policy preferences on matters of substantive law, and Civ.R. 15(D) therefore may not be construed to extend the statute of limitations beyond the time period established by the General Assembly.” 125 Ohio St. 3d 519, 525 (2010). “Civ.R. 15(D) does not authorize a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed.” Id., at 526.

While Erwin does not make as explicit of a finding as to R.C. 2317.48 and/or Civ.R. 34(D), its inclusion of these rules in the same discussion, as well as the nature of such rules (contemplating an action exclusively for discovery and not naming the adverse party or parties, as they cannot be ascertained without the same) strongly suggests an identical result. Indeed, the statute of limitations is intended to encourage parties to be diligent in investigating their claims and, if the identity of an adverse party is in question, the spirit (and, likely, the letter) of the law would require such party to initiate a discovery action with sufficient time to obtain the discovery and then bring the ultimate action.

 

 

Pins and needles

Author By Christopher P. FinneyPosted on

In pre-litigation and litigation, we frequently have clients who are understandably anxious to resolve their disputes.  They typically are concerned with the open-ended liability that can result from a claimed breach of real estate contract or a business deal gone bad — and the legal fees that inevitably will come from them.  And as a result of that unknown exposure, they want swift finality to the matter.  They are constantly on pins and needles to close this small chapter of their life.

A good settlement versus a quick settlement

Unfortunately, getting a good resolution frequently is inconsistent with the desire for a quick resolution.  Patience, many times, is a virtue that pays good dividends.  This does not mean we typically recommend litigation as a solution.  Litigation is lengthy, unpredictable and terribly expensive, and is accompanied by the same sense of unease until that long course to resolution.  But the other side can sense when you are anxious to put a dispute behind you — attorneys are especially good at dragging things out to achieve a more favorable resolution than the courts would provide to them precisely because of that desire of the opposing party for quick closure.  Showing that insistence on a quick and final settlement can drive up the cost of a resolution exponentially.  So, slow down.  Relax.

Why the anxiety?

The nature of our legal system is that we frequently need to give “lawyerly” answers to what seem to be simple questions:

  • Am I liable?
  • What is the extent of my financial exposure?

These vague answers are so because many times the answer from a review of the documents and a review of the correspondence and oral exchanges leave a conclusion unclear.  Many times — most times — clients don’t tell us the whole story.  Sometimes, we are wrong.  And even if we as attorneys can give a clear anticipated outcome and we are correct in our analysis, the Judge (or Arbitrator) may in the end not agree with us.

We read the documents and do our best to understand the facts, and conclude: “Your exposure should be limited to ‘X,'” but the Judge may later conclude it is “X” times 3.5.  And that is so because we can be wrong or the Judge can decide the case incorrectly (in our opinion).  Further, we conclude “the fees and expenses to get to that conclusion should be ‘Y,'” but opposing counsel and judges can make the odyssey much more expensive.

Perhaps my bedside manner makes clients uneasy because I do have and share “worst case scenario” war stories where liability and legal fees well exceed that which should reasonably be anticipated.  But for every one of those legal calamities, we have 20 or 40 cases that resolve quickly and fairly, if not inexpensively.

So, relax

I recently was consulted by a physician who had contracted to purchase a small investment property, and he had decided he contractually  agreed to pay too much and wanted to back out of the deal.  He was more or less crawling out of his skin to have resolution of the matter — and his total exposure if he was in fact found to be in breach of the contract was on the order of maybe $20,000.  And this was the worst case for him.

But he was anxious, and called me four or five times in a two-day period stressing about this “what if” and that “maybe” scenario.

I asked him: “You are a doctor.  What kind of doctor?”  He responded: “I am an oncologist.”  So I said: “OK, let me understand.  Every day you have to tell someone — and their family — that they or their loved one has cancer.  Is that right?”  He says: “Correct.”  And, I further inquired: “Yet you are stressed about a simple contract claim that might cost you $10,000 or $20,000 if you ultimately are sued, is that right?”  “That’s right,” he responds,  “But I see your point.”

Another case I have my client terminated a residential purchase contract because the strict terms of the financing contingency were not met — the bank had a higher interest rate and a higher down payment than the contingency contemplated. The buyer sent a contract termination letter and the seller responded with a rejection of that — but then just sat and sat and did not place the house back on the market — at least not right away.

I explained to the client that “these almost all work themselves out without litigation.”  Further, he has an appraisal of the property at the purchase price.  If that is the value that would be adopted by a court in litigation, then the seller has no damages anyway.  Further, if they refuse to place the home back on the market, the seller will have violated his duty to “mitigate his damages,” weakening the seller’s claim in court.

Still, the client and his wife are anxious, concerned about the many possible outcomes to the suit.  And we don’t as of this writing know exactly how it will turn out.

Conclusion 

No one has cancer.  No one lost an arm or an eye.  No one is going to die.  You are not going to end up in bankruptcy court as a result of this contract claim.  Be patient and allow the other side to work out their “mad” and realize the cost and time that litigation will take.  It will all be OK.  That does not mean fighting until the last breath and last dollar is the best strategy, but being somewhat patient as a settlement works its way out can be advisable.

As to code enforcement and nuisance actions we strongly recommend “comply”

Author By Christopher P. FinneyPosted on

Friday, our founder Christopher Finney was featured on a panel presentation before the Cincinnati Bar Association on “Code Enforcement from the Municipal Perspective.”  The panel included Erica Faaborg, Deputy City Solicitor of Cincinnati, Kathy Ryan of Wood and Lamping, and Stacey Purcell of Legal Aid of Cincinnati.

The panel discussion covered a wide range of code enforcement and nuisance actions, many of which fall outside the scope of what Finney Law Firm typically would handle such as slum landlords without heat and tenant hoarding.

Our primary experience falls in two areas: (i) Chronic and acute health and building code violations, with the municipality typically seeking an injunction and a fine against the property owner and (ii) nuisance actions seeking either the forced closure of the nuisance business (usually either a motel or a liquor establishment) or the appointment of a receiver to manage, fix up and sell a property.

In both instances, in nearly every jurisdiction in question, the municipality is simply seeking compliance.  In most instances, they neither want your money nor control of your property. They want the nuisance conduct (underage drinking, violence, drug dealing, prostitution) stopped or the the property fixed up.  Period.

As three starting points, commonly I advise:

  • Maybe our client has a legitimate defense, the nuisance does not exist, is not as exaggerated as the municipality claims, or we have an over-zealous building inspector picking a fight with a single property owner. But (a) this usually can be worked out (as their objective typically is compliance, we universally find they are clear and reasonable when asked to be) and (b) the Judge who will hear the case lives in our community and typically wants zealous code enforcement — we all want to live in a nice community, right?  As to judicial matters, these are “police powers” enforcement and the Judge almost never wants to second guess the City in a code issue. It will be very hard to overcome the presumption that the City is being reasonable in its enforcement.
  • Even if the client is right, the risk of lost and cost of litigation pales in comparison to the cost of fixing up the property or abating the nuisance.
  • And, worst of all, if the City is victorious in seeking the appointment of a receiver for your property, it’s “game over” for the property owner in terms of preserving any value from — any equity in — the property.  Why? Because the lawyers and receiver take over the property, repair it at your expense, charge their professional fees to the project and pay themselves from the income and proceeds, and sell the property quickly for what they see as a fair price to a new operator.  You can kiss your years-developed, hard-earned equity goodbye.  In the case of liquor establishments, if you are ordered closed, your millions of dollars in capital to develop and promote an establishment are out the window if you are forcibly shut down.

As a result, we strongly recommend working with building officials toward a reasonable compromise for enforcement — it can end the dispute, it improves the property or its operation, and it makes our communities stronger.  More importantly, in in the long measure, it saves the client money by investing in his property or business rather than running up a huge — and likely non-productive — legal tab.

Having said all of this — and we do counsel compliance and cooperation — a business owner or property owner does not need to just “lay down” for expensive and over-the-top enforcement.  Our firm has fought and won amazing battles against State and local governments, all the way to the US Supreme Court.  We have successfully challenged entire legislative schemes, including pre-sale and pre-leasing inspections, which are a constitutional overreach, in multiple jurisdictions.  Our firm has made a name for itself fighting and winning against bad government actors.  Our tools include the US and State Constitutions, state statute, the State of Ohio taxpayer statutes against both cities and county commissions, Open Meetings laws, Public Records laws, and other statutory avenues.  But before launching into these battles, we want to make sure we are positioned to win and that the client appreciates the costs and risks for undertaking these fights.

Today’s NYT: Insurance coverage, “You’ve got to provide notice early and often”

Author By Christopher P. FinneyPosted on

Today’s New York Times has an instructive tale in insurance coverage in a high-profile U.S. Supreme Court case.  There, Harvard University is embroiled in expensive and protracted litigation over its affirmative action policies.

For such litigation, it had an initial $2.5 million deductible under its primary carrier, and then $25 million in primary coverage.  It however, failed to notify its “excess coverage” carrier, which provided an additional $15 million in coverage.  Because the litigation lasted so long and cost so much, that failure to timely notify the carrier — a policy requisite — it may have deprived itself of that needed $15 million in coverage.

The lesson, as quoted in the article, is, as to coverage: “you’ve got to provide notice early and often.”  Our position is: “When in doubt, notify.” (Clients are rightly concerned that notice causes increased rates and/or cancelation.  Our experience is different: If you are an overall responsible insured, even with occasional claims, even meritorious claims, it should not impact rates or coverages, or if so not greatly.)

The matter is pending in court, and in the hallowed halls at Harvard the question of whether someone is going to lose their job is open as well.

Our favorite Courts reporter — really focused on the US Supreme Court — Alan Liptak, brings us this report.

Julie M. Gugino

“Perfect” legal solution to getting out of property co-ownership in Ohio

Author By Julie M. GuginoPosted on

Legal disputes are rarely cut-and-dried to the point that the other party is without any legal defense to the action.  It seems there is always something about which to argue (read here, for example).  But it certainly seems to us — by reading the statute and by using it — that a statutory partition action in Ohio (O.R.C. Chapter 5307) is just such a “perfect” solution.

Two or more parties own property; one or more parties wants “out”

In this case, the statute addresses the issue where two or more parties own real property together but cannot agree if or when to sell it.

We are not addressing multiple shareholders in a corporation that owns real property or co-members of an LLC that own real property, but two or more parties named as grantees in a deed who own property together (known in the law as co-tenants).  Those shareholder or member disputes are handled in another manner.

Perfect power of partition

In short, in a partition action, one party can force the judicial sale of the property to the highest bidder with the net proceeds divided among the co-owners (the parties may argue, and this firm has argued about proper adjustments to the distribution of net proceeds).  There is no defense to the action although the process can take time as the Court permits discovery over the course of the partition proceedings.  However, the right to partition of jointly owned property is statutory – if one party brings the action, the property will ultimately be judicially sold.

How to proceed to partition

Thus, if you own property jointly in Ohio and you want to liquidate your interest (for any reason at all or for no real reason at all), but the other party or parties do not wish to sell what are your options?

For this situation, let’s assume two things:

  • The co-owners are not married as that would be handled in Domestic Relations Court.
  • There is no written agreement, what we call a co-tenancy agreement (see here), whereby the parties have established in writing how they will handle disagreements between them as to how the property will be held and disposed.  In that case, the agreement likely will control.

Then, what options do you have to resolve differences over the ownership and disposition of jointly owned real estate? The answer lies in an action in partition.

What is partition?

A real estate partition is a formal legal proceeding through which a joint owner of real estate can ask the court to split the property.   An “action for partition is equitable in nature, but it is controlled by statute.”  McGill v. Roush, 87 Ohio App.3d 66, 79, 621 N.E.2d 865 (2d Dist. 1993). A Partition Action is a lawsuit which existed at the common law for the purpose of passing down family farms.[1] When the heirs could not agree on how to run the farm together, one or more could commence a partition action, asking the court to fairly divide the farm between the heirs. Partition of the property itself is favored over sale and division of proceeds, however a property may be sold if it can be shown that it cannot be divided without manifest injury.[2]

Sale if property cannot reasonably be divided

Thus, a party can ask that the property be sold if it is determined that it cannot be divided. Certainly, this is the usual case for typical residential properties today. In this situation, the Court will appoint a commissioner or commissioners under O.R.C. § 5307.09.  When the commissioner(s) are of the opinion that the estate “cannot be divided without manifest injury to its value” they will provide a “just valuation of the estate” to the Court. One or more of the parties can elect to take the estate at the appraised value and pay to the other parties their proportion of the same. Alternatively, if neither party desires to purchase the property or cannot agree on the proportionate purchase of the same, the property will be sold at auction to the highest bidder.  Often, cases are resolved and settled among the parties prior to this occurring.

Under O.R.C. §5307.07, when partition of more than one tract is demanded, the Court will set off to each interested party its proper proportion in each of the several tracts. Thus, when multiple parcels of land are owned jointly, the separate parcels can be conveyed to separate owners so that each owner will have total control over their now separately owned parcel.

If a property was acquired upon someone’s death, a partition cannot be ordered within one year from the date of the death of the decedent, unless it is proven that either (i) all claims against the estate have been paid, (ii) secured to be paid, or (iii) that the personal property of the deceased is sufficient to pay those claims.

Attorney’s Fees

Under O.R.C. §5307.25, reasonable attorney’s fees can be paid from the proceeds of the sale to Plaintiff’s counsel and may also be paid to “other counsel for services in the case for the common benefit of all the parties” as the Court determines.

Conclusion

Thus, a Partition Action can be used to force the sale of jointly owned property where a recalcitrant party refuses to act.  Partition is a powerful tool to unwind and unstick a longstanding problem with a co-owner that will not budge.

 

______________________________________

[1] The Appellees assert that the “Commissioner made a good faith effort to partition the Property, but there is no way to physically divide this family farm into four sections based on the lack of frontage, the inconsistent and varying nature and uses of the land, and the physical location of the parcels. Simon v. Underwood, 2017-Ohio-2885, ¶ 65 (Ct. App.).

[2] “Since the partition of property is to be favored over the sale of property, when a party objects to a commissioner’s report, that party should have a right to a hearing to contest the commissioner’s findings before the property is appraised and subsequently sold.” Stiles v. Stiles, 3d Dist. Auglaize No. 2-89-3 (May 10, 1991)]. Court must comply with statutory procedures to appoint a commissioner, make an independent valuation and recommendation regarding whether the property could be divided without a manifest injury to the property’s value and providing a joint owner opportunity to elect the property, and no was provided. Thrasher v. Watts, 2011-Ohio-2844, (Ohio Ct. App., Clark County 2011).

Finney Law Firm frequently utilizes “We can talk” agreements in settlement discussions

Author By Christopher P. FinneyPosted on

Ohio Rule of Evidence 408 generally provides that settlement discussions are “not admissible to prove liability for or invalidity of the claim or its amount.”

Public policy behind inadmissibility of settlement discussions.

Why not? Shouldn’t the judge or jury know all of the facts of a situation in determining liability and in assessing damages, for if a Defendant offered to pay he more or less must be liable, correct? Or shouldn’t the amount — the range — of settlement amount discussed, be some indication of the value of the claim?

Well, Courts have decided as a matter of public policy that the answer is “no.”  It would discourage good faith settlement discussions if the fact of such discussions and what was discussed were admissible.  We want parties to settle their disputes and bringing settlement conversations into Court would throw a cold wet towel on those conversations.

But Rule of Evidence 408 is not perfect

But Rule 408 is not all-encompassing.  It excepts party admissions of liability jnd, if agreement is reached, — or claimed to be reached — that oral settlement can be enforceable — sometimes much to the surprise and chagrin of one of the parties.

Further, in our experience, impermissibly and unethically, what happens in the course of settlement discussions is that those conversations seep into court proceedings and discovery.  Further, invariably opposing counsel will share some morsel of the tenor, tone or dialogue with a Judge to gain an advantage in the litigation.  In other words, opposing counsel and parties are not always trustworthy.

“We Can Talk Agreements”

As a result, before engaging in settlement discussions with opposing parties or counsel, Finney Law Firm frequently has the parties sign what we call a “We Can Talk Agreement” that generally provides two things:

  • Nothing said in the course of the settlement discussions will come into play in any manner in the litigation proceedings: Not in discovery, not in “in Chambers” conversations with the Judge, and not in Court.
  • No claimed oral settlement agreement will be binding unless and until it is memorialized in writing and signed by our client.  Period.

I recently had opposing counsel ask me: “Why would you ask me to sign such an agreement?”  It was a case in which we had the upper hand and the defendant was flailing around for some foothold for a defense.  Opposing counsel already had engaged in motion and discovery abuse, needlessly and substantially driving up the cost of litigation, and after 26 months of writing, twisting and turning, he had run out of underhanded tactics, and was approaching facing the music before the Judge.  My answer: “Because I don’t trust you. You, in this case and attorneys at your firm over the years, have engaged in underhanded tactics, and we won’t sit and talk except on our terms.”

Setting the proper tone for settlement conversations

In addition to beefing up the protections of Rule of Evidence 408, the “We Can Talk Agreement” establishes, shall we say, imposed mutual respect between the parties.  We find it a powerful tool to set the proper tone in settlement discussions.

Direct client conversations

Other times, clients want to talk directly — without the filter of attorneys.  Again, it’s not just what our client may say during the course of those conversations that is potentially problematic, but what the other party will claim they said.  (Side note: Assume all conversations these days are being recorded, especially those in situations of conflict.)  Further, sometimes clients want to use an intermediary, such as a priest, pastor or mutual friend to resolve a dispute.

In these instances, we also recommend a “We Can Talk Agreement” to enable and encourage a full and robust conversation.

Conclusion

When you already know you are in the midst of a conflict with another party, caution is the watchword and a “We Can Talk Agreement” can greatly advance the cause of a cautious approach to settlement discussions.

__________________________________________________

The text of Ohio Rule of Evidence 408 is below:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Judge Wende Cross certifies classes in Cincinnati “Alarms Tax” case

Author By Christopher P. FinneyPosted on

Hamilton County Common Pleas Court Judge Wende Cross has certified two classes in White v. Cincinnati, litigation in which both the 1851 Center for Constitutional Law and Finney Law Firm represented payors of the illegal and unconstitutional Cincinnati tax on security alarm systems.  The two distinct classes certified are (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 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.

We now proceed to an an Order that will establish the amount and procedures for the restitution of the illegally-collected sums, a fairness hearing, and then distribution of the refunds to payors.  We aim for the conclusion of those steps this calendar year.  The amount of restitution is expected to be more than $3.6 million.

For questions, contact Chris Finney at 513.943.6655.

You may read the order issued April 22 here.

 

 

Team Finney notches big unanimous victory in jury trial versus Ohio Civil Rights Commission

Author By Christopher P. FinneyPosted on

Truth can be stranger than fiction.  And the last few weeks at the Finney Law Firm that has been the case.

Yesterday, Chris Finney, Jessica Gibson and Julie Gugino racked up a unanimous jury verdict (8-0) to defeat a case of claimed retaliation in response to a tenant’s claimed request for a disability accommodation that was met with a non-renewal of a residential lease.  The case was styled Ohio Civil Rights Commission v. Abundant Life Faith Fellowship in front of Judge Christian Jenkins in Hamilton County Common Pleas Court.  The Civil Rights Commission was also suing the Church’s pastor who had served for 41 years.  In candor, the Civil Rights Commission did a terrible job of vetting its own case with a terrible, dishonest plaintiff and a very sympathetic defendant.  Its attorneys at trial also were not exactly prepared or stellar.

The Civil Rights Commission case was full of demonstrable untruths about a kind-hearted 74-year-old African American minister who had suffered two strokes.  By the testimony of two of her fellow tenants in the building, the complaining tenant had plotted starting fewer than two weeks into her tenancy to drum up a fictitious lawsuit against the landlord as a way to extract money from him — she told this to her fellow tenants.  And for a year, she made his life a living hell, with incessant complaints about inadequate heat and fabrication about needing more light for a vision disability (in fact, her complaints about lighting had been adequately addressed early in her tenancy).  Dozens of complaints were addressed by visits by with servicemen, engineers, and repairmen to cater to her many whims and incessant gripes.  The Cincinnati Health Department came out and confirmed the unit in every room was heated to a comfortable 72°F to 73°F (the tenant lied to the jury — never a good idea — and said the readings were 62°F, 64°F and 66°F).

In the funniest part of the trial, the tenant at first denied and then admitted sending a bizarre text message to the landlord in the depth of winter, after he noticed that the windows of every unit in the building were open, including those of the tenant who constantly complained it was too cold!  Here is the text message, grammatical errors and misspellings included:

Yes, her crazy assertion to the landlord was that he must maintain the heat in the unit at 70°F even if the windows of the unit are left open!

Of course Pastor Brown and the Church had to fund the 4-year defense of the Civil Rights Administrative Complaint and the lawsuit, which he did with aplomb, but at great expense.  For the benefit of all landlords subject to outrageous prosecutions from obstinate public agencies, he saw this case through to its appropriate and proper end.  He refused to be bullied by the Ohio Civil Rights Commission, the office of the Ohio Attorney General and Housing Opportunities Made Equal (H.O.M.E.) (which manufactured evidence and knowingly lied to the Civil Rights Commissions in “building their case”).

For more information or to avoid being bullied by these same agencies: (a) DO NOT TALK TO THEM in an investigation EVER and (b) contact Jessica Gibson  (513.943.5677) for assistance with your case.

Another public interest class action win — Cincinnati Alarm Tax

Author By Christopher P. FinneyPosted on

As we wrote here, in November the Ohio First District Court of Appeals in White v. Cincinnati unanimously ruled in favor of clients of the 1851 Center for Constitutional Law and Finney Law Firm in a challenge to the City of Cincinnati’s alarm tax scheme. The City of Cincinnati asked the Ohio Supreme Court to review that decision, a discretionary call by Court.  Historically, Ohio’s top Court accepts only about 5% of such cases for consideration.

Today, the Ohio Supreme Court declined to accept for review the First District decision.  Since that was the last stop on the railroad for the City, the inevitable next legal steps are injunction against further collection of the tax, class certification and an order of restitution before Common Pleas Court Judge Wende Cross.

Amazingly, even after the First District ruled that the tax was illegal, through today the City of Cincinnati insisted on continued collection of the tax. So, an injunction by the trial court now will be necessary.

If you are a Cincinnati alarm fee payor, you should be expecting a refund once the amount has been calculated and the procedural hurdles cleared, perhaps later this year.  If the City continues to attempt to extract alarm charges from you, respectfully decline and send them this blog entry!

Jennings Kleeman

Lateral Support: The right not to have your land slide

Author By Jennings D. KleemanPosted on

Do you own land on one of the seven hills of Cincinnati? Has your downhill neighbor started digging on their land? Has such digging threatened to cause or caused your land to slide? If you answered yes to the preceding questions, then you might be entitled to an injunction or damages due to your neighbor removing the “lateral support” to your land.

This blog post will address a (i) background on lateral support; (ii) neighbor’s liability for removing lateral support from a landowner’s land when such land is in its natural or improved state; and (iii) landowner’s recourse when their land is going to start or starts to slide due to their neighbor’s digging.

Background:

The right to lateral support is a landowner’s right to have their land supported laterally by their neighbor’s land. The right varies based on whether the damaged land is natural or improved. Land in its natural state is always entitled to lateral support. However, improved land is not so entitled unless provided by statute or a neighbor negligently removes lateral support. Ohio provides such a statute.

Natural Land:

If a neighbor’s digging causes damage (e.g., sliding) to a landowner’s natural land, then the neighbor is liable for the damages that flow from such digging. There is no need for the landowner to show fault; it is a strict liability standard. To prove strict liability, the landowner must show (i) that their land was injured by the removal of its lateral support, (ii) that the injury resulted from the neighbor’s digging, and (iii) ascertainable damages.

Improved Land:

The Ohio Revised Code, under Sections 723.49 – 723.50, allows a neighbor to excavate down to (i) nine feet below the curb or street grade and (ii) the full depth of the foundation wall of any building on the landowner’s land, without liability. That said, if a neighbor digs to a depth greater than nine feet below the curb of the street, and such digging causes damage to any of a landowner’s buildings, then the neighbor is liable regardless of whether the neighbor is negligent. However, the neighbor’s digging must be the proximate cause of the damage.

Under a negligence standard, a neighbor might also be liable when the neighbor’s digging causes damage to a landowner’s building. The landowner must demonstrate that the neighbor was negligent by showing that the neighbor’s digging (i) removed the lateral support to the landowner’s building, (ii) caused injury thereto, and (iii) caused ascertainable damages.

Note: Concerning negligence, a neighbor has a duty to perform work, even if on their land, in such a manner as not to damage an uphill landowner’s land.

Landowner’s Recourse:

When dealing with the possible removal or the removal of lateral support, a landowner may seek an injunction or sue for damages. A landowner may seek an injunction to ask the court to prevent a neighbor from taking actions that will remove the lateral support to the landowner’s land. Alternatively, a landowner may seek monetary damages after a neighbor damages the landowner’s land. Such damages are based on “the time required to repair and a comparison of the cost to repair to the diminution in the fair market value of the [landowner’s land] before and after the damage.”[1]

Note: If a landowner lives uphill from a neighbor, and the neighbor removes soil downhill from the landowner’s land resulting in damage to the landowner’s land, then the neighbor must make the repairs.

Conclusion:

If (i) you own land on one of the seven hills of Cincinnati; (ii) your downhill neighbor started digging on their land; and (iii) such digging threatened to cause or caused your land to slide, then call the Finney Law Firm today, where an experienced professional can provide insight as to whether you have a claim for an injunction or damages.

[1] 1 Ohio Real Property Law and Practice § 8.07 (2021).

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