Here is the podcast from today, starting from the top of the show.
The discussion in this show addressed the Finney Law Firm suit on behalf of Tanya Hartman and her business, Gilded Social, a bridal dress shop, who desires a due process hearing on the forced closure of her business in the COVID-19 crisis.
We lost yesterday in getting a Temporary Restraining Order to stop Ohio’s practices without due process. The Judge has called for a Preliminary Injunction hearing for May 11.
Contact Christopher P. Finney (513.943.6655) if you care to discuss your rights as a business owner under a COVID-19 closure order.
According to Lieutenant Governor John Husted, Ohio is working to process a massive increase in applications for Ohio unemployment benefits. More people have applied for Ohio unemployment benefits over the last month than had applied for such benefits in the last two years.
Expanded unemployment benefits
Additionally, the CARES Act expanded unemployment benefits to cover self-employed and independent contractors and promised an additional $600 per week on top of what the state pays. This has all resulted in slow processing times and numerous questions.
Answers to FAQs
The State is working to answer those questions and decrease processing times. Here are some updates:
Claim number: If you are filing a claim due to COVID 19, use the mass layoff number 2000108 on applications.
Self-employed and independent contractors: The State will start taking your information but anticipates it will not be able to process or pay benefits until May 15 of this year. Once processed and approved, however, benefits will be retroactive.
Additional $600 per week: These additional payments should be starting now.
Efforts to alleviate slow processing time: Ohio Department of Job and Family services is adding 337 new employees, text-to-speech capabilities, and adding a virtual call center.
Funding challenges: According to Husted, without federal assistance Ohio’s unemployment system is on track to run out of funds in June, but, he says, that doesn’t mean Ohioans will lose their benefits. State legislators are working to resolve this issue.
If you have questions on this or other relief available for small businesses, self-employed, and independent contractors during the COVID 19 crisis, please contact Rebecca L. Simpson at 513.797.2856.
Unless you’ve been living under a rock somewhere, chances are the current COIVD-19 pandemic has affected at least one, and likely multiple facets of your life. But how do these circumstances impact contractual obligations made pre-COVID-19? Can the pandemic or the economic turmoil it is has created serve as a justification or excuse for getting out of a contract? For instance, if you contracted to purchase real estate in February, before all of the furloughs and Stay at Home Orders, do you still have an obligation to close on that purchase? While the case law surrounding this question is likely to dramatically expand in light of recent events, the answer could likely be “no” under Ohio law, at least as it stands today.
Four Corners Rule
As an initial proposition, contracts are governed by the “four corners rule,” meaning they will be interpreted consistent with what appears on the face of the document. Chan v. Miami Univ., 73 Ohio St. 3d 52, 57 (1995) (“[A]n instrument must be considered and construed as a whole, taking it by the four corners as it were.”). Where unambiguous, no additional terms will be read into the contract, and the terms that are contained within the document will be given their ordinary meaning. Fidelity & Casualty Co. v. Hartzell Bros. Co., 109 Ohio St. 566, 569 (1924) (“This court cannot make a new contract for the parties where they themselves have employed express and unambiguous terms. In the construction of contracts the language employed must be given its usual and ordinary meaning.”).
Parties to a contract are, thus, bound by the contract’s plain and unambiguous terms and are obligated to do that which they have promised in the contract, subject to certain narrow exceptions…
Force Majeure
Contracts often contain “force majeure” clauses. Roughly translated, force majeure is Latin for “superior forces.” Often, you will see this interpreted or referred to as an “Act of God.” What this means in a practical sense is that there is some sort of unforeseeable, intervening circumstance that justifies non-performance under the contract. For example, you have a contract to rent an apartment unit (a lease) but, right before you move in, a bolt of lightening strikes the apartment building and it burns to the ground. Depending on the language of the force majeure clause, this would likely be a qualifying unforeseeable circumstance that could nullify the lease.
Relative to real estate transactions, force majeure clauses are perhaps more often seen in the commercial context than the residential. Many standard realtor’s contracts do not contain such clauses. These clauses may also appear in certain consumer transactions – think contracts for goods or services to be performed.
Consistent with the four corners rule, courts cannot “read in” a force majeure clause where one does not appear on the face of the contract. Therefore, if your contract does not contain a force majeure clause, you likely cannot claim it as a reason for terminating the contract or skirting your obligations thereunder. SeeWells Fargo Bank, N.A. v. Oaks, 2011 Ohio Misc. LEXIS 4812, at *7 (Franklin C.P. June 24, 2011) (rejecting force majeure argument where the contract did not contain a force majeure clause).
Where a contract does contain a force majeure clause, courts are likely to interpret such clauses in a very narrow fashion. Thus, if the clause does not specifically contemplate disease, pandemic, unexpected unemployment, or business closures, it may not provide relief in the specific COVID-19 context.
What about changing financial circumstances or “impossibility” of complying with your obligations, more generally?
Despite the non-existence of an applicable force majeure clause, one might think that his or her general inability to pay that which they promised under the contract or worsening financial conditions might excuse performance under the contract. While this may seem like a logical conclusion at first glance, the law dictates that “[m]istaken assumptions about future events or worsening economic conditions, however, do not qualify as a force majeure.” Stand Energy Corp. v. Cinergy Servs., 144 Ohio App. 3d 410, 416 (1st Dist. 2001); see also Wells Fargo, at *7-8 (“[E]conomic down-turn is a risk that every business person necessarily undertakes when they enter into a contract . . .That this country incidentally suffered an economic downturn during the term of their contract does not discharge them from their contractual obligations.”). “A party cannot be excused from performance merely because performance may prove difficult, burdensome, or economically disadvantageous.” State ex rel. Jewett v. Sayre (1914), 91 Ohio St. 85, 109 N.E. 636, 12 Ohio L. Rep. 291.
This body of case law generally speaks to “objective” versus “subjective” impossibility. While the law might sanction non-performance based on objective impossibility (i.e., no one could reasonably fulfill their obligations under the circumstances), it typically does not excuse performance based on subjective impossibility (i.e., a particular party cannot fulfill their obligations under the circumstances).
Can challenges posed by COVID-19, independent of financial concerns, create a justification for non-performance?
In the real estate context, for instance, what about the health risks posed by out-of-state buyers or sellers traveling for closings? Fortunately, we live in an era that offers a wealth of technological options here. For example, many title companies are offering “remote” closings. If this is a concern for you, consider reaching out to Ivy Pointe Title for your closing needs, as they offer a staff of experienced title professionals, e-notary licensure in both Ohio and Kentucky, and remote closings, which allow parties to close on real estate transactions from the comfort and safety of their own homes where necessary.
We can help…
All this being said, parties to a transaction can often jointly agree to terminate or delay performance if they so choose, though a subsequent writing may be required to effectuate this agreement in a manner that will be enforceable and protect both sides down the road. If you are party to a transaction and the other side has threatened non-performance where there has been no agreement to terminate or delay, these are likely some of the arguments you will see. On the other hand, if you are concerned about your ability to perform under a contract, there may be additional language within the “four corners” of your contract that could provide some relief. Contracts are exceedingly unique from one another, such that there really is no “one size fits all” approach.
Finney Law Firm has a team of legal professionals with experience ranging from real estate to employment to general commercial law, and we would be happy to review your contract and provide feedback as to your options or help with drafting amendments thereto. Please feel free to reach out to me at (513) 943-5673 or [email protected] to set up a remote consultation.
Additionally, our attorneys have authored a number of blog entries relative to the COVID-19 crisis and hosted webinars as to potential relief for employers, small businesses, and 1099 employees that may also be of interest. And for more on commercial or real estate transactions and “force majeure,” click here.
We hope you are all staying safe and healthy during this unprecedented time.
Today, Finney Law Firm and the 1851 Center for Constitutional Law filed suit in Federal District Court in Columbus, Ohio to enjoin the mandatory “stay at home” orders of the Ohio Department of Health. Named as a Defendant in the action Dr. Amy Acton in her official capacity as Director of the Ohio Department of Health.
The Plaintiff, Tanya Rutner Hartman, owner of Gilded Social: The Fancy Occasion Shop, a Columbus bridal shop, alleges that the official orders of Dr. Acton fail to have any meaningful due process protections built in for a fair hearing to determine what is an “essential” business and can stay open while the state imposes restrictions to prevent further spread of the virus.
The case has been assigned to Chief Federal District Court Judge Algenon L. Marbley for the Southern District of Ohio, sitting in Columbus. He has ordered the State of Ohio to brief the matter by 5 PM Friday, April 17, 2020 (tomorrow) and will hold a telephonic hearing Monday at 10 AM. He has promised a decision by Wednesday, April 22, 2020.
As part of our property valuation work, we have received calls from property owners in Ohio and Kentucky asking how the affects of COVID-19 will come into play in property valuation challenges brought this year.
Effective (or target) date of valuation challenge
As an initial matter it is important to know the valuation date at issue. In Ohio, the “tax lien date” is always one year in arrears, so a challenge that is brought this year is actually challenging the value of the property as of January 1, 2019. In Kentucky, the tax lien date is current, so a challenge filed this year is challenging the value as of January 1, 2020.
Timing of when to file a valuation challenge
Because the valuation is as a specific point in time, it is important to consider what was affecting value on that specific date. When hiring an appraiser for a BOR (Board of Revision) in Ohio, or PVA (Property Valuation Administrator) in Kentucky, the appraiser gives her opinion of value as of the tax lien date. So, for instance, if the overall market takes a tumble in March, that would typically not affect the value of a property two month’s earlier. But may suggest that the values were already heading downward in January.
Thus, a hotel or restaurant property owner contemplating a challenge in Kentucky based upon the drop in income due to the COVID-19 virus and the stay at home order, is unlikely to see much weight given to the effects of COVID-19. That said, comparable sales in the past few months (which may reflect the effect of COVID-19 on the real estate market may have some evidentiary weight worth presenting to the PVA.
A challenge next year may be more successful than this year in Kentucky.
For Ohio property owners, COVID-19 is less relevant this year. This is because, as discussed above, the relevant tax lien date is January 1, 2019. As with Kentucky challenges, comparable sales in the past few months can be used as evidence of the value as of January 1, 2019, although the BOR will likely give such sales less weight than sales closer to the tax lien date.
In Ohio, only one challenge per three-year cycle
In Ohio the county auditors revalue properties every three years (the “triennial”). For Hamilton and Clermont Counties 2019 is the last year of the triennial. A new triennial will start with the 1/1/2020 value determined later this year by the County Auditors. In Warren County, the last year of the triennial is 2020 – meaning that the Warren County Auditor will determine a new three year value as of 1/1/2021. As a general rule, property owners may only file one challenge per triennial (R.C. 5715.19(A)(2)). So a cautious approach me be the better approach.
If you’ve already filed a challenge in Ohio, it is worth a shot to raise the issue of COVID-19, but as discussed above, it may fall on deaf ears. For Hamilton County property owners, the best bet may be to wait until 2022 to file for the value as of 1/1/2021. For Warren County property owners, a better approach may be to file next year challenging the value as of 1/1/2020 (this may be a futile effort), but you will be able to refile again in 2022.
Legislative change?
The Ohio legislature is working on multiple bills in rapid succession to stabilize the economy and prevent economic hardship to businesses and property owners. Perhaps this will be one area where the inequity of January 1 versus April 1, 2020 property values will be addressed.
Thus, in light of the spate of COVID-19 relief acts, it would not be surprising to see the state legislatures act to provide property tax relief with a 4/1/20 or 5/1/20 effective or target date for 2021 valuation challenges. We will keep an eye on the legislatures in Ohio and Kentucky and update our blog as we learn more.
Conclusion
Ultimately, property owners should temper their expectations that the BOR or PVA will recognize the effects of COVID-19 on property values in this year’s challenges.
Hopefully the financial effects of COVID-19 will not be long-lasting. But if they are, it may be a better basis for a valuation challenge in 2021 or even 2022 (for an effective date after the COVID crisis broke out).
Contact Christopher P. Finney (513-943-6655) for assistance with your property valuation challenge.
As our clients have noted from six years and a half years of our work to “Make a Difference,” Finney Law Firm is actively working to assure that our attorneys are constantly up to date on developments in the law, and then impart that information to clients and the public with blog entries, e-newsletters, seminars, webinars and media appearances.
Our performance during the COVID-19 crisis has met and exceeded that standard. And, because our clients hunger for information to help them to weather this unprecedented storm, the response has been overwhelming.
Here is our performance by the numbers since the beginning of March:
28 COVID-related blog entries with critical legal updates for clients, including information on the PPP and EIDL programs from the SBA.
Those blog entries have had more than 6,300 “reads” since the crisis began.
6 major Constant Contact e-mail blasts with important COVID-19 legal developments.
More than 13,250 “opens” of those emailed newsletters, a record number in one month. We are seeing that the information is so valuable that there are a record number of “forwards” from clients to their contacts with our information, and those “forwards” are opening and reading the communications as well.
We have had 8 major TV and radio appearances relating to COVID-19 issues.
We have gotten calls from all over the nation for help on the PPP program from the SBA.
We have done or will do 4 webinars on the PPP program. Between the webinar live attendees and those watching the recordings, we will have reached more than 1,000 participants.
We have retained exclusive relationships with 1 Ohio e-notary and 1 Kentucky e-notary to become one of the first title companies to be able to do entirely electronic, remote closings over the internet through Ivy Pointe Title.
All of this is designed to assure we are as effective as we can be in serving you, by understanding the law, which is developing daily, by developing the contacts to achieve your objectives, and by imparting that knowledge in a usable format so you can implement to win on legal and economic battlefields that are daily emerging.
I congratulate and thank our team — lawyers, paralegals and staff — for contributing to this area of service to our clients. And thank our clients — existing and new — for recognizing this sophisticated and cutting-edge approach to the practice of law for their benefit.
Let me know personally how the Finney Law Firm can help you to weather this storm. My email is [email protected] and my phone numbers are 513.943.6655 (o) and 513.720.2996 (c).
Litigation attorneys perform much of their work outside the courthouse. There is law to research, documents to review, and motions to write – all of which can be completed remotely with the right technology. But sooner or later, litigation makes it way to the courthouse for a motion hearing or a trial. As the COVID-19 pandemic spreads across the country, trials have been postponed, depositions canceled, and discovery deadlines ignored. What are we – and our clients – to do while the nation weather’s the storm inside our homes?
New legislation on litigation deadlines
Fortunately, the legislature and judiciary have reacted quickly to the developing pandemic and provided much needed guidance. On March 27, 2020, Governor DeWine signed H.B. 197 into law, effectively tolling all statutes of limitations and other deadlines under Ohio law until the state of emergency is lifted or July 30, 2020 – whichever comes sooner.
How do the extensions work?
Statutes of limitation prevent a litigant from having her claims heard in court if she files her case beyond the statutory deadline. In Ohio, for example, an individual has one year from the date of discovering a medical malpractice claim to file a lawsuit. If the would-be-plaintiff files after the expiration of the one-year-period, her case will be dismissed no matter how compelling or meritorious it may appear.
So, how do the new tolling provisions impact our hypothetical med-mal plaintiff? Let’s assume she discovered the malpractice on May 9, 2019. She would then have until May 9, 2020 to file her lawsuit. H.B. 197 now tolls the deadline, retroactive to March 9, 2020 when Governor DeWine issued the state of emergency. Let’s assume the state of emergency is lifted on June 1, 2020. In that case, none of the days between March 9, 2020 and June 1, 2020 will count against our plaintiff. She had two months remaining to file her case when the state of emergency was issued, and she continues to have two months to file from the date the order is lifted. In this scenario, our plaintiff has until August 1, 2020 to file her case.
Changes to Civil and Local Rules affect deadlines
But, in addition to statutory deadlines imposed by the state legislature, the practice of litigation is governed by a litany of deadlines imposed by the judiciary. The Rules of Civil Procedure allow defendants 28 days in which to file a response to a complaint. Local county courts have rules that establish how long a litigant has to file a response to a motion. Each judge sets a calendar order for each case, specifying when discovery is to be completed, dispositive motions are to be filed, experts are to be identified, and when trial is to take place. The list goes on.
To address these issues, the Supreme Court of Ohio issued its own order on March 27, 2020 which tolls the time requirements set forth in all rules promulgated by the State’s high court. The Supreme Court’s Order also applies retroactively to March 9, 2020. Thus, if a defendant’s response to a complaint was due on March 16, 2020, that response will now be due one week after the Court’s Order expires.
What’s happening in practice?
Trial court judges and attorneys are also working to address specific issues on a case-by-case basis. For instance, some in-person hearings can be handled on conference calls, allowing the parties to advance the case where practical. But if your case involves a health care provider, or an entity crippled by the pandemic, the case will likely be put on hold for the duration of the fight.
Technology advantage
In my practice alone, I have had two trials, three mediations, and several depositions all postponed indefinitely. Fortunately, the Finney Law Firm has invested significant resources in technology over the last few years which has allowed us to adapt our practice to meet the needs of our clients while working remotely. We are leveraging cloud-based technology to review and edit documents, obtain electronic signatures, and host video conferences with our clients and colleagues. We can conduct depositions remotely, using videoconferencing technology, when opposing counsel and the particular circumstances of the case allow.
Conclusion
If your case can be advanced in this time, we have the means and wherewithal to do so. Hopefully, sooner than later, we will be able to passionately advocate for our clients in the courts. Until then we are committed to helping our clients navigate the pandemic, and their cases, in these trying times.
The COVID-19 crisis is prompting an increasing number of people to take care of their estate plan, including reviewing and updating their existing estate plan to comply with their current wishes. We are seeing an increased number of people thinking about having an estate plan in place in the event something should happen to them.
What does a basic estate plan include?
Estate planning can be simple or can be complex, especially during a fast moving and potentially deadly pandemic. At a minimum, it is recommended that each individual should have:
A basic Last Will and Testament,
A general durable Power of Attorney, and
Health care directives (i.e., Health Care Power of Attorney and Living Will).
By having these minimal estate planning tools in place, the Last Will and Testament will direct the individual’s wishes for the disposition of his or her assets in the event of death. The general durable Power of Attorney allows a chosen individual to make financial decisions. The health care directives provide the individual’s wishes for medical treatment, and designate certain chosen people to make health care decisions on their behalf, and receive health care information from their physicians.
The additional option of a trust
If an individual is looking to avoid probate of assets upon his or her death, the establishment of a Trust is a beneficial tool for this purpose. Not only does a Trust instrument allow for the disposition of assets upon the death of an individual, it avoids the necessity for probate, and is effective in reducing probate administration expenses, such as attorney’s fees, fiduciary fees, and court costs.
Social distancing and safe execution of documents
Finney Law Firm, LLC is practicing a safe signing environment at both of our offices, and is working with estate planning clients to arrange for signing of estate planning documents at the client’s residence upon request.
Conclusion
The experienced estate planning team at Finney Law Firm, LLC is available to assist with implementing an estate plan, and reviewing and/or amending an existing estate plan.
Our goal is to continue to fulfill the estate planning needs of our clients during this crisis.
Congratulations is due to Finney Law Firm attorney Matt Okiishi who successfully sued today to force the Hamilton County Health Department to allow our client, Amazon Beauty Supply store in Finneytown, to remain open for business during the COVID-19 crisis.
The store, which sells beauty supplies, also markets soap, shampoo, other essential products and, most importantly, the much-sought-after N95 masks. The Hamilton County Health Department, noting that the store also sells non-essential supplies, had ordered them to be shuttered for the duration of the crisis, which for now extends through the end of May.
The business, an existing client of Finney Law Firm, asked us to sue to force the County to allow them to stay in business. We filed suit within 24 hours of first being contacted, and this afternoon our attorneys reached agreement with the attorneys from the Hamilton County Prosecutor’s office to remain open. The case was assigned to Judge Jody Luebbers who essentially told the parties to work the matter out amicably. The parties did so, which included an agreement on the number of customers that would be permitted in the store at any one time.
Channel 12 carried the story this afternoon, and the video featuring attorney Matt Okiishi is here.
“There’s little more rewarding in the law,” said Finney Law Firm founder Chris Finney, “than standing an errant government official up in front of a Judge and making him account for his behavior. Today attorney Okiishi enjoyed that exercise and achieved the desired end for our client.”
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For help when you need to stare down an over-zealous government actor, contact Matt Okiishi (513.943.6659).
With the advent of the COVID-19 Crisis, Finney Law Firm and Ivy Pointe Title have quickly stepped to the plate, with technology that allows for the practice of law with appropriate social distancing, with attorneys who focus on practice areas to help their clients, and with cutting edge information on emerging programs to help businesses and individuals in need.
Technology allowing for electronic interaction
Finney Law Firm and Ivy Pointe Title have carefully developed the tools to be prepared for a day such as this:
DocuSign allows for execution of documents from your computer. By federal and state law, e-signed documents are fully enforceable as with “inked” documents. Our team is licensed and trained in DocuSign technology for all documents in which clients will allow an electronic signature.
Electronic notary. Finney Law Firm and Ivy Pointe Title contracted with one of only a handful of licensed e-notaries in Ohio for exclusive provision of e-notary services. Using the platform DocVerify, we have the strongest technology to allow real estate closings and other transactions to proceed. By Ohio law, it is permissible to have documents signed and acknowledged (notarized) without person-to-person interaction via electronic signature and electronic notary.
Electronic payments. We use e-billing and credit card payments (and wire transfers and EFTs) for clients who prefer this method of billing and payment.
Electronic discovery and electronic depositions. Your litigation does not need to stop because of the COVID-19 crisis. Most of the work pre-trial can still move forward using e-mail, Zoom.US or Microsoft Teams for depositions, and motion work that can be electronically filed with almost all Courts.
Work-from-Home. If you do need to visit our offices, you will find that most of our professionals are not at their desks. Rather, they are safely (for you and them) working from home with the latest technology including Microsoft Surface laptops, Microsoft Teams Video Conferencing, Microsoft Office 365 data in the cloud, so we can access your data from anywhere in the planet, but with tremendous Microsoft security technology and backups.
Practice areas to help your business
Our business lawyers are up to date and prepared to help you through the thicket of issues that arise or are heightened with the COVID-19 crisis:
Attorney Isaac T. Heintzis proficient in contract interpretation, including how to enforce or avoid obligations under a lease or other agreement. He has already written purchase agreements with COVID-19 contingencies to extend due diligence periods to the declared end of the crisis. As you might expect, Isaac has also had many clients initiate their estate planning, or finish long-delayed estate planning work.
Attorney Stephen E. Imm heads our employment law group, and is advising clients on a myriad of new COVID-19 legislation and addressing employment law claims under previously existing law and the new enactments.
Attorney Bradley M. Gibson heads our litigation group which is dealing with a multitude of business-to-business disputes, including those arising because of the COVID-19 crisis.
Attorney Richard P. Turner runs Ivy Pointe Title and in that capacity has been using every tool at our disposal to continue to close your transactions “accurately and on time, every time.” These include closings respecting social distancing, and we stand prepared to be one of the first agencies in Ohio to implement fully electronic closings. We also can do drive-by closings where you come to our office and sign documents from your car, or we come to you and you can sign them on our car hood.
Attorney Christopher P. Finney heads our public interest practice, and the host of issues addressing government-to-business and government-to-individual interaction arising from the COVID-19 crisis.
CARES Act assistance for your small business
Congress just passed the CoronaVirus Aid, Relief and Economic Security Act, which includes the Paycheck Protection Program that will provide what essentially are grants to businesses with fewer than 500 employees and enhanced Economic Injury Disaster Loans(EIDL).
We are working furiously to meet the needs of our clients in this fast-emerging crisis. Let us know how we can help you or your small business navigate these turbulent waters to come to the other side safely and profitably.
And our hope is that each of you remain healthy throughout this pandemic.
