For both commercial properties as well as single family homes, owners have flooded us with inquiries about their notices from County Auditors in Hamilton, Butler, Clermont and Montgomery Counties as to new property valuations.  We can’t imagine the number of calls the County Auditors must be getting.

A few guideposts for you:

  • First, read this important blog entry that essentially tells you that the first 30% of the valuation increases in southwest Ohio will not result in an increase (or at least not a significant increase) in your actual tax bill.
  • Second, Auditor’s property valuation is not some magical number — for the January 2024 tax bill, it is to be the fair market value as of January 1, 2023.  Thus, if your property was worth more then than in the prior valuation period, you should expect a valuation increase — perhaps one even above average for all properties in the marketplace.  Some clients seem to think that since valuations were less than what they thought the property was actually worth in the past, the Auditor’s valuation process is supposed to yield a lower number.  Well, it’s not.
  • Third, if your property was purchased since the last triennial valuation date (January 1, 2020), the sale price likely will be reflected in the valuation.  As this blog entry addresses, a recent arm’s length sale essentially — and largely irrebuttably — IS the value by law.
  • Fourth, if your property falls in one of the gazelle categories of properties whose values have leaped ahead of the market — single family homes, warehouse and industrial properties, and apartment buildings — you should both celebrate your good fortune and expect a bigger tax bill as a result.
  • Fifth, on the flip side, if you are a victim of the weak office market or the mall or downtown retail market weaknesses, you should should see some tax relief in the January tax bills.
  • Sixth, gas prices are up, grocery prices are up, car prices are up.  You have not had a valuation increase in three years.  Wouldn’t you expect your tax bill would rise some, at least modestly?
  • Seventh, for both buyers and sellers in today’s market, the looming valuation increases create both a possible problem and an opportunity as to contractual tax prorations for sales between now and January when the new — very different — valuations come out.  Read here for more detail on this.
  • Eighth, remember, the Board of Revision process to challenge property valuations is a two-way street.  If your property truly is undervalued, you risk an increase.  Cautiously keep in mind the upward dynamics of the real estate market over the past three years.  You could wind up with an increased valuation as opposed to the sought reduction if you overplay your hand.
  • Finally, I had a client recently ask me “why would single family home valuations be increasing in Cincinnati?” and I swear he must live under a rock.  I responded, “haven’t you seen newspaper articles explaining that Cincinnati has had one of the hottest housing markets in the nation since the start of COVID?”  The response, “ummm, no.”  It is surprising since we deal with this every day, and to some extent it is just denial of the obvious fact that we are blessed in Cincinnati with a fantastic housing and commercial real estate market.  Enjoy it while it lasts!

If, after reading this and the prior blog entry on the new valuations coming out in January, you still have tax valuation questions, please contact me (513.943.6655) or another member of our tax team.  We are glad to help.

As recently as 2018, just half of the country’s small businesses had a website. But today, in the aftermath of pandemic-era lockdowns and closures of physical plants, around 95 percent of small businesses have some form of online identity. The internet offers powerful tools to present your products, generate revenue and provide customer service. However, taking full advantage of an internet presence requires devising new ways to deal with the public, including adoption of a terms and conditions agreement.

Also known as terms of service (TOS), a terms and conditions agreement outlines the rules governing your website or app and defines the relationship between you and your users, who implicitly agree to the terms and conditions.

The TOS should be crafted to fit the types of merchandise and services that your business offers, but certain provisions are generally advisable. Here are seven clauses that you should consider having:

  • Limitation of liability — You can include disclaimers designed to protect your business from being held liable for certain losses suffered by users, such as data loss, malware infections and other mishaps outside your control. You can also state a maximum amount of damages for which your company can be held liable.
  • User code of conduct — Any site or app that allows users to post content, such as reviews or comments, should have a code of conduct. It should also state the consequences of posting unacceptable content, such as account suspension or termination. The code can explain that you have the right, but not the obligation, to remove offensive user posts.
  • Governing law clause — This tells users that if they file a legal claim against you, it will be governed by the laws of the state you specify.
  • Intellectual property clause — This prohibits the use or distribution of your company’s name, logo, domain name, trademarks or copyrights without your permission.
  • Payment and refund procedures — The TOS should clearly explain the payment methods you accept, the consequences of non-payment and your policy for issuing or refusing to issue refunds.
  • Termination clause —This reserves your right to delete a user’s account if they violate the terms of service.
  • Cookie usage — The TOS should explain how your site or app uses cookies to track users and to provide them with relevant information. It should also explain users’ rights to limit or prevent use of cookies.

There may be other clauses you’ll want to include, such as one setting out a procedure for conflict resolution. A qualified business attorney can analyze your situation and draft a TOS that is best suited to your needs and objectives.

About Finney Law Firm, LLC

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

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

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

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

In the category of “you learn something new all the time,” this week I learned something new about Remote Online Notaries (“RONs”) used for real estate closings.

The scenario was that a seller was unaware until he reached the closing table that the signature of his wife — married since the house was acquired — was needed on the deed in order to release her rights of dower.  Unfortunately, the wife was (a) a non-citizen of the USA, (b) she had a green card and had resided in the US for years, and (c) was physically located in Germany as of the time of the closing.

In the days before RONs, the only option was (a) email the deed to the signer and have them print it out in the remote jurisdiction (usually on funny-sized paper), (b) make an appointment at the U.S. Embassy for an overseas equivalent of a notary (or acknowledgement) (typically you can’t just drop in unannounced), (c) wait for that  appointment and (d) Fed Ex the deed back to Cincinnati.

The wife was able to get a quick appointment at the U.S. Embassy and would be able to get a deed back to Cincinnati about five days after the initial closing (even including an intervening weekend).  Unfortunately, the buyer just could not wait the five days and was throwing a fit, demanding thousands of dollars of concessions for (what we saw as) a relatively short delay.

So, RON to the rescue, right?

Not so fast.  The title underwriter’s (the guys who ultimately make the call as to whether we can close or not) first reaction was “so long as she is a US citizen, we can use a RON closing.”  I replied, “well no, in addition to being out of the country she is not a US citizen.”

Digging deeper (which we appreciate our title underwriter doing), it turns out that the “US citizen” thing is not a bright line test.  Rather, RON closings use sophisticated Knowledge-based Authentication (“KBA”).  These are whose odd security questions that pull and query minute details from your past (many times when I am asked a KBA question, I don’t even know the answer, even though the question is about something I should know!).  Well, as it turns out, those KBA questions are primarily pulled from information contained deep in your credit report, and — if your contacts to the US and its credit-reporting system ae sufficiently robust — RONs can possibly work for non-US citizens, including those who at the time are overseas.  (You actually find out “if it works” during the execution of a RON closing.)

So, the closing was saved — RON got it done within hours of the first phone call.  And I learned more about RON, citizenship and what “KBA” is.

#MakingADifference

 

You expect your lawyer to represent you effectively and to work hard to achieve the results you want. However, the fact that the lawyer fell short of your expectations doesn’t automatically mean you can sue for legal malpractice. Also known as professional negligence, malpractice is limited to situations where an attorney does not act according to the accepted standard of professional care. The lawyer might do something that a reasonably competent lawyer would not have done in a similar case or, conversely, might fail to do something that should have been done. In addition, the act or failure to act must have harmed the client in some way.

The following are some of the most common examples of legal malpractice:

  • Commingling funds — This means the attorney or law firm failed to keep client funds in accounts separate from business accounts.
  • Lack of experience or training — Lawyers cannot know everything about every area of law, so they are obligated to take only those cases they are competent to handle. A corporate lawyer who has no experience in family law could make critical mistakes in a divorce case.
  • Missing deadlines — Attorneys are expected to adhere to all deadlines imposed by law and by courts or other tribunals. Among the most critical deadlines are statutes of limitations that set time limits on certain claims.
  • Not knowing the facts or applicable law — Lawyers must take the time to learn the facts and laws applicable to each case in order to represent the client’s interests thoroughly and effectively.
  • Fraud or misrepresentation —Lawyers must disclose to clients all material information about their cases and do so truthfully. Lawyers also have a duty of candor and honesty to courts and tribunals, as well as to other parties and lawyers.
  • Failure to communicate — Lawyers have a duty to keep clients informed of what is happening in their cases so the clients can participate in making informed decisions. 
  • Improvident acceptance or rejection of settlements — Lawyer should not accept settlement offers that are not in their clients’ best interests, nor should they reject settlements that might be beneficial. Failure to discuss settlements with clients can also constitute malpractice.

Legal malpractice claims can be challenging to win. You have to prove that you would have achieved a benefit if your attorney had adhered to the proper standard of professional care. This is known as a “case within a case,” since it means presenting evidence sufficient to support a favorable outcome in the underlying matter. The lawyer you retain for your legal malpractice claim should also have familiarity with the area of law involved in the original case.

About Finney Law Firm, LLC

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

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

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

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

Dividing property is one of the most important and potentially contentious aspects of business partners falling out and going their separate ways. A business divorce requires that the company be fairly valued so that all or part of it can be sold, whether to insiders or to outside buyers.

A business valuation analyzes all areas of the company to determine the worth of its various departments and of the entity as a whole. Professional evaluators look at such as elements as the company’s capital structure, its management, the market value of its assets and its future earnings potential.

There are numerous ways to value a company during business divorces. Some of the most common methods are:

  • Market capitalization — The value of a public company typically is calculated by multiplying the company’s share price by the number of shares outstanding. If the price is $50 and there are one million shares outstanding, the company’s value is $50 million.
  • Times revenue — A multiplier is applied to the revenue the company has generated over a certain time period. The multiplier varies by industry. A tech company might be valued at 5x revenue while a service company might be valued at 1x revenue.
  • Earnings multiplier —The company’s price-to-earnings ratio is adjusted to account for current interest rates. This is often more accurate than the times revenue method because the earnings multiplier is based on profits.
  • Discounted cash flow — This is similar to the earnings multiplier method, except that the company’s cash flow is calculated taking inflation and other market risks into account.
  • Book value — This is the company’s total assets minus its total liabilities as shown on its balance sheet.
  • Discretionary earnings — This method, often used for valuing small businesses, takes gross earnings and adjusts them for depreciation, interest expense and non-operating and non-recurring income.

When business owners are engaged in a split up, it is to be expected that the choice of valuation method will be a point of contention. Different owners will likely choose their own evaluators, with each employing a different method. If the owners can’t agree on a selling price, some form of alternative dispute resolution, such as mediation, may be used to arrive at a settlement.

About Finney Law Firm, LLC

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

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

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

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

Many employers require their employees to sign noncompete agreements as a condition of employment. These agreements purport to prohibit employees from working for a competitor for a period of time after their employment ends, usually a year.

These agreements are enforceable in most states, with certain restrictions. They have to be reasonable in time and scope, and they cannot impose an undue hardship on the employee, or be injurious to the public interest.

In recent years, however, many states have passed laws to place significant limits on noncompete agreements, and even to outlaw them altogether. In Ohio, Kentucky, and Indiana, however, these agreements are still legal and enforceable in most instances.

Now, noncompete agreements are under attack on a national level. The Federal Trade Commission has proposed a rule that would ban noncompetes nationwide, except in very limited circumstances. The FTC is currently receiving public comment on its proposed rule, and a final rule is expected to be issued early next year.

The National Labor Relations Board has also gotten into the act. This Board, which regulates employer-employee relations and the rights of workers to act in concert with one another, recently issued a ruling banning confidentiality clauses and non-disparagement clauses in  employees’ severance agreements. Recently, the general counsel (lead attorney) of the NLRB issued a memorandum expressing the view that noncompete agreements violate the legal right of workers to engage in “concerted activity” about their working conditions, because they effectively prevent workers from resigning, or threatening to resign, over unsatisfactory conditions in the workplace. Although the general counsel’s memorandum does not have the force of law, it signifies that the Board may make that ruling in the near future.

As of now, noncompete agreements are still often enforceable in Ohio and surrounding states. That could be changing very soon, however. Stay tuned!

Contracts have been called the lifeblood of a business, and when unexpected troubles interrupt the flow, the health of the enterprise is affected. Being sued for breach of contract can greatly tax your business, costing you legal fees and exposing you to the risk of paying monetary damages. If you have been sued or believe that you might be sued, there are prudent steps you should take.

Even if you have not yet been served with a complaint, consult with a business attorney about the risk of litigation and how to prepare. At your initial consultation with the attorney, you should bring a copy of the contract, your business liability insurance policy and any other relevant documents. Your attorney can review the situation and your relationship with the prospective plaintiff and can advise you about possible actions to avert the suit.

Once you are sued, you should immediately contact your insurance carrier. You may hold a general liability policy, a commercial property policy or a business owner’s policy that includes both. Provide the carrier with a copy of the complaint and answer any questions the insurance adjustor asks about it. If your policy covers the dispute, the insurance carrier has a duty to defend you, which means that it must provide you with capable legal counsel. If you don’t have a policy that covers the dispute, you must retain your own lawyer.

Your attorney, whether provided by the insurer or retained by you, will take the following steps as appropriate:

  • File a motion to dismiss the complaint, based on any substantive or procedural defects.
  • File an answer to the complaint, listing your defenses and raising any counterclaims you might have against the plaintiff.
  • Conduct discovery, which is a set of procedures for obtaining information from the opposing party, which could include requests for production, interrogatories (written questions) and depositions (oral questions).
  • Help you respond to discovery and represent you and your employees during depositions.
  • File and respond to pretrial motions.
  • Conduct settlement negotiations on your behalf.
  • Prepare evidence and witnesses for trial.
  • Present evidence in your favor and rebut the plaintiff’s evidence during trial.
  • File or respond to any post-trial motions.
  • Represent you in any appeals.

If you retain your own counsel, make sure the firm is experienced in business litigation as well as in negotiation. Skillful handling of breach-of-contract cases includes making efforts to avoid excessive costs and disruption of business operations, as well as to preserve customer and supplier relationships to the extent possible. These goals are best accomplished if the case is settled out of court. However, the attorney must always be prepared to effectively protect your interests at trial.

About Finney Law Firm, LLC

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

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

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

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

As we reported here, Finney Law Firm participated in a successful class action to force the City of Cincinnati to stop collecting alarm registration fees and to refund illegally-collected fees for years past.

Those refund checks were dropped in the mail over the past few weeks and the final batch is to be mailed this week.

In the event that you did not properly receive a refund check due to you, contact the City’s False Alarm Reduction Unit at (513) 352-1272.

If you continue to have problems, do let Chris Finney (513.943.6655) know.

Our phones are ringing and email boxes are filling up at Finney Law Firm about notices from County Auditors throughout the state of Ohio about dramatic property tax valuation increases coming with the January 2024 tax bills.

Read this shocking paragraph from an article from Paula Christian at WCPO (Channel 9):

The [Ohio Department of Taxation] recommended a 43% increase in property values in Clermont County and 42% in Butler County. The updates will be reflected in 2024 tax bills, which are sent out early next year and will last for three years until reappraisal.

So, the natural reaction from property owners receiving such notices is that their tax bill (i.e., the amount of taxes they are obligated to pay) will rise a similar amount.  This is not true — not by a long shot — given the intricacies of Ohio property taxation.

How could that be?  We explain:

  • First, the County Auditors throughout Ohio are charged by statute with re-valuing properties in their County every three years (a “Triennial”).  The statutory duty is to value each parcel at its fair market value (in the case of new tax valuations coming in January of next year, that is a January 1, 2023 valuation).
  • In southwest Ohio, January of 2024 will see new valuations for each of Hamilton, Butler, Clermont and Montgomery Counties.  Warren County will have new valuations in January of 2025.
  • It is not the Auditor’s job to show mercy, or to “shade” the fact that the real estate market has changed dramatically since the prior 3-year valuation date (in the case of Counties having new valuation in January of 2024, that would be a January 1, 2020 valuation as a comparison).  They are obligated by statute to value properties fairly (i.e., what a reasonable buyer would pay a reasonable seller for that property).
  • Your property taxes are, very roughly, a result of this formula:

(Tax Valuation * Tax rate) – certain credits = tax bill.

  • Thus, it is natural to assume that to the same degree your valuation rises, so does your tax bill.
  • However, it is much more complicated than that.
    • About 10% of your tax bill is inside millage which does stay at the same tax rate (i.e., it does generate more revenue in direct proportion to your increasing valuation).  But that is a very small part of your tax bill.
    • About 90% of your tax bill is outside millage, which is a result of tax levies that year after year generate a fixed amount of revenue for the levy recipients (depending on the district, schools are about 55-70% of your tax bill).  For example, a specific levy passed by the voters years ago may generate a fixed $40,000,000 in taxes each year (regardless of inflation or valuation increases).
    • That means that for the great majority of your Ohio tax bill, as the valuations increase, the rate rolls back, generating the roughly same revenue for the levy recipient overall each and every year.
    • Therefore, if your property has a lower-than-average valuation increase, the outside millage portion of your tax bill will actually decrease.  To the extent that your increase is merely average for that taxing district, the outside millage portion stays the same.  And to the extent that your valuation increase is more than average, the outside millage portion of your taxes will rise, but only to the extent of that excess increase.
    • Remember the last school levy campaign where the pro-levy advocates told you that “taxes don’t keep pace with inflation”?  Well, as a result of the formula set forth above, that’s actually true.

Do remember that when you get a changed value, that’s the first change in three years, so the increase reflects that entire Triennial period (i.e., 8% per year compounded would exceed a 25% valuation increase over three years).

Also keep in mind that certain categories of real estate have in fact seen dramatic changes since three years ago.  Indeed, our region has seen much greater-than-average appreciation than the rest of the nation for single family homes: “Cincinnati has seen the highest percentage of home-sale price increases in the country over the last year.”    As a result, our view is that property values in certain categories of real estate have skyrocketed in the past few years, especially single family residential and apartments, as well as warehouse and industrial properties.  Office properties, especially downtown, may have seen a decrease in valuation.  County Auditors simply are required by state law — as overseen by the State Department of Taxation — to recognize the full measure of those increases in their triennial valuation work. They have no choice.

Chicken Little cries from taxpayers that “the sky is falling” as a result of these properly-recognized valuation hikes are vastly over-stated.  For most taxpayers, the increase in their tax actually paid will be less than the inflation over that Triennial cycle.

By the way, two of the primary bases we see clients try to raise against the valuation increases of their properties are simply not valid in Ohio:

  • “My property could not have risen in value by this amount.”  While that statement well could be true, the Auditor may have undervalued your property in prior years, resulting in an above-market hike.
  • “The Auditor has valued four similar houses on my street lower than my valuation.”  As entirely unfair as it may seem, the value the Auditor places on another property — as similar in location, size, age and other characteristics as it may be — is irrelevant as a matter of law.  What is relevant are sales of similar properties (which is different than the Auditor’s opinion as to values).

This all leads to a significant caution for those desiring to charge into the Board of Revision and challenge the value of their property: The Board can raise your property value even more if the then-current valuation does not reflect market.  Proceed with great caution.

If you have questions about your new tax valuation, please call the professionals at the Finney Law Firm.  We can answer your questions as well as challenge any valuation that exceeds fair market value of your property.  Contact Jessica Gibson (513.943.5677) or Chris Finney (513.943.6655) to help with that assignment.

 

Libel consists of making untrue, harmful statements to third parties through writing, printing, broadcasting, pictures or other media. Because these means of communication create a record of the defamation, they can have a lasting impact on the reputation of a business. But if someone libels your company, you have a legal remedy only if you can prove what injuries the statements have caused.

Business libel has been much in the news recently because of the lawsuit filed by Dominion Voting Systems, Inc., and its affiliated companies, against the Fox News Network. Dominion, which supplies voting machines to election districts throughout the U.S., asserts that Fox broadcast groundless allegations by then-president Donald Trump’s political allies that Dominion was involved in 2020 election-rigging. Dominion seeks damages of $1.6 billion for reputational damage. Fox contends there is no evidence that Fox’s reporting has done harm to Dominion’s revenues or profitability such as would justify damages on the scale sought.

The trial, expected to last five weeks, is scheduled for late April. Whatever the outcome, the lawsuit offers a concrete lesson about the difficulty of proving damages in a libel claim.

The elements of a libel claim are as follows:

  • The defendant made an untrue statement of fact (not merely a statement of opinion).
  • The defendant made the statement to a third party or publicly.
  • The defendant was at least negligent in checking the accuracy of the statement or, if in reference to a public figure, the defendant made the statement with knowledge of its falsity or with reckless disregard for the truth.
  • The plaintiff suffered damages as a result of the defamatory statement, except for rare cases in which the defamation is so egregious that damages are presumed.

Dominion, which is a public figure, argues that emails and deposition testimony of Fox employees and its owner, Rupert Murdoch, show that Fox knew the allegations of election-rigging were false.

However, Dominion also needs to produce evidence of any damages the business suffered and of their connection to the alleged libel. This includes evidence that Dominion lost customers or business relationships or that the viability of the business itself is in danger. Dominion claims it lost $921 million in overall business value, $88 million in actual profits and $600 million in potential future profits. The company also seeks punitive damages.

In a business libel case, an experienced and skilled defamation attorney knows how to demonstrate damages that are based on hard economic data and a causal connection to the alleged libel. This may involve a detailed investigation and the retention of expert financial analysts.

About Finney Law Firm, LLC

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

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

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

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.