This blog post by attorney Stephen Richmond of the Cleveland and Columbus law firm of Kohrman Jackson Krantz features our important twin class action victories in federal court in challenging municipal post of sale and rental inspection ordinances as violations of the Fourth Amendment (unconstitutional warrantless searches) to the United States Constitution.

We co-counseled these cases with attorney Maurice Thompson of the 1851 Center for Constitutional Law, which uses litigation strategies to advance the cause of free enterprise throughout Ohio.

This blog entry actually misses the first in a series of point-of-sale warrantless search cases in Ohio, our challenge in 2014 an ordinance in the City of Portsmouth, Ohio.  That decision from 2015 by Federal District Court Judge Susan J. Dlott is reported here.

Importantly, the Finney Law Firm challenges and confronts zoning and land use enforcement actions by municipalities using all of the legal tools at the disposal of our clients, including the United States Constitution.

It explains the issues well.

 

 

 

“The major fortunes in America have been made in land.”

John D. Rockefeller

Real estate investment is traditionally cited as one of the primary means that Americans have used to build wealth; a trend that continues to this day.  Whether it is the stability and comfort attained by the middle class or the luxuries enjoyed by the wealthy, with due diligence and hard work, real estate investment can help most Americans achieve their financial goals.  This post is part one of a series designed to provide useful and relevant information to both seasoned and green investors alike.

Types of Investments

The first step when diving into the market is determining what type of investment is most appropriate under the circumstances. While purchasing a personal residence is the most ubiquitous type of real estate investment, there are many opportunities to invest home ownership including: (i) holding rental properties, both commercial and residential; (ii) buying, renovating and selling properties; (iii) subdividing and developing raw land; or (iv) depositing money into real estate investment trusts.  There is no single avenue best suited for all investors, so it is important to gauge your options relative to your goals.

Relevant Persons/Parties

An ordinary purchase and sale requires only two parties, a buyer with cash and a seller with property.  Pragmatically, however, there can be a dozen or more parties to any transaction, which may include, but are not limited to: realtors/brokers, lenders, mortgage brokers, legal counsel, title companies and examiners, surveyors, environmental consultants, qualified intermediaries, accountants, tax professionals, etc.  Each party to a real estate deal is responsible for one or more roles in the process, but they must all work together seamlessly to complete the transaction in an efficient manner.

The Process

The biggest roadblock to jumping into the real estate market is knowing where to begin.  The good news is that there is no correct answer per se.  For example, the first-time homeowner might find it beneficial to meet with one or more lenders prior to searching for a home in order to determine: (i) what is in the buyer’s price range; (ii) what kind of programs might be available as a first-time homeowner; and (iii) to have the sense of certainty that comes with a mortgage pre-approval.  On the other hand, the experienced investor may want to start by meeting with his or her financial and legal advisors to better understand how a new purchase might affect the investor’s bottom line.  Thereafter, for both the seasoned and the green investor, the process is relatively similar: (i) find a property and get it under contract; (ii) perform any remaining due diligence, which includes getting a title examination; and (iii) close on the purchase and sale.

Liability Shield

For those seeking to invest in property other than a personal residence, it is important to decide whether the use of a limited liability company (LLC)—or another vehicle with a liability shield—is appropriate or desirable under the circumstances.  The main reason for purchasing through an LLC is to ensure that personal assets are protected from any claims associated with investment property.  This protection is invaluable in the event someone brings a lawsuit against the investor, but it is valueless if the investor fails to follow certain formalities when creating and maintaining the LLC.  An investor should always speak with an attorney when establishing an LLC or if there are any concerns regarding the ongoing formalities.

Realizing a Return; Tax Consequences

The term “investment” is defined as the action or process of investing money for profit or material result, which begs the question, how does an investor obtain a profit or a material result?  There are two primary ways to turn a profit with real estate investment: rental cash flow and appreciated value.  Rental cash flow is exactly what is sounds like, cash paid to the investor/landlord by tenants of a rental property.  Appreciated value refers to the increased value due to the passage of time.  Additional means of turning a profit include: (i) the increase in resale value after improving the investment property (e.g., updating appliances, replacing a roof, etc.) and (ii) ancillary income from things such as vending or laundry machines, or parking facilities.  Additionally, as with any type of investment, it is essential to understand how taxation will impact the ability to realize a profit.

Advanced Transactions

The savvy investor looks for ways to increase his or her profit margin on a regular basis.  Two of the more prevalent means of doing this include: (i) engaging in 1031 or like-kind exchanges and (ii) purchasing via drop and swap transactions.  The 1031 exchange allows an investor to defer paying capital gains taxes following the sale of an investment property so long as the proceeds therefrom are reinvested in “like-kind property” within a certain period of time.  The drop and swap transaction, which can be performed alongside a 1031 exchange, allows the investor to shield the purchase price from publication, which would inhibit an automatic increase to the tax basis if the purchase price exceeds the auditor’s value of the property.

This introduction to real estate investment is just that, an introduction.  Stay tuned for an in-depth analysis of each section and, as always, be sure to contact a lawyer or tax professional when seeking legal or tax advice.

The laws governing the administration of a decedent’s estate in the State of Ohio provide for the collection of probate assets, payment of debts and expenses, and distribution to the beneficiaries according to the terms of the decedent’s Last Will and Testament, or if the decedent died without a Last Will and Testament, in accordance with Ohio law.

Declaration of insolvency

The Executor or Administrator (“Fiduciary”) of the decedent’s estate may ask Probate Court to declare the estate insolvent if the debts and administration expenses of the estate exceed the total value of the assets.  If there are not sufficient assets in a decedent’s estate to pay all of the debts and expenses, Ohio provides a way to pay creditors depending on the “class” of the creditor defined below and the amount due.

Presentation of claims

Under Ohio law, all claims must be presented to the Fiduciary within six (6) months of the date of death of the decedent. After the expiration of this claim period, if the estate is deemed to be insolvent, the Fiduciary would report the insolvency to Probate Court, and provide a complete list of all debts and expenses, with the amount due for each.  A hearing would be scheduled, with notice of the hearing served upon the surviving spouse of the decedent (if any), all persons having an interest in the estate as devisees, legatees, heirs, and distributees, and all creditors.

At the hearing, Probate Court would review the classification of the claims as provided by the Fiduciary, and if approved, would allow payment of the claims in accordance with Ohio Revised Code.

Classes of creditors and priorities

The class of a creditor is defined in Ohio Revised Code, which establishes ten (10) classes of claims (debts) and priorities, as follows:

  • Class 1 – Costs and Expenses of Administration
  • Class 2 – Funeral and Cemetery Expenses.  This class provides up to $4,000 for funeral expenses and up to $3,000 for burial and cemetery expenses.
  • Class 3 – Family Allowance of $40,000.
  • Class 4 – Debts Entitled to a Preference Under the Laws of the United States.
  • Class 5 – Expenses of the Last Sickness of the Decedent.
  • Class 6 – Additional Funeral Expenses.  If the total funeral expenses exceed the sum of $4,000 in class 2 above, then the funeral director can receive up to $2,000 more toward the decedent’s funeral bill in class 6.
  • Class 7 – Nursing Home Expenses.
  • Class 8 – Obligations to the State of Ohio.
  • Class 9 – Debts for Manual Labor.
  • Class 10 – Other Debts.

In the state of Ohio, the law is very clear that payments must be made in the specific order listed above.  No payments may be made to creditors of one class until all of those of the preceding class are fully paid.  If the assets are insufficient to pay all of the claims of one class, then the creditors of that class must be paid proportionately.

Once the approved claims and expenses are paid, the Fiduciary would report the receipts and disbursements to Probate Court for approval.  Upon approval by Probate Court, the estate would be closed.

Conclusion

In certain estates where there are assets with value, it may make sense to proceed with an insolvent estate, as the fee for the Fiduciary of the estate is a Class 1 claim.  Further, if there are sufficient assets to pay the Class 1 and Class 2 claims in full, the family allowance, as a Class 3 claim, would be paid to the extent of assets.  Therefore, the decedent’s family could possibly benefit from this approach.

___________________

For help with your estate planning or probate matter, contact Isaac Heintz (513-943-6654) or Tammy Wilson (513-943-6663)

 

While it may seem obvious to some, many do not realize the very harsh consequences that can result from failing to respond to a lawsuit. If you’ve been sued and don’t really understand what the next steps are, you aren’t alone.

When a party files a civil (i.e., not criminal) lawsuit against another, the case is initiated upon the filing of a “Complaint.” The Complaint sets forth the parties, the factual allegations, the causes of action, and the remedy or relief sought.

Okay, so you’ve been served with the Complaint . . . Now what?

Once the defendant is served with the Complaint (thus, putting the defendant on notice of the lawsuit), he or she is required to respond within a certain number of days (28 days in Ohio; 20 days in Kentucky). The response to the Complaint could be an “Answer” (where the party will admit or deny each of the allegations and set forth any defenses it may have) or, alternatively, a defendant can respond with a variety of motions, such as a motion to dismiss.

If a defendant fails to respond to the Complaint within the time frame allotted, the plaintiff may move for “default judgment” against the defendant. This is, essentially, what it sounds like – the moving party wins by “default.” Under Ohio law, “default judgment is proper against an unresponsive defendant ‘as liability has been admitted or confessed by the omission of statements refuting the plaintiff’s claims.’”  Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Ass’n., 28 Ohio St. 3d 118, 121, 502 N.E.2d 599 (1986). In other words, if you do not refute the plaintiff’s allegations, you are deemed to have admitted them. The onus is on the defendant.

If you do not respond to the Complaint and, therefore, admit the allegations, the other side’s claims have, more or less, been proven in most instances. For example, if someone sues you for breach of contract and claims damages of $70,000.00, and you fail to respond to the Complaint (thus, admitting that you breached the contract and owe the sought damages), the Court can enter judgment against you for the full $70,000.00. The plaintiff can then begin to pursue collection efforts against you, including garnishing wages and/or bank accounts, foreclosing on property, etc.

Additionally, default judgments can be very difficult to have overturned. In order to get relief from the judgment, a defaulting defendant must demonstrate that he or she has a meritorious defense to the lawsuit, that one of the provisions of Civ.R. 60(B) applies, and that the motion for relief was filed within a reasonable time after the judgment was entered. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 150-51 (1976). This is not always an easy task.

In the case of Ben. Ohio, Inc. v. Poston, 5th Dist. Fairfield No. 03-CA-07, 2003-Ohio-4577, the court held that defendants were not entitled to relief from judgment where their daughter signed for service of the Complaint and did not inform them. In Fouts v. Weiss-Carson, 77 Ohio App. 3d 563 (11th Dist. 1991), the defendant was not entitled to relief from judgment where she claimed she was distraught from her divorce and seeking psychiatric treatment when her response was due, absent a showing that defendant’s condition rendered her incompetent). And in Universal Bank N.A. v. Thornton, 8th Dist. Cuyahoga No. 72553, 1997 Ohio App. LEXIS 5694, at *7 (Dec. 18, 1997), the court held “[a] party who willfully and deliberately chooses to ignore a complaint and has stated no other reason for failing to appear or answer a complaint has not stated adequate grounds for relief from default judgment.”

The Answer: Answer the Complaint (and Make a Plan), and We Can Help You

 Even if you believe the claims against you are entirely meritless, it is still important to respond to any claims filed against you so that you can refute the plaintiff’s claims and assert your defenses. You may even have a viable counterclaim against plaintiff (which often incentivizes an early settlement and/or dismissal). While no one wants to spend a ton of money defending a lawsuit (especially a meritless one), it is necessary to follow the proper steps and maybe even formulate an “exit strategy.” Otherwise, the result could be devastating. The litigation team at the Finney Law Firm understands that the legal process can be confusing (and, sometimes, even unforgiving) to those who, like most, don’t litigate often. We would be happy to speak with you about your rights and obligations as a party in litigation, as well as strategies to help minimize your exposure.

Most salespeople are compensated at least in part on commission. Some earn a salary in addition to sales commissions, and some are paid solely by commission. Either way, sales commissions are the “lifeblood” of a salesperson. If someone messes with the commissions of a salesperson, they are going to hear about it. It’s how they earn their living and feed their families.

But what happens if the employment relationship ends? Does a salesperson have any right to commissions after they leave or are terminated?

What does the contract say?

This can be a very complicated question. There are a variety of factors that courts will look at in determining whether or not post-termination commissions may be owed to a salesperson who has resigned or been terminated. First and foremost, courts will look at whether or not the parties had a contract that dictated how post-termination commissions were to be handled. Such a contract can exist in an explicit, written form, but it can also arise from the course of dealings between the parties, or by way of commission plans that are clearly communicated to salespeople during their employment.

What if there is no contract?

In the absence of a contract, courts will sometimes look at what is the custom in the industry in order to determine whether, and if so to what extent, post-termination commissions may be owed to a former salesperson.

Was the commission “earned” prior to separation?

Another important factor is the extent to which the commission was “earned” by the salesperson before termination. If the salesperson, prior to separation from employment, had already done everything required of him/her in order to receive the commission, but the payment of the commission just didn’t happen to come due until sometime after separation, courts are more likely to find that the employee is legally  entitled to the commission. There is a saying that “the law abhors a forfeiture.” This means that the law does not like it when, through no fault of their own, someone is forced to “forfeit” money or property that they possess or have earned.

On the other hand, if a salesperson separated from employment when there was still work to be done for an account – for instance, if certain services were still needed from the salesperson after the sale had been made, and such services were not performed because the salesperson’s employment ended in the meantime – courts are less likely to find that the salesperson is legally entitled to the commission, since the commission arguably had not been fully “earned” at the time of separation.

Different treatment of employees versus independent contractors

It is also important to note that the treatment of sales commission issues are handled differently when the salesperson is an independent contractor, rather than an employee. Ohio, for instance, has a specific statute that addresses sales commissions earned by independent contractors. The statute is very favorable to the salesperson, in that it allows him or her to recover significant additional amounts beyond the unpaid commissions themselves. This statute does not apply, however, to employees.

Conclusion

Obviously, this is a very tricky and complex area of the law. Both companies and salespeople need to have knowledgeable legal counsel in their corner when facing issues involving disputed sales commissions.

Contact Stephen Imm (513-943-5678) or Matt Okiishi (513-943-6659) from the Finney Law Firm employment group for answers to any questions you may have on this topic.

The U.S. Department of Labor has changed the salary level for exempted salaried employees. A prior iteration of this rule was famously (at least to employment law attorneys) declared illegal in 2016. However, the Department has been undeterred, and the new rule, which will go in to effect on January 1, 2020, has massive implications for businesses who classify employees as overtime exempt under the “white collar” or “EAP” exemption.

 

The white collar/EAP exemption exempts from the minimum wage and overtime pay requirements any employee employed in a bona fide executive, administrative, or processional capacity. In order to satisfy the exemption, an employee must: (1) be paid a predetermined and fixed salary that is not subject to reduction because of the quality or quantity of work performed (the “salary basis” test); (2) the salary must meet a minimum specified amount (the “salary level” test); (3) and the employee’s job duties must primarily involve executive, administrative, or processional duties (the “duties” test).The new rule changes the “salary level” test. Until January 1, 2020, the required salary must exceed $455 weekly ($23,660 annually). However, after January 1, 2020, the salary requirement will be raised to $684 weekly ($35,568 annually). To somewhat ease the burden this imposes on employers, the Department has also permitted employers to count nondiscretionary bonuses, incentives, and commissions toward up to 10 percent of the salary level ($2,556.80 annually).

As a result of these changes, on January 1, 2020, employers who do not raise their salaries to meet the new minimum, but otherwise satisfy the white collar/EAP exemption will find themselves exposed to potential overtime and/or minimum wage liability. If you are concerned that your pay policies may be out of compliance, consider speaking to one of the employment law attorneys at the Finney Law Firm: : Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

 

Lawyers for the City of Cincinnati filed a motion to dismiss the John Doe complaint regarding the Gang of Five Texts messages. The Gang of Five is the name Cincinnati City Councilmembers PG Sittenfeld, Wendell Young, Tamaya Dennard, Chris Seelbach, and Greg Landsman gave themselves when they were conducting city business via email, text message, and conference call.

Politics and apparently, litigation, makes strange bedfellows as the anonymous plaintiffs are suing not only the City, but also, a Finney Law Firm attorney, who sought public records on behalf of clients. And, curiously, the Plaintiffs, who in their filings with the Court claim to be personal friends of the Gang of Five, chose not to name the councilmembers themselves as defendants in the litigation.

The anonymous plaintiffs seek to have the Gang of Five’s text messages destroyed to avoid further public access to what are clearly public records.

If successful, the Plaintiffs will undo decades of public records law in Ohio and create a new avenue of litigation to prevent disclosure of public records. In short, efforts at government accountability would be stifled for years to come.

Read the Complaint here

Read the City’s Motion to Dismiss here.

Our firm prides itself on being full-service. That is, we create value for our clients in matters ranging from routine contract drafting to complex litigation. However, our representation of clients in litigation isn’t just limited to the trial level – we also handle appeals (click here for more on our trips to the Supreme Court of the United Statesand Ohio Supreme Court). After all, if judges always got it right, the rate of overturned decisions would be zero.

Appellate practice is procedurally complex

Appealing a judgment requires adherence to an entirely new set of rules, separate from those involved in lower-court litigation. These rules often involve strict deadlines and harsh penalties for non-compliance. One common though rarely-discussed aspect of the appellate process is the post-judgment bond. Ohio Civ.R. 62 gives courts discretion to impose a bond on a non-prevailing party in litigation pending appeal. That is, if you are a party to litigation and you lose, you may be required to secure a bond in the full amount of the judgment (or more) to prevent the other side from seizing your assets while you pursue an appeal.

One case requiring a post-judgement bond to stay collections pending appeal

Although a rather extreme illustration, one such example of the post-judgment bond scenario is the Gibson’s Bakery v. Oberlin College case. There, Gibson’s Bakery sued Oberlin College alleging that Oberlin officials supported the narrative that the Bakery had a long history of racism and discrimination after a shoplifting incident involving an Oberlin student and, ultimately, suspended their long-standing business relationship. The loss of this business was paralyzing to the Bakery, and a jury returned a verdict in favor of the Bakery for more than $30 million, including compensatory and punitive damages, as well as attorneys’ fees. Oberlin sought a stay of execution of the judgment amount under Civ.R. 62 (so as to prevent Gibson’s Bakery from seizing their bank accounts, equipment, etc. in satisfaction of the judgment) while they pursued an appeal. The court ultimately granted Oberlin’s motion, but conditioned the stay on Oberlin obtaining a bond in excess of $36 million, the full amount of the judgment plus three years’ interest.

Why are post-judgment bonds required?

“The purpose of a stay pending appeal is to preserve the status quo.” Monarch Constr. Co. v. Ohio Sch. Facilities Comm’n, Franklin C.P. No. 02CVH04-4222, 2002-Ohio-2957, ¶14. The idea is that, if the losing party pursues an appeal, they at least believe that the court made an error and that they should not be held responsible for the full amount of the judgment or at all. Accordingly, they would be prejudiced if, for instance, the prevailing party was permitted to execute the judgment against them and then the decision was ultimately overturned (i.e., the appellate court, for whatever reason, finds that the prevailing party was not entitled to the judgment in the first place).

But what about the prevailing party, who would otherwise be forced to wait (potentially, several years) to collect on a judgment that will likely be upheld, at which time the losing party may no longer have assets to cover the amount of the judgment? Enter Civ.R. 62(B)”

When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.

Furthermore,

. . . an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in a sum that is not less than, if applicable, the cumulative total for all claims covered by the final order, judgment, or decree and interest[.]

Exceptions to the rule

The requirement of a post-judgment bond (or “supersedeas” bond) should not be taken for granted. Courts have found that, in some cases, no bond is required at all if there is adequate security for the prevailing party. See, e.g., Irvine v. Akron Beacon Journal, 147 Ohio App. 3d 428, 451-52 (9th Dist. 2002) (upholding the trial court’s finding that “the Plaintiffs are adequately secured by the Defendant’s solvency and well-established ties to Akron, Ohio and that, therefore, the Defendants are not required to post a bond at this time.”); Lomas & Nettleton Co. v. Warren, 11th Dist. No. 89-G-1519, 1990 Ohio App. LEXIS 2720 (June 29, 1990) (holding that “the posting of a supersedeas bond is not mandatory to stay an execution in all cases”); Whitlatch & Co. v. Stern, 9th Dist. No. 15345, 1992 Ohio App. LEXIS 4218, at *25 (Aug. 19, 1992) (“[U]nder appropriate circumstances, the trial court may exercise its discretion and stay the execution of judgment without requiring the appellant to post a supersedeas bond.”).

Additionally, the government is never required to post a bond. Civ.R. 62(C) (“When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.”).

Finally, no bond may be required where the appeal arises out of an administrative decision wherein no money damages are at issue (for instance, a zoning appeal). Trademark Homes v. Avon Lake Bd. of Zoning Appeals, 92 Ohio App. 3d 214, 634 N.E.2d 685, 1993 Ohio App. LEXIS 6239 (Ohio Ct. App., Lorain County 1993) (finding that a supersedeas bond under R.C. 2505.06 is required only where a judgment was rendered for money damages), dismissed, 69 Ohio St. 3d 1449, (1994).

What if the losing party does not or cannot post the bond?

Unfortunately, indigence is often not an excuse recognized by courts. Instead, “R.C. 2505.11 provides a mechanism for substituting the supersedeas bond requirement in connection with an appeal.”GPI Distribs. v. Northeast Ohio Reg’l Sewer Dist., 8th Dist. Cuyahoga No. 106806, 2018-Ohio-4871, ¶ 27 (rejecting appellant’s argument that it could not post bond because it was indigent). That is, “[a] conveyance of property may be ordered by a court instead of a supersedeas bond in connection with an appeal” (i.e., in lieu of money). R.C. 2505.11.

If the movant/appellant fails to post a bond, when required, no stay of execution is perfected and the trial court retains jurisdiction, thus, rendering dismissal of the appeal appropriate.See generallyDennisonv. Talmage, 29 Ohio St. 433 (1876) (dismissing appeal for failure to pay bond); Collins v. Millen, 57 Ohio St. 289 (dismissing appeal for failure to pay bond). See alsoHoward v. Howard, 2d Dist., 1989 Ohio App. LEXIS 3643, *5-6 (Sept. 19, 1989), citing State ex rel. Klein v. Chorpening, 6 Ohio St. 3d 3 (1983) (“Until and unless a supersedeas bond is posted the trial court retains jurisdiction over its judgment as well as proceedings in aid of the same.”).

Let us help in your appellate matter

We are proud of our appellate success in Ohio, Kentucky and Federal Courts, including important against-the-odds victories at:

  • the United States Supreme Court (we had lost the issue three times in the trial courts of Southern Ohio and twice in the 6th Circuit Court of Appeals, and yet won 9-0 at the Supreme Court on an important First Amendment issue) and
  • Ohio Supreme Court (we lost at the trial court and then lost 3-0 in the appeals court, but won 7-0 at the Ohio Supreme Court on an open meetings issue).

The above authorities provide just a glimpse of how the appellate process can be tricky.

If you’d like to discuss your rights and responsibilities on appeal, please don’t hesitate to contact Casey Taylor ((513) 943-5673 ) or Brad Gibson ((513) 943-6661).

A cashier’s check is better than an ordinary personal check, right?  You can rely on it and turn around the cash quickly, right?

Well, no.

Not only is a bad or fraudulent cashier’s check no better than a bad personal check, there is raging fraud involving cashier’s checks on the internet: Craigslist, Facebook marketplace, etc.

Read this article on the topic.