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Judge Patrick Dinkelacker rules Finney Law Firm client has prescriptive easement over portions of proposed Hyde Park Square development

Author By Christopher P. FinneyPosted on

Judge Patrick Dinkelacker this week issued a ruling in a case that has been simmering since December of 2024 in favor of our client, Lee Robinson, recognizing our client’s right to what Ohio law references as a “prescriptive easement” over portions of property on which a developer had planned to place retail shops, a boutique hotel, apartments and an underground parking garage.

The decision establishes our client’s right — acquired by usage and by operation of law (see below) — to have vehicular ingress and egress over portions of the developer’s property, meaning his accessway must be maintained as it is, and the grade of the entrance to our client’s parking lot must stay the same.  Since the developer’s plan were to engage in construction activity blocking the easement area, and it planned to place buildings in the easement area and change the grade of the easement relative to our client’s parking lot, the developer is effectively prevented from moving forward with currently-planned development.

It is generally a surprise to lay persons (and some attorneys), but one can gain ownership of another’s property in most states (if not all), including Ohio and Kentucky, by continued occupancy and use of the property for a protracted period of time — in Ohio 21 years and in Kentucky 15 years.  In law school we learn the five required elements to achieve this end as O.C.E.A.N.: Open, Continuous, Exclusive, Adverse and Notorious use and occupancy of the property.  If proved, in Ohio by “clear and convincing evidence,” then the adverse possessor has full legal ownership of and title to the property.

A stranger to title can also acquire the lesser right of “easement” over another’s property by eliminating the “exclusive” part of the adverse possession requirements, so O.C.A.N, for the same 21-year period in Ohio, to establish what is known as a prescriptive easement.  This easement is every bit as good or better than an easement given by express grant, and (for example) passes with title  to the property benefitted by the easement.

It was precisely this type of “prescriptive easement” benefiting Finney Law Firm’s client’s property on Hyde Park Square that Judge Dinkelacker recognized by his decision this week.

The team that prepared and tried this case (the preliminary injunction hearing) were Christopher Finney, Julie Gugino, J. Andrew Gray, Mickey McClannahan, and Emma Friedhoff, among others, greatly aided by Steve Griffith of Taft Law.  Our expert witness at trial was noted Clermont County attorney and title insurance agent Doug Thomson.

You may read the whole decision here: Robinson Decision

How to Plan Effectively for a Business Divorce

Author By Todd McMurtryPosted on

A “business divorce” refers to the change in ownership or dissolution of a closely held business, which can be as complex and contentious as a marital divorce. This term encompasses a range of scenarios, from one partner buying out another to the complete unwinding of a company’s operations. 

Before undertaking such a drastic action, owners must consider several critical factors to ensure the business divorce process is handled with minimal disruption to the company and its assets. Here is an overview:

  • Take stock of the reasons and goals — The reasons could range from personal conflicts between owners to divergent visions for the company’s future. It’s also important for all parties to articulate their goals for the divorce, whether it’s a desire for independent operation, financial settlement or strategic realignment of the business.
  • Assess legal and financial implications — Owners should review any existing partnership agreements, bylaws or shareholder agreements that dictate the process for resolving disputes and exiting the business. These documents often outline buy-sell agreements, valuation processes and other critical procedures. Absent such agreements, state laws will govern the dissolution process, which might not align with the owners’ personal or business interests.
  • Undertake a valuation of the business — Determining the value of the business is a contentious aspect of many business divorces. Accurate valuation is essential for fair asset distribution. Owners should consider hiring independent appraisers to provide a valuation that all parties can agree on. This avoids further disputes and assure partners they are receiving their rightful share.
  • Measure the impact on stakeholders — A business divorce can affect a wide range of stakeholders, including employees, customers, suppliers and creditors. Owners should consider how the divorce will impact these groups and plan accordingly. Maintaining transparency with stakeholders during the divorce can mitigate negative impacts and maintain business continuity.
  • Consider negotiation and conflict resolution — Ideally, a business divorce should be resolved through negotiation rather than litigation. This can save time, reduce costs and preserve relationships to the extent possible. However, it requires compromise and understanding from all parties involved. Where negotiation fails, mediation or arbitration might be viable alternatives, offering a non-adversarial approach to settlement of key issues.

Given the complexities involved, it is advisable for each party to seek counsel from a business divorce attorney who can offer comprehensive services, making sure that valuations are done fairly, that all assets and liabilities are accounted for and that all governmental rules are complied with.

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.

 

Matthew Okiishi

Supreme Court Lowers Burden for “Reverse Discrimination” Cases

Author By Matthew S. OkiishiPosted on

Prior to June 5, 2025, an employee suing for discrimination in this Circuit was required present a prima facie case showing  that: 1) they belong to a protected class; 2) they were qualified for the job; 3) they experienced an adverse employment action; and 4) the employer treated similarly situated employees outside their protected class more favorably. But members of a “majority-group” (think: White, male, heteronormative, and/or Christian) suing in the Sixth Circuit was required to show an additional element, namely that there were “background circumstances” that his was the “unusual” employer that discriminated against the majority. 

Now, however, the Supreme Court of the United States has reversed this longstanding requirement. Writing for a unanimous court in in Ames v. Ohio Dept. of Youth Services, No. 23-1039, Justice Ketanji Brown Jackson found that this rule “cannot be squared with the text of Title VII or prior precedent.” The Court reasoned that because Title VII bars discrimination against any individual on the basis of protected characteristics and does not distinguish between minority or majority groups, there is no room under the statute for a special pleading or proof standard to be imposed on majority-group plaintiffs. 

Without the heightened “background circumstances” requirement, majority-group employees who believe that they were discriminated against on the basis of their race, gender, national origin, or religion only have to prove the same prima facie case as minority employees.

Whether juries will need to be “sold” on the idea that “reverse discrimination” is possible remains to be seen. But for now, the path for majority-group employees to reach a jury trial has been made easier.

Can You Bring a Legal Malpractice Suit Even if Your Case Settled?

Author By Todd McMurtryPosted on

Legal malpractice is generally defined as failing to adhere to the professional duty of care that an attorney owes to clients. Usually, a malpractice claim is lodged after the client received a disappointing result in an underlying court case. But does the client have the right to sue if the case below settled?

The short answer is yes. You can sue for malpractice even if your underlying case never saw the inside of a courtroom. However, proving malpractice in a settlement scenario presents unique challenges. Courts generally presume that settlements are entered into voluntarily, which can make it difficult to argue that the settlement was the result of attorney negligence or misconduct.

The attorney’s duty of care requires him or her to act with the diligence and promptness expected of an attorney of similar ability and training under the circumstances. This includes adequately preparing for and researching the case, effectively communicating with the client and acting in the client’s best interest at all times. When the attorney fails to adhere to this duty in any respect, it could lead to an unfair or inadequate settlement

Here are specific types of conduct that can justify a legal malpractice claim:

  • Misrepresentation or fraud — If an attorney misleads a client about the strength of their case or pressures them into settling under false pretenses, this could constitute malpractice. For example, if an attorney assures the client that their case is weak when it is not, to coerce them into accepting a low settlement offer.
  • Failure to investigate or prepare — An attorney’s failure to properly research or prepare a case can leave the client in a weaker bargaining position and lead to a less favorable settlement. This might include failing to gather key evidence or neglecting to consult with necessary experts.
  • Conflict of interest — If an attorney has a personal or financial interest that conflicts with the client’s interest, such as a desire to settle quickly to move on to other cases or personal relationships with the opposing party, this could compromise the attorney’s ability to advocate effectively for the client.
  • Failure to communicate — Attorneys must keep their clients informed about significant developments in their case, including settlement offers. Failure to communicate such offers, or to adequately explain the implications of accepting or rejecting them, can be grounds for a malpractice claim.
  • Failure to negotiate effectively — If an attorney accepts an unreasonably low settlement without attempting to negotiate more favorable terms, this might also be seen as a breach of their duty of care.

To succeed in a legal malpractice lawsuit based on a settlement, the client must prove that but for the attorney’s negligence, a better settlement or verdict would have been likely. This often requires expert testimony from other legal professionals who can attest to the average recoveries for similar cases in the same geographic area. Since settlements are typically confidential, comparing the settlement to verdict sizes in similar cases can be a useful way to gauge whether the attorney made a substandard effort. A professional malpractice attorney can build the strongest case possible in this regard.

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.

 

The Most Frequent Causes of Business Litigation

Author By Todd McMurtryPosted on

As a business owner or operator, protecting your company’s interests requires understanding how to avoid and cope with problems that can end up in litigation. Disputes related to business operations, transactions, and partnerships can escalate quickly if not addressed proactively. 

Here is a summary of some of the most common causes of commercial litigation:

  • Breach of contract — When a party fails to meet their contractual commitments, such as by non-delivery of goods, late payments or substandard performance, it can disrupt your business immediately and in a longer term. Litigation may be needed to redress the issue. Business owner can mitigate these risks by ensuring that contracts are clear, detailed and enforceable.
  • Intellectual property infringement — Your intellectual property (IP) is one of your business’s most valuable assets. Protecting your IP through proper registration and vigilant monitoring can safeguard your competitive edge in the market. However, litigation may be needed if you believe another entity has infringed upon your patents, trademarks, copyrights or trade secrets. 
  • Negligence and business torts — Negligence and other tort claims may arise when another party’s careless actions cause harm to your business or its assets. These can include defamation, interference with contractual relationships or failure to exercise reasonable care in shipping. Such cases often require comprehensive evidence to establish fault and quantify damages.
  • Trade issues and disputes — Operating in a global marketplace exposes your business to complex trade disputes, including conflicts over international trade agreements, import/export regulations, and compliance with trade laws. Navigating these issues requires a deep understanding of both domestic and international legal frameworks.
  • Misrepresentation and fraud — If you’ve been misled by false information or intentional deception in a business transaction, you may have grounds for a fraud claim. Misrepresentation can have severe financial repercussions, and addressing it swiftly is critical. Proving fraud involves demonstrating intent, false representation, reliance, and damages.
  • Partnership and joint venture disagreements — Business partnerships and joint ventures can be lucrative but also fraught with potential conflicts over management decisions, profit-sharing, and fiduciary responsibilities. Disputes can escalate if there are ambiguities in your partnership agreements or if parties breach their fiduciary duties. Regularly reviewing these agreements can help prevent misunderstandings.
  • Non-disclosure agreement (NDA) disputes — NDAs protect your sensitive business information. If a party breaches an NDA by improperly disclosing confidential information, it can jeopardize your competitive position. Ensuring that NDAs are comprehensive and enforceable is key to protecting your business secrets.

Since any of these outbreaks disrupting your business, it is vital to consult with a skilled business litigation attorney immediately when a dispute arises. Early intervention allows for a thorough assessment of your case, the preparation of a strong defense and the exploration of alternative dispute resolution strategies, such as mediation or arbitration, which can save your business time and resources.

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.

 

When Can a Company Sue Over Commercial Disparagement?

Author By Todd McMurtryPosted on

Commercial disparagement, also known as trade libel, is a cause of action by which a business can seek damages when false and damaging statements about its products, services or overall operations cause economic harm. The core elements of a claim typically include a public false statement, the presence of malice or intent to cause harm and demonstrable financial damage to the business.

Commercial disparagement can occur through written publications, spoken statements, digital communications, advertisements and even social media posts. If a competitor claims that a company’s product is defective or unsafe or alleges unethical business practices without a factual basis, these statements can damage the company’s brand and diminish customer goodwill, leading to loss of revenue. Rapid spread of information online increases the potential impact of disparaging statements.

Although commercial disparagement and business defamation have similarities, such as the underlying falsity of the statements made, there are key differences. Defamation is damage to the reputation of a company or its owners, whereas commercial disparagement is injury to the company’s economic interests. In business defamation cases, harm to reputation often presumed. In contrast, plaintiffs in commercial disparagement cases must provide concrete evidence of a direct link between the disparaging remark and the financial damage incurred.

Companies suing for commercial disparagement can seek compensatory damages, covering actual financial losses directly caused by the disparaging statements. These can include lost profits, decreased sales and harm to business relationships. In cases where malice or fraudulent intent is proven, punitive damages may also be awarded to punish the offending party and deter similar conduct in the future. Additionally, injunctive relief may be sought to prevent further dissemination of the false information.

Defendants in commercial disparagement lawsuits have several potential defenses. Truth is the most powerful defense; if the statement in question is factually accurate, it cannot be considered disparagement. Another defense is privilege, where certain communications are protected due to the context in which they are made, such as in legal proceedings or governmental reports. Additionally, the defense of opinion may apply if the statement is clearly a subjective view rather than a factual assertion. Lack of malice or intent to harm can also be a defense, asserting the statement was made negligently rather than with deliberate intent to damage the business.

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.

Ohio Property Tax Valuation: Increase in interest rates alone does not void application of recent sale

Author By Christopher P. FinneyPosted on

As attorney Casey Jones of this firm wrote last year, a recent arms length sale of real property generally is — under Ohio law — the best evidence of the value of property for tax purposes.  If that’s what you paid, that generally is the value for property tax purposes.  And rebutting that sale price as the taxable valuation can be very difficult.

Further, as I wrote in 2022, that reality hit a purchaser of an apartment complex in Clermont County when he got a whopping valuation increase of $26 million increase in valuation and a retroactive tax increase — post closing — of $682,000.  Ouch.

Well, that apartment-purchasing property owner appealed its property valuation for 2023 (only 18 months after the closing) seeking after-the-fact tax relief, arguing that the sudden rise in interest rates increased the rate of return investors expect from apartment properties, and therefore the value of the property fell from the 2021 sale price.

The Ohio Board of Tax Appeals disagreed and just issued its decision for that 2023 tax year — it retained that value at $32.600,000.  Ouch, again.

You may read that decision here.

Benefits of Attorney Representation in the North Bend, Ohio Hillside Development Case

Author By Christopher P. FinneyPosted on

We are pleased to present this blog entry from guest author, Eric Russo, executive director of The Hillside Trust, a non-profit organization dedicated to the preservation and thoughtful use of our region’s hillsides. Eric has served this organization for over 35 years. His opinion is not a paid endorsement of the Finney Law Firm. Rather, he has worked with multiple other highly qualified land use attorneys that have helped deny or overturn various hillside developments that have posed threats to their communities.

 ______________________

On February 3, 2025, the North Bend Planning Commission voted 4-0 against a hillside development proposed above St. Annes Dr in the Aston Oaks Community.  The residents of St. Annes hired the Finney Law Firm and worked in opposition with The Hillside Trust.

I have been involved in scores of hillside development reviews throughout the Greater Cincinnati and Northern Kentucky region.  The Hillside Trust often testifies in these cases when it determines that a project presents a host of issues that are detrimental to the geological integrity of a hillside and/or to the safety of the surrounding community. It provides this testimony free of charge as a public service.

There are instances where an impacted community has reached out to The Hillside Trust seeking its expertise, particularly when a development is posing an environmental threat.  One of my first recommendations in these situations is to encourage the community to engage the services of a qualified land use attorney. My reasoning is simple. When you have expert legal representation, two things will happen.  First, your side is allotted the requisite time to present all arguments against the development.  Often this will include legal matters related to land use and zoning that are less familiar to the lay person.  Having additional time on your side will be an added benefit, considering that both proponents and opponents alike are usually allotted a set amount of time to testify, typically ranging from 2 minutes to 5 minutes per person.  Second, your attorney is afforded the opportunity to cross-examine the testimony of the development team’s professionals, just as his or her attorney can cross-examine the witnesses of its opponents. Based on my experience, when a developer has legal representation, and opponents do not, the decision invariably will side with the developer.

I commend the neighbors of St. Annes Dr for investing in attorney representation to protect the financial and environmental interests of their street. The North Bend Planning Commission hearing lasted well over 4 hours, including a three-hour Power Point presentation of expert witness testimony coordinated by Rebecca Simpson, an attorney with the Finney Law Firm. I have no doubt this expert legal representation aided in the ultimate denial of this environmentally consequential hillside development.

As the real estate market continues to escalate in value, there are substantial profits that will be made from development.  Consequently, developers are building attorney fees into the costs of doing business. Short of owning the piece of development property in question, a community’s best tactic is to have legal representation by an experienced land use attorney.  It does not guarantee they will win the case. However, their concerns will be represented far more equitably in their quest to level the playing field of administrative review.

Eminent Domain and Transportation/Utility Easements

Author By Casey A. JonesPosted on

Scenario:

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

Do you have to agree? What are your options?

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

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

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

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

For assistance in assessing your options or negotiating easements, please contact Casey A. Jones, Esq. at casey@dev.finneylawfirm.com or (513) 943-5673.

Residential Foreclosures: The Procedural, Pre-suit Pitfalls

Author By Diana L. EmersonPosted on

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

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

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

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

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

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

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

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

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

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