Saturday, July 25, 2009
In a recent success for clients of ours, we were able to prevent their eviction when we filed documents which alleged that the real property they were living in was actually their property that they were buying indirectly from their business partner who was trying to evict them. Given the fact that the clients had worked out a business arrangement with the landlord/business partner wherein the clients lived in the condominium under a land contract business in partial return for their contribution to the business, the landlord was prevented from proceeding on his expedited eviction. A very big day for those clients.
In another ruling from the Supreme Court of Ohio on the issue of the enforceability of arbitration clauses, the Court has once again ruled that clauses requiring arbitration will be broadly enforced, and that almost any aspect any issue arising from the contractual arrangement will have to be arbitrated if the contract contains an arbitration clause. In Alexander v. Wells Fargo Financial Ohio 1, Inc., the Supreme Court of Ohio ruled that even if the breach of a contact would trigger statutory penalties, the penalties still have to be arbitrated. Generally speaking, arbitration is preferred by businesses because arbitrators are often business insiders (who are presumed to have pro-business leanings) and because the requirement to arbitrate a claim essentially eliminates the ability to prosecute a class action against a business. Thought: If your business is entering into a contact with a bigger business, be careful to read the contract to see whether you want to waive your right to have a trial court resolve your dispute rather than an industry insider.
In a recent decision by the Cuyahoga County Court of Appeals, the Court held that an ex-wife could successfully void a transfer/sale of a business asset by the ex-husband if the ex-wife could prove that the transfer/sale was done to put the assets out of reach of the ex-wife. In the case of Dinu v. Dinu, the Court held that if the wife had obtained a Domestic Relations Court support arrearage amount (in this case approximately $20,000), and the ex-husband had transferred/sold some business assets to prevent the ex-wife from seizing the assets to pay the judgment, she could sue the ex-husband and the purchasers of the assets in the General Division Common Pleas Court to void the transfer (i.e. she did not have to utilize the Domestic Relations Court to try to void the transfer). Thought: This woman may have had the ability to try to undue the transfer by adding defendants to the Domestic Relations Court divorce action (something the law certainly allows while the divorce is pending), but she chose another venue. Looks like this gives ex-spouses options when faced with this type of asset transfer activity.
In a recent decision by the Cuyahoga County Court of Appeals, the Court held that a woman waited too long to try to reopen her divorce case on the allegation that a pension asset was hidden from her by her ex-husband. In the case of Rodgers v. Rodgers, the Court held that the ex-wife’s wait of 27 years was simply too long – even though it was somewhat clear that the large pension asset had been hidden from her at the time of her divorce. Thought: Do you homework before you sign a divorce papers or divorce decree and don’t dilly dally if you learn or believe that your ex-spouse his some assets from you during your divorce).
There is a certain business operation in suburban misdemeanor criminal justice. Suburban municipal courts handle all of the suburban misdemeanor prosecutions in the Northeastern Ohio area. Some municipal courts handle just the city where they are located - like Lakewood, South Euclid, East Cleveland, Euclid and Cleveland Heights. Some municipal courts handle multiple cities - like Parma (8 cities), Rocky River (5 cities), Garfield Heights (8 cities), Berea (6 cities), Bedford (13 cities), Stow (16 cities), Lyndhurst (6 cities), and Elyria (10 cities). Often a client has been initially confused as to why their case went to a municipal court that was located outside of the city where they were alleged to have committed a traffic or criminal offense. Essentially some cites find it much easier to have the business of their trial court cases essentially “outsourced” to another city. In fact, often cities actually compete to get the business of a municipal court operation. Recently, one municipal court which served over ten cities relocated from one city to another because the new city essentially offered a better deal, and, of course, a brand new courthouse. Our active practice has taken us to all of these courthouses.
Recently the United States Supreme Court came out with a decision (Oregon v. Ice) that was an attempt to further clarify an area of sentencing law that has plagued the courts for almost a decade. What can trial court judges take into consideration when they are sentencing a person for a plea or a conviction? One continuing constitutional theory (started by two United States Supreme Court cases of Apprendi v. New Jersey and Blakely v. Washington) is that if there are facts that will increase a sentence, then the due process clause of the United States Constitution requires that a jury also find those facts beyond a reasonable doubt as well. For instance, if a defendant is found guilty of a theft, and the judge may sentence the defendant for more time if the theft involved an elderly person, then the law is that a jury must find that the case involved an elderly person before the judge imposes that additional time. Oregon v. Ice was an attempt to clarify this issue further. That case allowed a trial court to impose “consecutive” sentences (when a defendant is found guilty of more than one offense) even if the jury did not make a legal or factual determination about the factor that the judge used to impose the consecutive sentence.
Recently the United States Supreme Court came out with a decision that has somewhat redirected the analysis that courts in the United States must use in what are commonly referred to as car search cases (i.e. where police search cars incident to an arrest). This case is called Arizona v. Gant, which, in real short summary, now forbids police officers from searching a car in most circumstances once the police have arrested that driver/passenger and that driver/passenger is away from the car. Courts in the United States, including Courts of Appeals in Ohio, are now forced to deal with this new case, and, in more than a few circumstances, are suppressing the results of what are now (i.e. after the issuance of Arizona v. Gant) illegal searches. Gant, and the developing body of trial court and court of appeals cases that are now applying Gant, are causing a good amount of new motion-to-suppress work for many police, prosecutors, defense lawyers and judges.
When a person receives medical services as a result of an accident, the medical providers and/or the medical bill payors (e.g. medical insurance companies, Medicaid, Medicare, or Worker’s Compensation) almost always have what the law calls a “subrogation” claim on any monies that the injured person may end up collecting from the negligent party. In short, if the injured party gets compensated for the injury, the subrogation concept is that they essentially must pay these entities back for the medical bills or medical bills payments made by these entities. This subrogation area of personal injury law gets more complicated each day, with state statutes and federal statutes and medical insurance contracts getting more involved. Plaintiffs (and their lawyers) must be very careful to protect the subrogation interests of these entities – or they themselves can get sued in connection with the personal injury claim. It is very important for the client and the lawyer to identify and monitor the subrogation issues in the claim so there are no surprises when or after the client finally receives compensation.
A recent article written by a personal injury attorney in Virginia confirms our own experiences in the personal injury world. In short, be honest. Be honest to your lawyer and with your medical providers. This means telling them what you really recall from the accident in question, and this also means telling them about all of the other accidents and injuries that you have sustained in the past. Remember, insurance companies can talk to each other and actually look up your prior claims. Further, almost all insurance companies (and the lawyers that work for them) will have the legal ability to research much of your medical history. We have seen more disasters than we wanted to when a client either failed to tell us or the treating doctors about the real facts that lead to the injury or the fact that they had prior injuries or claims. What would have been rather valid and compensable injuries evaporated (in a nuclear explosion) when the insurance company (or its lawyers) found a discrepancy, lie or even an exaggeration in the client’s story or medical treatment. Juries are already skeptical enough these days about even serious and legitimate claims. Lies or exaggerations not only feed that skepticism, they essentially can kill the claim altogether.
The Supreme Court of Ohio (Lang v. Holly Mill Hotel) recently held that an older legal defense called the “open and obvious doctrine” is still good law in Ohio. This legal doctrine holds that if a jury finds that a hazard located on a residential or commercial is so “open and obvious,” then an injured person cannot recover for injuries received from the hazard. Even if the hazard on the property in question results in building or housing code violations, the property owner can still argue that the hazard was so “open and obvious” that the injured person should have noticed the hazard. Thought: Just like your parents told you when you were younger, “watch your step fella.”