Another arbitration clause ruling

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.

Ex-Wife Can Use Fraudulent Transfer Act to Go After Ex-Husband’s Assets

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.

27-year Wait is Too Long to Find Assets

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).

The Municipal Courts in this Area

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.

Recent United States Supreme Court Sentencing Case and Courts of Appeals in Ohio

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.

Recent United States Supreme Court Search Case and Courts of Appeals in Ohio.

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.

What is Subrogation – and How Subrogation Affects Personal Injury Claims.

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.

The Importance of “Honesty” in Personal Injury Claims.

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.

“Open and Obvious Doctrine” remains a strong defense in Ohio.

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.”

New Jersey Appeals Court Ruling on DUI Case Where Defendant Asleep at the Wheel

Reprint from the New Jersey Law Journal (7/28/2009)
Being drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can't carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts' usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.
In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

O'Shea & Associates Note:
Ohio may have addressed this problem when it enacted a law called "physical control." Under that newer statute (RC 4511.194), a person may be convicted for being under the influence in a non-moving/parked car. The penalties for a violation of this statute are somewhat less that for a violation of the normal DUI statutes (RC 4511.19/4511.191). Many experienced DUI lawyers try to get a prosecutor to offer a DUI defendant the opportunity to plea to a "physical control" violation. Looks like New Jersey may have to play catch-up to Ohio on this issue.

President Obama Nominates New Supreme Court Justice

President Obama just nominated a new candidate for the United States Supreme Court. This nominee will replace the outgoing/retiring Justice Souter. If confirmed by Congress, United States Federal Court of Appeals Judge Sonia Sotomayor would be the third female justice and the first Hispanic justice in the history of the United States Supreme Court. After graduating summa cum laude from Princeton, she went to Yale Law School. Judge Sotomayor, a former prosecutor who also practiced law for a New York firm, has served for more than a decade on the Court of Appeals for the Second Circuit, based in New York City. Bill Clinton nominated Sotomayor for the U.S. Court of Appeals for the Second Circuit in 1997. George H. W. Bush nominated Sotomayor as a federal judge in 1991 -- a position that made Sotomayor the youngest judge in the Southern District of New York and the first Hispanic federal judge in the state.

United States Supreme Court Ruling on Police Interviews of Defendants in Absence of a Lawyer

The United States Supreme Court issued an important and law-changing decision this week on the issue of whether police may interview a defendant in the absence of his lawyer. In the case of Montejo v. Louisiana (see http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf), the United States Supreme Court held that police may in fact interview a defendant even if the defendant has a known lawyer if the defendant voluntarily chooses to speak with the police. This watershed decision overruled a 35-year-old decision from the United States Supreme Court which barred the practice. How this decision is applied or used by various police and prosecutorial authorities remains to be seen. If we have a situation involving an unsophisticated defendant (i.e. a defendant that is unaware of his or her right to remain silent in the absence of their lawyer), the potential for abuse may be huge. We'll just have to wait and see.

Our collection litigation success.

We just obtained a collection litigation success for one of our wholesale food product clients. We had obtained what might have been initially perceived as an uncollectable judgment. However, with some persistence, we were able to track down the judgment debtor and discovered that the judgment debtor had started a new business. We used a legal technique that permitted us to seize that business until our entire judgment was paid in full. We were happy to mail our client their check this past week.

We are going to argue a "dog attack" case at the Supreme Court of Ohio.

We are going to argue a case later this fall in the Supreme Court of Ohio. The Supreme Court of Ohio will hear arguments about a case involving a dog mauling of a young child in Akron, Ohio. The trial court issued a ruling that forbid us from presenting the jury with evidence that the same dog had attacked another person about one month earlier. We won the issue at the Court of Appeals. See http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4689.pdf. However, the lawyers for the attacking dog have convinced the Supreme Court of Ohio to decide whether the Court of Appeals got it right. Stay tuned for details.

Supreme Court of Ohio to Rule on Drugs-Into-Jail Case.

The Supreme Court of Ohio will hear arguments on Tuesday, May 19, 2009 on a drug conviction case that came out of Cuyahoga County. The defendant in that case was convicted for having marijuana in his pants cuff when he was conveyed into the County Jail on a drug arrest. The defendant was convicted at trial, but the Cuyahoga Court of Appeals reversed the conviction on the basis that the defendant was not in control of his person after he was arrested by the police. See State v. Cargile: http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-2783.pdf.

The Ohio Supreme Court has taken up the issue at the request of the prosecution. We will try to update you all when we find out the results of the decision by the Supreme Court of Ohio.

Business Litigation Update: Avoid oral agreements on big transactions.

The Ohio Supreme Court held recently that if an agreement between two parties is technically covered by what is know as the “Statute of Frauds” (i.e. a statute that lists certain types of agreements that must be in writing to be enforced in court), then even good faith part performance of an oral version of that agreement cannot be advanced as an excuse for not having the agreement in writing in the first place. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2057.pdf. It use to be that some lower appellate courts in Ohio had held that a party could argue that the Statute of Frauds could be ignored if either party to an oral agreement had partly performed obligations under the oral agreement or relied on the existence of the agreement to their detriment. No longer. This decision has far reaching implications in certain industries and areas of trade where many complicated and/or financially large transactions happen on sometimes a daily basis. Business contracts covered by the Ohio Statute of Frauds include agreements involving real estate (including leases), agreements that cannot by their operation be performed in less than a year, and agreements to take over the debt of another person (this is not the complete list). Thought: Consult your local transactional lawyer long before you invest time and money on a deal that may be covered by the State of Frauds. Make sure the agreement for that deal is covered by a written contract.

Our verdict in a workplace assault case.

We just obtained a not-guilty verdict for a physician-client of ours. The physician had emigrated from Albania (where he had been a practicing physician) and was working at a local hospital as a medical technician while trying to get licensed in Ohio, get his U.S. citizenship and to save enough to move his wife to the United States. One particular nurse at the hospital consistently made crude and ethnic insensitive comments to the client, and when the client eventually verbally exploded at the nurse in the break room, the nurse and her close friend claimed that the client slapped her 3 times in the face. A fair and necessary background check of the nurse’s employment history revealed that she was less than a credible witness (and employee) . In applying the proper definition of reasonable doubt, the jury rendered a not-guilty verdict. If the client had been found guilty, he would have been almost immediately deported, and he would have lost out on a life-long dream to have his family start a life with him here. He was rather emotional at the verdict.

Criminal Justice Update: Hearsay evidence in child sex abuse cases.

The Ohio Supreme Court handed down a decision which held that someone other than a child-victim may testify about the statements that the child made concerning an alleged molestation of the child. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1576.pdf. The Court held that if the child-victim was not able to testify at trial for some reason, the “hearsay” statements of the child-victim can be admitted by having another person tell the jury what the child-victim had said on an earlier occasion. In this unique case, the child-victim died in a fire prior to the trial, and the defense had argued that the statements made by the child to others were “hearsay” and could not be admitted at trial. Thought: Some prosecutors may try to stretch this ruling to permit hearsay statements to be admitted at trail when they (the prosecution) deem the child to be “unavailable” even though the child is alive and healthy.

Criminal Justice Update: Computer hard drives

The Ohio Supreme Court handed down a decision that is a true reflection of the modern digital age. In cases where a defendant’s hard drive has been seized and examined by the police/prosecutorial authorities, the defense lawyer may not independently examine that hard drive (with a defense expert) unless the defense lawyer makes a minimal showing that the written results of the hard drive examination are somehow “false, incomplete, adulterated or spoliated.” See: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1354.pdf. Thought: In this new digital age, computer forensic experts are rapidly becoming one of the most important expert witnesses. Make sure you hire the right one.

Cuyahoga County Court of Appeals ruling on disability pension benefits.

The Cuyahoga County Court of Appeals has recently ruled that disability pension benefits are not “marital property” (which would make them subject to division between the spouses in a divorce) unless they are taken by the retiring spouse instead of that spouse continuing to work or taking his or her regular pension. See: www.sconet.state.oh.us/rod/docs/pdf/8/2009/2009-ohio-2263.pdf. If the retiring spouse has any of his or her normal pension benefits reduced because of taking disability pension benefits, then a corresponding amount of the disability pension benefits become martial property. Thought: A spouse who is going through a divorce who has the ability to receive both a regular pension and a disability pension must engage in some sophisticated math and planning before making an election to receive either or both a regular pension or a disability pension.