Category Archives: Business & Civil Litigation

You know something bad happened to you, but you may not know who caused it, or other facts and circumstances associated with your claim.  Further, because of private records or uncooperative parties, video of the incident or documents not only advancing your claim, but showing the responsible parties, are not available to you.

There is a powerful solution to this problem, using Ohio Courts’ discovery powers!

Ohio law provides methods in which a party can conduct discovery prior to filing a Complaint to initiate a cause of action.

ORC §2317.48 provides,

When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civil Rule 12, the complaint shall be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs of the action shall be taxed in the manner the court deems equitable.

This statute authorizes the use of pre-suit interrogatories for the limited purpose of discovering facts necessary to file a subsequent complaint. TILR Corp. v. TalentNow, LLC, 2023-Ohio-1345, ¶ 1 (1^st App. Dist.). An interrogatory is a simple question in writing relating to a particular subject that may be answered by a brief, categorical statement. Its form and purpose correspond to that of a single question at trial. Penn Central Transp. Co. v. Armco Steel Corp., 27 Ohio Misc. 76, 56 Ohio Op. 2d 295, 271 N.E.2d 877, 1971 Ohio Misc. LEXIS 233 (CP 1971) def Hudson v. United Servs. Auto. Ass’n Ins. Co., 150 Ohio Misc. 2d 23, 2008 Ohio 7084, 902 N.E.2d 101, 2008 Ohio Misc. LEXIS 303 (Ohio C.P. Oct. 21, 2008).

Thus, ORC §2317.48 is specifically limited to discovery conducted by way of interrogatories and not applicable to the production of any documents. Riverview Health Inst., LLC v. Kral, 2012-Ohio-3502, 2012 Ohio App. LEXIS 3082 (Ohio Ct. App., Montgomery County 2012).

It is available to obtain facts required for pleading, not to obtain evidence for purposes of proof. Further, the statute requires more than a mere possibility of a cause of action. Marsalis v. Wilson, 2002-Ohio-5534, 149 Ohio App. 3d 637, 778 N.E.2d 612, 2002 Ohio App. LEXIS 5542 (Ohio Ct. App., Champaign County 2002).

Ohio Civ. R. 34(D) further provides a method for a party to obtain specific documents from another party, providing, in part:

(D) Prior to filing of action.

(1) Subject to the scope of discovery provisions of Civ.R. 26(B) and 45(F), a person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall make reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.

The petition must provide a statement of the subject matter of the potential cause of action and the party’s interest in it, a statement of the efforts made by the party to obtain voluntarily the information from the person from whom the discovery is sought, a description of the information sought to be discovered and the names and addresses of any person the party expects will be an adverse party in the potential action. Oh. Civ. R. 34(D)(1).

Under Civ. R. 34(D)(3), the Court will authorize the party to obtain the requested discovery if the court finds the discovery is necessary to ascertain the identity of a potential adverse party, the petitioner is otherwise unable to bring the contemplated action and the party made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought. Thus, pre-suit document requests must assist in the identification of a potential adverse party. Civ.R. 34(D)(3)(a). TILR Corp. v. TalentNow, LLC, 2023-Ohio-1345, ¶ 1 (1^st App. Dist.). Civ.R. 34(D) is designed to avoid needlessly joining as defendants non-liable parties who may have valuable information. Id.

Thus, prior to filing a Complaint, Ohio law provides avenues for parties to submit interrogatories for the limited purpose of discovering facts necessary to file a subsequent complaint and request documents if necessary to ascertain the identity of a potential adverse party.

To advance pre-suit discovery for your Ohio claim, please contact Julie Gugino (513.943.5669).

So, it many times goes like this: Litigating is either threatened and immediately settled or litigation is protracted, and the parties agree upon a dollar number for settlement of the dispute.  They apparently agree.  And then a form of settlement agreement or release is circulated, and one party or the other says: “Wooah, I didn’t agree to those terms.  I just agreed to a release of my claims for the money.”

The touchstone is: A settlement is a settlement.  And, yes parties and attorneys can be unreasonable and rapacious, using the last details to queer what folks previously thought was a settlement of a dispute, or to leverage even more money for their client.

If you orally or via email, in person or thorough your attorney, agree to settle a claim in exchange for money, that agreement to settle in itself can be enforceable.  Moreover, the party objecting to the additional language arguably can go into Court and ask the Judge to enforce that specific settlement, not another settlement with “proforma” or “typical” other provisions.

Don’t reasonable” and “customary” terms apply in filling in the “other terms” of the settlement?  Well, yes, no and maybe.

The key question is a meeting of the minds on all material terms of the settlement.  By not addressing these “other” issues at the time of the initial settlement discussions, you may leave those details to the discretion of the Court.  (And note that the Court can assess attorney fees against the defaulting party [the party not complying with the claimed settlement].  This can get expensive.)

Many of our clients are used to negotiations relating to real estate, and, yes, the law generally requires those agreements to be in writing and signed to be enforceable.  But most settlement agreements do not need to be in writing or signed to be enforceable.  All that is needed is a meeting of the minds of the parties to the agreement with all material terms being addressed and agreed.  Indeed, settlement of litigation (or perhaps even a non-litigation dispute) relating to real estate likely can be effectuated in an oral settlement agreement.

Soooo…

As one engages in settlement discussions, one must carefully consider the other material terms one wants to be addressed in the settlement at the time of those discussions.  Here is a partial checklist to consider:

• What claims are we in fact settling?
  • Only the claims in the demand letter or present litigation, or
  • All claims from the Plaintiff?
  • Is the defendant waiving all of his claims as well?
  • What about claims unknown at the time of the settlement?
• Assignment of rights intellectual property (software, logos and other art, plans and drawings).
• Confidentiality.
• No posting on social media.
• No release to the media or other public statements.
• Non-disparagement.
• Court costs.

In addition to these sort of “dangling” details, the underlying litigation could address substantive issues such as title to real property, ownership of a business, theft of trust funds, and so on.  This short checklist is just the sort of thing litigants (and their attorneys) may not initially think to address in settlement negotiations.

Because of this “hair trigger” impact of an oral agreement, this firm frequently recommends the use of a “We Can Talk” Agreement requiring, among other things, that an agreement be in writing and signed in order to be enforceable.  Such an agreement precedent to settlement talks should be enforceable to prevent premature settlement arising from informal conversations.

Finney Law Firm professionals are here to help you resolve your personal and business disputes, including properly negotiating and documenting a settlement agreement.

In the law a “pro se” (Latin: “for one’s self”) litigant is someone (usually a non-attorney) representing themselves in Court.   Litigation attorneys and Judges are used to pro se civil litigants.  Some are fairly good; others are embarrassingly bad.  Judges usually bend over backwards to give them their day in Court and hear their arguments.  Usually pro se litigants just gum up the works (just like terrible attorneys), but every so often they score a victory.  Indeed, even though the United States Supreme Court grants writs of certiorari (accepts discretionary appeals) in fewer than 1% of all cases and it is one of the most competitive forums in which the most sophisticated litigation attorneys battle, a few years ago a pro se litigant obtained such a writ, the Mt. Everest climb of the litigation profession.

But, for better or worse, a new tool has now empowered pro se litigants: Artificial Intelligence that is writing the pleadings for them.  Our office is seeing something just short of an onslaught of new complaints, pleadings, motions, briefs and even notices of appeal and appellate briefs, all seemingly generated by AI for pro se litigants.

It’s a Brave New World in the Courts thanks to AI. Clients are cautioned that they will need to defend new actions and respond to motions and appeals just as those generated by counsel, competent and incompetent!

Buckle up.  It’s going to be a wild ride.

In August 2024, the Ohio Supreme Court issued an opinion in Ackman et al. v. Mercy Health West Hospital, LLC, et al. reaffirming the principle that a party’s active participation in litigation does not waive the affirmative defense of insufficient service of process, provided the defense is properly raised. This decision, which builds upon and reinforces the earlier case of Gliozzo v. Univ. Urologists of Cleveland, Inc., could have significant implications on litigation strategy and assertion of affirmative defenses

The Case Background

Ackman arose out of a medical malpractice and wrongful death lawsuit filed against a doctor, his employer, a hospital, and Medicare. The doctor and employer responded with an answer asserting the affirmative defenses of insufficiency of process and insufficiency of service of process. Over two years later, they sought summary judgment, arguing that the case was not timely initiated because the doctor had not been served with the complaint. The plaintiff opposed, asserting that the doctor had waived the defense by actively participating in the litigation.

The Ohio Supreme Court, referencing its opinions in Gliozzo v. Univ. Urologists of Cleveland, Inc. and First Bank of Marietta v. Cline, clarified that a party does not waive the defense of insufficient service of process simply by participating in the litigation, as long as the defense is preserved in the pleadings.

The Court emphasized that it is the plaintiff’s responsibility to ensure proper service, and failure to do so according to the Civil Rules, especially in relation to statutes of limitations, can result in the case being dismissed, regardless of the defendant’s engagement in the litigation.

Potential Implications for Litigation Strategy

1. Strategic Use of Service of Process Defenses and Litigation Tactics: Defendants can now assert with greater confidence a defense based on insufficient service, even after prolonged litigation. The ruling unequivocally establishes that active participation in the case does not automatically waive this defense, provided it is properly raised within the appropriate timeline. As part of their broader litigation strategy, defendants may strategically delay raising this defense knowing that failure to properly serve a complaint can later serve as a dispositive ground for dismissal.
2. Increased Importance of Service of Process: This ruling underscores the critical importance of properly effectuating service and adhering to procedural rules and deadlines. Litigators must ensure that all potential affirmative defenses, notably insufficiency of service of process, are raised in the initial responsive pleadings. Plaintiffs must also be diligent in completing service within the prescribed timeframe to avoid dismissal on such grounds.
3. Risk of Dismissal for Plaintiffs. For plaintiffs, this ruling serves as a reminder that the window for correcting service issues is narrow and high stakes, as failure to perfect service could result in the loss of an entire case. In this case, Ackman, service was not effectuated within the required time frame, and refiling would have been outside the statute of limitations, leading to the dismissal of the claim on summary judgment grounds with no opportunity to refile or correct the service. Litigators must be vigilant in ensuring proper service at the outset, particularly in complex or multi-party actions, to avoid the risk of dismissal and the permanent loss of the claim.

The Ackman’s Decision in the Evolving Landscape of Service of Process Law

This Ohio Supreme Court decision in Ackman significantly contributes to the ongoing discourse surrounding the service of process in Ohio. This ruling builds upon and extends prior case law, particularly in light of procedural challenges posed by the COVID-19 pandemic. A 2021 case, CUC Properties v. SmartLink Ventures, Inc., raised concerns regarding the validity of service when USPS return receipts included notations such as “Covid 19” or “C19.” In that case, the First District Court of Appeals determined that such notations failed to meet the requirements of Civ. R. 4.1 for valid service of process, stressing the need to adhere to procedural rules even amidst pandemic-related disruptions.

The CUC Properties decision highlights that while innovative solutions were necessary during the pandemic, courts cannot compromise due process protections. The recent Ackman ruling reinforces this principle, highlighting the consequences for failing to effectuate proper service, even when a party has otherwise participated in the litigation.  As the Ohio Supreme Court emphasized, certainty in litigation is paramount, and defendants are under no obligation to assist plaintiffs in fulfilling their duty to perfect service. This decision marks a critical point for litigators, urging them to ensure procedural rigor to avoid jeopardizing their cases due to service-related missteps.

For further discussion on the impact of COVID-19 on service of process, see a related article here: Hamilton County Court of Appeals rules that certified mail practice during pandemic is not effective service of process – Finney Law Firm.

Additionally, the full court opinion can be found here: Ackman v. Mercy Health West Hosp., L.L.C..