Hi, How Can We Help You?

Blog

Ohio Election Law: Jonathan White and Cincinnatians for Jobs Now pay $15,000 fine to Ohio Elections Commission

Author By Christopher P. FinneyPosted on

It was a long and arduous legal journey expose and punish the $300,000 in illegal campaign contributions aimed to defeat Christopher Smitherman in the 2013 Cincinnati City Council elections, but Finney Law Firm and attorney Curt Hartman indeed “Made a Difference” by doggedly pursuing this case to conclusion.

You may read more about that adventure here.

We are pleased to report that Cincinnatians for Jobs Now and Jonathan White recently paid the $15,000 fine levied against them in the disciplinary proceeding.

Read the transmittal here.

Ohio’s Political Subdivision Immunity Act Does Not Undercut Ohio’s Taxpayer Action Statute

Author By Finney Law FirmPosted on

Ohio empowers its citizenry in some instances to act on behalf of municipalities “to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made on behalf of the municipal corporation in contravention of the laws of or ordinance governing it.” (R.C. 733.56) And provides that when successful, the taxpayer who initiated the lawsuit is entitled to have the costs of the suit paid by the municipality – including her attorney fees.

In 2014 a North College Hill taxpayer brought suit to enjoin the city from performing on an unlawful contract entered into with XPEX, LLC. The city argued that under Ohio’s political subdivision immunity act (R.C. 2744) it was immune from suit because the taxpayer sought to have her attorney fees paid as provided by the statute.

The trial court rightly denied the city’s argument and city appealed the decision.

Earlier this month, the First District Court of Appeals joined the trial court in rejecting the city’s argument finding that the political subdivision immunity act was not applicable because (i) the case was not a tort case; and (ii) an award for attorney fees under R.C. 733.56 does not constitute “monetary damages.”

Citizen activists should be particularly heartened by this decision as two of the court of appeals judges in this unanimous decision were recently elected to serve on Ohio’s Supreme Court.

The Court of Appeals decision can be read here.

 

Thus, Ohio taxpayers remain empowered to act as watchdogs over their public officials.

 

 

 

Ohio real estate law: Avoiding pitfalls in buying a lot or land for new construction

Author By Christopher P. FinneyPosted on

We would not be the first to use the phrase: “You don’t know what you don’t know,” but this is never more true than in the setting of planning and executing on new construction, residential and commercial.

As a general rule, new construction can be had in four different contexts: (i) building on “raw land,” (ii) building on a “developed lot,” (iii) building on land that has an existing building that will be demolished and (iv) renovating an existing building.  Compared to the relative ease of buying and using an existing building, each of these can be fraught with risks and unexpected costs.

Existing building.

Let’s first address the “relative” ease of buying an existing, occupied building.  Now, don’t misinterpret what we say here: You should always thoroughly “kick the tires” in every purchase.  Comprehensive “due diligence” is prudent in every transaction to find construction and maintenance defects, environmental problems, and zoning and other regulatory issues.  But having said that, it is at least possible to look at, touch, feel, and inspection existing building, whether a single family home or commercial structure.  The longer it has been there, the more likely it’s not going anywhere.  You can check the building and zoning file of the applicable City, Village or Township to see if the existing use has been cited as being in violation.  Buying land for new construction is in some ways more complicated.

Raw land.

So, a buyer looks at land and sees no building.  Is that “raw land” or a “developed lot?”  In the terminology used in this blog post, the distinction between a “developed lot” and “raw land” is the “full development” of the site with roadways and utilities (water, sanitary sewer, gas, electric, telephone, and cable television) and properly addressing stormwater drainage and detention.  Also, typically zoning approval for the intended use of lots has been obtained before the “development” of the land and the cut-up of the same into lots.  On the other hand, “raw land” is just that — land without any improvements on it, underground or otherwise.

In the case of “raw land” there are a host of potential pitfalls to achieving a final new construction product:

  • Zoning: Is the proposed use permitted and are proposed lot size, setbacks, and other variables for the proposed use permitted?
  • Utility access: Are public utilities available at the property line of the site (and indeed how much will it cost to extend it to the building).  The party who develops a site is usually responsible for (a) obtaining easements for and (b) paying the cost of extending public utilities to the property line and to the building itself.
  • Soil conditions: The suitability of soil for new construction is a significant variable for new construction.  In short, virtually every piece of land can be built upon from a physical perspective, but one may have to dig, bore, pier, bridge and engage in other engineering techniques to make that possible.  And the cost of building that proper foundation for the new construction can exceed the cost of the land and building.  Further, if the prior owner has moved and compacted sills not he site, it can significantly exacerbate the problem.  When a developer piles soil that is not acceptable compacted, it forces the builder to escalate or pier down to an acceptable depth before starting the construction.
  • Buried waste: In addition to soil problems, it is not at all uncommon to find all sorts of buried materials on what appears to the naked eye to be an open field or pasture.  I have been hired by several property owners seeking to put a pool in their backyard to find buried buses, trees, and blacktop.  This is because when a developer “scrapes” a subdivision to build roads and other improvement, it is common to show all this debris into a “bury pit.” Other subterranean gems my clients have found have been concrete chunks or rip rap, buried tires and even elephant carcasses and school buses (I do not make this up).
  • Title problems.  As is addressed in this blog entry, there are a host of title problems that can arise in the new construction setting: An unreleased mortgage, an unreleased dower interest of a spouse, easements both of record and prescriptive, and adverse possession claims.  In addition to “running title,” a buyer should obtain a proper survey of property to assure that there are no encroachments upon property he intends to acquire.
Developed lots.

In the case of buying a “developed lot” in a subdivision — residential or commercial — the same variables are typically present.  Again, typically zoning, utility availability and storm drainage are addressed in the “development” and “subdivision” process, but the other issues can be of concern.  We were recently approached by a client who inherited a residential lot, but the lot was too narrow for construction of an appropriate residence.  Another found buried tires on the site.  A third found that the developer had not properly compacted the soil, requiring expensive excavation and foundation work.  Further, new subdivisions frequently (almost always) are accompanied by a set of covenants — enforceable by the developer or neighbors — on the design and use of new construction.

Demolition.

Other clients buy one or more existing structures with the intention of demolishing them  and building on the newly-cleared land.  In these circumstances, there may be restrictions (such as historic districts) that prevent demolition.  Further, when old buildings are demolished and replaced, the new construction may need to comply with entirely new set of restrictions than the old building in terms of lot size, setback lines, building height, building materials, covenants, and building code issues.

Renovation.

Renovating existing structures involves a whole new level of intricate issues.  When renovation is sufficiently significant, an entire floor, improvement or even the hole building then has to be brought up to new building codes.  Further, in tearing out old improvements, there are as many or more surprises — structurally, with mold and hazardous materials (asbestos is common) — than with developing raw land.

Due diligence.

A client and friend preaches repeatedly to me that he has learned — from experience — to be skeptical.  Your eyes are lying to you.  Behind the walls and under the ground, in regulatory restrictions and site limitations, don’t believe your own observations alone.  Rather, work diligently before buying property and certainly before digging into the ground to learn all of the pitfalls and variables of the site.  It an save you time, money and heartache.

Contractual protections.

I have aa saying as an attorney: The best contract can’t make the other party honest or turn a scoundrel into an honorable man.  But it can be used to flesh out issues, and to place the burden on a dishonest seller if he is trying to sell you a “bill of goods.”

Some contractual provisions that can be helpful in the new construction setting are:

  • Obtaining representations and warranties in the contract from the seller.
  • Obtaining all of the seller’s investigations and due diligence documents from his acquisition of the subject property and that he obtained throughout his ownership.
  • Have the seller promise to pay the cost associated with extraordinary sub-surface conditions.
  • Allow for generous due diligence investigations of the property in terms of time and property access during the sue diligence period.
Conclusion.

After reading this blog entry, it would be an entirely rational reaction to never want to undertake the risks and challenges of new construction.  Indeed, knowledgeable buyers see danger (read: costs) lurking behind every corner.  But at the same time, a savvy buyer can — with relative safety — protect himself and seize the opportunity that new construction presents.

 

 

USA Today features our client’s recent win in IRS case

Author By Christopher P. FinneyPosted on

Today’s USA today has a detailed update of our case before the United States District Court for the Southern District of Ohio wherein Tea Party and other liberty-oriented groups are suing the IRS for illegal and unconstitutional targeting of their non-profit applications.

Investigative reporter James Pilcher does a thorough job of updating the litigation that the IRS has worked hard to drag out.  It has already gone on for three and a half years.

Our firm is local co-counsel to the Tea Party groups, which have been certified as the only class action in the nation challenging the IRS conduct under Lois Lerner, the director of the  Exempt Organizations Unit of the IRS.  The matter erupted into a nation-wide controversy in 2013, culminating in Ms. Lerner invoking her Fifth Amendment defense against self-incrimination in refusing to testify before Congress.

Read the story here.

IRS continues to target Tea Party groups

Author By Christopher P. FinneyPosted on

As we have shared previously, this firm is pleased to act as co-counsel for the only certified class action against the IRS on behalf of Tea Party groups nationwide.  There have been recently interesting developments in that case.

First, Judge Dlott recused herself from the case and it was assigned to Federal District Court Judge Michael Barrett.  Second, Judge Barrett made his first major ruling two weeks ago in that case on a series of motions that resulted in an order requiring the IRS to process the long-delayed application (like six year delay) of the tax exemption application of one of our named clients, the Texas Tea Party Patriots.  You may read that ruling here.

Second, other Tea Party groups are also seeing their applications finally being processed.  Today’s Washington Times reports that after a seven-year delay of the tax exemption application of the Albuquerque Tea Party, the IRS finally denied that application.  Read that story here.

We hope to have further significant developments in that case in the near future.

Congratulations Casey Taylor!

Author By Laura M. LinnemanPosted on

casey-taylor

Congratulations to our very own Casey Taylor on successfully passing the Ohio Bar Examination! Casey has been with Finney Law Firm for nearly a year as a law clerk assisting our litigation staff. After being sworn in next week, Finney Law Firm is pleased to announce that Casey will be joining our litigation team as our practicing attorney.   Please join us in congratulating Casey on her success!

Taxpayer actions

Author By Casey A. JonesPosted on

We have many dedicated and professional public servants, both elected officials and bureaucrats.  But we also have some who are not so dedicated and not so professional, and even the best can get intoxicated by their power, respond to the mob, or fail to understand the constitutional and statutory limitations on their authority.

Fortunately, in this nation, we have a system of checks and balances, and when an elected official steps over the bounds of his authority, we have the courts to check that abuse of power.

At the Finney Law Firm, we take pride in representing our clients and communities by, when necessary, standing a haughty elected official or appointed bureaucrat before a Judge and making them account for their excesses.  The only thing more satisfying than that is both winning and shifting the fees to the government that forced the action to begin with, for which Ohio law allows.

Under Ohio law, both (i) standing is conferred and (ii) an award of attorney’s fees to a prevailing plaintiff is granted for ultra vires acts (acts beyond their power) by government officials.  This is achieved through taxpayer actions.

Standing

“Standing” is a threshold issue in all litigation.  To have standing, an individual must generally have an actual and concrete injury, caused by the conduct of which the individual complains and capable of being redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).  Because the status of taxpayer is shared by so many, it can sometimes be difficult to establish standing; however, Ohio law has alleviated that problem with statutes such as R.C. 733.59 (for cities/municipalities) and R.C. 309.13 (for counties).

The Ohio taxpayer statutes provide that an individual may request in writing that the city solicitor, village director, or county prosecutor (whichever is applicable), if there is one, initiate an action to hold government actors accountable for their ultra vires acts.  If there is no such solicitor, director, or prosecutor to initiate the action or if they fail to do so upon a taxpayer’s written request, the taxpayer may initiate the suit himself. The action is then brought in his own name on behalf of the municipal corporation or the state, whatever the case may be.  This, in essence, confers standing upon any taxpayer seeking to put a stop to such injustices, regardless of their arguably generalized injury.

In so doing, the taxpayer “volunteers to enforce a right of action on behalf of and for the benefit of the public.” State ex rel. Nimon v. Springdale, 6 Ohio St. 2d 1, ¶ 2 of the syllabus (1966). The only other requirement is that the taxpayer must give a “security” for the cost of the proceeding, presumably to discourage meritless actions.  However, the Ohio First District Court of Appeals, has found that the filing fees satisfy this requirement, although other courts have disagreed and required something more. McQueen v. Dohoney, 1st Dist. Hamilton No. C-130196, 2013-Ohio-2424, at ¶ 21 (June 12, 2013); But see, Bowshier v. Vill. of N. Hampton, 2d Dist. Clark No. 2001 CA 63, 2002-Ohio-2273, at ¶ 27 (May 10, 2002); National Elec. Contrs. Ass’n v. City of Mentor, 108 Ohio App. 3d 373, 381 (11th Dist. 1995).

Attorney’s Fees

 An added benefit for the taxpayers who bring these actions, as well as their attorneys, is that they are entitled to attorney’s fees upon showing that the action resulted in public benefit. State ex rel. White v. Cleveland, 34 Ohio St. 2d 37, ¶ 3 of the syllabus (1973); See also R.C. 733.61 (“If the court hearing a case under section 733.59 of the Revised Code is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney.”); R.C. 309.13 likewise provides for reasonable attorney’s fees.  One of Finney Law Firm’s own cases established that “[t]he public benefit need not be monetary in character. That benefit may be of a more intangible character, such as the prevention of illegal government activity.”  City Of Cincinnati ex rel. Smitherman v. City of Cincinnati, 188 Ohio App. 3d 171, 178 (2010), citing Billington v. Cotner, 37 Ohio St.2d 17, 19, 305 N.E.2d 805 (1974).  However, to get attorney’s fees, the taxpayer must produce a contract (fee agreement) showing that he has actually incurred attorney’s fees. Harris v. Carney, 8th Dist. Cuyahoga No. 34733, 1976 Ohio App. LEXIS 8334, *6 (Apr. 8, 1976).

For more information on taxpayer actions, attorney’s fees in such actions, and other fee-shifting provisions, Attorney Chris Finney will be presenting at an NBI seminar in Cincinnati, Ohio titled Local Government Law From Start to Finish on Friday, December 16, 2016.

We’re buying a house!

Author By Casey A. JonesPosted on

In recent years, more and more millennials are pursuing higher education.  This trend has, in many instances, pushed back the age at which we are beginning our careers, starting families, and making big purchases.  Thus, NOW is the time that so many of us are looking into buying our first homes.  Here is one thing you need to know, whether you are a prospective buyer or seller:

The Residential Property Disclosure Form (required for residential real property transfers in Ohio per R.C. 5302.30) is not just a formality, but rather, is an EXTREMELY important component of the transaction.

At Finney Law Firm, we represent both buyers and sellers in real estate transactions that have, arguably, gone awry.  The issue often has to do with a disclosure made (or not made) in the Real Property Disclosure Form.  This form requires sellers to answer questions about the condition of the property they are selling.  It covers the structural integrity of the home, water intrusion issues, plumbing, etc.

Home is a big purchase so contracts will have an effectSellers are required to disclose any problems of which they have knowledge.  Even if the property is being sold “as is,” sellers have a duty to not engage in fraud in executing this form (i.e. to not knowingly make any affirmative misrepresentation or conceal a latent material defect in the property).  For example, if the seller knows that the basement floods but checks the box marked “No” next to the section for water intrusion, the seller has arguably engaged in fraud, and a damaged buyer could pursue those claims against the seller.  It is in the best interest of the seller to disclose all that he knows about the property so as to avoid the risk of future liability.

On the flip side, a buyer has certain obligations as well. If the seller in the aforementioned example had said “ten years ago, there was a flood in the basement, but we caulked some cracks and it is no longer a problem,” the buyer is arguably not entitled to rely on that disclosure in assuming that the problem is fixed and that there are no longer any water intrusion issues.  The Ohio Supreme Court has held:

Once alerted to a possible defect, a purchaser may not simply sit back and then raise his lack of expertise when a problem arises. Aware of a possible problem, the buyer has duty to either (1) make further inquiry of the owner, who is under a duty not to engage in fraud, or (2) seek the advice of someone with sufficient knowledge to appraise the defect.

See Tipton v. Nuzum, 84 Ohio App.3d 33, 38, 616 N.E.2d 265 (1992), citing Layman v. Binns, 35 Ohio St. 3d 176, 177, 519 N.E.2d 642 (1988).  Therefore, the buyer should then make further inquiry, by hiring an inspector or asking follow-up questions of the seller, or both. To this point, this can be such an exciting time and even the most cautious buyers can easily become anxious to close on and move into their new home, but it is in the best interest of the buyer to ask questions and investigate anything that might become an issue down the road.  While the extra time or comparably nominal expense of making such further inquiry can seem frustrating, it could save you tens – if not hundreds – of thousands of dollars in repairs and/or legal fees down the road.

Ohio Election Law: Ohio Attorney General’s Office Pursues Contempt Charges Against Rob Richardson

Author By Christopher P. FinneyPosted on

The Finney Law Firm and lead attorney Curt Hartman doggedly pursued discipline by the Ohio Elections Commission in the case of dark money spent against Christopher Smitherman in his 2013 election campaign to Cincinnati City Council.

Mysteriously, more than $300,000 in mailers, flyers and radio and television advertisements were issued during the closing weeks of the campaign, but no committee fessed up to making those expenditures or disclosing their sources of funds.

In July, the Ohio Elections Commissioner finally, after years of litigation found that the wrongdoers had in fact systematically violated Ohio elections law and fined them $15,000.

But the key player in that saga, Cincinnati union leader Rob Richardson, steadfastly refused to submit  to a deposition or present his testimony before the Ohio Elections Commission.

This past week, the Ohio Attorney General initiated a contempt action against Richardson for ignoring a lawfully-issued subpoena.

You may read that suit here.  You may read Smitherman’s press release relating to the same here.

Our firm was pleased to represent the distinguished council member Christopher Smitherman in this action and was pleased to win it after years of delay from the Ohio Elections Commission.

Christopher Finney appears on Business Wise Radio show discussing litigation costs

Author By Christopher P. FinneyPosted on

Cincinnati CPA’s Crystal Faulker and Tom Cooney are great friends and business associates of Finney Law Firm, and have one of the strongest marketing outreaches in town.  They are with MCM CPAs and Advisors. (Their web site is here.)

They have a radio show, BusinessWise, which airs on: WMKV and WLHS, FM 89.3 and 89.9; Mon – Fri at 7:30 am & 6:40 pm.

They featured Christopher Finney on their show on October 17th to discuss the costs and risks of defending and prosecuting civil litigation, especially for business clients.  A link to that show is here.  Scroll to the 10-17-16 show and listen in!

 

1 … 51 52 53 54 55 … 92