Ohio Supreme Court issues landmark Open Meetings decision — email deliberations are equally covered by the statute

By Christopher P. FinneyMay 7, 2016August 5, 2022

Last week, the Ohio Supreme Court issued a landmark decision on Ohio’s Open Meetings law, O.R.C. Section 121.22 in the case of White v. King.

Ohio’s Open Meetings law prohibits closed-door deliberations of public business when a majority of the public body is present, subject to host of exceptions. But the question was confronted in the King case of whether deliberations via email among that same majority of public officials is also prohibited.

The King case strongly answered that question in the affirmative:

serial e-mail communications by a majority of board members regarding a response to public criticism of the board may constitute a private, prearranged discussion of public business in violation of R.C. 121.22 if they meet the requirements of the statute.

The decision is linked here.

Emails likely do not satisfy statute of frauds

By Christopher P. FinneyApril 28, 2016August 5, 2022

In both commercial and residential transactions I recently have seen a spate of emailed communications purporting to amend a purchase contract. Many times these are emails among Realtors “confirming” one claimed contractual modification or another.

What is the legal effect of these emailed communications?

Minor changes.

The nature of the emails I have seen typically involve changing (delaying) a closing date or waiving certain of the contingencies. As the transaction unravels, the client approaches me and wants to enforce the contract as “amended.” Thus, the question becomes: legally and practically, what effect on the original, signed contract do these emails have?

The answer: Likely none. The original signed contract will likely stand unamended.

No signature.

As is addressed here, the statute of frauds, which is very similar state to state, requires two things for all contracts for the purchase and sale of real estate: (i) the contract must be in writing and (ii) it must be signed by the party “to be charged therewith,” i.e., the person we are planning on enforcing the contract against.

Because the emails in the cases I have recently seen are not accompanied by the adverse party’s “signature,” they likely will not be enforceable. Thus, the Courts will probably look to the original, unsigned contract to ascertain the rights and responsibilities of the parties to the contract.

What is an amendment?

Most clients and their agents seem to know about the statute of frauds, and do in fact comply with it as to the original contract. Somehow, however, the message has not gotten through that this applies to every amendment or modification to the contract as well.

Changing a closing date, waiving a contingency, adding personal property to what is to be conveyed, or promising to make certain repairs pre-closing or post-closing are all amendments to a contract and need to comply with these basic provisions of the statute of frauds.

E-signatures still allowed.

Many clients and Realtors have adopted use of electronic signatures (such as DocuSign) to allow fulfillment of the statute of frauds by means of email and the internet for the original contract. As is addressed here, this method does in fact fulfill the statute of frauds. Thus, for these fast-developing “minor” amendments to a contract, e-signatures are fine as well.

Conclusion.

I suppose clients and their Realtors see memorializing these changes as not worthy of taking the time to properly document the same, or they misunderstand that these are in fact amendments to the contract. This is especially so with respect to fast-moving developments in a modern real estate transaction.

The rule is simple: the contract for purchase and sale of real estate and all amendments thereto must be in writing and must be signed by the party on the other side of the transaction.

New angle proposed to enforce Ohio Public Records law

By Christopher P. FinneyApril 28, 2016August 5, 2022

The way Ohio Public Records law is written, a member of the public aggrieved by the failure of a public agency to produce requested documents as required by law may sue that public agency for those records, and if he prevails, receive an award of attorneys fees.

Unfortunately, a pair of decisions of the Ohio Supreme Court in January of 2015 effectively gutted Ohio Public Records law by holding that attorneys fees would not be awarded if the agency produced the disputed records before the conclusion of the litigation. You may read those decisions in State ex rel. DiFranco v. South Euclid here and here.

Thus, the Supreme Court has empowered recalcitrant public agencies to ignore and play games with public records requests.

In response, the Ohio legislature is finally grappling with the issue. As today’s Enquirer reports, Senate President Keith Faber is considering a proposal to make quicker and easier Ohio Public Records complaints through the Ohio Court of Claims. Read about that here.

The new process contemplates resolution in 75 days or fewer. Presently, public records cases take two years or longer to resolve through the Ohio courts.

The proposal does not reinstate the attorneys fee awards taken from members of the public by the Ohio Supreme Court, but it should make proceeding pro se more practical.

Answers to some questions on the Duke Energy Class Action settlement

By Christopher P. FinneyApril 7, 2016August 5, 2022

NOTE: the deadline to file a claim is April 13th. Please act quickly.

The Duke Energy class action settlement has generated a record amount of traffic on our firm’s web site. That’s a good thing, because virtually every residential and commercial customer of Duke Energy in southwest Ohio that owned property from January 1, 2005 to December 31, 2008 is entitled to a refund, in some cases a significant one

We have had a few questions from clients about the settlement. We checked and got you the answers:

If I owned a property during the relevant time period, but have since sold it, may I still file a claim? Yes.
If I can’t recall the addresses of all of the properties I owned during the claim period (we have, for example, home builder clients with multiple, rotating model homes), can I file a claim for those? The class action attorneys are looking into this further for us, but probably not. The claims process requires the name of the property owner and the identity of the property in question.

If you want to file a claim, log in here and follow the instructions. It only takes a few minutes.

The deadline to file is fast approaching: April 13th.

Happiest Cincinnati Reds Opening Day from Finney Law Firm and Ivy Pointe Title!

By Christopher P. FinneyApril 4, 2016August 5, 2022

Isaac Heintz and Dylan Sizemore present “Five Pillars of Success” to Home Builders on April 20th

By Christopher P. FinneyApril 2, 2016August 5, 2022

We are excited to announce that Finney Law Firm attorneys Isaac T. Heintz and W.Z. “Dylan” Sizemore will present “Five Pillars of Success” to the Greater Cincinnati Home Builders Association on Wednesday, April 20th from 11:30 AM to 12:30 PM.

HBA members and non-members are invited, but non-members (“Future members”) must pay $25 to attend.

The seminar addresses the key steps that business owners should take in establishing and growing their businesses to maximize returns and minimize exposure to liabilities. The presenters are knowledgeable and experienced business and real estate attorneys.

The Cincinnati Home Builders Association is a private organization of home builders and their vendors that is entrepreneurial and well-led. They actively participate in civic matters of critical concern for the local economy and provide important educational opportunities for their members. Finney Law Firm is proud to be a member.

A flyer with the details of the event is linked here. The location of the presentation is The Tile Shop, 3095 Disney Street Cincinnati, OH 45209.

Alert: Apply for Duke Class Action settlement payment by April 13

By Christopher P. FinneyApril 2, 2016August 5, 2022

All residential and commercial users of electric generation service from Duke Energy Corp. and/or Cinergy Corp. from January 1, 2005 to December 31, 2008 are eligible for a rebate under a class action effectuated in the case Williams v. Duke Energy. For residential users, the rebate will range from $40 to $400. For commercial users the rebate is unlimited in size.

As described to me by one of the attorneys for the Plaintiffs, the settlement — nearly $81 million in all — means “real money,” especially for larger commercial users. Your business should not miss this opportunity, and it is even worthwhile for residential users to avail themselves of this windfall.

However, in order to obtain a refund, consumers must complete and submit a form on-line or on paper by April 13, 2016.

The on-line form is quick and simple. It should take fewer than five minutes to complete. We strongly recommend that all of our eligible clients log onto http://dukeclassaction.com and complete the form. I just did it for my own residence, and it was super-quick and super-simple.

10 Things An Attorney Can Do For You

By Paul S. SianMarch 31, 2016August 5, 2022

10 Things Finney Law Firm Can Do For You

Often times when people think of attorneys they think of lawsuits or criminal charges and as a result that is why they need an attorney. While attorneys are needed to help you deal with lawsuits and criminal matters that is not the end of the list of what an attorney can help you with. To help you get a better idea of how an attorney can help you I have compiled this list of 10 things that Finney Law Firm can do for you. While this list is by no means an all-inclusive list it is designed to show you areas where Finney Law Firm has the expertise to help you work through a matter and save you money or save you from legal headaches in the future.

1. Real Estate Matters

In many states in the U.S. (Ohio and Kentucky are no exceptions) attorneys are involved in many of the steps of the real estate buying and selling transaction. Often times attorneys are involved behind the scenes in reviewing contracts, legal documents, preparing title opinions and more. In certain states attorney have more hands on involvement in that any closing involving real estate is done by an attorney or under their direct supervision.

Finney Law Firm attorneys can assist individual buyers and sellers in the buying and selling process for both residential and commercial properties. As a real estate buyer you can ask an attorney to look over your offer to purchase a home to make sure it represents your best interests. Sellers may also want to hire an attorney to review any purchase offers and explain to them the requirements they will be bound by if they accept that offer. Some land purchases involve more complicated matters like mineral rights, multiple pieces of land being sold in one package, or liens by having an attorney represent you gives you get extra protection by having the legal considerations addressed by someone trained in those matters.

2. Business Planning

Are you planning on starting a new business, incorporating an existing business, or changing the corporate structure (i.e. going from an S Corporation to a C Corporation) of your current business? Many activities related to business planning should have an attorney involved in order to make sure everything is done properly. Changing your business status from a sole proprietor to a Limited Liability Company or a corporate form without doing the proper paperwork for taxes will leave you at risk with the federal and local tax authorities. While you may have unintentionally not filed some of the proper tax paperwork that will not stop any associated penalties. By working with a Finney Law Firm attorney you can be assured all your paperwork will be properly prepared and you will be fully informed as to what each document means to you in your business.

By working with an attorney to properly prepare your paperwork you have someone who is familiar with your business and will be ready, willing and able to help you should the need arise. While you can go hire an attorney at a moment’s notice to help out with legal issues, that attorney will not be as familiar with your business as one who has been working with you on an ongoing basis. For more information on the LLC form of a business see LLC see the article Why Do You Need An LLC.

3. Family Planning/Estate Planning

Marriage

Planning on getting married soon? Do you and your spouse have assets you want to keep separate in case of divorce? While the love and bliss of courtship lead you to think the relationship will last forever things and people do change. If you or your significant other own part of a family business, own your own business, have a large sum of assets from inheritance or from earnings then it is advisable to get a pre-nuptial agreement prior to getting married. A pre-nuptial agreement is a document that can protect assets for both of the people about to be married. Unless properly prepared by an attorney and taking into account all assets a pre-nuptial agreement may not be worth much in the event of divorce. Therefore pre-marital planning should involve an attorney and the couple about to be wed. In many cases it may be best for each person to have their own attorney look over the pre-nuptial agreement to represent each person’s best interests.

Family

Now if you are married and have kids there are other considerations to take into account. Those considerations mostly revolve around making sure your children and/or spouse are taken care of in the event of your passing. This is where sitting down with an estate planning attorney comes into play. An estate planning attorney will sit down with you and review your assets and your goals for your assets in case of death. This could involve setting up trusts for your spouse and/or children, guardianship arrangements for minor children, living wills, health care power of attorneys and more.

Depending on the amount of assets you have to give to your family and how you want to distribute those assets a trust may be a better option for you. A trust not only preserves your assets for your children it can also make sure you children still get their inheritance in the event your spouse later remarries. Inheritance can get quite complicated so it is best to talk with an estate planning attorney to make sure your assets are distributed the way you want them to be. For more information on wills and guardianship see my article How a Will and Trust Factor Into Your Estate Planning.

4. Legal Document/Contract Review

Have you been suddenly presented with a legal document with request for signature? Do you know what the document is meant to do and how you may be legally bound if you sign the document? If you don’t know what the language is saying or how it will impact if you sign it then by all means you should be speaking with an attorney to have them look over the document and explain to you what exactly is being asked of you. Common examples of legal documents you may be signing throughout your life include documents related to the purchase and sale of real estate, purchase or sale of a business, non-disclosure agreements for work or other purposes, waiver or release of liability paperwork, settlement documents and more.

Signing any legal document without having full understanding of what sort of obligations you may face is asking for trouble. While the language may not talk in dollars and cents terms you could end up owing plenty of money if you signed a legal document and then failed to do what was required of you under the terms of the document. An attorney will be able to review your legal document and give you an opinion on what it is asking for and what risks you face in signing the document. Don’t sign just because the person giving it to you says it is ok, get another opinion before it is too late.

5. Labor and Employment Law

Do you run a business where you are responsible for the hiring and firing of employees? Want to make sure any terminations or hiring are done correctly and there is minimal risk of you being sued for discrimination? Or maybe you are wanting to setup health plans or retirement plans for your employees and unsure of the way to go about setting up those plans?

If you answered yes to any of the above questions then you should be talking with a labor and employment law attorney who can prevent you from taking the wrong moves which end up costing you money and more. Having an effective attorney advocate at your side assures you that you can concentrate on working on your business while any legal issues are promptly dealt with for you.

6. Bankruptcy

Unsure if you can manage paying off your debts? Afraid of losing your house because you are behind on payments? Worried that your debts are impacting your health due to the constant stress? Or maybe health related expenses have hurt you financially. All of the above situations can be resolved through filing for bankruptcy. You will not know if bankruptcy is suitable for your situation until you sit down and discuss your situation with a bankruptcy attorney and learn about what filing for bankruptcy means.

In bankruptcy you are asking a bankruptcy court to set aside your debts under Chapter 7 (not all debts may be discharged) or to reorganize your debts into a more manageable payment plan under Chapter 13. Determining which Chapter will work best for you is a decision to be made in conjunction with a bankruptcy attorney. Businesses as well as individuals are eligible to apply for bankruptcy when they are unable to pay their debts.

7. Taxes, Taxes and more Taxes

Unaware of what taxes your need to pay for your business? Want to pay less to the Tax Man and let your family inherit more? Own a piece of property that you think you are paying too much taxes for? All of the above are matters that can be addressed by an experienced attorney at Finney Law Firm.

Business planning involves dealing with tax matters and understanding all the tax jurisdictions involved. Not only do you have to consider federal and state taxes but there are also the city, municipality, and possibly county taxes to take into account. Miss any payments to one of these tax collecting entities and your business will be at risk. By sitting down and discussing with an attorney what your business does and where it will be performing its business your attorney can better advise you as to what taxes you need to make sure are paid.

Property tax is another big issue for both residential and commercial land owners. Property tax collectors sometimes base their tax collection rates on the overall health of the real estate market in a region as opposed to your specific piece of land. Maybe you have change in situation that has lowered the value of your property but your property taxes still remain where they were before. An attorney will be able to look at your particular situation and then prepare the proper paperwork to request that your property valuation be looked at in order to get a possible downward adjustment in value thus reducing your property tax payment.

As mentioned in item 3 above a will can help you take care of your family in the event of your passing. Wills along with trusts can also shield your assets from estate taxes that can be charged to your estate. Also known as the “Death Tax”, this tax on your wealth can be minimized depending on the amount of wealth and how you deal with it now. As each individual has their own unique asset situation a consultation with an Estate Planning attorney will help you best decide how much of your assets get caught up in the “Death Tax”.

8. Litigation

When faced with litigation the last thing you want to do is ignore any requests for information nor do you want to provide answers without the guidance of an attorney in order to save money on legal bills. The answers and the way you answer pre-litigation questions (depositions and/or interrogatories) can make or break a case for you. Therefore it is in your best interest to answer these questions with an attorney present so they can stop you from answering questions you should not be answering. By having an attorney represent you in litigation from the beginning you are bringing along a valuable partner who not only will have knowledge of your case but also have the skills to defend you in a court of law. If an attorney has to be brought in later to a litigation matter it will usually be the case that they will have to spend more time in order to become fully informed of the situation which will cost you more than if you had hired an attorney at the start.

Whether you are being sued for something your business did, something an employee of yours did or you are suing someone who injured you the attorneys at Finney Law Firm have a great depth of background and litigation experience to assist you in your litigation matter. Finney Law Firm has successfully litigated cases related to caregiver abuse of children, business transactions, personal injury cases, failure to disclose in residential and commercial real estate matters, contract disputes and more. Finney Law Firm has won a number of cases that have went before the U.S. Supreme Court.

9. Personal Injury

If you have been injured by someone or someplace where the situation was preventable you may want to discuss your injuries with an attorney. Especially where you have suffered losses due to being unable to go to work, out of pocket medical bills, or other pain and suffering you may be able to be compensated for those losses. A lot of this depends on how the injury occurred and whether or not someone’s negligence leads to your injury. By talking with an attorney you get a better idea of where you stand if you do wish to seek recovery for your injuries.

10. Criminal Matters

Are you being charged with a crime? Whether that crime is driving while under the influence (DUI), reckless driving, theft or something else having an attorney represent you for the criminal trial is your right. In order to determine the severity of the charges and the amount of jail time or fines you can face you need to speak with an attorney as soon as you are able to. Facing a criminal charge is not something you should try and handle on your own as those who will be prosecuting you are professionally trained. By having a knowledgeable and experienced attorney like those found at Finney Law Firm on your side you can be assured you will be getting the best representation possible.

Do you have any questions about the services above?

Paul Sian is a licensed attorney in the States of Ohio and Michigan. If you feel you need the services of an attorney or have questions about any of the services named above feel free to contact me at paul@finneylawfirm.isoc.net or via phone at 513-943-5668. Connect with me on Twitter and Facebook.

Myth buster: When is an Ohio Residential Property Disclosure Form required?

By Christopher P. FinneyMarch 26, 2016August 5, 2022

We hear a lot of misinformation from prospective sellers and Realtors on when a Residential Property Disclosure Form must be used in Ohio:

“I’ve never lived in the house, and thus I am exempt from filling out the form.”
“I’m just an investor. I don’t have to complete the form.”

Neither of these statements is true, so let’s bust these myths and in the process really dig into why a residential property disclosure form is “required” and when it is “required.”

What is the “requirement”?

As an opening proposition, Ohio law does not actually require the use of the Residential Property Disclosure statement. And by this I mean that no one is going to go to jail for failure to use the form, and the civil consequences are generally limited to termination of the contract before closing, if any.

The law in question is Ohio Revised Code Section 5302.30. It is indeed entitled “Property disclosure form required for all residential real estate transfers.” But when reading the statute it becomes apparent that the penalty for non compliance is: rescission of the contract, but only prior to the earlier of thirty days after the contract is signed or the date of closing (ORC § 5302.30 (K)(4)):

If a transferee of residential real property subject to this section does not receive a property disclosure form from the transferor after the transferee has submitted to the transferor or the transferor’s agent or subagent a transfer offer and has entered into a transfer agreement with respect to the property, the transferee may rescind the transfer agreement in a written, signed, and dated document that is delivered to the transferor or the transferor’s agent or subagent in accordance with division (K)(4) of this section without incurring any legal liability to the transferor because of the rescission, including, but not limited to, a civil action for specific performance of the transfer agreement.

Ohio Revised Code §5302.30 (K)(2) also provides for rescission if the seller amends the Residential Property Disclosure Form after the contract is signed.

It is always advisable to disclose

Before we get to the question of whether Ohio law requires disclosure, there is another question of whether disclosure is advisable. The answer is almost always “of course.”

The basis of property defects fraud claims is either (a) a material misrepresentation as to a known defect (i.e., lying about the basement leaking or the presence of termites) or (b) non-disclosure of a known material defect that is not readily open to observation by a buyer.

A full and proper written disclosure inoculates a seller from both of these claims and this is advisable even if the law does not require full disclosure.

What types of transactions are covered?

Section (B)(1) of the statute tells us what types of transactions are covered by the “requirement”:

transfers by sale;
transfers by land installment contract;
transfers by lease with option to purchase;
an exchange of property; or
a lease for a term of ninety-nine years and renewable forever.

Who must provide the form and who is exempt?

So, then, on to the question of who must provide the disclosure and when must it be provided:

The statute provides that it covers all “transferors ” of properties containing one to four dwelling units. So, this would seem to include otherwise commercial properties that contain under four dwelling units, such as a bar or restaurant with apartments above.

And then the statute contains an extensive list of exemptions from its requirements detailed below, but the exemptions do include:

New construction;
Transfers from an estate; and
Transfers among family members and co-owners or pursuant to a divorce;

The statute does not exempt investors or simply owners who did not live in the property.

Waiver by buyer

Finally, a buyer can waive his right of rescission for a Residential Property Disclosure Form (O.R.C §5302.30 ((K)(3)(c). And, since this is the only remedy for the failure to deliver the Residential Property Disclosure Form, it is essentially a waiver of rights of the buyer under the entire statute.

Conclusion

So, the myth is busted. Investors and other owners who did not live in the house (except those administering an estate of a seller) are not exempt from the requirements of the statute.

Appendix

A more complete list of exemptions is below:

(1) A transfer pursuant to court order;

(2) A transfer to a mortgagee by a mortgagor by deed in lieu of foreclosure or in satisfaction of the mortgage debt;

(3) A transfer by a mortgagee, or a beneficiary under a deed of trust, who has acquired the residential real property at a sale conducted pursuant to a power of sale under a mortgage or a deed of trust or who has acquired the residential real property by a deed in lieu of foreclosure;

(4) A transfer by a fiduciary in the course of the administration of a decedent’s estate, a guardianship, a conservatorship, or a trust;

(5) A transfer from one co-owner to one or more other co-owners;

(6) transfer to immediate family members and transfers as a part of a divorce;

(7) A transfer to or from the state, a political subdivision of the state, or another governmental entity;

((8) A transfer that involves newly constructed residential real property that previously has not been inhabited;

(9) A transfer to a transferee who has occupied the property as a personal residence for one or more years immediately prior to the transfer;

(10) A transfer from a transferor who both has not occupied the property as a personal residence within one year immediately prior to the transfer and has acquired the property through inheritance or devise.

Lawsuit: Adrien Broner KO’d, robbed man

By Christopher P. FinneyMarch 25, 2016August 5, 2022

Our firm is pleased to serve as Plaintiff’s counsel in the assault case against Cincinnati Boxer Adrien Broner.

From today’s Enquirer our own Chris Finney is quoted:

“Adrien seems to have a penchant for walking around town and slugging people,” said Carson’s attorney, Chris Finney. “We want it to stop.”

Read about it in today’s Enquirer here.

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