Debt Relief – Survival Strategy

Business and personal debt have become a management nightmare for those unprepared to deal with hostile creditors and their unyielding demands for payment. Even with the current economic distress, with property values still in sharp decline, and with interest rates …

Effective Management of Construction

Building and renovation projects have been frequently referred to in terms of human investment as: “Time, Emotion. and Money”. Effective business management of costs, quality and time constraints on construction and renovation projects however, also requires attention, experience and professional …

Negligence and Warranty

In many construction cases, the owner’s claims that work was improperly completed by the contractor, may give rise to two (2) primary causes of action against the contractor, namely: negligence and breach of contract. The failure to perform the work …

Consumer Sales Practices Act (“CSPA”)

The Ohio Consumer Sales Practices Act “CSPA”, was enacted to protect consumers from unfair, deceptive and unconscionable acts or practices by suppliers. The Act defines which business practices are legal or illegal, and including what suppliers can and cannot represent …

Construction Delay Claims

Construction delays and claims arising from project delays and disruptions have become an increasing impediment to project success. Of even greater concern is that sustained profit, especially under present economic conditions, has become more difficult to achieve. All participants in …

Mechanics’ Liens and Waivers of Lien

Perfection of a valid Mechanics’ Lien is a necessary prerequisite to assertion of the right to be paid. At least, one cannot credibly proceed to trial without it. Many trades, persons and businesses affected should have previously noted and taken …

Surface Water Intrusion; Reasonable Use Rule

{¶11} Where damage to one’s property is alleged by water run-off created by an adjacent property owner, Ohio has adopted a reasonable-use rule. McGlashan v. Spade Rockledge Terrace Condo Development Corp. (1980), 62 Ohio St.2d 55, syllabus (each possessor is …

Corporate Records – Minutes

All corporations, regardless of whether they are “C” Corps., LLC’s, or other forms of legal entities are required, by the laws of the state in which they are incorporated, to maintain adequate documentation, in the form of minutes of each …

Briefs of Law – Elements

In response to many requests. Editor BREACH OF CONTRACT: A breach of contract occurs when a party to the contract fails to perform a contractual duty. CONTRACT INTERPRETATION: Specific Controls General Provision: A specific provision in a contract controls over …

Evidence – Spoliation Defined; Elements of Proof Required

In law, spoliation of evidence is the intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding. It is a criminal act in the United States under Federal and most state laws. Spoliation has two …

Real Property Covenents – CC&R’s

Real estate purchases include specific real property rights and interests; the issue of covenants and restrictions as they affect those rights, are important, and valuable considerations worthy of careful scrutiny by the prudent buyer. Covenants, collectively grouped as “covenants, conditions, …

Construction Site Injuries and Deaths

Construction is a hazardous occupation. The fatality rate for construction workers has been estimated at more than three times the rate for all other industry sectors. Predictably, for the seven (7) million men and women currently employed in the construction …

Abuse of Process

In any legal action (lawsuit) the named Defendant(s) who can truly claim, and prove, the claims stated are untrue, improper, unfounded or baseless, may be able to counterclaim for abuse of process. The Courts of Ohio have defined this type …

Lawyer Selection – No Beauty Contest

Lawyer selection is no beauty contest; while appearance is important, good looks are not! Legal cases, unlike beauty contests, are won by good facts, hard work and good experience! Litigation costs time, emotion, and money. Each of these elements is …

Construction Mediation

Mediation of construction-related claims is also known as Fact-Based Mediation, is specifically geared to serve the needs of the construction industry. It is a significant departure from conventional mediation techniques in that it addresses claims arising from specific facts in …

Business Associations: Limited Liability Companies (“LLC’s”) v. Corporations and Partnerships

Query: What is the Limited Liability Company form of business? What sets it apart from a corporation or a partnership? Answer: Traditionally, most privately-owned businesses have organized and operated as corporations or partnerships. In the mid-1990’s a new form of …

“MAC” – Matrerial Adverse Changes Clause

In acquisitions and in construction contract financing, MAC clauses are commonly used to provide a means of allocating risks occasioned by adverse or negative business or economic conditions that occur between the agreement and closing. In merger agreements, the MAC …

Quantum Meruit v. Unjust Enrichment, Distinguished

One U.S. District Court, in a construction case in Maine, clarified the important distinctions between the terms, Quantum Meruit and Unjust Enrichment, in actions for the recovery of damages, deciding whether these terms were misstated or undistinguishable: “.As the Law …

Measure of Damages

Query: What is the proper measure of damages to the owner from un-workmanlike construction by a contractor? Answer: In a residential structure, where there is a breach of a construction contract by the contractor, the general rule for the proper …

Construction Risk / Fault / Immunity

Established legal principles are applied by courts to the specific facts of each case in order to determine the risk, fault, or immunity of the parties. An important California case decision illustrates precedent in construction cases in the legal process: …

Excavating Contractor has non-Delegable Duty

An excavating contractor has a non-delegable duty to inform itself of the location of underground utility lines in order to avoid damaging them. The Revised Code of Ohio, similar to the laws of other states and jurisdictions, provides specific, mandatory …

Contract Interpretation

Construction contracts containing unclear or indefinite terms may be subject to legal scrutiny and interpretation, to resolve claims. One U.S. District Court opinion defined the reasoning applied to resolve conflicting claims: [ Page 764 ] “If the written instrument is …

Construction Defects and Building Products

Construction defects claims arise in all venues of the construction industry, and may be attributable, whether directly or indirectly, to building products defects and failures. Defect claims involving construction typically involve a design mistake or deficiency in the planning, design, …

Real Property – Adverse Possession

A recent opinion of the Ohio Supreme Court reaffirmed the law of adverse possession: “Adverse possession – Nature of intent that shows possession to be adverse – The legal requirement that possession be adverse is satisfied by clear and convincing …

Real Property Conveyance – Deed Reformation to Correct Mistake

Deed reformation may be permitted where mutual mistake can be shown and proved: {¶13} “Equity allows reformation of a written instrument when, due to a mutual mistake on the part of the original parties to the instrument, the instrument does …

Construction Law; Workmanlike Manner, Defined

The quality of construction work and services have been the subject of recorded volumes of discord, disagreement and litigation. Courts have consistently held contractors subject to a duty to perform to certain accepted practice and standards: {¶19} “The duty to …

“DEBT RELIEF” Ads may mean Bankruptcy & Foreclosure

Consumer debt is currently at an all-time high; suffering the combined statistical attributes of layoffs, illness, unemployment and indulgent overspending. Troubled debtors, faced with mounting credit card debt and accumulating large rates of interest, alongside potential mortgage foreclosure, are a …

Conflict of Interest Restrictions – Former U.S. Government Employees

Federal law provides severe penalties to prevent influence peddling, even after termination of employment or public office: 18 USC § 207 Restrictions on former officers, employees, and elected officials of the executive and legislative branches. PART I – CRIMES (a) …

Formaldehyde; Boon or Bane?

Consumer concerns within the past few years have recognized and addressed the serious, adverse health effects of formaldehyde present in many household products. These include pressed wood products such as particleboard, plywood, and fiberboard, glues and adhesives. Particle boards, widely …

Real Property Purchases – Unpaid Utility Bills

QUERY: When selling or purchasing property, who is liable for paying past due water and sewer charges not paid by the previous owner? For instance, what happens when an investor purchases a property at Sheriff’s Sale at foreclosure and the …

Designers and Product Liability

Products liability, e.g., defects in either manufacturing or design of a product, or failure to warn, have been the concern of legislators and the subject of many litigation claims in the courts. Claims for injuries and harm caused by products …

Defamation; Libel v. Slander

{¶10} Defamation, which includes both libel and slander, is a false publication that causes injury to a person’s reputation, either exposing the person to public hatred, contempt, ridicule, shame or disgrace, or affecting the person adversely in his or her …

Business Associations: Limited Liability Companies (“LLC’s”) v. Corporations and Partnerships

Query: What is the Limited Liability Company form of business? What sets it apart from a corporation or a partnership? Answer: Traditionally, most privately-owned businesses have organized and operated as corporations or partnerships. In the mid-1990’s a new form of …

Construction Defects

When construction defects, known to the seller of real property, are not disclosed to the buyers, as mandated by the Ohio Disclosure laws, they may become the subject of heated litigation. The Court’s opinion in one recent case provided a …

HIPAA – Medical Records

{¶ 13} “[I]n Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.” Biddle v. Warren Gen. Hosp., 86 Ohio St.3d …

Arbitration; Waiver of Right

Arbitration agreements, for the enforcement of private disputes are favored by public policy. However, this preference is not absolute, as Ohio Courts have consistently held. Among the most important of grounds upon which Courts may refuse to enforce arbitration agreements, …

Concrete, Manufactured When

Concrete manufacture may not appear to be a subject contested in the law, unless as the result of some defect or construction-related claim. Nevertheless, the Supreme Court of Ohio considered, for tax purposes, when the manufacture of concrete is actually …

Trade Secrets; Defined, Applied

Claims and litigation in connection with business documents and information of an employer, deemed confidential, may have serious import to all parties. One recent case law decision in Ohio considered these factors and the case law precedents of federal case …

Real Property, Watercourse Boundaries

Watercourse boundary lines have been the source of much historic gunfighting in the old West. Since that time such controversies have been settled more civilly in the courts. It has been long held that where watercourses may shift, by the …

Statutes of Limitations

By definition, statutes of limitations are specific landmark dates, or “deadlines”, by which an act or legal action must be initiated, or it will be forever barred at law. Other deadlines missed may merely impose fines or penalties for lateness. …

Construction; Surety Bonds

Defaulting contractors are a sad statistic: 81,308 contractors failed in the United States between 1990 and 1997, leaving liabilities of $21.8 billion. These failures were not limited to new or small contractors; of the 10,867 contractors who failed in 1997, …

Trade Secrets; Defined, Applied

Claims and litigation in connection with business documents and information of an employer, deemed confidential, may have serious import to all parties. One recent case law decision in Ohio considered these factors and the precedents of federal case law in …

“Workmanlike Manner”, Defined

Construction documents prepared by Architects and Engineers (“A-E-s”) most frequently use and refer to the term “workmanlike manner”. This term, an industry standard, refers to the desired and acceptable standard of quality of work and materials on a construction project. …

Real Property – Vendors and Agents’ Duty to Disclose

“.The principle of caveat emptor applies to sales of real estate relative to conditions open to observation. Where those conditions are discoverable and the purchaser has the opportunity for investigation and determination without concealment or hindrance by the vendor, the …

Construction Controversies – Backcharges and Extras

With greater frequency, controversy, disagreements and claims arising between parties to construction contracts, have given way to increased litigation in the state and Federal Court systems. Claims between General Contractors (“GC’s”) and Subcontractors (“Subs”), are based on work actually required …

Mediation; Communications Confidential

Communications between parties to a mediation proceeding and the Mediator, are confidential, as a matter of law. A recent case decision affirmed this important principle, stated in Ohio’s Revised Code: {¶ 11} R.C. 2317.023 provides in pertinent part: “(A) As …

Real Property; Foreclosure, Transfer of Title

When real property is sold at Judicial Sale by the Sheriff of the county, transfer of title and ownership is vested in the purchaser on the same date as the sale. This principle and application of Ohio law, was decided …

OSHA, Hazardous Chemicals in the Workplace

The Occupational Safety and Health Act of 1970 (“OSHA”) delegated broad authority to the Secretary of Labor (Secretary) to promulgate standards to ensure safe and healthful working conditions for the Nation’s workers. . The Act defines an “occupational safety and …

Real Property – Seller’s Disclosure Statement

Ohio’s Seller’s Disclosure Statement is, in effect, a statutory affidavit. Requirements of disclosure, under Section 5302.30 R.C., effective on March 19,1993, requires sellers of residential real property to make honest, full disclosure, “.in good faith.” , of all known defects, …

Municipal Tort Liability; Exceptions to Immunity

The often-invoked defense of political immunity from tort liability of a municipality may not always apply. The facts of a case may erode or completely eliminate the defense provided under R.C. Chapter 2744, the Political Subdivision Tort Liability Act. In …