Medina County Courthouse

Sunday, November 25, 2007

Judge Kimbler Sentencing Hearings Held on November 16, 2007

State v. Robert S. Davis, Case No. 07-CR-0314

Judge Kimbler sentenced Mr. Davis on November 16, 2007 for two counts of Theft and one count of Breaking and Entering. One of the charges was a felony of the fourth degree and the other two were felonies of the fifth degree. The State of Ohio was represented by Assistant Medina County Prosecutor Matt Razavi and Mr. Davis was represented by Attorney Todd Check.

State v. Paul R. Kleinholz, Case No. 07-CR-0347

Judge Kimbler sentenced Mr. Kleinholz on November 16, 2007 on one count of Possession of Drugs, Heroin, a fifth degree felony. Assistant Medina County Prosecutor Matt Razavi repsented the State and Attorney Todd Cheek represented Mr. Kleinholz.

State v. Adam M. Dash, Case No. 06-CR-0347

Judge Kimbler sentenced Mr. Dash on November 16, 2007 for one count of Drug Possession, a fifth degree felony. Assistant Medina County Prosecutor Matt Razavi represented the State and Attorney Mary Beth Corrigan represented Mr. Dash.

State v. Gregory Tumbiola, Case No. 07-CR-0399

Judge Kimbler sentenced Mr. Tumbiola on November 16, 2007 for one count of Burglary, a third degree felony. Assistant Medina County Prosecutor Matt Razavi represented the State and Attorney Mary Beth Corrigan represented Mr. Tumbiola.

Friday, November 16, 2007

Conclusions of Law Regarding Miranda Taken from Recent Judge Kimbler Decision

Note from Judge Kimbler: Below are conclusions of law taken from a recent journal entry denying a motion to suppress. I am posting this part of the decision because I thought that lawyers who do criminal law might have a use for it. Note that the decision that these conclusions of law are taken from is subject to a possible appeal.

Conclusions of Law

The Fifth Amendment’s right against self-incrimination is made applicable in state criminal prosecutions through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653. The Fifth Amendment’s right against self-incrimination doesn’t just apply to criminal prosecutions, but also to police investigations. This is because, as the Court noted in the Miranda decision, “[I]t is now axiomatic that he defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924).” Footnote 33, 384 U.S. at 464, 86 S. Ct. at 1623, 16 L.Ed.2d at 717.

In order to make sure that confessions or statements made to the police were voluntary, the United States Supreme Court in Miranda v. Arizona, supra, held that police have to advise suspects “[A]t the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.” Miranda, 384 U.S. at 468, 86 S.Ct. at 1625, 16 L. Ed. 2d. at 720. The Court went on to require that the suspect be told “that anything said can and will be used against the individual in court.” Miranda, 384 U.S. at 469, 86 S. Ct. at 1625, 16 L. Ed. 2d. at 720.

The Court then held that a suspect facing police interrogation has a right to not merely consult with an attorney, but to have one present while the questioning is taking place. The Court explained it this way: “Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” Miranda, 384 U.S. at 470, 86 S. Ct. at 1625-1626, 16 L. Ed. 721.

Because the right to counsel doesn’t depend on the financial ability of the suspect to retain counsel, the Court wrote the following: “In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent -- the person most often subjected to interrogation -- the knowledge that he too has a right to have counsel present.” Miranda , 384 U.S. at 473, 86 S. Ct. at 1627, 16 L. Ed. 2d. at 723.

The Court also held that if a suspect starts answering questions, but at a later point, he or she wishes to invoke their Fifth Amendment right against self-incrimination, then the police must respect that wish and stop the interrogation. This was how the Court put it: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Miranda, 384 U.S. at 473-474, 86 S.Ct. at 1627-1628, 16 L. Ed. 2d. at 1627-1628, 16 L.Ed. 2d at 723.

The Court also held that the prosecution has the burden of showing that any statements taken from a suspect were taken after he or she had been advised of the above rights and had decided to waive those rights. Miranda, 384 U.S. at 475, 16 L.Ed. 2d. at 725, 16 L. Ed. 2d. at 724.

A suspect's waiver of his Fifth Amendment right to legal counsel and against self-incrimination must be shown before her statements are admissible at trial. Waivers must be voluntary and intelligent. Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. The court must "indulge in every reasonable presumption against waiver." Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424. The test to determine whether a knowing and intelligent waiver was made requires an inquiry into the totality of the circumstances. Miranda v. Arizona (1966), 384 U.S. 436, 475-77, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The totality of the circumstances includes the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards (1976), 49 Ohio St.2d 31, 40-41, 358 N.E.2d 1051.

Friday, July 13, 2007

Judge Kimbler Decision on Negligent Entrustment

This is a Judge Kimbler decision granting summary judgment to a parent of a teenager who was sued under a theory of negligent entrustment. It is subject to an appeal.

This case is now before the Court on Defendant’s Motion for Summary Judgment as to Plaintiff’s Negligent Entrustment Claim filed on May 10, 2007. Plaintiff filed a Brief in Opposition on May 31, 2007 and Defendant filed a Reply Brief in Support of their Motion for Summary Judgment on June 5, 2007. These were all considered in the Court’s ruling. For the reasons that follow, the Court finds that said motion is well taken.

Statement of Facts

On the snowy day of November 23, 2005, Defendant Daniel Fedj’s vehicle struck Plaintiff Joseph Pompignano’s stopped vehicle at an intersection in Brunswick. Plaintiff suffered alleged injuries from this incident.
Defendant Daniel Fedj was driving a vehicle owned by his grandmother Defendant Linda Fedj. He was given permission to do so. At the time, Daniel Fedj was 17 years old and had a valid driver’s license.


Summary Judgment is appropriate in the Ohio Rules of Civil Procedure 56 (C) when the evidence presented in accordance with the rule shows “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Plaintiff alleges that the act of Defendant Linda Fedj giving permission to Defendant Daniel Fedj to drive her car comprised the act of negligent entrustment.
To establish negligent entrustment in an action involving a motor vehicle, Plaintiff must prove that the owner of the vehicle knew at the time of the entrustment that the entrustee was incompetent or unqualified to operate the vehicle. Gulla v. Strause (1950), 154 Ohio St. 193

Plaintiff argues that Defendant Linda Fedj should have taken into account the weather and age of Defendant Daniel Fedj before giving him permission to drive on November 23, 2005. Prior to this incident, Daniel had driven her car on numerous occasions and was regarded as a competent and safe driver.

Plaintiff uses case law in support of their argument that is difficult to apply to this case. Each case cited involves something other than a licensed driver of an automobile. There is nothing provided by Plaintiff that shows that Defendant Linda Fedj knew that Defendant Daniel Fedj was an incompetent or unqualified driver. An excerpt from a deposition shows that Linda Fedj may or may not have known about the weather conditions on the day of the incident. However; this does not show anything about what Linda Fedj knew about whether Daniel Fedj was an incompetent or unqualified driver at the time of the incident.

There is also nothing that shows that Defendant Daniel Fedj was incompetent or inexperienced at the time of the incident. Plaintiff points to his age of 17 and the weather on that day. The undisputed facts that he was a licensed driver without any history of prior incidents means that his age alone does not rise to the level of an incompetent or inexperienced driver. The circumstance of inclement weather, by itself, is not sufficient to show that a driver is incompetent or inexperienced. Mihalega v. Mitchell (1996, 10th Circuit, Not Reported in N.E.2d), 1996 WL 70990. Even when taken together, his age and the weather do not turn into a set of circumstances that rise to the level of an incompetent driver.

Pursuant to Ohio Civil Rule 56 (C) there are no genuine issues with regard to any material fact and reasonable minds can come to but one conclusion. Defendant’s Motion for Summary Judgment as to Plaintiff’s Negligent Entrustment claim is granted.


Tuesday, July 03, 2007

Judge Kimbler Opinion on Use of Deposition on Motion for Summary Judgment

Below is the text of an opinion that concerns whether a trial court can consider a deposition filed after the day set for the hearing on the motion for summary judgment but prior to the trial court issuing its decision.
[One of the defendants] filed a motion for summary judgment pursuant to Civ. R. 56 on March 16, 2007. The motion was set for a non-oral hearing on April 19, 2007. The motion cites to the Plaintiff’s deposition in support of the motion. Unfortunately the Plaintiff’s deposition was not filed until May 23, 2007.

Pursuant to Civ. R. 31 (A) a deposition that is going to be as evidence in a trial or hearing must be filed one day in advance of such trial or hearing. This rule can be avoided if the trial court finds that there is good cause for the failure to file the deposition one day in advance of the hearing.

In this case, while the [defendant] did seek an order allowing the deposition to be filed under seal, it did not seek an order under Civ. R. 31 (A) allowing the deposition to be filed after the hearing date set on its motion for summary judgment.

Because of this Court’s trial schedule, however, this Court was not able to consider the [defendant's] motion for summary judgment until after the deposition was filed, but the motion was not set for a rehearing, that is, the motion has been pending before this Court since April 19, 2007. Therefore, the issue becomes whether a trial court can consider a deposition for purposes of a ruling on a motion for summary judgment that is filed after the hearing date but before the trial court issues its decision on the motion.

This Court believes that the language of Civ.R. 31 (A) prevents such a use of the Plaintiff’s deposition. This Court believes that in ruling on the motion for summary judgment filed by the [defendant], it has to consider all the evidence filed by the parties prior to April 19, 2007 and not after that date.

Examining the evidential material submitted by the [defendant] but excluding the Plaintiff’s deposition, this Court finds that the evidence submitted does not support the granting of a motion for summary judgment and the motion is therefore denied

Tuesday, June 26, 2007

Judge Kimbler Decision Regarding Vacating Arbitration Award by Employee

This matter is before the Court on Plaintiff’s Motion to Vacate Arbitration Award and Defendant’s Motion to Dismiss or in the Alternative, for Summary Judgment. Upon due on consideration of the arguments in the Defendant’s motion as well as Plaintiff’s Brief in Opposition, the Court finds that Defendant’s Motion for Summary Judgment is well taken.

Based on the authority of Leon v. Boardman Township (2003), 100 Ohio St.ed 335, the Court finds that an employee does not have standing to petition a court to vacate an arbitration award pursuant to R.C. §2711.10, unless the collective bargaining agreement between the employer and the union expressly gives him an independent right to submit disputes to arbitration. Neither of the collective bargaining agreements covering Plaintiff’s employment at UPS gives him the right to challenge the arbitration award.

Statement of the Law

R.C. §2711.10 gives this Court the power to vacate an arbitration award, but only in very limited circumstances. That section reads as follows:

§ 2711.10. Court may vacate award

In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:

(A) The award was procured by corruption, fraud, or undue means.

(B) Evident partiality or corruption on the part of the arbitrators, or any of them.

(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.

(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

As the Hamilton County Court of Appeals held in Cincinnati vs. Queen City Lodge No. 69, Fraternal Order of Police (2005), 164 Ohio App. 3d 408; 2005 Ohio 6225; 842 N.E.2d 588, the power of a court when reviewing an arbitration award is very limited. When the parties have agreed in a collective-bargaining agreement to settle their disputes by using a mutually acceptable arbitrator rather than a judge, they have bargained for and agreed to accept the arbitrator's findings of fact and interpretation of the contract. A reviewing court cannot reject an arbitrator's findings of fact or decision simply because it disagrees with them.

"Public policy favors arbitration." Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108, 109, 2001 Ohio 294, 742 N.E.2d 630. Arbitration provides the parties with "a relatively speedy and inexpensive method of conflict resolution and has the additional advantage of unburdening crowded court dockets." Findlay School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 131, 551 N.E.2d 186, quoting Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 83, 22 Ohio B. 95, 488 N.E.2d 872. "The whole purpose of arbitration would be undermined if courts had broad authority to vacate an arbitrator's award." Southwest Ohio Regional Transit Auth., supra, at 109-110, quoting Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities, 22 Ohio St.3d at 83-84, 488 N.E.2d 872. Therefore, a strong presumption favors the regularity and integrity of an arbitrator's award. See Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 551 N.E.2d 186, paragraph one of the syllabus.

In this case, the collective bargaining agreement between Plaintiff’s union, the Teamsters Central Region, and United Parcel provides that, “Grievance procedures may be invoked only by authorized Union or Employer representatives. In the event of any grievance, complaint or dispute on the part of any employee, it shall be handled in the following manner and a decision reached at any state shall be final and binding on both parties.” (page 172 of the Supplemental Agreement to the National Master United Parcel Service Agreement.) Similarly, Article 7 of the National Master Agreement on page 19 states, “The procedures set forth in the local, state and area grievance procedure may be invoked only by the authorized Union representative or Employer.” (Emphasis added.)

The court finds that the collective bargaining agreement which covers Plaintiff’s employment expressly reserves the right to invoke grievance procedures for the union and the company. An individual employee can look only to his or her union to initiate, pursue or appeal grievances. Plaintiff’s membership in the union requires that he rely solely on the union to protect his rights throughout the grievance procedures.


The Court finds that Plaintiff lacks standing to challenge the decision of the Board of Arbitration which ruled on the grievance against him. Plaintiff’s Motion to Vacate Arbitration Award should be, and hereby is, denied. Defendant’s Motion for Summary Judgment is granted. This case is dismissed.

Court costs are taxed to Plaintiff.

Tuesday, April 03, 2007

Transportation Budget Bill Contains Changes to Definition of "Recreational User"

This is from the analysis of the recently passed Transportation Budget Bill prepared by the Legislative Services Commission of the Ohio General Assembly. Governor Strickland used his line-item veto on one part of the bill, but the part that concerns the change in the definition of "recreational user" was not the item the Governor vetoed.

Property owner immunity for recreational four-wheel drive motor vehicle
operation on privately owned or leased property
(R.C. 1533.18)

Current law establishes that no owner, lessee, or occupant of premises (1) owes any duty to a recreational user to keep the premises safe for entry or use, (2) extends any assurance to a recreational user that the premises are safe for entry or use, or (3) assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user (R.C. 1533.181, not in the bill). For purposes of this immunity from liability, "premises" generally are privately owned or leased property and a "recreational user" includes a person to whom
permission has been granted, without charge, to enter upon premises to hunt, fish, trap, camp, hike, swim, operate a snowmobile or all-purpose vehicle, or engage in other recreational pursuits. Under the bill, a recreational user also includes a person who operates a four-wheel drive motor vehicle on the property, with permission, and without paying a charge.

Foreclosures Continue to Go Up in Medina County

In the first quarter of 2007 233 civil cases were assigned to Judge Kimbler's docket. Of those 233, 110 or 47% were foreclosures. In March foreclosures assigned to Judge Kimbler's docket were 54% of the total civil cases assigned. In January foreclosures assigned to Judge Kimbler's docket were 48% of the cases assigned. In February foreclosures accounted for 40% of the cases assigned to Judge Kimbler's docket.

Wednesday, March 28, 2007

Judge Kimbler Journal Entry on Case Captions for Request for Admissions

Judge Kimbler Journal Entry on Requests for AdmissionsThis case is before the Court on Defendants’ Motion for Reconsideration. Defendants seek reconsideration of a prior Court order which granted Plaintiff’s Motion to Deem Admitted Requests for Admissions. For the reasons that follow, the Court finds that Defendants’ Motion for Reconsideration is well taken.

The facts in this case are not in dispute. On or about January 3, 2007 Plaintiff served Defendants with request for discovery by ordinary U.S. mail. The document was captioned “Plaintiff’s Combined discovery to Defendant gratEful truckin, inc., et al.” It included a request for production of documents, Interrogatories and Requests for Admission. Initially Plaintiff sent Defendant the combined discovery requests via the mail. Plaintiff did not send an electronic copy of the discovery requests until February 13, 2007. Defendants responded to the electronic copy on February 26, 2007, more than 28 days after Defendants were served with the paper copy of the discovery request, but only 13 days after Defendants were served with the electronic copy.

Civil Rule 36(C) provides as follows: "If a party includes a request for admission in a document containing any other form of discovery, the party shall include a caption on the document that indicates the document contains a request for admission. A party is not required to respond to requests for admission that are not made in compliance with this division."

According to the staff notes of Rule 36(C), the rule was amended in 2005 to require that if a document contains requests for admission, as well as other forms of discovery, the caption of that document must state that a request for admission is sought. “The amended rule recognizes that, unlike Civ. R. 33 (written interrogatories) and Civ. R. 34 (requests for production), Civ. R. 36 imposes a virtually self-executing sanction, i.e., admission by default, on a party that fails timely to respond. See generally Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66 (1985). The Rules Advisory Committee is aware that parties intermix requests for admission with Civ. R. 33 interrogatories and Civ. R. 34 requests for production. See, e.g., Seecharan v. Macy, Cuyahoga App. No. 75130, October 28, 2999, unreported. (no abuse of discretion to deny motion to deem matters admitted; "the trial court refused to countenance the obscuring of requests for admissions in the midst of other discovery requests"). The Committee believes that although there often are good reasons for combining requests for admission with other discovery requests, the nature of some discovery documents can cause requests for admission to be overlooked and result in inadvertent admissions by default. The amendment is intended to minimize this risk by requiring the propounding party to include, in the caption of the document, a clear notice that the document contains requests for admission. A party is not required to respond to requests for admission that are not made in compliance with division (C).”

In this case, Plaintiff served Defendants with a discovery request which included requests for admission as well as production of documents and interrogatories. Thus pursuant to Civil Rule 36(C), Plaintiff was required to state in the caption of the document that he sought requests for admission.

As noted above, Plaintiff’s request for discovery was titled, “Plaintiff’s Combined discovery to Defendant gratEful truckin, inc., et al.” There is no mention in the caption that a request for admission was contained therein.The Court finds that Plaintiff failed to comply with the mandatory requirement of Civil Rule 36(C). Consequently, Defendants were not required to respond to the requests for admission because Rule 36(C) relieves Defendants of the obligation to respond. The Court therefore concludes that Defendants response to Plaintiff’s request for admission which was sent to Plaintiff on February 26, 2007 was timely. Based on the foregoing, Defendants’ Motion for Reconsideration is granted. The court order filed in this case on February 26, 2007 which deemed admitted Plaintiff’s requests for admission is vacated and set aside.

Monday, March 05, 2007

Judgment Entry Regarding Foreign Judgment

The following is the text of an opinion recently filed by Judge Kimbler denying a motion to vacate a foreign judgment that was filed in the Medina County Court of Common Pleas pursuant to R.C. 2329.01, et seq.:

On December 15, 2006, Zimmerman & Partners Advertising, Inc., (hereinafter referred to as Zimmerman), a Florida corporation filed a foreign judgment and creditor’s affidavit. This pleading was filed pursuant to R.C. 2923.021, et seq. On January 5, 2007, Medina Imports, LLC d/b/a Medina Mitsubishi, (hereinafter referred to as Medina Imports), filed a motion to vacate the judgment that was rendered in the Broward County Circuit Court in Case No. 06-000594-CACE-12 on May 31, 2006. The motion to vacate was filed pursuant to R.C. 2329.022.

R.C. 2329.022 contains the following: “A foreign judgment filed pursuant to this section has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of common pleas and may be enforced or satisfied in same manner as a judgment of a court of common pleas.” In this case, Medina Motors is alleging that the Broward County Circuit Court did not have personal jurisdiction over Medina Motors and therefore the judgment granted by the Florida court is void.

In particular Medina Motors is making two arguments. The first is that the service of the complaint was not made pursuant to Florida law and the second is that Medina Motors did not have the minimum contacts with the State of Florida necessary to allow the Broward County Circuit Court to grant a judgment against it. Each of these arguments will be considered separately.

Non-Compliance with Florida Law Regarding Service

Medina Motors cites to Fla. Stat. § 48.21. That section contains the following:
“Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service...”

In this case, Medina Motors argues that the person effecting service of process on Medina Motors did not set forth the date and time that the process “came to hand.” Zimmerman argues that when an out-of-state party is served process pursuant to a lawsuit that has been filed in Florida, Florida law does not require the notation of the date and time the process “came to hand.”

Zimmerman relies on Fla. Stat. § 48.194, which apparently is Florida’s long-arm statute. That section contains the following:

(1) “Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.” (Emphasis added.)

Zimmerman argues that when both Fla. Stat. § 48.21 is read in conjunction with Fla. State. § 48.194, it becomes clear that all that is required to perfect service on an out-of-state defendant is the filing of an affidavit setting forth the time, manner, and place of service. Zimmerman then cites several cases from Florida courts, both Federal and state, in support of its proposition.

This Court believes that the argument advanced by Zimmerman is correct. It is obvious, given the language emphasized above that the drafters of Florida’s long-arm statute intended to give Florida courts some flexibility in deciding whether service of process was accomplished under Florida law. If an affidavit wasn’t filed setting forth time, manner, and place of service by the officer making service, a Florida court could hold a hearing on that issue. If it was the intent of the Florida legislature to make the filing of both an affidavit under Fla. Stat. § 48.21 and § 48.194 necessary to perfect service, why would it give Florida courts the option of considering “other competent evidence” in making such a determination? This Court believes that it would not and therefore the only requirement regarding service on an out of state defendant is imposed by Fla. Stat. § 48.194. Consequently the motion to set aside the judgment on the grounds that service of process wasn’t made pursuant to Florida law is denied.

Lack of Minimum Contacts with Florida

The second argument advanced by Medina Motors is that the default judgment against it violated the Due Process Clause of the United States Constitution. Medina Motors asserts that it didn’t have enough contacts with Florida to give the Broward County Court in personam jurisdiction over it. In support of its position Medina Motors attaches an affidavit of its President.

Zimmerman counters that argument with the assertion that since the contract contained a forum selection clause and since, under Florida law, if a contract is silent as to where the payments are to be made such contract shall be construed as requiring payments to be made at the residence of the party due the payments, there were sufficient minimum contacts with Florida to justify the exercise of long-arm jurisdiction. This argument is based on Florida cases cited in Zimmerman’s memorandum opposing the motion to vacate the judgment.

The Ohio Supreme Court has held that a forum selection clause is one of many factors to be considered by an Ohio trial court in deciding whether to give Full Faith and Credit to the judgment of another state. Anilas, Inc. v. Kern (1987), 31 Ohio St. 3d 163. In Anilas the Supreme Court wrote the following: “The above cases indicate that the focus of analysis ought to be whether one purposely established contacts with the forum state. This invariably requires an analysis of factors peculiar to the individual transaction. In the case here, the locus of breach clause contained in the contract, while not dispositive, is a significant factor.” 31 Ohio St. 3d 164. The Anilas opinion also contains the following: “Thus, where the defendant "has created 'continuing obligations' between himself and residents of the forum, Travelers Health Assn. v.. Virginia [1950], 339 U.S. at 648, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by 'the benefits and protections' of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State." (Emphasis sic.) Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 475-476.” 31 Ohio St. 3d 164.

In this case Medina Motors made the conscious decision to do business with a company that was headquartered in Florida and it signed a contract that had a forum selection clause allowing both parties to bring a lawsuit in Florida to enforce the contract. Given the holding of the Ohio Supreme Court in Anilas, supra, this Court finds that it is not a violation of the Due Process Clause of the United States Constitution for this Court to give full faith and credit to the judgment issued by the Broward County Circuit Court.

IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant’s Motion to Vacate is denied.

Thursday, February 08, 2007

Evidence Rule 104

Evidence Rule 104 reads as follows:

RULE 104. Preliminary Questions

(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (emphasis added)

(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(C) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.

(D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

(E) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

It seems that Evid. R. 104 would give attorneys and judges a way to shorten trials. If there were preliminary matters regarding the admissibility of evidence that did not depend on establishing a condition of fact, such matters could be disposed of by filing written motions with supporting documents or having brief summary hearings prior to trial on the admissibility of evidence. An example might be the admissibility of photographs, business records, etc.

In over 20 years on the bench, however, I can only recall a very few times that attorneys have referenced Evid. R. 104 to me regarding admissibility of evidence issues. My recollection is that such references have been during a trial, yet it would seem to be a tool that could be effectively used prior to trial.

Judge James Kimbler

Tuesday, February 06, 2007

Foreclosure Problems

With the increasing number of foreclosures on the Medina County Common Pleas Court's docket, there has been an increasing number of requests for default judgment. Usually these requests are granted but increasingly we are running into problems with the named plaintiff having an interest in the property.

This is what happens: a financial institution files a foreclosure action and with the action files a preliminary judicial title report. That report shows all the parties who have an interest in the property. Often the financial institution that filed the foreclosure action is not listed on the preliminary judicial title report. We don't know why the plaintiff is bringing the action. We assume that it is because there was an assignment of the mortgage and promissory note, but we don't know that from the preliminary judicial title report or from the pleadings.

When that happens, we deny the motion for default judgment and order the plaintiff to provide proof within 60 days of their interest in the mortgaged premises. It would be far better from our perspective if that information was provided to the Court when the complaint is filed.

Monday, February 05, 2007

Judge Kimbler Decision on Withdrawing Admissions

Below is the text of an journal entry that Judge Kimbler released on February 5, 2006 dealing with withdrawal of admissions made pursuant to Civ. R. 36. It contains a discussion of a recent case from the Ninth District Court of Appeals dealing with the withdrawal of matters deemed admitted under Civ. R. 36.

Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.

After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.

As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.

The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. *** The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.

Tuesday, January 09, 2007

Another Take on Issue Preclusion

Below is a decision that I filed today on a motion for dismissal/summary judgment that also involved the issue of collateral estoppal. The issue is somewhat different than the issue presented in an earlier entry on this blog. Please keep in mind that this entry is subject to appellate review. Below is the text of the opinion:

The Farmers Savings Bank (Farmers) has filed a motion for summary judgment alleging that Heartland Homes and Auction Company’s (Heartland) claims against it are barred by the doctrine of res judicata because of settlements entered in prior cases in both the General Division and the Domestic Relations Divisions of the Medina County Common Pleas Court. Farmers was not a party to either of those actions, but Heartland was a party in both actions.

The General Division case was an action brought against Joseph Hartley by Heartland and Dianna Hartley. The Case Number for that case was 02-CIV-0663. The Domestic Relations case was between the two Hartleys, but Heartland was joined as a party. The Case Number for that case was 02-DR-00004. Both cases were settled without a trial. Both cases were settled by the same settlement agreement and Case No. 02-CIV-0663 was then dismissed with prejudice.

Res judicata in Ohio includes both claim preclusion and issue preclusion. Fort Frye Teachers Ass'n v. State Empl. Rels. Bd., ( 1998) 81 Ohio St. 3d 392, 1998 Ohio 435. Issue preclusion is sometimes referred to as the doctrine of collateral estoppal. It precludes the re-litigation of a fact that was actually and directly at issue in a previous proceeding between the same parties or their privies. Ft. Frye, 81 Ohio St. 3d at 395. The requirement that the previous proceeding be between the same parties or their privies is sometimes referred to as the doctrine of “mutuality of estoppal.”

In this case Farmers does not argue that it was a party to the previous litigation or that it was in privty with any parties in either of the two prior cases. Rather, Farmers argues that this Court ought to relax the doctrine of mutuality of estoppal because of the decision of the Ninth Appellate District Court of Appeals, sitting as the Summit County Court of Appeals, in Michaels Building Company v. City of Akron, Case No. 13061.

This Court finds that the Michaels case is not binding on this Court through the doctrine of stare decisis because it was an unreported opinion. Although not binding authority on this Court, it is persuasive authority. In this case, however, the same fact situation does not exist that existed in Michaels Building. In that case Judge Cacioppo relied on an opinion by now Chief Justice Moyers who was on the Tenth Appellate District Court of Appeals. That opinion is McCrory v. Children’s Hospital (1986), 28 Ohio App. 3d 49.

In the McCrory case the Court held that where issues had actually been litigated in the prior proceeding, then the doctrine of mutuality of estoppal would be relaxed and would not require that the present proceeding be between the same parties or their privies. Both in McCrory and in Michaels Building the appeals arose after a trial, not a settlement. Here, in the prior cases, there were no trials, just settlements. Therefore, this Court finds that even if it were to relax the doctrine of mutuality of estoppal it would not do so in cases where the issues sought to be precluded had not been actually litigated. Consequently, this Court finds that summary judgment should not be granted on the basis of res judicata or collateral estoppal.

Farmers has also moved for summary judgment on the grounds that because of the settlement entered into between the parties in the first two cases, there was no damage caused by the tortious actions of Farmers, assuming that such actions occurred. This Court finds, however, that with respect to that argument, which goes to Counts One and Two, there is an issue of material fact and therefore summary judgment is improper.

Finally, Farmers also moves for summary judgment on Count Three of Heartland’s complaint. Again, with respect to that claim, the Court finds that there are issues of material fact and therefore summary judgment is not appropriate on that Count.

The Court consequently overrules the motion for summary judgment and the motion to dismiss for failure to state a claim, which was based on the res judicata argument disposed of above.


Ninth Appellate District Court of Appeals Decision on Piercing the Corporate Veil

The Ninth Appellate District Court of Appeals, sitting as the Medina County Court of Appeals, recently issued a decision affirming a decision that my court had made. One of the issues raised on appeal was whether the trial court had erred when it pierced the corporate veil to find the defendant personally liable for a corporate debt. The case was Potterschmidt v. Klosterman, 2006-Ohio-6964. The language from the opinion dealing with the issue of piercing the corporate veil is reproduced below. Attorneys who do business litigation will find this opinion interesting. Judge Slaby dissented from the opinion on this point, although on the other issues raised, he agreed with the majority.

{¶34} Appellants assert that the trial court erroneously pierced the corporate veil of the original corporation and the new corporation to hold Dr. Klosterman personally liable to Dr. Pottschmidt.

{¶35} “Generally, shareholders are not liable for the debts of the corporation.” Frechette v. Kovanda (Apr. 18, 2001), 9th Dist. No. 20207, citing Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 287. However, creditors of a corporation may “pierce the corporation’s veil” and hold individual shareholders liable when the following three conditions are present: “[T]he corporate form may be disregarded and individual shareholders held liable for corporate misdeeds when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the Appellees from such control and wrong.” Frechette, at *3, citing Belvedere, 67 Ohio St.3d at 289.

{¶36} We initially acknowledge the cases cited by Appellants that a simple breach of contract is not sufficient to pierce the corporate veil. The trial court found more than a breach of contract here, however, and held that each element of the Belvedere test had been met thus allowing Dr. Pottschmidt to pierce the corporate veil of the new corporation to find Dr. Klosterman personally liable for the judgment rendered. We agree.

A. Alter Ego Doctrine

{¶37} The first prong of the Belvedere test is basically the “alter ego doctrine.” See Willoway Nurseries v. Curdes (Oct. 13, 1999), 9th Dist. No. 98CA007109, at *4. In order to satisfy this requirement, a plaintiff must prove that “the individual and the corporation are fundamentally indistinguishable.” Belvedere, 67 Ohio St.3d at 288. Some of the factors used to determine if this standard has been met include: (1) whether corporate formalities were observed; (2) whether corporate records were kept; (3) whether corporate funds were commingled with personal funds; and (4) whether corporate property was used for a personal purpose. LeRoux’s Billyle Supper Club v. Ma (1991), 77 Ohio App.3d 417, 422-423; Pikewood Manor, Inc. v. Monterrey Concrete Constr., 9th Dist. No. 03CA008289, 2004-Ohio-440, at ¶15.

{¶38} The trial court found that Dr. Klosterman had complete control over both corporations. He was the manager and sole shareholder of both entities. He wrote the paychecks, managed the retirement plan and worked with counsel on all legal matters, including the drafting of legal documents.

{¶39} The record demonstrates that neither Dr. Klosterman nor either of the entities followed corporate formalities in that they did not use the corporate name either on signage or letterhead and did not consistently bill patients or insurance companies in the name of either entity, often issuing billing in the name of Dr. Klosterman, individually.

{¶40} Evidence in the record also establishes that the funds of each corporation and of Dr. Klosterman were commingled. Dr. Klosterman purchased an automobile paying $24,000 in personal funds while titling the vehicle in the name of the original corporation and directing the original corporation to make the car payments and allocate the amount of the payments as income to Dr. Klosterman. The original corporation also depreciated the automobile. After the new corporation was formed, Dr. Klosterman transferred title to the vehicle into his name. Finally, some of the income earned by the original corporation was deposited into the bank account of the new corporation and some of the expenses of the new corporation were paid from the account of the original corporation. Similarly, the original corporation purchased and made payments for equipment and office furniture, which payments were subsequently made by the new corporation, despite the fact that the loan documents and rental agreements related thereto only bound the original corporation for the debt.

{¶41} Finally, it is undisputed that the vehicle was used by Dr. Klosterman personally, although titled in the name of the original corporation.

B. Fraud in Disregard of the Corporate Entity

{¶42} It is undisputed that Dr. Klosterman formed the new corporation one month after the original corporation was sued by Dr. Pottschmidt. It is also undisputed that Dr. Klosterman formed the new corporation to avoid potential liability related to Dr. Pottschmidt’s employment with the original corporation. Finally, it is undisputed that neither the new corporation nor Dr. Klosterman paid any consideration for the assets of the original corporation. While it is not clear the value of the assets of the original corporation, it is undisputed that the original corporation had some accounts receivable that were subsequently collected by the new corporation and that the original corporation possessed equipment and office furniture that is being used by the new corporation. As to the latter, Dr. Klosterman asserts that the value of the office equipment exceeded the debt thereon, which he personally assumed. The appraisal Dr. Klosterman testified that he obtained related to the equipment, however, is not a part of the record.

C. Injury or Loss to Dr. Pottschmidt

{¶43} Finally, the trial court properly found that the final element of the Belvedere test was satisfied because the transfer of all of the original corporation’s assets to the new corporation, without adequate consideration being paid, left the original corporation simply an empty shell and made it impossible for Dr. Pottschmidt to collect the judgment rendered in his favor.

{¶44} Based on the foregoing, we find there was competent, credible evidence before the trial court to support a finding that the corporate veil of the new corporation has been appropriately pierced, rendering Dr. Klosterman liable for the judgment rendered in this action. Appellants’ third assignment of error is overruled.

Sunday, January 07, 2007

Lawyers in Trial: Giving Voice to the Voiceless

This is one reason why I admire trial lawyers: they speak for those who can't speak for themselves. When a client has a case in front of a court, that client, no matter how bright or articulate, can't effectively speak for themselves. They are too caught up in the process, too close emotionally to the case, too concerned with the outcome. They need an advocate, a champion, someone to be their voice in the arena. That's where trial lawyers come in. That's their job. That's what they do. They are speaking for those who can't speak for themselves.

It is not an easy job. It is an awesome responsibility. On the one hand the trial attorney can't be too close to the client because that diminishes the trial attorney's effectiveness to the client. Often the trial lawyer's job is to point out to a client why a particular strategy in a courtroom will not work, and indeed, might be harmful to the client's case.

On the other hand, the trial attorney can't be so distant from the client that he or she no longer conveys passion about the cause. The jury has to know that the trial attorney believes in the client's cause, because if the trial attorney doesn't, then why should the jury?

This role of speaking for the voiceless applies no matter who the client is, or why they are in court. Our system is built around the premise that everyone is entitled to an advocate when they appear in a courtroom.

This means that "trial attorneys" are not attorneys who represent a particular group of people or a particular side in legal disputes. The term applies equally to attorneys who represent plaintiffs as it does to those who represent defendants, equally to prosecutors as to criminal defense attorneys.

What is sometimes distressing is to see trial lawyers take the position that what they do is noble, but what their opponents do is morally wrong. Such attitudes don't benefit the American system of justice. They make trial work, already full of stress, needlessly difficult. They don't encourage respect for our profession.

If you are litigating a case, take a moment and recognize that your opponent is also a trial lawyer, that he or she has the same job to do as you, and that both of you are carrying out one of the missions of our profession: making sure that the voiceless have a voice.

Friday, January 05, 2007

Jury Waiver and Civil Rule 38 (D)

Ohio Rule of Civil Procedure 38 (D) requires that once a jury demand has been filed by a party, that party cannot withdraw or waive the jury trial without getting the consent of all the parties to the litigation, even if they haven't filed a jury demand on their pleadings. This is because if a party files a jury demand, then other parties may rely on that demand being filed and won't file their own demand.

If a party filing a jury demand wishes to waive jury trial and the other parties agree, then a recommended procedure would be to file a pleading with the jury waiver signed by the attornies for all parties. In Medina County we bring jurors in for each trial as opposed to having a standing pool of potential jurors. This means that if a jury trial has been scheduled in our court and we are not informed of a jury waiver, we will tax as costs the fees we pay to the jurors, even if the jury trial doesn't go forward.

Wednesday, January 03, 2007

Judge Kimbler Decision on Issue Preclusion

Below is an language from an entry that I posted on the doctrine of "mutuality of estoppal". This opinion is not a final order and is subject to appellate review:

Ms. Misja filed a motion for summary judgment on the issue of liability. The basis of her motion is that she is entitled to summary judgment because of the doctrine of res judicata. She seeks application of the doctrine because of a judgment entered in the Small Claims Division of the Medina Municipal Court in favor of her parents and against Mr. Kibler for property damage sustained to her parents’ vehicle. The following facts are not in dispute:

Ms. Misja’s parents filed a small claims complaint against Mr. Kibler, his parents, and Allstate Insurance Company for property damage arising out of a motor vehicle collision on June 10, 2003.

At the hearing in Small Claims Court Mr. Kibler was represented by counsel and Mr. and Mrs. Misja were not represented by counsel.

At the hearing evidence was presented on behalf of Mr. and Mrs. Misja and on behalf of Mr. Kibler.

At that hearing the negligence of Mr. Kibler was disputed.

At the conclusion of the hearing, Mr. and Mrs. Kibler were dismissed from the action, as was Allstate Insurance, but judgment was entered in favor of Mr. and Mrs. Misja and against Mr. Kibler in the amount of $2841.37.

Ohio’s doctrine of res judicata involves both party preclusion and issue preclusion. The doctrine of res judicata as it applies to issue preclusion is also known as collateral estoppal. In order for a party to receive the benefit of precluding an issue that such party argues has been determined in a prior proceeding, there must be mutuality of estoppal. Goodson v. McDonough Power Equipment, 2 Ohio St. 3d 193, 1 of the opinion syllabus. This means that the party seeking to have a court apply the doctrine must be a party who would have been precluded from re-litigating the issue if the decision had gone the other way. In this particular case, it means that Ms. Misja cannot seek application of this doctrine if she would not have been bound by an adverse decision of the Medina Municipal Court in the case between Mr. Kibler and her parents.

This doctrine of “mutuality of estoppal” is the reason why Ohio courts only apply the doctrine against the same parties or their privies. Although the decision in Goodson is over 23 years old, the Ninth District Court of Appeals, in 2004, limited the application of the doctrine of res judicata to the original parties or parties in privity with them. Hamrick v. Daimler Chrysler Motors, 2004 Ohio 3415.

In the present case, then, Ms. Misja must show that she was in privity with her parents in order to avail herself of the doctrine of res judicata. In the Hamrick decision, the following language appears at 12-13:

{12}“To be in “privity” with a party on the record of a prior judgment generally means that the relationship between the two is “‘close enough to include th[e] other within the res judicata.’” (Citation omitted.) Brown v. Dayton, 89 Ohio St.3d 245,248, 2000-Ohio-148, quoting Thompson v. Wing (1994), 70 Ohio St.3d 176, 184. Privity exists when both persons have a “mutuality of interest, including an identity of desired result[.]” Brown, 89 Ohio St.3d at 248. More specifically,“‘[p]rivity is defined as mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.’” Buchanan v. Palcra, Inc. (Dec. 31, 1987), 7th Dist. No. E-87-22, quoting Peterson v. Fee Internatl. Ltd. (D.C. Okl. 1975), 435 F.Supp. 938, 942.

{13} Under the doctrine of res judicata, a final judgment is also conclusive as to all claims which might have been litigated in a first lawsuit. Spano Brothers Constr., Inc. v. Leisinger (July 24, 1996), 9th Dist. No. 17438,citing Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62. It is irrelevant to the application of the res judicata doctrine whether the original claim explored all possible theories of relief. Brown, 89 Ohio St.3d at 248. The Supreme Court of Ohio has held that a valid, final judgment upon the merits of a case bars any subsequent action “based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 1995-Ohio-331, citing 1Restatement of the Law 2d, Judgments (1982), Sections 24-25.”

In this case, this Court has to ask itself whether, if Mr. Kibler had sought to bar Ms. Misja’s action under the doctrine of res judicata, it would have barred her action. If the answer is “no”, then there is not mutuality of estoppal and Ms. Misja is not entitled to have this Court apply the doctrine on the issue of Mr. Kibler’s negligence.

This Court believes, and so finds, that an adult child is not in privity with her parents so as to make a judgment for or against the parent binding on the child, even when the defendant is the same in both cases. While Mr. Kibler may have had the same interest in litigating the small claims case as he does litigating the present case, Ms. Misja and her parents do not have the same interest in litigating their respective cases.
This is shown by the fact that while her parents were willing to avail themselves of the relatively simple to use forum of a small claims division of a municipal court, Ms. Misja has chosen to utilize the procedurally more complex forum of a common pleas court. Her interest in pursuing her personal injury case has led her to employ the services of an attorney while her parents were content to represent themselves. Her parents were willing to accept a verdict of $3,000.00 or less while Ms. Misja apparently feels that such a limitation would not do her justice.

The differences outlined above leads this Court conclude that Ms. Misja is not in privity with her parents so as to allow her to avail herself of a judgment entered in their favor just as it would not find that a judgment entered against them would bar her from proceeding in this Court.

Since this Court finds that there is not mutuality of estoppal, it must find that neither party can use the doctrine of res judicata in this case to bar the re-litigation of issues that may have been decided in the small claims case between Ms. Misja’s parents and Mr. Kibler. Consequently Ms. Misja’s motion for summary judgment is denied.