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.
Tuesday, April 03, 2007
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.
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.
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
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.
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.
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.
SO ORDERED.
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.
SO ORDERED.
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.
{¶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.
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.
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.
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.
Sunday, December 31, 2006
Limits on Judicial Power in Ruling on Summary Judgment Motions
The Ninth District Court of Appeals, sitting as the Lorain County Court of Appeals, issued a decision this past year that limits the power of judges to grant summary judgment on matters not raised in the parties' pleadings. The decision came down in KRK, Inc. v. Crone, 2006-Ohio-4415. The opinion, at paragraphs 11-13, contains the following language:
{¶11}We find error in the trial court’s reliance on this provision. A careful review of Appellees’ summary judgment motion reveals that Appellees did not raise this specific provision in their summary judgment motion. The Ohio Supreme Court has held that "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order
to allow the opposing party a meaningful opportunity to respond." Mitseff v.Wheeler (1988), 38 Ohio St.3d 112, syllabus. Accordingly, "the trial court should, under most circumstances, restrict its ruling to those matters raised and argued by the parties in the motion for summary judgment." Tackett v. Columbia Energy Group Serv. Corp. (Nov. 20, 2001), 10th Dist. No. 01AP-89, at *3, citing Ferro Corp. v. Blaw Knox Food & Chem. Equip. Co. (1997), 121 Ohio App.3d 434, 443.
{¶12} The parties’ alleged discussion of this provision during a pre-trial proceeding does not meet the Supreme Court’s requirement that the moving party must set forth and argue its basis for moving for summary judgment in its motion. Moreover, the fact that Appellants did not acquire other collateral insurance does not necessarily indicate (1) that Appellants did not attempt to acquire collateral insurance for Appellees or (2) that Appellees maintained satisfactory insurance.
{¶13} Had Appellees raised this issue in their summary judgment motion or the trial court asked the parties to brief this issue, then Appellants would have had the opportunity to establish whether they attempted to purchase insurance for Appellees. We find the trial court committed reversible error by granting summary judgment in favor of Appellees on a ground neither raised nor argued by Appellees in their summary judgment motion. See Tackett, supra, at *3; Ferro
Corp., 121 Ohio App.3d at 443. Accordingly, Appellants’ first assignment of error is sustained.
While the Ohio Supreme Court in Mitseff v. Wheeler, supra, used the term in "most circumstances", the Ninth District's opinion in KRK, Inc. v. Crone seems more definite and therefore easier for trial judges to follow.
{¶11}We find error in the trial court’s reliance on this provision. A careful review of Appellees’ summary judgment motion reveals that Appellees did not raise this specific provision in their summary judgment motion. The Ohio Supreme Court has held that "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order
to allow the opposing party a meaningful opportunity to respond." Mitseff v.Wheeler (1988), 38 Ohio St.3d 112, syllabus. Accordingly, "the trial court should, under most circumstances, restrict its ruling to those matters raised and argued by the parties in the motion for summary judgment." Tackett v. Columbia Energy Group Serv. Corp. (Nov. 20, 2001), 10th Dist. No. 01AP-89, at *3, citing Ferro Corp. v. Blaw Knox Food & Chem. Equip. Co. (1997), 121 Ohio App.3d 434, 443.
{¶12} The parties’ alleged discussion of this provision during a pre-trial proceeding does not meet the Supreme Court’s requirement that the moving party must set forth and argue its basis for moving for summary judgment in its motion. Moreover, the fact that Appellants did not acquire other collateral insurance does not necessarily indicate (1) that Appellants did not attempt to acquire collateral insurance for Appellees or (2) that Appellees maintained satisfactory insurance.
{¶13} Had Appellees raised this issue in their summary judgment motion or the trial court asked the parties to brief this issue, then Appellants would have had the opportunity to establish whether they attempted to purchase insurance for Appellees. We find the trial court committed reversible error by granting summary judgment in favor of Appellees on a ground neither raised nor argued by Appellees in their summary judgment motion. See Tackett, supra, at *3; Ferro
Corp., 121 Ohio App.3d at 443. Accordingly, Appellants’ first assignment of error is sustained.
While the Ohio Supreme Court in Mitseff v. Wheeler, supra, used the term in "most circumstances", the Ninth District's opinion in KRK, Inc. v. Crone seems more definite and therefore easier for trial judges to follow.
Keeping Judicial Support Staff Happy
I used to give a talk once a year to University of Akron Law School students enrolled in a clinic program. The talk was titled "The Care and Feeding of Judges". One of the points that I made was that judges see their support staff every day while they see attorneys much less frequently. Even if you are an attorney whose practice takes you into a courtroom on a daily basis, for example, an assistant county prosecutor assigned to a particular courtroom, you are still seeing that judge much less frequently than his or her support staff.
What this means is that if you are arrogant, mean, or uncivil towards support staff, it is likely that the judge will learn of such behavior. Such behavior could influence how you are treated by that support staff. Such behavior might also affect how a judge handles discretionary matters like a motion for continuance or scheduling around an event on your calendar.
Over the course of the almost 21 years now that I have been a judge, I have had very few attorneys be rude to me either in or out of a courtroom. I have had many more, although certainly a very small minority, be rude to my support staff. Personally I find such behavior toward support staff more aggravating than such behavior toward myself. It strikes me as bullying to treat support staff in a way that you would never treat a judge.
Treat support staff the way you would want to be treated. Practice the Golden Rule: do onto others as you would want to be done to you. It was good advice over 2000 years ago and it is good advice now.
What this means is that if you are arrogant, mean, or uncivil towards support staff, it is likely that the judge will learn of such behavior. Such behavior could influence how you are treated by that support staff. Such behavior might also affect how a judge handles discretionary matters like a motion for continuance or scheduling around an event on your calendar.
Over the course of the almost 21 years now that I have been a judge, I have had very few attorneys be rude to me either in or out of a courtroom. I have had many more, although certainly a very small minority, be rude to my support staff. Personally I find such behavior toward support staff more aggravating than such behavior toward myself. It strikes me as bullying to treat support staff in a way that you would never treat a judge.
Treat support staff the way you would want to be treated. Practice the Golden Rule: do onto others as you would want to be done to you. It was good advice over 2000 years ago and it is good advice now.
Thursday, December 28, 2006
Ohio Supreme Court Case: Robinson v. Bates
The Ohio Supreme Court issued a new case yesterday that will impact personal injury litigation in Ohio. The case, Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, has the following two paragraphs in the opinion syllabus:
1. Both an original medical bill rendered and the amount accepted as full
payment are admissible to prove the reasonableness and necessity of
charges rendered for medical and hospital care. (Wagner v. McDaniels
(1984), 9 Ohio St.3d 184, 9 OBR 469, 459 N.E.2d 561, followed.)
2. Any difference between an original medical bill and the amount accepted
as full payment for the bill is not a "benefit" under the collateral-source
rule.
The case came to the Ohio Supreme Court on a discretionary appeal from the Hamilton County Court of Appeals. Robinson, who was a tenant of Bates, tripped and fell over a concrete footer that had been exposed during construction by a contractor hired by Bates's son. Robinson knew that the construction work was taking place since she lived at the residence where the work was occurring . At trial Robinson proffered medical bills in the amount of $1919.00. She stipulated that the providers had accepted as payment in full the $1350.43 tendered by her medical insurance provider. Bates's attorney argued that the difference between the amount billed and the amount paid was a collateral-source benefit and therefore not admissible. The trial court limited her amount of damages to the amount paid by the insurance company. The trial court also directed a verdict for Bates holding that the concrete footer was an "open and obvious danger" and therefore there was no duty breached by Bates.
The Hamilton Court Court of Appeals reversed that decision. The Court of Appeals for Hamilton County reversed the judgment, stating that a jury should have determined the matter because reasonable minds could conclude that Bates, as the landlord, had violated her duty under R.C.
5321.04(A)(2) to repair the leased premises and that she had therefore committed negligence per se. Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828 N.E.2d 657. The court of appeals also held that the trial court had erred in refusing to admit the original medical bills. Citing R.C. 2317.421 only in passing, it relied on the collateral-source rule to hold that Robinson was entitled to seek recovery of the entire amount of her medical bills, rather than simply the amount paid by her insurer. The case was remanded for a new trial.
The Ohio Supreme Court reversed the appellate court on the issue of the medical bills, as seen by the two paragraphs of the syllabus quoted above. The Ohio Supreme Court held that since there was a statutory duty of the landlord to repair the leased premises, the case should have been submitted to the jury. If the jury finds that there was a violation of the statutory duty to repair the leased premises, then the "open and obvious" doctrine will not protect Bates from liability. If, however, the jury found no such violation, then the "open and obvious" doctrine would be available to Bates as a defense.
The Ohio Supreme Court opinion was written by Justice Lanzinger. It was concurred in by Chief Justice Moyer, Justice Resnick, Justice Pfeifer and Justice O'Connor. Justice O'Donnell concurred in the judgment only. Justice Lundberg Stratton concurred in part and dissented in part. She agreed that both the amount billed and the amount paid should be admitted into evidence, but she thought that only the amount paid should be permitted as damages. Her reasoning was that if the jury only heard the amount that was actually paid, it might get a distorted view of what was the pain and suffering incurred by the plaintiff. Thus, she felt that admissibility of the amount billed was appropriate because it allowed the jury to more properly evaluate the extent of the plaintiff's injuries. She also felt, however, that allowing the jury to consider both in determining what amount to award was confusing and would be unfair to the defendant.
The entire opinion can be read at http://www.sconet.state.oh.us/
1. Both an original medical bill rendered and the amount accepted as full
payment are admissible to prove the reasonableness and necessity of
charges rendered for medical and hospital care. (Wagner v. McDaniels
(1984), 9 Ohio St.3d 184, 9 OBR 469, 459 N.E.2d 561, followed.)
2. Any difference between an original medical bill and the amount accepted
as full payment for the bill is not a "benefit" under the collateral-source
rule.
The case came to the Ohio Supreme Court on a discretionary appeal from the Hamilton County Court of Appeals. Robinson, who was a tenant of Bates, tripped and fell over a concrete footer that had been exposed during construction by a contractor hired by Bates's son. Robinson knew that the construction work was taking place since she lived at the residence where the work was occurring . At trial Robinson proffered medical bills in the amount of $1919.00. She stipulated that the providers had accepted as payment in full the $1350.43 tendered by her medical insurance provider. Bates's attorney argued that the difference between the amount billed and the amount paid was a collateral-source benefit and therefore not admissible. The trial court limited her amount of damages to the amount paid by the insurance company. The trial court also directed a verdict for Bates holding that the concrete footer was an "open and obvious danger" and therefore there was no duty breached by Bates.
The Hamilton Court Court of Appeals reversed that decision. The Court of Appeals for Hamilton County reversed the judgment, stating that a jury should have determined the matter because reasonable minds could conclude that Bates, as the landlord, had violated her duty under R.C.
5321.04(A)(2) to repair the leased premises and that she had therefore committed negligence per se. Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828 N.E.2d 657. The court of appeals also held that the trial court had erred in refusing to admit the original medical bills. Citing R.C. 2317.421 only in passing, it relied on the collateral-source rule to hold that Robinson was entitled to seek recovery of the entire amount of her medical bills, rather than simply the amount paid by her insurer. The case was remanded for a new trial.
The Ohio Supreme Court reversed the appellate court on the issue of the medical bills, as seen by the two paragraphs of the syllabus quoted above. The Ohio Supreme Court held that since there was a statutory duty of the landlord to repair the leased premises, the case should have been submitted to the jury. If the jury finds that there was a violation of the statutory duty to repair the leased premises, then the "open and obvious" doctrine will not protect Bates from liability. If, however, the jury found no such violation, then the "open and obvious" doctrine would be available to Bates as a defense.
The Ohio Supreme Court opinion was written by Justice Lanzinger. It was concurred in by Chief Justice Moyer, Justice Resnick, Justice Pfeifer and Justice O'Connor. Justice O'Donnell concurred in the judgment only. Justice Lundberg Stratton concurred in part and dissented in part. She agreed that both the amount billed and the amount paid should be admitted into evidence, but she thought that only the amount paid should be permitted as damages. Her reasoning was that if the jury only heard the amount that was actually paid, it might get a distorted view of what was the pain and suffering incurred by the plaintiff. Thus, she felt that admissibility of the amount billed was appropriate because it allowed the jury to more properly evaluate the extent of the plaintiff's injuries. She also felt, however, that allowing the jury to consider both in determining what amount to award was confusing and would be unfair to the defendant.
The entire opinion can be read at http://www.sconet.state.oh.us/
Tuesday, December 19, 2006
Objections and Depositions
A lot of trial attorneys in Ohio believe that there is a difference between a "discovery" deposition and a "trial" deposition. This is an artificial distinction. The Ohio Rules of Civil Procedure do not make any distinction between depositions used for discovery purposes and depositions used during a trial.
Civ. R. 30 concerns depositions. It doesn't make any distinction between a "discovery" deposition or a "trial" deposition. It governs all depositions taken in a civil case, no matter what their purpose. Civ. R. 32 is the Rule that controls the use of depositions as evidence at a trial or other hearing. (Civ. R. 32 (A)). Civ. R. 32 (D) (3) covers errors and irregularities that occur during the taking of a deposition. Civ. R. 32 (D) (3) (a) and (b) read as follows:
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.
Note that objections that are waived are objections that could be "obviated, removed, or cured" if promptly presented, and objections as to the form of the questions or answers but other objections are not waived. Given the above language, it would seem that a party could still present objections when a deposition is presented at trial if the objection is one that could not have been obviated, cured, or removed if made at the time of the deposition. The upshot of this is that just because an objection is not made at the time of the taking of the deposition doesn't necessarily mean that it can't be made later. It also means that an attorney doesn't automatically "waive" any objection not made during the taking of the deposition.
One example of the above might be if an expert witness gave an opinion at a deposition that was based not on the witness's personal observations but on facts or data that had not yet been introduced into evidence. The opposing attorney at the deposition doesn't make an objection based on Evid. R. 703, assuming that the attorney propounding the evidence will have introduced the facts or data into evidence at the trial the deposition is presented at trial. If, in such a case, the underlying facts or data were not introduced prior to the presenting of the deposition, then the opposing attorney would seem to be able to object at trial. This is because arguably the basis for such an objection could not have been removed or obviated if made at the time of the taking of the deposition. There would be no way that the underlying facts or data could be introduced into evidence at the time of the taking of the deposition.
A more problematic example would be the following: a witness is testifying as to a statement made by a witness at the scene of an accident. The opposing attorney doesn't object at the time the deposition is taken, but objects at trial. The basis for the objection is hearsay. The attorney presenting the deposition argues that the statement is an excited utterance and if the objection had been made at the time of the taking of the deposition, the attorney would have introduced the foundational evidence required for the admission of such statement under Evid. R. 803 (2).
The bottom line: don't assume that just because your opponent hasn't objected at the time a deposition is taken, he or she has waived such objection, even if the deposition is one that is being taken for the purpose of introducing such deposition into evidence at trial.
Civ. R. 30 concerns depositions. It doesn't make any distinction between a "discovery" deposition or a "trial" deposition. It governs all depositions taken in a civil case, no matter what their purpose. Civ. R. 32 is the Rule that controls the use of depositions as evidence at a trial or other hearing. (Civ. R. 32 (A)). Civ. R. 32 (D) (3) covers errors and irregularities that occur during the taking of a deposition. Civ. R. 32 (D) (3) (a) and (b) read as follows:
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.
Note that objections that are waived are objections that could be "obviated, removed, or cured" if promptly presented, and objections as to the form of the questions or answers but other objections are not waived. Given the above language, it would seem that a party could still present objections when a deposition is presented at trial if the objection is one that could not have been obviated, cured, or removed if made at the time of the deposition. The upshot of this is that just because an objection is not made at the time of the taking of the deposition doesn't necessarily mean that it can't be made later. It also means that an attorney doesn't automatically "waive" any objection not made during the taking of the deposition.
One example of the above might be if an expert witness gave an opinion at a deposition that was based not on the witness's personal observations but on facts or data that had not yet been introduced into evidence. The opposing attorney at the deposition doesn't make an objection based on Evid. R. 703, assuming that the attorney propounding the evidence will have introduced the facts or data into evidence at the trial the deposition is presented at trial. If, in such a case, the underlying facts or data were not introduced prior to the presenting of the deposition, then the opposing attorney would seem to be able to object at trial. This is because arguably the basis for such an objection could not have been removed or obviated if made at the time of the taking of the deposition. There would be no way that the underlying facts or data could be introduced into evidence at the time of the taking of the deposition.
A more problematic example would be the following: a witness is testifying as to a statement made by a witness at the scene of an accident. The opposing attorney doesn't object at the time the deposition is taken, but objects at trial. The basis for the objection is hearsay. The attorney presenting the deposition argues that the statement is an excited utterance and if the objection had been made at the time of the taking of the deposition, the attorney would have introduced the foundational evidence required for the admission of such statement under Evid. R. 803 (2).
The bottom line: don't assume that just because your opponent hasn't objected at the time a deposition is taken, he or she has waived such objection, even if the deposition is one that is being taken for the purpose of introducing such deposition into evidence at trial.
Monday, December 11, 2006
Warning: Hearsay Ahead
When an attorney asks questions of a witness such as "are you aware", or "did you learn", often it is to hide the fact that the witness's knowledge is based on hearsay and not on personal knowledge. Evid. R. 602 requires that a witness have "personal knowledge" of a matter before testifying about such matter. The rule reads as follows:
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
"Personal knowledge", as used above, does not include information given to the witness by another, which, if offered for the truth of the matter asserted, is hearsay and subject to the provisions of Evid. R. 801, et seq. In the situation described above, the trial court should be told something like "Objection, lack of personal knowledge".
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
"Personal knowledge", as used above, does not include information given to the witness by another, which, if offered for the truth of the matter asserted, is hearsay and subject to the provisions of Evid. R. 801, et seq. In the situation described above, the trial court should be told something like "Objection, lack of personal knowledge".
Friday, December 01, 2006
"We're Killing Each Other Off"
This last week I took part in a continuing legal education seminar sponsored by the Medina law firm of Walker and Jocke. I spoke on professionalism. During the discussion one of the lawyers present made the following observation about the decline of professionalism among attorneys: "We're killing each other off." What he meant by that was when lawyers act in an unprofessional manner toward each other and non-lawyers observe such interaction respect for the legal profession is diminished.
All of us who are lawyers and judges have seen lawyers be rude, boorish, and sometimes downright mean to each other. Often lawyers seem to believe that such behavior is necessary to prove their effectiveness to their clients or to intimidate opposing attorneys into settling cases. They never seem to think about the effect of such behavior on non-attorneys who are observing such behavior. Or, if they do think about it, they don't care enough to change their behavior.
This behavior is not common to all professions. You don't see doctors acting this way toward each other, or accountants, or professors, at least not in public. Such behavior seems peculiar to attorneys and perhaps political consultants.
One reason is that unlike other professions, law, and especially litigation, is inherently competitive. The adversarial system of justice pits lawyers against each other in the belief that out of the mix will emerge the truth. The adversarial system, however, doesn't mean that lawyers have to act uncivilly toward each other.
In the course of getting ready for my presentation I informally surveyed attorneys regarding conduct they saw as unprofessional. Examples they gave including yelling at opposing counsel, being rude during hearings and depositions, snatching papers from other attorneys' hands during depositions, and misrepresenting facts to a judge to gain an advantage. Such behavior does nothing to convey an image of professionalism to others, especially non-attorneys.
If you are an attorney and you are interacting with others, treat them the way you would want to be treated yourself. That is probably advice your Mom gave you when you were growing up, and it still works today.
All of us who are lawyers and judges have seen lawyers be rude, boorish, and sometimes downright mean to each other. Often lawyers seem to believe that such behavior is necessary to prove their effectiveness to their clients or to intimidate opposing attorneys into settling cases. They never seem to think about the effect of such behavior on non-attorneys who are observing such behavior. Or, if they do think about it, they don't care enough to change their behavior.
This behavior is not common to all professions. You don't see doctors acting this way toward each other, or accountants, or professors, at least not in public. Such behavior seems peculiar to attorneys and perhaps political consultants.
One reason is that unlike other professions, law, and especially litigation, is inherently competitive. The adversarial system of justice pits lawyers against each other in the belief that out of the mix will emerge the truth. The adversarial system, however, doesn't mean that lawyers have to act uncivilly toward each other.
In the course of getting ready for my presentation I informally surveyed attorneys regarding conduct they saw as unprofessional. Examples they gave including yelling at opposing counsel, being rude during hearings and depositions, snatching papers from other attorneys' hands during depositions, and misrepresenting facts to a judge to gain an advantage. Such behavior does nothing to convey an image of professionalism to others, especially non-attorneys.
If you are an attorney and you are interacting with others, treat them the way you would want to be treated yourself. That is probably advice your Mom gave you when you were growing up, and it still works today.
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