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In Markel v. Wright, 2013-Ohio-5274, Brooke Markel, the Plaintiff, sued the former owners of her home after encountering moisture in her basement.  To remedy the wet basement, the Plaintiff spent $16,500 to waterproof the basement. 

Prior to selling the home, the Wrights, the former owners and Defendants, properly disclosed they had previously encountered moisture in the basement, but had remedied the issue through regularly running a dehumidifier and emptying it every 24-36 hours.

In her lawsuit against the former owners, Markel alleged that Wrights failed to disclose the defective basement and fraudulently induced her into purchasing the home.

The court disagreed, finding that the sellers absolved any liability on this issue through properly disclosing the issue on Residential Property Disclosure Form prior to sale. 

In State v. Sullivan, 2013-Ohio-5276, the Fifth District Court of Appeals tackles whether it is constitutional for law enforcement to attach a GPS monitoring device to a suspects car without a search warrant.  In short, law enforcement believed the suspect, Montie Sullivan, was involved in a series of home invasions. 

Due to limited government resources, law enforcement was without the manpower to constantly monitor the suspect’s movement through physical surveillance.  Instead, law enforcement, without a warrant, attached a GPS monitoring device to the suspect’s vehicle to track his whereabouts.  His vehicle was subsequently monitored to be in the vicinity of another home invasion.  Following the invasion, law enforcement obtained a search warrant to search the suspect’s home where they found a number of items that were taken during the home invasion.

On appeal, the appellate court ruled that the evidence related to the suspect’s whereabouts through the GPS monitoring device on his vehicle should be excluded from consideration.

As an interesting twist, in addition to installing a GPS monitoring device on the suspects car, law enforcement did properly obtain a search warrant to track the suspect’s whereabouts through tracking the suspect’s mobile telephone.  With regard to the evidence obtained through tracking the suspect’s mobile telephone, the appellate court ruled this evidence was admissible because law enforcement had obtained the proper warrant.

The Fifth District Court of Appeals has rendered its decision in Phoenix Fin. Solutions, Inc. v. Jackson, 2013-Ohio-5280. In this case, the Defendant entered into a promissory note for the purchase of a motor vehicle. The Defendant defaulted on his payments resulting in the automobile being repossessed and a deficiency on the promissory note. The promissory note provided for a 21% APR to accrue in the event of default.

Phoenix Financial Services, Inc., the Plaintiff, brought an action to recover the deficiency balance. The Plaintiff and Defendant entered into a consent judgment for the Plaintiff to recover the balance due on the loan. The consent judgment provided that the Defendant was to make monthly payments of $75.00 with the contractual interest rate of 21% continuing to accrue.

The trial court, on its own, struck the interest term from the consent judgment. In its place, the court permitted interest to accrue at the statutory rate of 3% per annum.

On appeal, the Plaintiff challenged the trial court’s decision to change the interest term. Citing R.C. 1343.03, the Fifth District Court of Appeals agreed with the Plaintiff. The appellate court remanded the matter back to the trial court for disposition consistent with the appellate court’s decision.

The Ohio Legislature was busy this year bringing about many changes to the Ohio Revised Code; however, few changes are more important to service providers and lenders than the changes brought about by S.B. 224.

Historically, R.C. 2305.06 provided a fifteen (15) year statute of limitation for the commencement of a legal action on a written contract. However, when the 129th General Assembly passed S.B. 224, R.C. 2305.06 was amended and changes took effect on September 28, 2012.

R.C. 2305.06 now provides, “[A]n action upon a specialty or an agreement, contract, or promise in writing shall be brought within eight years after the cause of action accrued.”

To make sure you are not sleeping on your rights, it will be important to review outstanding legal obligations and take steps to commence civil action within this new timeframe where approriate.

If you have questions regarding how this change in law impacts a specific situation, please feel free to contact our office to discuss your matter.

A power of attorney is a document signed by a principal that empowers another person, an agent or attorney-in-fact, to perform acts on behalf of the principal.  There are some key limitations to what an agent or attorney-in-fact may do on behalf of the principal.

First and foremost, a power of attorney is only valid as long as the principal is alive.  That is to say, if the principal dies, the attorney-in-fact has no power or right to continue to act on behalf of the principal.

Second, an attorney-in-fact is prohibited from any act of self-dealing.  In Tewksbury v. Tewksbury, a court invalidated a number of property transfers an attorney-in-fact made because the attorney-in-fact was self-dealing.  In that case, a father signed a power of attorney nominating his son to serve as his attorney-in-fact.  After the power of attorney was signed, the son proceeded to transfer all of his father’s property into his own name.  Whenever an attorney-in-fact performs any act whereby the attorney-in-fact benefits financially, it will likely be seen as self-dealing and is void.

If you are serving as an attorney-in-fact, it is important that you have a clear understanding of what you may do and what you are prohibited from doing.  Failing to abide by the law may result in your actions being invalidated.