Ohio Turnpike Commission Liable to Landowners for Taking & Nuisance

The Ninth District Court of Appeals of Ohio (Summit County) recently affirmed a jury verdict in favor of local landowners on their nuisance and takings claims against the Ohio Turnpike Commission.

In 1984 the Amores purchased a piece of property in Peninsula, Ohio.  Thirteen years later, in 1997, the Ohio Turnpike Commission began a maintenance and construction project that involved a portion of the turnpike adjacent to the Amores’ property.  The construction increased the number of travel lanes eastbound and westbound.  The construction removed a number of trees that previously stood between the Amores’ home and the turnpike, and it also brought the lanes of travel 65 feet closer to the Amores’ home.  As a result of the project, there was an increase in traffic noise from the turnpike.  The Amores complained that they lost the enjoyment and use of their home.

It is important to note that all construction on the Ohio Turnpike was within the right of way of the commission.

The Amores filed a complaint in January of 2007 claiming a taking and nuisance.  A jury trial was held two years later in June of 2009.  Following trial, the jury returned a verdict in favor of the Amores for $115,000.  The Ohio Turnpike Commission appealed the decision, however, the court of appeals affirmed the jury’s finding and trial court’s final judgment entry.

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“Hitting” the Slopes

I was thumbing through a list of notable cases recently and thought I’d share one that may be of interest in light of the approaching ski season.

In Horvath v. Ish, a female skier, Horvath, was struck by a fourteen-year-old male, Ish, who was snowboarding.  The result of the crash caused the Horvath to suffer serious permanent injuries.

Due to the permanent injuries Horvath suffered, she filed a lawsuit against Ish and his parents based in negligence.  Typically, unless there is intentional conduct, most injuries that result from inherently dangerous activities (little league football, baseball, etc…) are not compensable through litigation because of the Assumption of the Risk Doctrine.

In the Common Pleas court, Ish argued just that, Horvath assumed the risk of injury by participating in a dangerous activity.  The trial court agreed and granted Ish’s Motion for Summary Judgment.  Horvath appealed the decision to the Ninth District Court of Appeals.

Whether or not skiers owe one another a legal duty of reasonable care while skiing was a matter of first impression for Ohio courts.  On this point, the Ninth District held, Ish owed a duty to Horvath to refrain from colliding with her and remanded the case back to the trial court.

With this in mind, be certain to keep your eyes out for other skiers and take reasonable precautions to avoid collisions while you’re on the slopes!

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What is a probate asset?

You know it is funny, before I went to law school I was mystified and impressed by attorneys’ using legalese.  While I was in law school, it infuriated me, and I swore I would make every effort possible to avoid using legalese when interacting with clients.  Now that I’m an attorney and actually interacting with clients, I find myself using legalese because that is how I was required to explain the law during law school exams.  Thankfully, when I get a good head of steam going and unknowling start rambling in lawyer speak, my clients are comfortable enough to stop me and ask for clarifications.

Lately, I’ve explained the difference between “probate assets” and “non-probate assets” atleast a dozen times.  Since it is such a common question, I thought it might be for the good of the order to go ahead and ink a short explanation by way of a short, and, hopefully, illustrative story:

David Decedent made a Last Will and Testament in 2001.  David just passed away in his sleep at the ripe old age of 99, having seen multiple generations grow up, having seen the entire world, and having experienced every one of his hopes and dreams.  David did quite well in life.  He owned lots of things: furniture, clothes, TVs, a car (though he rarely drove it), and jewelry.  This property is referred to as “tangible personal property.”  David also owned his home and a 15 acre tract of land where David wanted to build a house, but never got around to it.  The land and real estate is referred to as “real property.”  In addition to his things and land, David had life insurance policies and several bank accounts.  These policies and accounts are referred to as “intangible personal property.”

When David passed away, the personal property and real property were titled in his name.  The title to the car and real estate said the owner was “David Decedent.”  No one disputed David owned his other belongings.  This property, property still titled in the decedent’s name after his or her death, is referred to as a “probate asset.”

When attorneys talk about “probate” or needing to “probate a will”, what we are referring to is submitting documents to the Probate Court so that good and marketable title to the property can transfer to the new owner.  Any property that is held in the name of the decedent after the decedent’s death, will have to be probated for the new owner to acquire good title.  So in David’s case, his house, car and other property in his name will become “probate assets.”

The intangible personal property – the bank accounts and insurance policies — these items are generally “non-probate assets” because they generally have named beneficiaries.  Upon David’s death, provided a beneficiary was named, the title to those policies and accounts automatically transfered to the beneficiary, thus the probate court was not needed to transfer title.  Had David failed to name a beneficiary, the account would become a probate asset.

With the assistance of an experienced attorney, navigating the probate process is generally inexpensive and quick.  Generally, probate will only take as long as it takes to transfer the property held in the decedent’s name.  So, if for example, you are selling a house, probate administration will continue until the house sells.  Though the actual administration may take a long time, fear not, this does not mean your legal fees will continue to climb out of control!

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Ohio Eliminates State Estate Tax

The Ohio Estate Tax was a 6% tax that applied to estates that had a net value in excess of $338,333.  The 6% tax was levied on every dollar over $338,333.  Once the value of the estate reached $500,000, the rate changed to a 7% tax.  

The repeal of the Estate Tax is effective for any estate where the decedent died after January 1, 2013.

Even though Ohio has eliminated its estate tax, the Federal Estate Tax is still in effect.  Through proper estate planning, the tax burden on future wealth transfers can be significantly reduced.  If you have questions about estate planning, please feel free to call my office.

Posted in Estate Planning Law, Legislation | 1 Comment

Breathalyzer Test Results Thrown Out

On April 12, 2011, the Franklin County Municipal Court, Judge Barrows, issued a ruling on a suppression hearing that was held thirteen days earlier.

At issue during the suppression hearing was whether or not the senior operator of the breathalyzer had the proper credentialing to operate the breathalyzer.  Pursuant to Ohio law, operators must be properly licensed and complete annual education requirements in order to operate the breathalyzer.

In this instance, defense counsel successfully raised factual issues with the officer’s credentialing.  The result, the results of the breath test were thrown out.

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Affordable Care Act Litigation Update

The Patient Protection and Affordable Care Act (PPACA) was signed into law by President Barack Obama on March 23, 2010.  Since the PPACA’s enactment, a number of states and interest groups have filed lawsuits challenging the PPACA’s constitutionality.

While lawyers went to work challenging the PPACA’s constitutionality in Federal Court, some members of the Ohio House of Representatives went to work challenging the new law in their own special way.  State Representatives Adams, Amstutz, Blair, Combs, Mecklenborg and Wachtmann introduced House Bill 11 on January 11, 2011.  Under House Bill 11, an Ohio agency or department is not to comply with the PPACA unless two conditions are satisfied.  First, the department or agency must submit a report to the General Assembly about the provision of the PPACA with which the department or agency must comply.  Second, the department or agency is directed to not comply with the PPACA unless the General Assembly provides it with express statutory authority to implement or enforce the given provision of the PPACA.  While this is a creative way to attack the PPACA and ignores a small provision of the U.S. Constitution, Article VI, Section 2 (most of you know of it as the Supremacy Clause), HB 11 has appeared to lose all momentum and has been stuck in committee since its initial introduction.

Local attacks aside, there are four main cases that are currently rumbling through the Federal Courts.  Below is a brief synopsis of each case and my prediction of where this craziness will end:

Florida v. U.S. Department of Health & Human Services — This case was filed shortly after the passage of the PPACA and began with twelve other states in addition to Florida challenging the new law.  Upon becoming Ohio’s Attorney General, Mike DeWine had Ohio added as another state contesting the new law.  Now, the total is up to twenty-six states challenging the PPACA in just this suit alone.  The main issue in this suit is whether the individual mandate, Section 5000A, is constitutional.  The District Court ruled that the individual mandate was unconstitutional and struck the entire law.  The Eleventh Circuit Court of Appeals agreed to an extent.  The Court of Appeals ruled on August 12, 2011, that Congress exceeded its authority by requiring Americans to buy insurance coverage, however, the Court of Appeals reversed the portion of the District Court’s decision that strike the entire law.

Virginia v. Sebelious —  This suit was filed shortly after the passage of the PPACA.  The backdrop of the Virginia lawsuits is a little different than the rest.  The Virginia legislature had pre-emptively passed a state law forbidding any mandate to purchase health insurance.  The District Court ruled in favor of Virginia, finding Congress had exceeded its authority with the inclusion of the individual mandate in the PPACA.  On appeal to the Fourth Circuit, the Court of Appeals threw the state of Virginia out of court.  The decision issued on September 8, 2011, stated Virginia’s state law was nothing more than a “smoke screen for Virginia’s attempted vindication of its citizens’ interest.”  The Court of Appeals essentially passed on the constitutional issues and disqualified Virginia from the suit by ruling the state lacked standing.

Liberty University v. Geithner — Filed hours after the PPACA was signed into law, this is the second lawsuit to be initiated in the State of Virginia.  The issues contained in this lawsuit are very similar to those argued in Virginia v. Sebelious — challenge based upon the conflict between State and Federal law.  The Federal Government moved to dismiss the case and the District Court granted the motion.  The case then went to the Fourth Circuit Court of Appeals.  The Fourth Circuit dismissed the plaintiff (Liberty University) finding that it lacked standing.  Essentially, the thrust of the appeals court’s decision was that the individual mandate is tantamount to a tax.  The appeals court reasoned that because the penalty provisions of the individual mandate have not gone into effect, the lawsuit is premature.

Thomas More Law Center v. Barack Obama — this case was filed not far from home, in the Eastern District of Michigan.  The challenge here was whether Congress had the authority to mandate that individuals had to purchase health insurance and whether the PPACA infringed on the Free Exercise provision of the First Amendment.  The District Court found in favor of the President and Congress stating the PPACA fell within Congress’ Commerce Clause Power (Article I, Section 8, Clause 3).  With regard to the First Amendment challenge, Sections 5000A (e) & (d) of the PPACA already provides for religious exemptions for individuals whose religious beliefs conflict with the practice of purchasing health insurance.  On June 1, 2011, the Sixth Circuit issued its opinion upholding the PPACA.

Where is this all heading?  Most legal experts following the case believe the Supreme Court of the United States will grant certiorari at the beginning of this next term.  Oral arguments are projected to be held in the six to ten months with a decision being issued in October 2012.  Stay tuned for further updates.

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Ohio Conceal Carry Laws – Effective September 30, 2011

The 129th General Assembly did not waste any time in changing state law to allow citizens with conceal carry permits (CCWs or CHLs) to carry their handguns into new venues.  State Senator Tim Schaffer introduced SB 17 for the first time on February 1, 2011, it passed the Senate on April 13, 2011 and was sent on to the House.  The House passed it on June 15, 2011, and Governor Kasich signed SB 17 into law on June 30, 2011.  The new law goes into effect on September 30, 2011.  Now, if we can get the legislature focused on fixing school funding, we’ll really have something to cheer about.

The most notable change to the existing law is that individuals with concealed carry permits may now carry their firearms into bars and restaurants.  However, it is still unlawful for a permit holder to consume intoxicating beverages while carrying a concealed firearm.  Bar and restaurant owners can stop permit holders from carrying firearms into their establishments by prominently displaying a notice informing them firearms may not be carried inside.

Another major change in the law has to do with how CCW permit holders transport their firearms.  Under existing law, CCW permit holders had a number of restrictions on how firearms were transported in automobiles.  For example, the existing law required the gun to be in a holster, in a locked box in plain view, or in a locked glove compartment.  The new law appears to eliminate most of these restrictions.  In addition, if a person was cited for improper handling of a firearm in the past, the new changes to the law allow for that charge to be expunged from their criminal record.

Other changes in the law are generally cleaning up sloppy draftsmanship of the existing law.  For example, under the existing law, it is unlawful to possess a concealed firearm in a bar if the individual is consuming liquor.  The new law makes it unlawful to possess a concealed firearm if the individual is consuming beer or intoxicating liquor.

If you are a CCW permit holder, a bar or restaurant, call my offices today to get a complete synopsis of the new law and legal advice on how to comply with the new law.

*This post is briefly summarizing over ten pages of changes to the law and can not be relied upon as legal advice*

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2010 Ohio Legislative Year in Review – Originally Published 12/8/2010

In 2010, a total of thirty-seven bills were passed by Ohio’s 128th General Assembly and subsequently signed into law by Governor Ted Strickland. Below, I have compiled a short summary of the legal highlights of the year:

CRIMINAL LAW

Senate Bill 58:  This bill makes it a crime to collect blood, urine, tissue, or other bodily substance of another without privilege or consent to do so. In addition, this bill now allows EMTs (paramedics) to withdraw blood from individuals suspected of violating state OVI laws when operating watercraft or motor vehicles.

Senate Bill 77:  This bill requires that all felons who are arrested on or after July 1, 2011 to submit a DNA specimen to law enforcement. This bill also defines a number of legal terms to conform with longstanding U.S. Supreme Court decisions.

EDUCATION

Senate Bill 210:  Under this new law, the sale of certain foods and beverages to students during the school day is now restricted. By 2014, students in grades K-8 will generally be limited to drink options such as water, fruit juice and milk. Students in grades 9-12 will have the same beverage options and will also be permitted to consume caffeinated beverages. However, the beverages must fit within specific calorie limitations.  In addition, this new law requires school districts to establish body mass index and weight status categories as a part of screening programs for grade school students. This information will then be provided to the Department of Education for annual reports. Parents can opt their child out of the BMI screening process.

 House Bill 19:  This law requires school districts to incorporate “violence within a dating relationship” into its policy prohibiting student harassment, intimidation, or bullying. In addition, it requires school districts to include dating violence prevention education in the district’s health curriculum for grades 7-12.

LOCAL GOVERNMENT LAW

House Bill 393:  This bill changed the time tables in which a landowner has to abate a nuisance after notified by township trustees. Under the old law, a landowner had seven days to abate a nuisance; now, the landowner has just four days. Other noteworthy provisions of the bill now permit for the county sheriffs’ and coroners’ offices to be located at a location other than the county seat of justice. Finally, this bill adopted the spotted salamander as the state amphibian and the bullfrog as the state frog.

FAMILY LAW

House Bill 238:  This bill makes changes to Ohio’s laws governing divorce procedure. Now, under R.C. 3105.171, each spouse must disclose a full and complete list of all marital property, separate property, and other assets, debts, income and expenses. If a spouse substantially and willfully fails to make the required disclosures, the court may compensate the offended spouse with an award up to three times the value of the property not disclosed by the other spouse.

House Bill 10:  Among other things, this bill provides new mechanisms for parents to file for civil protection orders (aka. restraining orders) on behalf of a minor child. In addition, it provides that any protection order be sealed if it is against a minor child.

ENERGY LAW

Senate Bill 232:  This bill makes a number of changes to property tax liability for energy generation sources (think power plant, wind turbine, etc…). Essentially, the bill exempts new “green” generation sources from paying property tax on the generation assets. Generally, to receive this tax exemption, the energy project must have begun construction between January 1, 2009 and January 1, 2012.  Another highlight of this bill is the expansion of the solar panel revolving loan program. Previously, this loan program was only available to residents of municipal corporations (cities). Now, with the expansion of the program, a participant is only required to own land within the municipality – the residency requirement has been struck.

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