Category: Litigation

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  • Condominium living. At its best, it is a neighborly and efficient way to share costs and provide for amenities that might otherwise be prohibitively expensive to support and maintain on your own. (Unless you already have your own swimming pool, tennis court, and weight room, in which case, te salut.) At its worst …well, I’m pretty sure the word “condominium” is the loose Latin translation for “high school for adults.” In representing condominium associations and residents over the years, I’ve seen all ends of the spectrum, from kumbaya moments of good community governance to bickering factions, torches and pitchforks (not literally), and condo commandos who operate like mall cops on steroids.

    If you live in an Ohio condominium development, then your association, your unit, and ultimately you fall under the purview of our association’s recorded declaration and the Ohio Condominium Act (Revised Code §§ 5311.01, et seq.).  (Likewise, if you live in a homeowners’ association or other planned community development, you fall under the roughly analogous Planned Community Act, R.C. §§ 5312.01, et seq.) Your condominium association relies on your monthly maintenance fees to provide for common expenses and amenities. If you fall behind or do not pay, your association has the legal authority to place a lien on your unit and ultimately foreclose.

    What do you do when the condo collector comes calling, only there’s a dispute over payments, fees, and the delinquent account balance, if any? This happens far too often in my opinion, particularly with self-managed (read: “poorly run”) associations. Often, the alleged balance is in the low four figures, which is juuuuuuust enough to get your attention, but still small enough that it’s not economical to mount a scorched earth legal defense. In light of that reality, let me offer the following DIY tips for dealing with your condo collector. (The usual disclaimer, of course, is that these are only general principles and not legal advice specifically tailored to your situation.)

    1. Be Proactive. Do you pay your maintenance fees once a month? Once a year? Do you know your current account balance? If not, request an account ledger. You may think you’re current, but just one late payment, alleged late payment, or accounting error, no matter how far back, generally sets in motion an exponential accrual of late fees and penalties. By getting your hands around this information early, while your memory is fresh and documentation is more easily accessible, you will be in a better position to refute the association’s allegations.
    2. Do Your Homework. So now you have a copy of your account ledger, and it shows that you are delinquent. Run your own calculations. Double check the math. Cross reference the association’s records with your own payment documentation (e.g., canceled checks or credit card statements). Did they miss a payment? Itemize, summarize, and break down the various charges. How much of the alleged balance is actual maintenance fees versus interest, late fees, and other miscellaneous charges? Courts interpret your condominium declaration as a contract, and the law disfavors “penalty” contractual provisions, specifically in a residential contract.
    3. Homework (Part II). You are entitled by law to review all books, records, and meeting minutes of the association and its board of directors.  C. § 5311.09. Request and review those minutes. Did the board vote upon and authorize a collection procedure? If so, was it followed in your case?  Were your directors validly elected or appointed? If not, it is possible that they do not have the authority to lien or foreclose on your unit, or take any other action on behalf of the association.
    4. Take It to the Board. Property managers and collection attorneys churn through stacks of delinquent accounts. You are just a number to them. Your association’s elected volunteer directors are not only your neighbors; they are also the people who have the final decision-making authority as to each collection matter. Try to talk to them, calmly and respectfully of course, and ideally at their next regularly scheduled board meeting. (Kindly ask to be put on the agenda ahead of time.) The directors may be otherwise clueless as to your situation, particularly where the property managers and attorneys have piled on their own additional fees.
    5. Pay Up or Lawyer Up. Then again, sometimes there’s nothing else to be done. If the board won’t budge, your choices are generally to pay up or lawyer up. This can be frustrating because, as I said before, given the amounts involved it’s often cheaper to pay up than litigate. What’s important, perhaps even moreso than making the right decision, is making a decision right now. Putting your head in the sand won’t make the problem go away, but only make it worse.
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  • It’s been a while since my last blog posting, and I’m afraid that this one will come off as less an expression of legal scholarship than as a frustrated rant. I’ll begin with just one question: Does anybody read what they sign anymore?

    I don’t want to comment too specifically on ongoing litigation, but let’s just say that defending against “Consumer Sales” disputes has kept me occupied for quite some time lately. The crux of these disputes can be almost identically summarized as follows:

    1. The “consumer” signed an agreement/acknowledgement/disclaimer with a “supplier” that was clear and unambiguous. (e.g., “You are buying this ‘AS IS’ and without warranty” or “The total cost of this transaction is $xxxxx.”).
    2. The consumer subsequently claims not to be bound by said document based upon an alleged “verbal representation” that is directly contrary to the language of the written agreement. (e.g., “One of the supplier’s employees told me something different” or “I didn’t read that part”).
    3. The consumer brings a claim for violation of the Consumer Sales Practices Act (R.C. §§ 1345.01, et seq.) (“CSPA”), seeking treble damages, costs, and attorney fees.

    Call me old-fashioned, but I still adhere to the axiom that a person who is competent to contract cannot avoid a contract’s terms by claiming that he [or she] did not notice or read those terms prior to signing.  Ameritech Publ., Inc. v. Snyder Tire Wintersville, Inc., 7th Dist. Jefferson No. 09 JE 35, 2010-Ohio-4868 at ¶ 25 (citing ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574, 579 (1998)). Is a potential claim under the CSPA sufficient grounds to disregard centuries of basic common contract law? Fortunately, the answer from many well-reasoned Ohio courts remains NO; the parol evidence rule prevents consumers from alleging verbal representations that are clearly different from the final, written agreements at hand.  See Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410; Marable v. Michael J. Auto Sales, 1st Dist. Hamilton No. C‑120373, 2013-Ohio-1750.

    Yet why does it seem as though this simple concept is under assault anytime a consumer wishes to conjure up an alleged verbal representation that is irreconcilable with the plain and unambiguous terms of a written document? Perhaps we’re all at least somewhat guilty. I confess to never having read the infamous Apple iOS Software License Agreement, despite having “agreed” to it several dozen times over the years.

    Are we entering a post-literate contractual world? Is the increasing glut of “click yes to agree” contracts subtlety undermining our traditional respect for the written word? Fortunately, I think I have the solution. In order to idiot proof our contracts and prevent any future consumer misunderstandings, both real and imaginary, suppliers should start video recording these transactions (with consumer consent, of course). This is not a format for subtlety. Sample questions could include: “DO YOU UNDERSTAND WHAT YOU ARE SIGNING?”, or “HAS ANYBODY TOLD YOU ANYTHING DIFFERENT FROM WHAT YOU ARE SIGNING?”, or even “HEY DUMMY, HAVE YOU READ THIS DOCUMENT ALL THE WAY THROUGH PRIOR TO SIGNING?” You get the idea. I’m currently soliciting guinea pigs for this experiment. Ironically, perhaps the only way to save the integrity of the written “four-corners” of a contract is to provide extrinsic visual and audio evidence to confirm its effect.

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  • Last week a client came to me and asked if there was anything I could do to expedite his lawsuit. He wanted to go to trial ASAP, come hell or high water, and he wouldn’t take no for an answer. I told him that in order to get a trial that soon, he’d have to go rob a UDF.

    Okay. So the above exchange never happened. However, the preeminence of the criminal docket within the Court of Common Pleas is no secret. The Common Pleas Court, generally, has jurisdiction over criminal felonies and civil disputes in excess of $15,000. By most accounts, criminal matters occupy about 75% of a judge’s time. Furthermore, because criminal defendants have a constitutional right to a speedy trial (lousy Sixth Amendment), criminal cases always preempt commercial ones, no matter how significant.

    It was in response to this issue that, in 2009, the Franklin County Court of Common Pleas adopted a commercial docket in concert with a statewide pilot program. This program was spearheaded by late Chief Justice of the Ohio Supreme Court Thomas J. Moyer with the goal of expediting the resolution of commercial disputes to ultimately improve Ohio’s overall business climate.

    More august legal minds than this bare-knuckled litigator have weighed in on the commercial docket’s subsequent demise—the judges terminated it in 2012 by a 9-8 vote. Since then, it seems that every time a new class of judges takes the bench, the issue is revisited, weighed, voted upon…and dropped. Many judges didn’t—and still don’t—like the commercial docket, even if many commercial litigators did.

    So what happened? How did we in Franklin County “lose the moment” to host a commercial “rocket docket” in the make of Delaware’s renowned Court of Chancery, which presides over some of the largest commercial disputes in the country? Was our commercial docket a solution to a problem that didn’t exist? Was it poorly implemented because it didn’t go far enough in separating itself from the day-to-day exigencies of the criminal docket? In short, is there any way to revive the commercial docket in a way that is not only palatable to the nine judges who voted against it, but that works better than its previous iteration?

    Some claim that the judges who voted against the commercial docket did so as a matter of “ego,” as if they don’t appreciate being told that they somehow aren’t “qualified” to preside over commercial cases. My reaction to this accusation is, in the words of the immortal Bill Hicks: Yeah? And? So? What? The reality is that most commercial cases aren’t terribly complicated. I’d have to question the sanity of any legal system in which the same judge who presides over murder trials is somehow not “up to snuff” to wrap his mind around an LLC shareholder dispute.

    At the same time, there is a problem when commercial litigants, regardless of the significance or complexity of the underlying disputes, constantly find themselves kicked to the back of the line behind a criminal docket that shows no signs of slowing down. There also are instances of complex, multi-party commercial litigation that can absolutely decimate a judge’s docket if he or she is not sufficiently seasoned in the subject matter. Some degree of specialization may be required. Therefore, while there is no Sixth Amendment right to a speedy <em>commercial</em> trial, can we at least throw a bone to the entrepreneurs, risk-takers, and job creators among us? A commercial docket to resolve their disputes expeditiously and competently. Not necessarily as a matter of <em>specialization</em>, but of <em>priority</em>.

    To be sure, the old commercial docket had its issues. The criteria to qualify for the docket was overbroad. As Judge Schneider said, “Just because two corporations are suing each other does not make it complex litigation.” <em>Commercial Docket Had Plenty of Drawbacks</em>, Columbus Dispatch (Mar. 21, 2015). Also, because a case could be moved to the commercial docket at any time, by any party, it opened the door for “judge shopping.” But these should be easily curable issues, not a reason to scrap the program altogether.

    Earlier this month, I was listening to a candidate for the Common Pleas Court give his “elevator” speech as to why he is running and what he is passionate about. He discussed the specialty drug court in Hocking County as an example we could follow here. He talked about his background in defending the criminally accused. All good stuff…except there wasn’t a word about civil disputes. It actually gave me some hope. Perhaps with the proliferation of specialty dockets throughout Ohio (drug, mental health, veterans, etc.), the judges can view the commercial docket as a mechanism to follow their own personal interests, not because they aren’t <em>qualified</em> to preside over commercial cases, but because they don’t <em>want </em>to. It’s not why they ran for the bench in the first place. If elected, let the specialty drug court candidate have his drug docket. Let a judge with a civil litigation interest pick up the slack on the civil end. Sounds pretty simple to me.