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DCSTB Partner Tom Connick Successfully Defends Real Estate Appraiser In Alleged Million Dollar Civil Conspiracy And Consumer Fraud Case

by on June 23, 2012 in Appellate Group, Blog, Commercial Litigation, Insurance Law, Representative Cases

On August 17, 2011 DCSTB Partner, Tom Connick, went to trial in a case that had been pending and litigated since 2006, wherein Tom’s client, a professional real estate appraiser, was accused of participating in a predatory lending/flipping scheme, that allegedly damaged Plaintiffs in excess of one million dollars. After approximately five (5) days in trial, Tom successfully convinced the trial court to grant his client a directed verdict, i.e. dismissal, on all claims. After hearing arguments of counsel, the trial court agreed with Tom and dismissed all counts alleged against his client. The Plaintiffs appealed. Just recently, on June 21, 2012, in the case of U.S. Bank, Etc., Et Al. v. Cynthia Amir, ET Al, Slip Copy, 2012 WL 2355620, 2012-Ohio-2772, Ohio App. 8 Dist., June 21, 2012 (97438), the Ohio Eighth District Court of Appeals affirmed the trial court’s ruling in favor of Tom’s client. This is a significant Appellate victory for Tom’s client, as Plaintiffs had made a demand and alleged damages for over One Million Dollars. And, in fact, other Defendants in this case were deemed liable for over 1.8 Million Dollars. Notably, however, both at trial and on appeal, Tom successfully presented arguments showing that his client did not participate in the alleged fraudulent real estate scheme, whatsoever. This case is also significant for outlining Ohio case law related to alleged real estate appraiser liability in the context of the Ohio Consumer Sales Practices Act, Fraud and Civil Conspiracy.

Congratulations to Tom on another job well-done!!

 

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DCSTB Victorious Again in the 8th District Court of Appeals

by on March 23, 2012 in Appellate Group

Congratulations to DCSTB Partner Tom Connick and Associate Anthony Trzaska in persuading the 8th District Court of Appeals to affirm the underlying Trial Court’s Order granting DCSTB Client, the City of Cleveland, Summary Judgment in a toxic tort/premises liability case. Plaintiff/Appellant, Thomas Kruzer, alleged that he contracted Legionnaire’s Disease while working at Thrifty Rent-A-Car, located on City property at the Cleveland Hopkins International Airport. Mr. Kruzer alleged that the City failed to properly maintain its HVAC system, which caused him to contract Legionnaire’s Disease. However, Tom and Anthony successfully argued that Mr. Kruzer failed to present any evidence that the alleged legionella bacterium was present at the City property, or that he contracted the disease while working at the City property. The Court further expressly held that Plaintiff/Appellant’s argument that he could rely upon the doctrine of res ipsa loquitor in order to prevail on his negligence claim, lacked merit as a matter of law. The Appellate Court Opinion in Alan E. Kruzer, et al. v. City of Cleveland, et al. (8th Dist. C.A. 97168) can be found here. Congratulations Tom an Anthony!!

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Havel v. Villa St. Joseph – Decision to Bifurcate Trial Is Not Within Discretion of Lower Courts

by on February 17, 2012 in Appellate Group, Blog, Personal Injury

In Havel v. Villa St. Jospeh, 2012-Ohio-552, the Ohio Supreme Court this week upheld a statute passed in 2005 that requires a trial to be split into two phases — or “bifurcated” — when a party is seeking both compensatory and punitive damages.  The bifurcation of a trial requires a different jury to hear each phase of the case.  The Court’s decision states that trials must be bifurcated pursuant to the statute, taking away a lower court’s discretion to decide whether bifurcation is warranted on a case-by-case basis.

Previously, pursuant to the Civil Rules of Court, judges were allowed to deny a request for bifurcation and allow a single jury to decide what amount of compensatory damages should be awarded and, at the same time, determine if the facts warranted an award of punitive damages against a defendant.  This would save the courts’ and parties’ time, money and resources.  Although rare, the finding of punitive damages in civil jury trials has remained one of the best methods of deterring egregious behavior of a party and preventing future occurrences.

By upholding the Constitutionality of the statute requiring bifurcation, the Havel decision will make it much more difficult to prove that punitive damages are warranted in cases.

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Ohio Supreme Court clarifies time limit in Ohio for claims against Appraisers

by on April 29, 2011 in Appellate Group, Blog, Business Law, Commercial Litigation, Insurance Law

I defend property appraisers on a regular basis. One of the issues that always arises in cases alleging negligence against an appraiser is the applicable statute of limitations and the date the injury accrued.  Until recently there has been a conflict of opinions within Ohio’s appellate districts as to when a claim for negligence accrues related to the professional negligence of a property appraiser. The Ohio Supreme Court just resolved that conflict in the case of Flagstar Bank, F.S.B v. Airline Union’s Mortgage Company, et al, Slip Opinion No. 2011-Ohio-1961.

In 2008, Flagstar Bank sued an appraiser who, in 2001 and 2002, issued appraisals on three properties for a non-party bank that later sold the properties to Flagstar. These properties went into foreclosure during the recent real estate debacle currently plaguing the country. In resolving the conflict in Ohio as to when an action for professional negligence against appraisers accrues, the Ohio Supreme Court held in Flagstar that “[a] cause of action for professional negligence against a property appraiser accrues on the date that the negligent act is committed, and the four-year statute of limitations commences on that date.”

Notably, the court expressly rejected the “discovery-rule” and the “delayed damages rule.” Under these rules, a plaintiff’s action does not accrue, and the statute of limitations does not begin to run, until the plaintiff knows, or reasonably should have known, that he or she has been injured by the conduct of the defendant (discovery rule), or has actually incurred damages to complete the elements required to bring a cause of action for negligence (delayed damages rule). Now, under Ohio law, a professional negligence claim against an appraiser accrues, and the four-year statute of limitations commences, on the date the appraiser performs any alleged negligent appraisal work.

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Tom Connick and DCTB successful in Eighth District Court of Appeals

by on April 28, 2011 in Appellate Group, Blog, Insurance Law

Recently, the Ohio Eighth District Court of Appeals ruled in favor of my client, The City of Cleveland Department of Port Control, dismissing a slip and fall case brought by a woman who fell in a puddle of water in the open air parking garage adjacent to the Cleveland Hopkins International Airport terminal. The woman claimed that she was distracted by other pedestrians as she entered the Airport, and therefore did not notice the puddle.  During her deposition, however, the woman admitted that she saw the puddle of water and even tried avoiding it because she knew she could slip and fall. The trial court dismissed the claim under Ohio’s “Open and Obvious” Doctrine, which holds that a property owner has no duty to protect people from dangers that are so obvious and apparent that they may be expected to discover them and protect themselves.  Plaintiff appealed the trial court’s ruling, alleging that her claim was not barred by the Doctrine because of “attendant circumstances,” which in this case she alleged were the other patrons who distracted her attention.  The appellate court disagreed, holding that “[t]he evidence in the present case does not support a finding of attendant circumstances. Rather, the evidence demonstrates that it was O’Brien’s own disregard of the condition, after observing the puddle and appreciating the potential risk of falling if she walked through it, that resulted in her fall.”

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