Judicial Opinions-Civil

decision-4-library

The Judges of the Clermont County Common Pleas Court will from time to time post in PDF format decisions that have value as precedent or are of interest to the general public. These postings will generally occur at the time the decision is rendered, and before there is any review on appeal of these decisions. Counsel and parties are responsible for researching any later rulings of the Twelfth District Court of Appeals and/or the Ohio Supreme Court that may affect the legal value of these opinions.

CIVIL ISSUES

Administrative Law

Judge McBride-Decision on administrative appeal, ORC 119.12, Medicare eligibility, statutes construed, definition of “family”, equal protection (November 2, 2012)

Judge McBride-Decision on administrative appeal, unemployment, termination for “just cause”, ORC 4141.282(H) (April 29, 2013)

Judge McBride-Decision on administrative appeal, ORC 119.12, discretionary trust, available for Medicare, ORC 5111.151 and regulations, discretion of trustee, language of trust document (May 24, 2013)

Judge McBride-Decision on zoning appeal, ORC 2506.04, two parcels, pet sanctuary/shelter, permitted use, volunteers/employees/independent contractors, non-profit corporation, (April 22, 2014)

Judge McBride-Decision on unemployment appeal, timely appeal to state agency, ORC 4141.282(H) construed, faxed notice, proof of delivery of notice, lack of evidence of fax transmission (December 29, 2014)

Judge McBride-Decision on motion to dismiss BWC appeal, jurisdiction, time for appeal, ORC 4123.511 and .512 construed, service of order, appeal time runs, motion to amend pleadings to conform to procedural history (March 9, 2015)

Judge McBride-Decision on administrative appeal, Ohio BMV suspension, ORC 119.12 jurisdiction, sufficiency of notice of appeal, filing with court and BMV, statement of grounds for appeal, Civil Rules and summary judgment not applicable to administrative appeals (March 30, 2015)

Judge McBride-Decision on motions in administrative appeal, ORC 119.12 appeal, scope of review, record of hearing below, additional evidence, newly discovered evidence, driver’s license suspension, opportunity for hearing during administrative process (November 3, 2015)

Judge McBride-Decision on motion to dismiss an administrative appeal, Civ.R. 12(B)(6) applied, mandamus to compel zoning action, Board of Zoning Appeals, failure to exhaust administrative remedies, sufficiency of legal remedy, no monetary recovery against a city (December 22, 2015)

Judge McBride-Decision on administrative appeal, drivers license suspension, ORC 119.12 applied, perfecting appeal, jurisdiction, filing notice, certified record, complete record, additional evidence, reliable probative and substantial evidence (January 25, 2016)

Judge McBride-Decision on administrative appeal, unemployment compensation benefits, ORC 4141.282 and .29 construed, just cause for discharge, not signing employment contract, non-compete clause, increase in compensation, procedural due process (February 12, 2016)

Civil Service

Judge McBride-Decision on motions, civil service, township police chief, removal, statutes construed, motion for summary judgment, motion for leave to amend (March 21, 2013)

Judge McBride-Decision on motions, summary judgment, use of affidavits, public employment, removal of public employees, ORC Chapter 2477, township immunity from suit, breach of contract, employment at will, invasion of privacy, defamation, claims under 42 USC 1983 (September 11, 2013)

Contracts

Judge McBride-Decision on foreclosure case, motion for summary judgment, claim for mortgage disability insurance as defense (March 2, 2012)

Judge McBride-Decision on motions in contract case, motion for summary judgment, motion for leave to amend, motion on injunction bond, Civil Rule 65(C), law of the case doctrine-effect of prior appelate ruling on preliminary injunction (April 16, 2012)

Judge McBride-Decision on motion for summary judgment, contract interpretation, parties signed second employment contact, ambiguity, issue of fact for the jury (January 24, 2013)

Judge McBride-Decision on motion for partial summary judgment, Civ. R. 56, standards, contracts, performance, defenses, disputed facts, partial defenses to larger claim (June 5, 2013)

Judge McBride-Decision on motion to enforce settlement, contracts, elements of agreement, public policy in favor of settlement, items not fully agreed to (September 4, 2014)

Judge McBride-Decision on motion for summary judgment, contract, sale of business assets, plain meaning rule, condition precedent, substantial performance, failure to provide asset inventory list (February 19, 2016)

-Insurance

Judge McBride-Decision on motion for summary judgment, insurance coverage, multiple policies, underinsured, ORC 3937.18, anti-stacking, policy language construed (January 24, 2013)

Judge McBride-Decision on motion for summary judgment, insurance coverage, “regular use” defined, ORC 3937.18(I) construed, school bus driver (February 4, 2013)

Judge McBride-Decision on motion for partial summary judgment, property damage, insurance, wind and water damage, test for bad faith, duty to inspect, test for punitive damages (June 4, 2015)

Judge McBride-Decision on motions for summary judgment, insurance coverage, homeowners policy, catastrophic injury policy, ATV accident, Recreational Use Statute ORC 1533.181 construed, assumption of risk, reckless or intentional act, (March 25, 2016)

Judge McBride-Decision on motion to bifurcate and to stay, tort claims, wrongful death, bad faith claims, coverage dispute, punitive damages, ORC 2315.21, bifurcated trial on punitive damages, stay of discovery on punitive damages, Civ.R. 42, judicial discretion to bifurcate (June 21, 2016)

Judge McBride-Decision on cross motions for summary judgment, fire loss, mortgage, fire insurance proceeds, insurance policy interpretation, contract construction, loss payable clause, notice to carrier of loss, substantial performance, allocation of settlement proceeds (June 27, 2016)

Judge McBride-Decision on motion for partial summary judgment, subrogation, make-whole doctrine, insurance policy language, construction, express language regarding right of recovery, burden of proof on subrogation counterclaim (February 1, 2017)

-Trucking

Judge McBride-Decision on requests for admissions, timing of response, and Decision on motions for summary judgment and to dismiss, Civ.R. 12(B)(6), Civ.R 56, standards, bills of lading, Carmack Amendment, nature of damages covered and not covered by Carmack Amendment, preemption of state law claims, (May 6, 2013)

Judge McBride-Decision on motions to strike and for partial summary judgments, trucking contracts, bills of lading, assignments, collections, affidavits in support of summary judgment, hearsay, collateral estoppel (January 30, 2014)

Product Liability

Judge Haddad-Decision in civil case alleging defective product, motion for partial summary judgment, application of Consumer Sales Practices Act, Deceptive Trade Practices Act, class action, 2011-Ohio-948, (January 24, 2011)

Public Records/Public Meetings

Judge Haddad-Decision of public records law regarding police records in Pierce Township (August 4, 2011)

Judge McBride-Decision on motion for protective order, township trustees meetings, executive sessions, subject to deposition, ORC 102.03 and ORC 121.22(G) construed, attorney client privilege, disciplinary decisions (October 15, 2012)

Judge McBride-Decision on motion for protective order and motion in limine, public meetings, executive sessions, ORC 121.22 and 102.03 construed, exceptions, open meetings law, discovery, limits on deposition questions, attorney client privilege for public bodies (February 22, 2017)

Injunctions

Judge McBride-Decision on motion for temporary restraining order, grounds for injunction, trade secrets, ORC 1333.61 and .62 applied, lack of success on the merits, information common in an industry, tortious interference with contract (January 6, 2014)

Judge McBride-Decision on motion to extend TRO, Civ. R. 65 interpreted, TROs, duration, extension, conversion to preliminary injunction, notice requirement, party participation in hearing, purpose of TRO relief (January 8, 2016)

Judgments/Collections/Court Costs

Judge McBride-Decision on motion for distribution, collection of judgment, entitlement to recover attorneys fees, language in pleadings, final appealable order (June 15, 2012)

Judge McBride-Decision on motion to vacate, Civil Rule 60(B), cognovit judgment, determination of amount owed, judgment void-when (June 15, 2012)

Judge McBride-Decision on motion for pre-judgment interest, quasi-contract, ORC 1343.03(A) construed, unjust enrichment, liquidated vs. unliquidated claims, “due and payable” when (June 23, 2015)

Judge McBride-Decision on motion regarding court costs, Civ.R. 41(A) dismissal, court has no jurisdiction after dismissal, Civ.R. 41(A) and 54(D) applied, authority to assess costs on refilling (January 12, 2016)

Jurisdiction

Judge McBride-Decision on post-dismissal enforcement of settlement terms (November 28, 2011)

Judge McBride-Decision on motion to dismiss, lack of personal jurisdiction, out-of-state corporation and individual, long arm jurisdiction, ORC 2307.382, minimum contacts, communications with Ohio business (October 1, 2013)

Partnerships

Judge McBride-Decision on partnership dissolution and winding up, distribution of partnership assests, accounting, receivership (January 20, 2012)

Real Property

Judge McBride-Decision on motion for summary judgment, adverse possession, tacking, adverse possession as to political subdivision (June 22, 2012)

Judge McBride-Decision on motions in limine, eminent domain, experts’ opinions, property appraisal, taking of property, damage to residue (August 8, 2012)

Judge McBride-Decision on motion for attorneys fees, appropriation of real estate for a road project, verdict greater than 125% of offer, ORC section 163.21 construed, statutory ambiguity, (November 28, 2012)

Judge McBride-Decision on summary judgment motions, sale of real estate, oil pollution, insurance policy pollution exclusion, misrepresentation, fraud, disclosure of pollution, summary judgment standards (January 17, 2013)

Judge McBride-Decision on administrative appeal, land use, zoning, ORC 2506, standard for review, variance, hardship required, religious use (November 6, 2014)

Judge McBride-Decision on summary judgment, land use, zoning, non-conforming use, change in use, need for permit, accessory structure, repairs to damaged building, declaratory judgment, injunction to enforce zoning code (May 6, 2016)

Judge McBride-Decision following damages hearing, condominium, homeowners association dues, assessments, ORC 5311.18 construed, lien on unit owner’s property, after acquired debt, calculation of damages, amount of secured lien (July 12, 2016)

Judge McBride-Decision on motion for summary judgment, declaratory relief, validity of mechanics lien, ORC chapter 1311 construed, affidavit, technical errors, evidence of service, errors in jurat, requirements for validity of lien (September 15, 2016)

-Foreclosure

Judge McBride-Decision on motion for summary judgment, foreclosure, notice of default, absence of proof, summary judgment standards, (August 24, 2012)

Judge McBride-Decision on motion for leave to amend answer, foreclosure, Civil Rule 15, defenses, RESPA, Truth in Lending, leave granted when (November 7, 2012)

Judge McBride-Decision on renewed motion for summary judgment, standards, obligation to present evidence in opposion to motion, notice of default, acceleration (January 22, 2013)

Judge McBride-Decision on motion to vacate judgment, foreclosure, Civil Rule 60(B), excusable neglect, holder of power of attorney acting for borrower, obligation to answer while pursuing modification (April 9, 2013)

Judge McBride-Decision on motion for summary judgment, foreclosure, summary judgment tests, admissibility of affidavits and documents, counterclaims, Truth In Lending Act, (May 24, 2013)

Judge McBride-Decision on motion to vacate, foreclosure, Civ. R. 60(B), meritorious defense, standing, assignments of mortgages, bearer documents, endorsements, (May 31, 2013)

Judge McBride-Decision on motion to vacate judgment, standing, transfer of note and mortgage, assignment, without recourse, endorsement, (June 10, 2013)

Judge McBride-Decision on motion for stay of execution and supersedeas bond, foreclosure sale, transfer of interest, mootness, stay not possible after judgment satisfied (December 2, 2013)

Judge McBride-Decision on motion to strike jury demand in foreclosure case, equity, right to trial by jury, monetary claim, Civil Rule 38, not timely, waiver (October 30, 2014)

Judge McBride-Decision on motions for default and summary judgment, condo association dues and fees, foreclosure by junior lien holder when first mortgage is current, priority of liens on property, sheriff’s sale (March 1, 2016)

Judge McBride-Decision on summary judgment, homestead exemption, foreclosure, judgment lien, calculation of equity and exemption, ORC 2329.66 and .661 construed, foreclosure not warranted with no recovery over exempt amount (April 4, 2016)

Judge McBride-Decision on motion to withdraw deposit, judicial sales, foreclosure, ORC 2329.31 construed, refund of deposit at sheriff’s sale, circumstances, requirement for intervention by non-party purchaser, Civ. R. 24 (August 18, 2016)

Negligence

Judge McBride-Decision on summary judgment, negligence-slip and fall, ice and snow in apartment parking lot, open and obvious doctrine (February 13, 2012)

Judge McBride-Decision on summary judgment, premises liability, trip and fall, store display, summary judgment standards, spoliation of evidence (August 31, 2012)

Judge McBride-Decision on summary judgment, premises liability, invitee, duty of care, slipped hot chili on patron, no liability (February 15, 2013)

Judge McBride-Decision on summary judgment, negligence, scope of duty, assumption of risk, children in ATV accident, in loco parentis, (June 6, 2014) s

Judge McBride-Decision on motion for judgment on the pleadings, high schoool track athlete, dangerous condition, recreational user, ORC 1533.181 construed, political subdivision immunity, Revised Code Chapter 2744, factual record not developed (December 30, 2014)

Judge Haddad-Decision on summary judgment, car-pedestrian accident, assured clear distance ahead, crosswalk, right of way, discernible object, genuine issues of fact, (January 13, 2015)

Judge McBride-Decision on motion for summary judgment, truck-pedestrian collision, right of way, walking on shoulder, duty of care, standards for summary judgment, genuine issues of material fact (August 25, 2016)

Other Torts

Judge McBride-Decision on motion for summary judgment, standards, cause of action for child stealing, ORC 2913.23 and 2307.50 construed, emergency custody order as defense (July 9, 2013)

Judge McBride-Decision on motions to dismiss counterclaims, malicious prosecution, tortiuous interference with business relations, sham litigation, Leadscope case construed, attorney fees, ORC 1333.64, ORC 4165.03, ripeness of claim for fees, (April 3, 2014)

Judge McBride-Decision on motions to strike and for summary judgment, liability of parent for arson of child, summary judgment affidavits, hearsay, non-expert opinion, IME report, authentication, parental liability ORC 2307.60(A) crime constitutes a tort, distinction crime and deliquency, ORC 3109.09(B) and 2307.70(B) damages for acts of child, vandalism, caps on recovery, infliction of emotional distress, negligent supervision of child (June 1, 2015)

Judge McBride-Decision on motion for partial summary judgment, dental malpractice, consent form, validity of signature, effect of pre-procedure medication, disputed facts (March 6, 2017)

Trusts

Judge McBride-Decision on motion for partial summary judgment, trusts, construction, ambiguous language, use of extrinsic evidence, intent of the settlor, definition of “child” and “children”, compare with other language in trust document (October 23, 2015)

Fraudulent Transfers

Judge McBride-Decision after jury waived trial, sale of motorcycle, alleged fraudulent transfer, conversion (February 27, 2012)

Civil Protection Orders

Judge McBride-Decision on civil protection order, objections to Magistrate’s decision, “mental distress” defined (June 4, 2012)

Judge McBride-Decision on sexually oriented effense protection order (SOOPO), review of magistrate’s decision, Civ.R 53, standards, burden of proof, requirements for a SOOPO (May 14, 2013)

Judge McBride-Decision on objections to magistrate’s ruling, Civil Protection Order, ORC 2903.214 and 2903.211 construed, “pattern of conduct” and “closely related in time” defined, ten months between incidents, preponderance of the evidence (September 28, 2015)

Civil Procedure

–Class Actions

Judge Haddad-Decision on motion to certify class action, Civil Rule 23 tests, representation, Consumer Sales Practices Act, (November 29, 2011) 166 Ohio Misc. 2d 21, 2011-Ohio-6946.

–Discovery, Motions to Compel, Protective Orders, etc.

Judge McBride-Decision on motion to compel bank business records, Civil Rule 37, nature of records, specificity of request (May 11, 2012)

Judge McBride-Decision on motion to compel and for sanctions, Civil Rule 26(C), Civil Rule 37, investigative files, confidentiality agreement (December 28, 2012)

Judge McBride-Decision on request for admissions, motion to deem admitted and opposing motion to withdraw admission, Civil Rule 36, timing, prejudice to requesting party, importance of decisions on the merits (November 30 2015)

Judge McBride-Decision on motion to dismiss, complaint for discovery, Civ. R. 12(B)(6), ORC 2317.48 and Civ. R. 34(D) compared, purposes of complaint for discovery, identification of parties, potential cause of action (December 7, 2015)

Judge McBride-Decision on cross motions concerning protective orders, trade secrets, ORC 1333.65 and Civ. R. 26(C) applied, proprietary information, use of “attorneys eyes only” clauses, factual test, requirement for good cause (December 21, 2015)

Judge McBride-Decision on motion for sanctions, Electronically Stored Information (ESI) discovery, timing, format, and volume of ESI discovery, computer file formats, effect of prior discovery orders, range of possible sanctions, imposition of fees and costs as sanctions, Civ. R. 34 and 37 construed (May 16, 2016)

–Motion to Dismiss

Judge McBride-Decision on motion to dismiss, Civil Rule 12(B)(6), limited liability company, membership, ability to sue to determine membership status (March 19, 2012)

Judge McBride-Decision on motion to dismiss, Civ. R. 12(B)(6), UCC Article 9, used car repossession, expenses, facts sufficient for claim (January 11, 2013)

Judge McBride-Decision on motions to dismiss and for judgment on the pleadings, pleading, motion to dismiss standard, infliction of emotional distress, trespass, invasion of privacy, malicious prosecution, motion to strike evidence outside the pleadings, violation of a CPO, (November 18, 2014)

–Motion for Default Judgment

Judge McBride-Decision on motion for default judgment, subrogated party as defendant, settlement with tortfeasor, realign parties, default improper when no affirmative claim for relief (September 19, 2014)

Judge McBride-Decision on motion for default judgment, Civil Rule 55 construed, damages, destruction of real property, court costs, attorneys fees, American rule, cost of property survey (September 2, 2016)

–Motion for Leave To Amend

Judge McBride-Decision on motion for leave to amend answer, Civil Rule 15, defenses, RESPA, Truth in Lending, leave granted when (November 7, 2012)

Judge McBride-Motion for leave to amend complaint, Civil Rule 15(A) construed, judicial discretion, factors, new evidence, proximity to trial, prior motions practice, possibility of delay (August 30, 2016)

–Motion for Leave to File

Judge McBride-Decision on motion for leave to file, filing pleading out of rule, Civ.R 6(B) and 12(A)(1) construed, entension of time, excusable neglect, attorney calendar, lack of prejudice to other party, short delay in filing (May 7, 2015)

Judge McBride-Decision on motion for leave to file, Civ.R 12(A)(1) and 6(B)(2), facts and circumstances, excusable neglect, out-of-state defendant, language barrier, effort to obtain Ohio counsel (September 28, 2015)

Judge McBride-Decision on cross motions for leave to file and for default, Civ.R. 12(A)(1) and 6(B)(2) construed, excusable neglect, timing of actions after service, no disregard for the legal system (September 30, 2015)

–Motion to Vacate

Judge McBride-Decision on motion to vacate, Civil Rule 60(B), cognovit judgment, determination of amount owed, judgment void-when (June 15, 2012)

Judge McBride-Decision on motion to vacate judgment, foreclosure, Civil Rule 60(B), excusable neglect, holder of power of attorney acting for borrower, obligation to answer while pursuing modification (April 9, 2013)

Judge McBride-Decision on motion to vacate, foreclosure, Civ. R. 60(B), meritorious defense, standing, assignments of mortgages, endorsement, bearer instrument (May 31, 2013)

Judge McBride-Decision on motion for relief from judgment, Civ. R. 60(B), timely, meritorious defense, service of process, regular mail, forwarding orders, (April 22, 2014)

Judge McBride-Decision on motion to vacate default judgment, Civ. R. 60(B), three part test, meritorious defense, requirement for operative facts, disputed damages, service of process, certified mail, ordinary mail (July 6, 2015)

–Joinder and Consolidation

Judge McBride-Decision on motion for joinder, Civil Rule 19, Health and Human Services, subrogation, immunity, joinder proper (February 8, 2013)

Judge McBride-Decision on motion to consolidate, Civil Rule 42, common questions of law or fact, discretion of trial judge, pro se complaint (October 3, 2014)

–Res Judicata

Judge McBride-Cross motions for summary judgment, res judicata, permissive cross-claim in prior case, effect of earlier ruling, standards for summary judgment, unjust enrichment (April 27, 2015)

–Service of Process

Judge McBride-Decision on motion for default and motion for extension of time, service of process, certified and regular mail, incorrect address, reqular mail unreturned (February 4, 2013)

–Summary Judgment

Judge McBride-Decision on motion for summary judgment, Civil Rule 56 standards, affidavits, quiet enjoyment (December 5, 2011)

Judge McBride-Decision on summary judgment, Civil Rule 56 standards, liability, comparative negligence, insurance coverage, choice of laws (January 13, 2012)

Judge McBride-Decision on summary judgment, summary judgment standards, negligence-slip and fall, ice and snow in apartment parking lot, open and obvious doctrine (February 13, 2012)

Judge McBride-Decision on summary judgment and motion to enforce settlement, summary judgment standards, formation of settlement agreement, “John Doe” service, Civil Rule 15(D), relation back of pleadings, statute of limitations (June 1, 2012)

Judge McBride-Decision on summary judgment, foreclosure, notice of default, standards for granting summary judgment, absence of evidence, genuine issue of material fact (August 24, 2012)

Judge McBride-Decision on motion for summary judgment, Civ. R 56, affidavits in support, requirement of personal knowledge, attached documents, need for complete documents supporting motion, insufficient evidence to show no dispute of fact (January 15, 2016)

–Recusal

Judge McBride-Decision on motion to recuse, standards for disqualifying a judge, appearence of impropriety, contested judicial election, election opponent, nature of campaign, no grounds to recuse (April 13, 2015)

–Motions in Limine

Judge McBride-Decision on motions in limine, eminent domain, experts’ opinions, property appraisal, taking of property, loss to residue (August 8, 2012)

Judge McBride-Decision on motion in limine, malpractice, damages, medical bills, writeoffs, admissibility of medical bills, Robinson vs Bates construed, (August 19, 2013)

Judge McBride-Decision on motions in limine, collateral sources, evidence of health care write-offs, ORC 2317.421 and 2315.20 construed, Bates vs. Robinson applied, Evid.R. 403, federal regulations, standard of care, nursing home care (October 2, 2013)

–Jury Demands

Judge McBride-Decision on motion to strike a jury demand, equity, right to trial by jury, monetary claim, Civil Rule 38, demand not timely, waiver (October 30, 2014)