SEPTEMBER 2018

Litigating in the Common Pleas Court of Union County, Attorneys Jeff Turner and Kevin Lantz recently secured a summary judgment in favor of their clients, an Ohio municipality and one of its police officers.

In this case, a driver was pulled over for speeding. After the officer initiated the traffic stop by activating his cruiser’s emergency lights, the driver slammed on his brakes. Due to the driver slamming on his brakes, the officer struck the bumper of the driver’s car. The driver then filed suit against the municipality and the officer. The crux of the driver’s claim was that by hitting the driver’s car, the officer was negligent or his conduct was willful or wanton.

At the summary judgment phase, the driver conceded that sovereign immunity applied to the municipality and the officer; however, he argued that an exception to the general rule of immunity was present, and therefore, both were exposed to liability. However, the Court agreed with the municipality’s argument that because the officer was responding to an ongoing emergency, and the officer’s conduct was not willful or wanton, no exception to sovereign immunity applied. In its journal entry, the Court analyzed the definition of an “ongoing emergency” according to the Revised Code, and agreed that it included an officer initiating a traffic stop for excessive speed, while in a marked police cruiser. The Court further agreed that there was no evidence the officer acted in a wanton manner. The Court found specifically persuasive the officer’s cruiser dashcam video, which clearly showed that the officer’s operation of the police cruiser was not wanton misconduct.

Ultimately, the Court held that because the municipality and its police officer were immune from the claims brought by the driver, and no genuine issues of material fact remained, summary judgment in favor of Jeff and Kevin’s clients was warranted, and the claims were dismissed

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Litigating in the Common Pleas Court of Montgomery County and the Ohio Second District Court of Appeals, Attorneys Jeff Turner, Kevin Lantz, and Dawn Frick recently secured a summary judgment in favor of their clients, a local Ohio township and the members of its Board of Trustees.

In this case, a resident of the township accused the Board of Trustees of arbitrarily denying his application to re-zone his property, which he argued was an unconstitutional taking in violation of the Fifth Amendment. The property in question was a several acre plot of land upon which the resident had built a model home to display the work of his home-construction business. After expressed interest from a residential buyer, the resident sought to re-zone the property as a residential home. The Board of Trustees ultimately voted to deny his application for the classification change, which led the resident to file suit.

At the trial court level, Jeff, Kevin, and Dawn argued that there was no genuine issues of material fact, and a ruling in the township’s favor was warranted. Ultimately, the court decided that not only was the resident’s claim premature, but he had also failed to properly plead inverse condemnation. The court further agreed with Jeff, Kevin, and Dawn that the Board of Trustees’ decision to deny the resident’s application for re-zoning was not arbitrary or unreasonable. Specifically, the court held that the resident’s property classification had a substantial relation to the public health, safety, morals, or general welfare and development of the community as a whole.

On appeal to the Second District Court of Appeals, the resident accused the lower court of applying the incorrect standard and improperly relying on expert affidavits. However, the Second District disagreed, and found the township’s arguments more persuasive. As such, the lower court’s decision regarding summary judgment in the township’s favor was affirmed in its entirety.

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In federal claims, a threshold issue for the court is whether or not a specific plaintiff has Article III standing to assert the claim. Recently, Attorneys Jeff Turner, Kevin Lantz, and Dawn Frick successfully argued for the dismissal of various constitutional claims against their client, a County Recorder, because the claimant did not have standing to assert his claims in federal court.

The lawsuit was initiated in the United States District Court for the Southern District of Ohio against all County Recorders in Ohio. The recorders were accused of violating the Fair Housing Act and conspiring to violate the claimant’s civil rights. In particular, the claimant accused the County Recorders of making copies of documents containing racially invalid restrictive covenants, in violation of the Fair Housing Act. Early on in the pleadings stage, Jeff, Kevin, and Dawn argued that because the claimant failed to sufficiently plead any facts that would afford him Article III standing, his claims must be dismissed. The court agreed, and indicated that the plaintiff did not meet any of the three requirements of Constitutional standing. The court specifically noted that the claimant had not suffered an injury that was concrete and particularized; he had not shown that the County Recorder was the cause of any injury he did suffer; and he had not shown that the County Recorder could have possibly redressed the harm he incurred.  Because the claimant did not meet the Constitutional requirements of standing, he could not bring the case against the County Recorder, and Jeff, Kevin, and Dawn’s motion to dismiss was granted.

On appeal to the Sixth Circuit, the court affirmed the district court’s decision that the plaintiff did not have standing to assert his claims. Specifically, the Sixth Circuit reiterated that the plaintiff had not asserted any particularized injury, but instead, had asserted mere discomfort as a result of the language included in the documents.  Pursuant to Article III, this is insufficient, and the Sixth Circuit affirmed the dismissal of the plaintiff’s claims accordingly.

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Recently, in the United States Court of Appeals for the Sixth Circuit, Attorneys Jeff Turner and David Shaver successfully defended a local municipality that was accused of improperly zoning a piece of real property, malicious prosecution, and abuse of process. In response to the resident’s accusation that the township was “downzoning” a piece of his real property without notice and just compensation, Jeff and David successfully argued that the classification assigned to the real property did not remove all economically beneficial or productive use of the land, and as such, there was no unconstitutional taking as alleged by the resident. This argument was well-taken with the court, and it affirmed the summary judgment granted in the municipality’s favor.

After securing a summary judgment on the takings claim, Jeff and David then attacked the validity of the malicious prosecution and abuse of process claims. Here, the court agreed that the municipality was immune from civil liability because both malicious prosecution and abuse of process are crimes requiring certain intent. Specifically, the court acknowledged that Ohio law generally immunizes municipalities, and while there are exceptions to that general rule, none exposed liability to municipalities for the intentional torts of its employees. Accordingly, the court agreed with Jeff and David that no issues of material fact remained for trial, and a summary judgment in favor of the municipality was warranted on these claims as well.

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Litigating in the United States Court of Appeals for the Sixth Circuit, Attorneys Jeff Turner and David Shaver were able to quickly dispose of claims raised against their client, an Ohio corporation that provides collection services. In this case, a woman incurred medical debt arising from treatment for injuries she sustained in an automobile accident.  When she defaulted on this debt, it was turned over to Jeff and David’s client, which sought to collect on the debt. After doing so, the corporation was accused of directly billing the woman in violation of Ohio law. However, early on in the proceedings, Jeff and David filed a motion for judgment on the pleadings, and argued that their client was not even subject to the Ohio law the plaintiff recited. Jeff and David highlighted that the law allegedly violated pertained only to health care facilities or providers, not collection agencies. The court agreed and indicated that the Ohio corporation could not be bound by a law pertaining to health care facilities and providers, when it was merely a collection agency, and had no connection with healthcare services whatsoever. As such, it affirmed the lower court, and granted Jeff and David’s dispositive motion.

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Just as political subdivisions may be sued by disgruntled residents, they may also be sued by former employees. Attorneys Dawn Frick, Chris Herman, and Jeff Turner recently litigated a case in the United States District Court for the Southern District of Ohio regarding claims brought against their clients, a local village and its police department, by a previously terminated employee. The former employee accused the village and its police department of discriminating against him for having diabetes, and for terminating him without sufficient notice in violation of his due process rights. As a threshold issue, Dawn, Chris, and Jeff were quick to highlight the fact that a village’s police department is not sui juris, meaning it cannot be sued. After the prompt dismissal of the local police department from the case, the court then looked at the extensive summary judgment briefing regarding the plaintiff’s remaining due process and discrimination claims against the village.

The crux of the plaintiff’s due process argument rested in the post-termination due process protections the village had allegedly deprived him. In particular, the plaintiff argued that while he failed to follow the procedures set forth in the Ohio Revised Code, and therefore missed the applicable deadlines to appeal his termination, he followed the grievance procedure set forth in his employee manual. Notably, he accused the village administrator of intentionally providing him with the wrong provision of the manual to file his appeal, which prevented it from being timely. However, Dawn, Chris, and Jeff presented the better of the two arguments, and showed that even if the plaintiff attempted to appeal his termination, and was unfortunately mistaken as to which procedure he was to follow, his unintentional error did not excuse that he was required to make his appeal under the deadlines indicated in the Ohio Revised Code. The court agreed, and held that where the manual and Ohio law conflicted, Ohio law should prevail. Thus, the court held that the village had provided adequate post-termination due process protections to the plaintiff, and dismissed with prejudice the due process claims against the village.

Finally, the court granted summary judgment in favor of the village on the plaintiff’s federal disability discrimination claims. Here, the court simply agreed with Dawn, Chris, and Jeff that the statute of limitations had expired under federal law, and that the plaintiff had failed to show any reason that statute of limitations should be equitably tolled.

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Litigating in the Municipal Court of Kettering, Ohio, Attorneys Ned Dowd and Chris Herman secured a summary judgment in favor of their client, a local municipality, which was accused of unlawfully seizing and selling the plaintiff’s vehicle. This case initially began as a traffic stop, but quickly escalated to the arrest of the plaintiff for obstructing official police business. Subsequent to the plaintiff’s arrest, his car was properly towed pursuant to the police department’s general order. Thereafter, the plaintiff was afforded numerous opportunities to pick up his vehicle, however, he never attempted to do so until nearly eight months later. At that point, he learned that his vehicle was now owned by the towing company, and had been impounded pursuant to various provisions of the Ohio Revised Code.

In their motion for summary judgment, Ned and Chris established that as a political subdivision, the municipality was protected by immunity when it engaged in a governmental function. Specifically, Ned and Chris demonstrated that it was indisputable that the municipality was engaged in a governmental function when it seized, impounded, and disposed of the plaintiff’s vehicle. Moreover, because no exception applied, the Magistrate Judge agreed that there were no remaining issues of material fact regarding the municipality’s statutory immunity, and ultimately dismissed all claims against the municipality with prejudice.

After the decision was rendered in favor of the municipality, the plaintiff objected. However, after an independent review by the court, the court determined that the Magistrate Judge’s decision properly determined the factual issues, and applied the law appropriately. Thus, the court rejected the plaintiff’s objections, and affirmed the decision of the Magistrate Judge in its entirety.

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Occasionally, cases that contain claims predicated on both federal and state law are drawn-out into two separate proceedings: The first resolving the federal law claims in federal court, and the second a remanded proceeding to decide the state law claims. Attorneys Dawn Frick, Jeff Turner, and Chris Herman recently encountered such a case while defending a local township, its board of trustees, and the former lieutenant of its police department who were accused of sexual harassment, sex discrimination, negligent hiring and retention, and intentional infliction of emotional distress. The factual history of the case is extensive and complex, but surrounded the termination and overall treatment of a former police department employee.

After securing a summary judgment on all federal claims, ultimately obtaining a dismissal with prejudice in their clients’ favor, Dawn, Chris, and Jeff’s legal battle continued to the Montgomery County Court of Common Pleas, where they litigated the remanded state law claims. In yet another motion for summary judgment, the attorneys aggressively argued that no issues of material fact remained for trial, and a judgment in their clients’ favor was warranted as a matter of law on all remaining claims.

Specifically, after extensive summary judgment briefing, Dawn, Jeff, and Chris proved to the court that all of the remaining claims must fail. First, the court agreed that the plaintiff’s claims were barred by the doctrine of collateral estoppel and/or res judicata, and thus, the claims brought for sexual harassment and sex discrimination under the Ohio Revised Code must fail. Next, under a similar theory, the court agreed that the issues presented under common law sexual harassment had already been decided by the federal court, and also must fail.

Receiving the most analysis from the court was the plaintiff’s claim that she had suffered emotional distress, which had allegedly been intentionally inflicted upon her by the township and its employees. Again, the court found Dawn, Chris, and Jeff’s arguments persuasive, and held that statutory immunity applied here, which entitled the township and its employees to a summary judgment. However, the court further agreed that even if statutory immunity did not apply, the acts complained of by the plaintiff were not severe enough to satisfy the high burden of emotional distress claims in Ohio. As such, the court granted the motion for summary judgment in favor of the township and its employees.

On appeal to the Second District Court of Appeals, the plaintiff claimed the trial court had erred in granting summary judgment in favor of the township and its employees on the common law sexual harassment, intentional infliction of emotion distress, and negligent hiring claims. However, after reiterating the proper analysis conducted by the trial court, the Second District disagreed with the plaintiff, and affirmed the trial court’s judgments in favor of the township and its employees.

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Litigating in the Small Claims division of Miami County Municipal Court, Attorney Katherine Epling secured a judgment in favor of her clients, two property owners who were accused of negligently maintaining their sidewalk. At trial, Katherine provided evidentiary proof that while it was true that excavation work had been done on the property owners’ sidewalk, the work area was always properly maintained in compliance with the construction team’s procedures, and was clearly marked as “under construction” through use of cones and caution tape. The Judge found the evidence presented by Katherine convincing, and entered judgment in favor of the property owners.

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Political subdivisions are often sued by unhappy citizens who file meritless complaints with the court, which the political subdivision is then forced to defend regardless of their insufficiency. Recently, Attorneys Ned Dowd and Dawn Frick were faced with a complaint against their clients, a private attorney, a local Ohio municipality, the municipality’s mayor, and one of its police officers, alleging various violations of 42 U.S.C. § 1983. Ned and Dawn immediately filed a motion to dismiss all claims against their clients, arguing that the plaintiff had not adequately alleged any plausible claims, and that no relief could be granted.

In granting their motions to dismiss, the Magistrate Judge agreed that even pro se parties must satisfy basic pleading requirements. Here, Ned and Dawn indicated that the plaintiff made general accusations, and never identified that any particular action was taken by any particular defendant. Regardless of such insufficiency, they further argued that a private attorney could not be sued under § 1983, and that the municipality and mayor could not be sued under a theory of respondeat superior. The Magistrate Judge agreed, and granted a complete dismissal with prejudice of the plaintiff’s complaint. Afterward, the plaintiff objected to the Magistrate Judge’s report and recommendation that his complaint be dismissed with prejudice. However, upon review, the court disagreed and the objections were overruled without briefing, and the dismissal of all claims was affirmed.

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Litigating in the Montgomery County Court of Common Pleas, Attorneys Jeff Turner, Dawn Frick, and Chris Herman defended their clients, a local municipality and its Service Director, who were accused of causing an automobile accident, which allegedly caused the plaintiff to suffer injuries and lost income and services. The plaintiff filed his complaint, alleging that the municipality and its Service Director’s construction and upkeep of a local road median were the cause of injuries he sustained directly from an automobile collision near the median.

In their motion for summary judgment, Jeff, Dawn, and Chris argued that the municipality and Service Director were entitled to statutory immunity under Revised Code Chapter 2744. The majority of the court’s opinion addressed whether or not the construction and upkeep of the local road median project was a governmental or proprietary function. Jeff, Dawn, and Chris argued that all acts the municipality partook in were governmental functions, thus making immunity under Revised Code Chapter 2744 applicable. The court agreed, and held that improvements of the roadway, the landscaping, and beautification efforts were not proprietary functions, but governmental.

The court further agreed that the Service Director was sued in his official capacity as an employee of the municipality. Under this standard, the court held that the plaintiff had not carried his burden in proving that the Service Director’s acts were malicious, in bad faith, or were wanton or reckless. Specifically, Jeff, Dawn, and Chris maintained there were no issues of material fact that the Service Director had no intent to cause harm, or in the alternative, that he did not have a dishonest purpose behind his acts. The court agreed, and held that statutory immunity applied.

In so holding, the court found that statutory immunity applied to both the municipality and the Service Director and found that no exception existed. Thus, the municipality and Service Director were entitled to a judgment as a mater of law, and Jeff, Chris, and Dawn’s motion for summary judgment was granted in their clients’ favor.

On appeal to the Second District Court of Appeals, the plaintiff argued that the trial court had erred in awarding summary judgment in favor of the local municipality and its Service Director. Specifically, the plaintiff claimed the trial court erred in finding the defendants were engaged in the performance of a governmental function, rather than a proprietary function.  However, the Second District agreed with the trial court that any injuries sustained were a result of the performance of a governmental function, and therefore, Revised Code Chapter 2744 immunity applied to both the municipality and its Service Director.  The Second District further agreed that no exception to this immunity applied, and as such, affirmed the trial court’s summary judgment decision.

FEBRUARY 2017

Litigating in the United States District Court for the Eastern District of Michigan, Attorneys Jeff Turner and David Shaver recently secured a summary judgment in favor of their client, an Indiana collection agency accused of various violations of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act.

In this case, the Indiana agency was accused of attempting to collect on a “bogus” account that had allegedly been discharged in bankruptcy.  The agency was also alleged to have failed to timely report the account as disputed following the consumer’s dispute.  After proving that the account at issue had not been discharged and securing a voluntary dismissal of the plaintiff’s FCRA claims, Jeff and David attacked the plaintiff’s remaining FDCPA allegations under 1692e(8).  After summary judgment briefing was completed, the Court found that the fact that the account was disputed was inherent in the agency’s ACDV response.  The Court also found that the agency’s affirmative evidence showing that it had reported the account as disputed in its monthly reporting update, submitted the very next day, was sufficient to overcome the plaintiff’s unsupported argument that “industry standards” required the agency to notate the dispute directly on the ACDV response.

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Representing clients in class action cases can sometimes be more challenging than representing clients in individual actions.  This was true for Attorneys Jeff Turner and David Shaver during the course of a recent case in the United States District Court for the Western District of Michigan in which they obtained a favorable summary judgment for their client, a Michigan collection agency.  Sued in a class action that was part of a larger group of similar class actions consolidated under a single judge, Jeff and David had to navigate a more-complex-than-usual procedural environment in order to establish that their client had not violated the FDCPA.  Specifically, the plaintiff alleged that certain costs related to previous unsuccessful garnishment attempts had illegally been included in later garnishment attempts.  After lengthy periods of early motion practice and discovery, the Court agreed that there were no questions of material fact remaining for trial with respect to the Michigan agency and that it had not been involved in the garnishment attempts that were alleged to have violated the FDCPA.

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Litigating in the United States District Court for the Northern District of Ohio and the United States Court of Appeals for the Sixth Circuit, Attorneys Jeff Turner and David Shaver secured a summary judgment in favor of their client – a New York collection agency accused of various violations of the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Ohio Consumer Sales Practices Act – followed by a voluntary dismissal of the plaintiff’s appeal.

In this highly contentious litigation that lasted over three years and involved multiple party defendants, Jeff and David were able to overcome the plaintiff’s numerous attempts to coerce a settlement by delaying the case and obstructing discovery.  Through coordination with the attorneys for the other defendants, Jeff and David were able obtain the discovery necessary to establish that the plaintiff could not prove any of the FDCPA, FCRA, or OCSPA violations alleged.  At summary judgment, which was not reversed on appeal, it was established that the client: did not falsely represent the amount of the account that had been placed with it; had not attempted to collect an unauthorized amount; had not engaged in any false, deceptive, misleading, unfair, or unconscionable practices; and had a permissible purpose to inquire into the plaintiff’s consumer report.