Prepared by

Paul A. Sukys

OHIOSTUDENT SUPPLEMENT

to Accompany

CIVIL LITIGATIONTHIRD EDITION

Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys

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CONTENTS

PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL

Chapter 1 Litigation and the Paralegal ...................................................................... 1

Chapter 2 The Courts and Jurisdiction ...................................................................... 4

PART II INITIATING LITIGATION

Chapter 3 Preliminary Considerations .................................................................... 13

Chapter 4 Investigation and Evidence ..................................................................... 18

Chapter 5 The Initial Pleadings ............................................................................... 23

Chapter 6 Responses to the Initial Pleading ............................................................ 35

Chapter 7 Motion Practice....................................................................................... 45

PART III DISCOVERY

Chapter 8 Overview of the Discovery Process ........................................................ 49

Chapter 9 Depositions ............................................................................................. 54

Chapter 10 Interrogatories ......................................................................................... 59

Chapter 11 Physical and Mental Examinations......................................................... 62

Chapter 12 Request For Documents .......................................................................... 66

Chapter 13 Request for Admissions .......................................................................... 69

PART IV PRETRIAL, TRIAL, AND POSTTRIAL

Chapter 14 Settlements, Dismissals, and Alternative Dispute Resolution ................ 74

Chapter 15 Trial Techniques ..................................................................................... 79

Chapter 16 Posttrial Practice ..................................................................................... 84

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In federal court, civil litigation is primarily regulated by the Federal Rules of CivilProcedure. These rules apply in all federal courts, including those in Ohio. However, notall litigation takes place in federal court. In fact, a great deal of litigation takes place inthe state courts, where state laws rather than federal laws control. This supplement isintended to familiarize you with litigation practice as it occurs within the state courts ofOhio. Specific Ohio rules and procedures in the various areas of civil litigation will bediscussed. Where state rules differ from federal rules, that fact will be indicated.

INTRODUCTION

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PART I INTRODUCTION TO CIVIL LITIGATION FORTHE PARALEGAL

CHAPTER 1 LITIGATION AND THE PARALEGAL

� Civil litigation in the state courts of Ohio is regulated by:

Ohio Constitution Ohio Supreme Court Rules of PracticeOhio Rules of Civil Procedure Ohio Revised CodeOhio Rules of the Court of Claims Local Rules of CourtOhio Rules of Appellate Procedure Ohio Case Law

� Certain counties including Cuyahoga (Cleveland), Franklin (Columbus), Hamilton (Cincinnati),Montgomery (Dayton), and Stark (Canton) have adopted special rules regarding the litigationprocess as it occurs within those counties.

KEY POINTS

WHAT CIVIL LITIGATION IS

Federal Courts v. State CourtsIf you were to compare litigation practice in the federal

courts with litigation practice in the Ohio state courts, youwould see a number of similarities. This is due to the factthat in l970, Ohio adopted a new set of civil rules, known asthe Ohio Rules of Civil Procedure, patterned after the fed-eral rules. Although the rules have been frequently amendedover the last three decades, they still represent a simplerand more efficient approach to civil litigation than was pos-sible under the old rules. However, most of the basic con-cepts of civil litigation remain the same. Also, whether youoperate in federal court or state court, you will find that therole of the paralegal is much the same.

DIFFERENT TYPES OF CIVIL LAWSUITS

Economic LimitationsA civil lawsuit can vary from a very simple procedure to

a very complex court proceeding. Ohio has made provisionsfor the efficient and economic handling of the simplest civillawsuits. These suits are handled in small claims court. Lawsuitsrequesting damages of $3,000 or less can be handled in asmall claims court, should the local municipal or countycourt have such a subdivision (see Chapter 2, this supple-ment, for an explanation of municipal and county courts).The authority to create small claims courts as subdivisionsof municipal and county courts is found in section 1925.01of the Ohio Revised Code. (Note: References to the OhioRevised Code are usually abbreviated RC in Ohio-relatedmaterials.) There are some limitations imposed on lawsuitsbrought in small claims court, however, For example, smallclaims actions cannot be brought for defamation, replevin,malicious prosecution, or abuse of process. Punitive dam-

ages also are not available as a remedy in small claims court.Finally, crossclaims and counterclaims brought in small claimscourt cannot exceed $3,000 (RC 1925.02).

ALTERNATIVES TO LITIGATION

ArbitrationThe process of arbitration involves submitting a dispute

to a third party. The third party, or arbitrator, hears the factsof the dispute and decides how it is to be resolved. Arbitra-tion always has been recognized as a valid alternative tocivil litigation in Ohio. Today, the arbitration process pri-marily is governed by the Ohio Arbitration Act (RC 2711.01to 2711.24). However, other parts of the code also regulatecertain types of arbitration. For instance, arbitration involv-ing liens against railroad companies is regulated by RC1311.45–1311.47.

In general, the decision to submit a claim to arbitrationis voluntary. For example, all parties to a medical, dental,optometric, or chiropractic claim must agree to submit theclaim to nonbinding arbitration. Moreover, if the decisionby the arbitration panel is not approved by all the parties tothe action, the case can proceed as if there had been no ar-bitration hearing (RC 2711.21). The courts are satisfied thatarbitration of this type is constitutional, as long as the arbi-tration process allows a dissatisfied party to proceed withthe case as if the claim had not been submitted to arbitra-tion in the first place (U.S. Const. Am. 14; Ohio Const. Art I.Sec. 2; Beatty v. Akron City Hospital, 424 NE2d 586 (1981)).

MediationAlthough you may hear the terms mediation and arbitra-

tion used synonymously, in Ohio they are not the same thing.Mediation involves submitting a dispute to a mediator who,

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after hearing both sides to the dispute, recommends a com-promise. A mediator’s recommendation, unlike an arbitrator’sdecision, cannot be enforced by the court. Mediation is usuallyused in a dispute between labor and management.

Med-Arb (Mediation-Arbitration)Another alternate dispute resolution (ADR) procedure is

med-arb, a technique which combines the most advantageouselements of mediation and arbitration. When applying med-arb, the participants refer their controversy to a mediator. Ifthe mediator manages to settle the controversy, that endsthe matter. If some difficulties remain, an arbitration hear-ing can be held to decide the unresolved issues.

Summary Jury TrialsA fourth ADR procedure is the summary jury trial. A sum-

mary jury trial is a short trial held before actual jury mem-bers who listen to an abbreviated version of the evidenceand then render an advisory verdict. The procedure allowsthe parties to judge how a jury would react to the facts andlegal arguments in the case. Armed with this knowledge,the parties can decide to settle the case or to move forwardto an actual trial.

Early Neutral EvaluationThe early neutral evaluation (ENE) procedure involves

an impartial evaluator, who, after analyzing the details ofthe case, submits a neutral appraisal of the legal position ofeach party, along with an estimate of the damages that shouldbe awarded, if any. This objective analysis can then helpthe parties decide how to proceed from that point.

Private Civil TrialsOhio now permits the parties to a lawsuit to submit their

dispute to a private civil trial. A private civil trial followsthe same procedural rules followed by the participants in anofficial trial. A private civil trial is different from a regularcivil trial because the parties are permitted to hold the trialat a time and a place of their own choosing (see RC 2701.10).

Settlement WeekSome counties in Ohio have implemented another ADR

procedure known as settlement week. While settlement weekis in progress, the only business scheduled on a court’s docketwill involve settlement hearings. Before settlement week begins,all judges and attorneys are permitted to recommend casesthat are likely candidates for settlement. At this time, vol-unteer mediators also are selected. A schedule then is es-tablished for each mediation session during settlement week.To ensure the effectiveness of settlement week, attendancefor attorneys is mandatory. (For a good example of the settle-ment week process, see the procedure as it is conducted inDelaware County.)

SOURCES OF THE LAW

Primary SourcesA primary source of law is where we find the law itself.

The primary sources of law would be constitutions, rule books,code books, and case reporters. Therefore, in the state ofOhio, the following would be considered primary sourcesof the law:

Ohio ConstitutionOhio Rules of Civil ProcedureOhio Rules of the Court of ClaimsOhio Rules of Appellate ProcedureOhio Supreme Court Rules of PracticeOhio Revised CodeLocal Rules of CourtOhio Case Law

Ohio Cases can be found in the following reporters:

Ohio State ReportsOhio State Reports 2d SeriesOhio State Reports 3d SeriesOhio Appellate ReportsOhio Appellate Reports 2d SeriesOhio Appellate Reports 3d SeriesOhio OpinionsOhio Opinions 2d SeriesOhio Opinions 3d SeriesOhio Miscellaneous ReportsOhio Miscellaneous Reports 2d SeriesNortheastern ReporterNortheastern Reporter 2d Series

WESTLAW Computer-Assisted Legal ResearchWESTLAW is the most up-to-date source of Ohio case

law, including unreported decisions. Statutes, statutory in-dexes, legislation, court rules, administrative information,looseleaf publications, and periodicals also can be accessedvia WESTLAW.

WESTLAW can be used to find cases when the specificcitation of a case or a statute is known. Access the Findservice to locate the case or statute. The following citationforms can be used:

For cases: find 673 NE2d 172For statutes: find OH ST 1701.01

Also, West Group’s KeyCite service on WESTLAW canbe used to check parallel references, prior and subsequenthistory, citator information, and citation form.

The appropriate primary source should always be con-sulted when you are attempting to answer a procedural or asubstantive question of the law of Ohio. Secondary sourcesare very helpful in explaining difficult points of law, butthey should never be relied on to the exclusion of the pri-mary sources.

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Secondary SourcesA secondary source is a book in which an author explains

or describes a primary source of law. Secondary sources includelegal encyclopedias, practice manuals, and textbooks. Thebook Civil Litigation and this supplement would be consid-ered secondary sources. Numerous secondary sources existfor litigation practice in the Ohio courts. Some of these in-clude the following:

Ohio Jurisprudence, 3d (O. Jur. 3d)Ohio Forms, Legal and Business

Ohio CorporationsOhio ProbateOhio Real EstateOhio Workers’ CompensationTrial Handbook for Lawyers

To meet the needs of computerized law firms, many pub-lishers provide their forms on disk, in addition to their writ-ten materials.

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CHAPTER 2 THE COURTS AND JURISDICTION

� The court system in Ohio is outlined in great detail in the following titles of the Ohio Revised Code:

Title 19 Courts—Municipal—County Title 25 Courts—AppellateTitle 21 Courts—Probate—Juvenile Title 27 Courts—General Provisions—Title 23 Courts—Common Pleas Special Remedies

� The Ohio Revised Code also includes an additional unnumbered volume containing the Ohiorules of Civil Procedure.

KEY POINTS

THE COURTS AND LITIGATIONSince civil litigation revolves around the courts, one of

the first considerations in the litigation process is the selec-tion of the proper court. As is the case in all states, in Ohio,the paralegal must be able to distinguish between the fed-eral courts and the state courts. Both systems have trial courtsand courts of appeal or review. Fortunately, in Ohio, thetwo systems have much in common.

FEDERAL COURT SYSTEM

United States District CourtsEach state in the union has at least one United States

district court in its boundaries and, depending upon popula-tion, a state may have more. Ohio has two federal districtcourts. They are the northern and southern districts of Ohio.The northern district is divided into an eastern division anda western division. The eastern division is located in Cleve-land, Akron, and Youngstown. The western division is lo-cated in Toledo and Lima. The southern district also has aneastern and a western division. In the southern district, Co-lumbus and Steubenville serve as the location of the easterndivision, while Cincinnati and Dayton serve as the locationof the western division. Currently, the northern district haseight judges, while the southern district has five.

The clerk’s office of each district court must be open everyday of the week for ordinary business hours. This does notinclude Saturdays, Sundays, or legal holidays. However, theFederal Rules of Civil Procedure do allow an individual districtcourt to be open by special order or by special rule on Sat-urdays and/or on designated holidays. However, even localrules cannot compel the court to be open on New Year’sDay, the Birthday of Martin Luther King Jr., Washington’sBirthday, Memorial Day, Independence Day, Labor Day,Columbus Day, Veterans Day, Thanksgiving Day, or Christ-mas Day (Federal Civ. R. 77(c)).

United States Courts of AppealThe United States is divided into appellate districts, called

circuits, each having jurisdiction over three or more states.Ohio is located in the Sixth Circuit Court of Appeals. The

other states sharing the sixth circuit are Michigan, Kentucky,and Tennessee. The Sixth Circuit Court of Appeals is head-quartered at Fifth and Walnut Streets, in the United StatesPost Office, and the courthouse building in Cincinnati.

Individuals who have access to standard communicationssoftware configured to 300, 1200, or 2400 band can accessC.I.T.E., the sixth circuit’s electronic bulletin board, by di-aling (513) 684-2842. Docket information, court rules, andrecent court opinions are available on the electronic bulle-tin board.

WESTLAW can be used to access cases that cite the FederalRules of Appellate Procedure. WESTLAW also gives ac-cess to US-RULES, US-ORDERS and US-PL, which canbe used to update a rule or to find specific terms. Advancesheets for the Supreme Court Reporter, the Federal Reporter3d Series, the Federal Supplement 2d Series, the FederalRules Decisions, and the Bankruptcy Reporter will provideupdates on amendments to the Federal Rules of AppellateProcedure.

STATE COURT SYSTEMSThe court systems in Ohio, like most states, are patterned

after the federal court system. The primary trial courts inOhio are called the courts of common pleas. Ohio also hasa system of municipal courts, county courts, and mayor’scourts which are designed to lighten the case load of thecourts of common pleas. Ohio also has a court of claims tohandle suits against the state. At the appellate level are thejudicial districts of the courts of appeals, most of which in-volve geographical groupings of counties, much like thegeographical groupings of states which form the federal circuits.Finally, the court of last resort in Ohio is called the OhioSupreme Court.

Courts of Common PleasUnlike the United States Constitution, which does not

mention the federal trial courts by name, the Ohio Consti-tution specifically creates the courts of common pleas. Thecourts of common pleas are considered courts of originaljurisdiction (RC 2305.01). This means that civil and crimi-nal cases begin and are tried in the courts of common pleas.

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However, the court of common pleas also has appellate ju-risdiction over decisions made by boards of county com-missioners (RC 2305.01). Each of Ohio’s 88 counties isauthorized by the constitution to have a court of commonpleas. In certain situations, it also is possible for counties tojoin together into districts that share one or more judges.Such resident judges would serve all the courts of commonpleas within that district. Naturally, such “judge-sharing”arrangements usually are found among the smaller countiesin the state. The bigger counties have more than one judgein their court of common pleas. As in the federal court, however,if a court of common pleas has more than one judge, whenany one of those judges acts, the entire court acts.

The Ohio Revised Code provides for the jurisdictionalreach of those Courts of Common Pleas located along theOhio River. The pertinent section of the code (RC 2305.01)reads:

The courts of common pleas of Adams, Athens, Belmont, Brown,Clermont, Columbiana, Gallia, Hamilton, Jefferson, Lawrence,Meigs, Monroe, Scioto, and Washington counties have juris-diction beyond the north or northwest shore of the Ohio riverextending to the opposite shore line, between the extended boundarylines of any adjacent counties or adjacent state. Each of thesecourts of common pleas has concurrent jurisdiction on the Ohioriver with any adjacent court of common pleas that borders onthat river and with any court of Kentucky or of West Virginiathat borders on the Ohio river and that has jurisdiction on theOhio river under the law of Kentucky or the law of West Vir-ginia, whichever is applicable, or under federal law.

The judges in a particular court of common pleas areauthorized to designate one of their number to be the pre-siding judge of that court. If the judges themselves cannotagree on which judge to appoint, the judge with the longesttenure on that court becomes the presiding judge for a pe-riod of one year. Should two or more judges have equal se-niority, the position of the presiding judge is determined bylot from among those judges. If the judges continue to beunable to elect a presiding judge, the position will rotateamong the judges, based on order of seniority. The job ofthe presiding judge is to chair meetings at which the judgesdiscuss administrative matters. The presiding judge also hasthe power to assign judges on a temporary basis from onedivision to another. Each court of common pleas may bepartitioned into various subdivisions. These subdivisions includethe domestic relations division, the probate division, andthe juvenile court.

Domestic Relations Division

One division that several counties have is the domesticrelations division. Currently, the counties of Allen, Auglaize,Butler, Clark, Clermont, Cuyahoga, Erie, Fairfield, Franklin,Greene, Hamilton, Lake, Licking, Lorain, Lucas, Mahoning,Medina, Montgomery, Portage, Richland, Scioto, Stark,Summit, Trumbull, and Warren are among those countieshaving domestic relations divisions. Generally, as you cansee, the larger counties have domestic relations divisions.For example, Cuyahoga County (Cleveland) and FranklinCounty (Columbus) both have domestic relations divisions.

The domestic relations division handles cases involving di-vorce, dissolutions, annulments, legal separations, spousalsupport (alimony), the naming of the residential parent, childsupport, and visitation rights. Depending on the structureof the court in a given county, a judge may serve exclu-sively in the domestic relations division or may serve in otherdivisions as well as the domestic relations division (RC2301.03).

The legislature also has specified the procedure to befollowed, should a domestic relations judge or a juvenilejudge become unable to execute his or her duties. StatuteRC 2301.03(AA) reads:

If a judge of the court of common pleas, division of domesticrelations, or juvenile judge, of any of the counties mentioned inthis section is sick, absent, or unable to perform that judge’sjudicial duties or the volume of cases pending in the judge’sdivision necessitates it, the duties of that judge shall be per-formed by another judge of the court of common pleas of thatcounty, assigned for that purpose by the presiding judge of thecourt of common pleas of that county to act in place of or inconjunction with that judge, as the case may require.

Probate Division

Each court of common pleas has a probate division. Theestablishment of the probate division of the courts of com-mon pleas occurred originally in 1918 and was reconfirmedin 1973, when the Ohio Constitution was amended. Beforethat time, the probate court was an entirely separate andindependent court. Today, although people still talk aboutthe probate court and probate judges, the probate court is adivision of the court of common pleas. Any motions, plead-ings, or other documents filed in the probate division shouldbe labelled, “in the Court of Common Pleas, Probate Divi-sion.” Such documents should not be simply labeled, “Pro-bate Court.” While the court will probably still accept suchinaccurately labeled documents, it is not advisable to dis-play such a lack of knowledge. Still, even the Ohio SupremeCourt frequently refers to the probate division of a particu-lar court of common pleas as the probate court so there isno need to be overly concerned about making such an error,at least the first time.

The probate division has the power to handle cases in-volving wills and estates. In this regard, it has the authorityto hear and determine will contests and to construe the meaningof wills. It also has the power to direct the conduct of ex-ecutors and administrators. (An executor carries out the termsfound in a will. An administrator is appointed by the courtto settle the estate of a person who has died without a will.)The probate division also can authorize the distribution ofthe assets of an estate and the sale of land found in an es-tate. The probate court also appoints guardians for personswho are minors or have been determined to be incompetent.The guardian can be named guardian of the estate and/or ofthe person. The probate division also has the power to issuemarriage licenses. Finally, it is the probate division thatdetermines when missing people will be presumed dead (RC2101.24(A)(1)(p)). (Note: This is only a partial list of theareas that fall under the exclusive jurisdiction of the pro-

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bate division. For a detailed list, see RC 2101.24. Also, fora detailed listing of the fees charged in probate, see RC 2101.16.) It would be wise to check RC 2101.16 often to becertain of the current fee list. The most recent change wentinto effect on July 1, 2000.

Since the specific jurisdictional reach of the probate courtis statutory in nature, the courts often are called on to deter-mine the extent of that jurisdiction by interpreting the stat-ute that establishes that jurisdictional reach in the first place.In a recent case, for instance, the Ohio Supreme Court de-termined that probate courts, rather than juvenile courts, havethe jurisdiction to issue orders of involuntary commitmentfor mental health treatment (In re Hays, 70 Ohio St. 3d 471,639 NE2d 433 (1994)).

Juvenile Court

Ohio has never been quite sure what to do with its juve-nile courts. Clearly, in those counties that have one, the ju-venile court is part of the court of common pleas. However,in some counties it is a subdivision of the domestic relationscourt, while in others, it is part of the probate division. Tocomplicate matters further, in Cuyahoga and Franklin Counties,the juvenile court is an independent, free-standing subdivi-sion, equal to the other two subdivisions. The best thing forthe paralegal to do is to check directly with the clerk of thecourt of common pleas in his or her county to determine thestatus of the juvenile court in that county.

Regardless of its organizational niche in a particular county,the juvenile court has exclusive jurisdiction a number of ar-eas. The primary jurisdictional powers, however, are exer-cised over delinquent, unruly, abused, neglected, and dependentchildren (RC Chapter 2151). (Note: A child in Ohio is any-one who has not reached 18 years of age. The juvenile courtdoes, however, have jurisdiction over individuals who areover 18, if they were under 18 when they committed the of-fense in question.) A delinquent child is one who has com-mitted an offense that would be a crime were it committedby an adult (RC 2151.02). In 1997, the Ohio General As-sembly also added a new section to RC 2151.02 which de-clares that a child also will be considered delinquent if he orshe purchases or attempts to purchase a firearm in violationof RC 2923.211. Also in 1997, the legislature made it clearthat a juvenile will be considered delinquent if he or sheviolates RC 3730.07, which prohibits a minor from obtain-ing or attempting to obtain, without appropriate consent, abody-piercing service or ear-piercing service performed withan ear-piercing gun. Appropriate consent in this case wouldrequire permission rendered in person or in writing from thejuvenile’s parent, guardian, or custodian. In contrast, an un-ruly child is one who has done something that ordinarily wouldnot be a crime were it committed by an adult (RC 2151.022).For example, a child who is habitually truant from schoolwould be an unruly child. Similarly, a child who enters amarriage contract without the consent of his or her parents,custodian, or guardian would be considered an unruly child.

As noted above, the juvenile court also has jurisdictionover abused, neglected, and dependent children. An abusedchild is one who has been victimized by sexual activity, as

defined in RC Section 2907.01, one who is endangered, asdefined in RC Section 2919.22, one who has an injury thatwas not caused accidentally, or one whose death was causedby an injury that was not caused accidentally (RC 2151.031(C)).An abused child may also be one who has suffered a physi-cal or mental injury by the actions of his parents, guardian,or custodian (RC 2151.031(D)), or one who has been vic-timized by out-of-home care child abuse (RC 2151.031(E)).A neglected child is one who has been abandoned, one whohas not received proper parental care, one who has beendeprived of proper subsistence, education, or medical care,or one who has not received special care required becauseof his or her mental condition (RC 2151.03(A)).

Ohio law RC 2151.04, defines a dependent child as one:

(A) Who is homeless or destitute or without adequate pa-rental care, through no fault of the child’s parents, guard-ian, or custodian;

(B) Who lacks adequate personal care by reason of the mentalor physical condition of the child’s parents, guardian,or custodian;

(C) Whose conditions or environment is such as to war-rant the state, in the interests of the child, in assumingthe child’s guardianship;

(D) To whom both of the following apply:(1) The child is residing in a household in which a

parent, guardian, custodian, or other member ofthe household committed an act that was the basisfor an adjudication that a sibling of the child orany other child who resides in the household is anabused, neglected, or dependent child;

(2) Because of the circumstances surrounding the abuse,neglect, or dependency of the sibling or other childand the other conditions in the household of thechild, the child is in danger of being abused orneglected by that parent, guardian, custodian, ormember of the household.

The juvenile court also has exclusive jurisdiction overjuvenile traffic offenders. A juvenile traffic offender is a childwho has broken any traffic law of the state (RC 2151.021).The only exception to this is vehicular homicide. A juvenilecharged with vehicular homicide (RC 2903.07) is a delin-quent child (RC 2151.02). (Note: This is only a partial listof the areas that fall under the exclusive jurisdiction of thejuvenile court. For a detailed list, see RC 2151.23.)

Municipal CourtsIn order to lighten the case load facing the courts of common

pleas, Ohio has a system of municipal courts. In commonparlance you will often hear the local municipal court re-ferred to as “muny court.” Municipalities, however, do notcreate their own municipal courts. Such power resides inthe Ohio General Assembly. (Note: The state legislature inOhio, which, like Congress, consists of a house of repre-sentatives and a senate, is called the Ohio General Assem-bly or, simply, the General Assembly.) The municipal courtsystem traces its origin back to 1951, when the General

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Assembly adopted the Uniform Municipalities Act. The actnamed specific municipalities where municipal courts wereto be set up. Since 1951, the statute has been amended fre-quently as the population centers of the state have changedand as the number of lawsuits has increased.

The Uniform Municipal Court Act establishes each court’sterritorial jurisdiction. Such jurisdictions often cover moreterritory than the municipality itself covers. The ClevelandMunicipal Court, for example, includes the city of Bratenahl,while the Mansfield Municipal Court includes Madison,Sandusky, Springfield, Franklin, Weller, Mifflin, Troy, Wash-ington, Monroe, Perry, Jefferson, and Worthington townships.An even more extreme example is the Ashland MunicipalCourt. The Ashland Municipal Court covers not only thecity of Ashland, but also the rest of Ashland County. (Note:A complete listing of all municipalities in which municipalcourts have been established can be found in RC 1901.01.Their territorial jurisdictions can be found in RC 1901.02.)

Municipal courts have concurrent jurisdiction with thecourts of common pleas and the county courts. Recall thatconcurrent jurisdiction exists when more than one court hasthe authority to hear a type of case. However, the municipalcourts have a monetary upper limit of $15,000 (RC 1901.17).Also, the court of common pleas can send cases that in-volve $1,000 or less to the local municipal court, with whichit shares concurrent jurisdiction. The municipal court, how-ever, must agree to the transfer (RC 2305.01). Figure 2-1 isa sample motion to transfer a case from a common pleascourt to a municipal court. Conversely, in most situations,if a counterclaim filed in a case in municipal court exceedsthe court’s jurisdictional maximum, the municipal court mustsend that case to the court of common pleas (RC 1901.22).Civil actions in the municipal court are begun according tothe procedures laid out in the Ohio Rules of Civil Proce-dure (RC 1901.22). Jury trails in the municipal courts aregoverned by the Ohio Rules of Civil Procedure or the OhioRules of Criminal Procedure (RC 1901.24).

The Ohio Revised Code provides for the jurisdictionalreach of those municipal courts located on Lake Erie. Thepertinent section of the code (RC 1901.023) reads:

In addition to the territorial jurisdiction conferred by section1901.02 of the Revised Code, the Municipal courts of Ashtabula,Avon Lake, Cleveland, Conneaut, Euclid, Huron, Lakewood, Lorain,Mentor, Oregon, Ottawa county, Painesville, Rocky River, Sandusky,Toledo, Vermilion, and Willoughby have jurisdiction with theirrespective counties northerly beyond the south shore of LakeErie to the international boundary line between the United Statesand Canada, between the easterly and westerly boundary linesof the adjacent municipal or county courts. The municipal courtsthat are given jurisdiction by this section have concurrent juris-diction in Lake Erie with any adjacent county or municipal courtsthat border or Lake Erie.

County CourtsCounty courts were established in Ohio in 1958. Like

the municipal courts, they were established by the Ohio GeneralAssembly to lighten the case load in the court of commonpleas. They also heal lighten the dockets of the municipal

courts. Not all counties have county courts. In those thatdo, it is possible for the county court to encompass the en-tire county. However, it is also possible that the county courtin a particular county will cover only that territory not cov-ered by a municipal court in that county (RC 1907.01). Countycourts have exclusive original jurisdiction over civil casesinvolving $500 or less. Recall that exclusive jurisdiction isthe authority of one type of court to hear a type of case.County courts also have original jurisdiction in civil casesthat involve matters valued at nor more than $15,000. If acounter claim filed in a case in county court exceeds thecourt’s jurisdiction maximum, the county court must sendthat case to the court of common pleas (RC 1907.03:).

The subject matter jurisdiction of county courts is gener-ally the same as that in the municipal courts and the courtsof common pleas. There are, however, specific statutoryexceptions to this general rule. County courts do not havesubject matter jurisdiction in the following areas (RC 1907.04):

(A) To recover damages for an assault or assault and battery;(B) For malicious prosecution;(C) Against county judges, or other officers, for miscon-

duct in office, except as provided in this chapter;(D) For slander or libel;(E) For the recovery of title to real estate, or in an action

in which title to real estate may be drawn in question,except as provided in section 1907.05 of the Revised Code.

Section RC 1907.05 of the Revised Code provides forthe following real property actions in county court:

(A) In actions for trespass on real estate in which the dam-ages demanded do not exceed fifteen thousand dollars;

(B) In actions to recover from the owner of adjoining landthe equal proportion to the expense incurred in obtain-ing evidence in surveys to fix corners or to set boundarylines.

Small Claims CourtLawsuits requesting damages of $3,000 or less can be handled

in a small claims court, which is a division of the municipalor county court (RC 1925.02(A)(1)). As noted in the last chapter,the authority to create small claims courts as subdivisionsof municipal and county courts is found in section 1925.01of the Ohio Revised Code. Small claims actions cannot bebrought for defamation, replevin, malicious prosecution, orabuse of process (RC 1925.02(A)(2)(a)(i)). Punitive dam-ages are also not available as a remedy in small claims court(RC 1925.02(A)(2)(a)(iii). In addition, the defendant can-not be served by publication in small claims court (RC1925.02(A)(3). Finally, crossclaims and counterclaims broughtin small claims court cannot exceed $3,000 (RC 1925.02(B)).

Mayor’s CourtsSome Ohio municipalities which do not have municipal

courts are entitled, by law, to have a mayor’s court. In suchcourts, the mayor has the power to hear cases involving vio-

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lations of municipal ordinances. The mayor also has juris-diction over cases involving traffic and parking violations.Significantly, the jurisdiction of the mayor’s court can alsoextend to cases involving operating a motor vehicle whileunder the influence (OMVI) of alcohol or drugs (RC 1905.01).

In 1991, the laws governing the operating of the state’smayor’s courts underwent extensive revision. The Ohio Su-

Figure 2-1 Sample Motion to Transfer and Judgment Entry

IN THE COMMON PLEAS COURTOF RICHLAND COUNTY, OHIO

LARRY R. HOUSTON )) Case No. 00-GD-3972

Plaintiff )) MOTION TO TRANSFER

-v.- ) & JUDGMENT ENTRY)

THOMAS BRONKOWSI ))

Defendant )___________________________

MOTION

Now comes the defendant and moves the Court for an Order transferring this matter from the CommonPleas Court of Richland County to the Civil division of the Mansfield Municipal court.

__________________________________Allen Lefkowitz, 0017731Attorney for DefendantWARKHAWSKI, LEFKOWITZ

AND BURKE9232 Park Avenue EastMansfield, OH 44902419/777-5362

JUDGMENT ENTRY

This cause came on to be heard upon the Motion of the defendant for an Order transferring thiscase from the Common Pleas Court of Richland County to the Civil division of the Mansfield MunicipalCourt.

The Court finds the Motion of the defendant to be well taken and sustains the same.

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that this matter is hereby transferred to theCivil division of the Mansfield Municipal Court.

____________________________________JUDGE

APPROVED:BY __________________________________

Allen Lefkowitz, 0017731Warkhawski, Lefkowitz and BurkeAttorneys for Defendant

PROOF OF SERVICE

I hereby certify that a true copy of the foregoing Motion and judgment Entry was mailed by regularUnited States Mail to the plaintiff Larry R. Houston, 444 Wood Street, Mansfield, OH 44906 this 9th dayof September, 2000.

____________________________________Attorney for Defendant

preme Court was empowered by these new statutes to es-tablish rules outlining educational standards for any mayorwho wants to exercise jurisdiction over OMVI cases (RC1905.03). In 1996, the General Assembly also empoweredthe Ohio Supreme Court to set up educational and opera-tional standards for mayors of municipal corporations whoconduct a mayor’s court and who want to exercise jurisdic-

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tion over criminal cases other than those outlined in RC 1905.03.(RC 1905.031(A)) Prior to 1996 the responsibility for sucheducational and operational standards had been delegatedto a mayor’s court education and procedures standards ad-visory committee.

Under provisions set down by the new statutes, the mayormay also appoint a magistrate to hear cases in his or herplace. Magistrates are required to be admitted to the prac-tice of law in Ohio. They must also have either practicedlaw in Ohio or served as a judge in any jurisdiction in theUnited States for three years prior to their appointment (RC1905.05). The new statutes also specifically forbit the clerk,the deputy, and the magistrate of the mayor’s court fromrepresenting any party before that court (RC 1905.04). Asmay be obvious by now, these changes were made to elimi-nate what many people saw as the widespread abuse of powerat the level of the mayor’s courts in Ohio. The changes arealso designed to make sure that the people who serve insuch positions meet certain educational requirements.

Court of ClaimsLike most states, Ohio has waived its immunity to liabil-

ity and has consented to being sued (RC 2743.02). The courtof claims was created to hear suits brought against the stateof Ohio (RC 2743.03). Original jurisdiction in the court ofclaims covers all civil actions filed against the state of Ohiomade possible by the waiver of immunity in RC 2743.02.Exclusive jurisdiction covers all cases that have been re-moved from another court and sent to the court of claims.The court’s appellate jurisdiction covers all appeals fromdecisions rendered by the court of claims commissioners.

The location, structure, and make-up of the court of claimswas established by the General Assembly in RC 2743.03(B).

The court of claims shall sit in Franklin county, its hearingsshall be public, and it shall consist of incumbent justices orjudges of the supreme court, courts of appeals, or courts of commonpleas, or retired justices or judges eligible for active duty pur-suant to division (C) of Section 6 of Article IV, Ohio Constitu-tion, sitting by temporary assignment of the chief justice of thesupreme court. The chief justice may direct the court to sit inany county for cases on removal upon a showing of hardshipand whenever justice dictates.

A case filed in the court of claims is generally heard byone judge. However, it is possible that a case will be heardby a three-judge panel. This usually occurs in response to apetition filed by one of the parties. The chief justice of theOhio Supreme Court will grant such a petition when thecase involves a very complicated issue or an extremely uniquesituation. The chief justice also has the power to appointreferees to handle cases in the court of claims. Such ap-pointments, however, must be made according to Rule 53of the Ohio Rules of Civil Procedure.

The General Assembly has given the clerk of the court ofclaims the power to decide civil cases filed against the stateif the amount in controversy is less than $2,500. In suchcases, the claimant (i.e., the person who has brought theclaim against the state) files a complaint in the court of claims

on a form provided by the court. The clerk is required tosend a copy of the complaint to the attorney general of thestate and to the state office or agency that has been namedin the complaint. The agency or office then has sixty daysto respond to the complaint. When the clerk receives theresponse, it is forwarded to the claimant. The claimant thenhas a chance to respond. The clerk then renders a decisionin writing and forwards copies of that decision to the stateagency or office and to the claimant. If one of the parties isnot satisfied by the decision rendered by the clerk, that partycan file a motion to have the court of claims itself reviewthe clerk’s decision. No other appeal is possible (RC 2743.10).A 1996 amendment to RC 2743.10 permits the clerk, undercertain circumstances, to refuse a case initiated by an indi-vidual who has been determined to be a vexatious litigator,as defined by RC 2323.52.

Courts of AppealAs is true in the federal court system and in most state

court systems, the Ohio courts of appeal are the primarycourts of review in Ohio. They examine what happened inthe trial courts to ensure that justice was properly adminis-tered. Ohio appellate courts do not retry cases. Rather, theyreview the actions of the lower courts by going over thetranscripts of the lower courts and by reviewing the briefsfiled by the opposing attorneys. The role of the appellatecourt is to determine if any legal errors occurred in the lowercourt (RC 2501.02).

Ohio has twelve judicial districts, each with its own courtof appeals. Most of these districts involve geographical group-ings of counties. The Fifth Judicial District, for example,includes Ashland, Coshocton, Delaware, Fairfield, Gurnsey,Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry,Richland, Stark, and Tuscarawas counties. Some parts ofthe state are so densely populated, however, that only a singlecounty is included in the judicial district. For example, theGreater Cleveland area comprises the greatest populationcenter in the state. Cuyahoga County, therefore, makes up asingle district, the Eighth Judicial District. A complete list-ing of all districts is laid out in RC 2501.01.

The state shall be divided into twelve judicial court ofappeals districts. The counties constituting the districts areas follows (RC 2501.01):

(A) First district: Hamilton;(B) Second district: Darke, Miami, Montgomery, Campaign,

Clark, and Greene;(C) Third district: Mercer, Van Wert, Paulding, Defiance,

Henry, Putman, Allen, Auglaize, Hancock, Hardin, Local,Union, Seneca, Shelby, Marion, Wyandot, and Crawford;

(D) Fourth district: Adams, Highland, Pickaway, Ross, Pike,Scioto, Lawrence, Gallia, Jackson, Meigs, Vinton, Hock-ing, Athens, and Washington;

(E) Fifth district: Morrow, Richland, Ashland, Knox, Licking,Fairfield, Perry, Morgan, Muskingum, Gurnsey,Coshocton, Holmes, Stark, Tuscarawas, and Delaware;

(F) Sixth district: Williams, Fulton, Wood, Lucas, Ottawa,Sandusky, Erie, and Huron;

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(G) Seventh District: Mahoning, Columbiana, Carroll,Jefferson, Harrison, Belmont, Noble, and Monroe;

(H) Eighth district: Cuyahoga;(I) Ninth district: Lorain, Medina, Wayne, and Summit;(J) Tenth district: Franklin;(K) Eleventh district: Lake, Ashtabula, Geauga, Trumbull,

and Portage;(L) Twelfth district: Brown, Butler, Clermont, Clinton, Fayette,

Madison, Preble, and Warren.

The qualifications and terms of office for judges in thecourts of appeals in Ohio were set by the Ohio General As-sembly in RC 2501.02.

Each judge of a court of appeals shall have been admitted topractice as an attorney at law in this state and have, for a totalof six years preceding the judge’s appointment or commence-ment of the judge’s term, engaged in the practice of law in thisstate or served as a judge of a court of record in any jurisdic-tion in the United States, or both. One judge shall be chosen ineach court of appeals district every two years and shall holdoffice for six years, beginning on the ninth day of February nextafter the judge’s election.

All the judges at the appellate level must meet once ayear to choose a chief justice of the court of appeals. At thismeeting one of the judges is also chosen to be the secretaryof the court of appeals. Another purpose of this annual meetingis to set up rules for the administration of the court of ap-peals. The chief justice of the court of appeals can also callmeetings of all the judges or of committees of judges atother times during the year (RC 2501.03).

In each district the judge with the shortest time left toserve on the bench is designated the presiding judge of thatdistrict. Whenever the presiding judge cannot be present,the judge with the next shortest time takes on the duties ofthe presiding judge. The judges of a particular district mayalso appoint an administrative judge. The administrative judgeassists the presiding judge and acts as the presiding judgewhenever that judge is absent. Each of the districts also hasthe power to make its own local rules (RC 2501.06).

Cases are heard in the court of appeals in the order inwhich they are entered on the docket of each of the judicialdistricts. However, certain types of cases can be heard aheadof their place on the docket. These exceptions are listed inRC 2501.09. They are:

(A) Proceedings in quo warranto, mandamus, habeas cor-pus, prohibition, or procendendo;

(B) Cases in which the person seeking relief is imprisonedor has been convicted of a felony;

(C) Cases involving the validity of a tax levied or assess-ment made, or the power to make such levy or assess-ment;

(D) Cases involving the construction or constitutionality ofa statute or a question of practice, in which the ques-tions arising are of general public interest;

(E) Cases in which the relief sought is damages for per-sonal injury, or for death caused by negligence, and inwhich the person injured makes affidavit that the person’slivelihood is dependent upon daily labor, or, in the case

of death, in which the surviving spouse or any next ofkin of the deceased makes an affidavit that such sur-viving spouse or next of kin was dependent for liveli-hood upon the person’s or decedent’s daily labor.

Cases that are entered on the docket of the court of ap-peals retain their original position on that docket if, afterbeing dismissed or otherwise disposed of, they are later re-turned to the court (RC 2501.09). A quorum is establishedby a majority of the judges of the court of appeals. A quo-rum is needed to render any order, to make a judgment, orenter a decree. Judges are allowed to be absent from courtsessions only if they are suffering from an illness or havesome other good reason (RC 2501.07).

Ohio Supreme CourtLike the United States Supreme Court, the Supreme Court

of Ohio was established constitutionally (see Article IV Section1 of the Ohio Constitution). Unlike the federal Supreme Court,however, the number of justices that sit on the Ohio Su-preme Court was also established constitutionally. Seven justicesmake up the membership of the Ohio Supreme Court, oneof whom is designated the chief justice. When the chief jus-tice is disqualified from hearing a case, or is absent fromthe Court due to illness or injury, the justice with the mosttenure on the Court takes the role of acting chief justice.Unlike the justices on the United States Supreme Court, thejustices on the Ohio Supreme Court are elected, rather thanappointed.

The Ohio Supreme Court is physically located in Columbuson the third floor of the Rhodes State Office Tower locatedat 30 East Broad Street across from the Capitol Building onCapitol Square in Columbus. The Court’s sessions begin at9:00 a.m. and 2:00 p.m. To obtain a copy of the Court’scalendar, contact the clerk’s office or obtain a copy of theOhio Official Reports, to which your law office or your lo-cal county law library undoubtedly subscribes.

Like the United States Supreme Court, the Ohio SupremeCourt has discretionary power over most cases it will hear.However, the Court must hear cases involving a constitu-tional issue. Still, since the Court itself determines whethera case involves a constitutional issue, it does maintain a de-gree of control over its own docket, even in this area. Inter-estingly enough, before the Ohio Constitution was amendedin 1968, the Court could not find a statute unconstitutionalunless six of the seven justices agreed to the finding of un-constitutionality. Today, findings of unconstitutionality canbe rendered by a simple majority of the Court.

The jurisdictional limits of the Ohio Supreme Court areoutlined in the Ohio Constitution in Article IV, Section 2(B),which reads:

(B) (1) The Supreme Court shall have original jurisdiction inthe following:(a) Quo warranto;(b) Mandamus;(c) Habeas corpus;(d) Prohibition;(e) Procedendo;

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(f) In any cause on review as may be necessary to completedetermination;

(g) Admission to the practice of law, the discipline ofpersons so admitted, and all other matters relatingto the practice of law;

(2) The Supreme Court shall have appellate jurisdiction asfollows:(a) In appeals from the courts of appeals as a matter of

right in the following:(i) Cases originating from the courts of appeals;

(ii) Cases involving questions arising under the con-stitution of the United States or of this state.

(b) In appeals from the courts of appeals in cases offelony on leave first obtained;

(c) In direct appeals from the courts of common pleasor other courts of record inferior to the court of appealsin cases in which the death penalty has been imposed;

(d) Such revisory jurisdiction of the proceedings ofadministrative officers or agencies as may be con-ferred by law;

(e) In cases of public or great general interest, the su-preme court may direct any court of appeals to cer-tify its records to the Supreme Court, and may reviewand affirm, modify, or reverse the judgment of thecourt of appeals;

(f) The Supreme Court shall review and affirm, modify,or reverse the judgment in any case certified by anycourt of appeals pursuant to section 3(B)(4) of thisarticle.

In addition, it is possible that the Ohio Supreme Courtcould be asked by the United States Supreme Court, a fed-eral court of appeals, or a federal district court to interpret aquestion of Ohio state law. Generally, this occurs if the OhioSupreme Court has yet to establish a line of precedent re-garding that question of law. The point of law in questionmust also be a crucial factor in determining the ultimateoutcome of the case.

JURISDICTIONJurisdiction is the power or the authority of a court to

hear a particular case. As in the federal courts and all otherstate courts, the question of jurisdiction is double-edged.The first question is, “Does the state court have jurisdictionover the subject matter of this case?” The second questionis, “Does the court have jurisdiction over the people involvedin this case?”

Subject Matter JurisdictionIf a court has subject matter jurisdiction, it has the power

to hear a particular kind of case. If a court does not have theappropriate subject matter jurisdiction, it does not have thepower to resolve the matter in dispute. Therefore, any judg-ment rendered by that court in that dispute would be void.A void judgment is not enforceable and can be challengedat any time. Various laws govern the question of the kindsof cases that can be brought in the state courts of Ohio.

Cases at Law and Cases in Equity

Ohio courts have subject matter jurisdiction over both

actions at law and cases in equity. The court of commonpleas has original subject matter jurisdiction over actions inlaw and cases in equity, while the Ohio Supreme Court andthe Ohio courts of appeal have appellate jurisdiction. Casesat law ask for a remedy in the form of money damages. Casesin equity or equitable cases ask for something other thandamages. For example, in a breach of contract suit involv-ing the sale of real estate, a party may ask for the equitableremedy of specific performance. This means that the plain-tiff (the person initiating the suit) wants the other party (thedefendant) to perform the contract as promised. In Ohio,before the passage of the code of 1853, separate courts handledequitable cases and cases at law. This approach was, of course,cumbersome and inconvenient. If, for example, in a singlecase, the plaintiff asked for both an injunction (a court or-der forbidding the performance of an act) and money dam-ages, the case would have to be taken to two different courts.Such is no longer the case. In Ohio today, legal and equi-table cases are both classified as civil actions. As noted above,this was initially established in 1953, and was more recentlyreaffirmed when the present Rules of Civil Procedure wereadopted in 1970.

In a sense, then, Ohio has done away with all commonlaw forms of action and all equitable forms of action andjoined them together under the single heading of civil ac-tion. It is important to note, however, that this change isone of form only, not one of substance. The rights enjoyedby Ohio citizens in law and equity still exist. For this rea-son, it still is necessary to characterize a suit as a legal oran equitable action. This distinction is made by close scru-tiny of the pleadings, to determine the issues at the heart ofthe case and the remedy sought to resolve those issues.

Personal JurisdictionAs you recall, a long-arm statute describes the circum-

stances under which a state may exercise jurisdiction overnonresident defendants. Like most states, Ohio has its ownlong-arm statute. Unlike most jurisdictions, however, Ohioactually has two long-arm statutes. Long-arm provisions appearin both the Ohio Rules of Civil Procedure (Rule 4.3(A)),and the Ohio Revised Code (RC 2307.381 and RC 2307.382).The statute went into effect in l965, and predates the 1970rule by five years. Both provisions spell out the circumstancesunder which Ohio courts may exercise personal jurisdictionover a nonresident defendant.

Many of the provisions in both the rule and the statuteare identical. However, all provisions are not identical; somecourts have held that when the Ohio rules went into effectin 1970, Rule 4.3(A) replaced RC 2307.381 and RC 2307.382.If this is the case, the general assembly has not yet gottenthe message, because it has continued to amend the statute.The last time the statute was amended was in 1988, 18 yearsafter the new Ohio Rules of Civil Procedure were adopted.Should a conflict in the language of the two arise, however,it is still clear that Rule 4.3(A), rather than RC 2307.381and RC 2307.382, will be upheld by the courts. This is dueto the fact that under Article IV Section 5(B) of the Ohio

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Constitution, the Ohio Rules of Civil Procedure take prece-dence over any statutory provision not in line with thoserules. For this reason, we have included the text of Rule4.3(A) rather than the text of the statute.

RULE 4.3 PROCESS: OUT-OF-STATE SERVICE(A) When service permitted Service of process may be made

outside the state, as provided in this rule, in any action in thisstate, upon a person who, at the time of service of process, is anonresident of this state or is a resident of this state who isabsent from this state. Person includes an individual, an individual’sexecutor, administrator, or other personal representative, or acorporation, partnership, association, or any other legal or com-mercial entity, who, acting directly or by an agent, has causedan event to occur out of which the claim which is the subject ofthe complaint arose, from the person’s:

(1) Transacting any business in this state;(2) Contracting to supply services or goods in this state;(3) Causing tortuous injury by an act or omission in this

state including but not limited to, actions arising out of theownership, operation, or use of a motor vehicle or aircraft inthis state;

(4) Causing tortuous injury in this state by an act or omissionoutside this state if the person regularly does or solicits busi-ness, engages in any other persistent course of conduct, orderives substantial revenue from the goods used or consumedor services rendered in this state;

(5) Causing injury in this state to any person by breach ofwarranty expressly or impliedly made in the state to any per-son by breach of warranty expressly or impliedly made inthe same of goods outside this state when the person to be

served might reasonably have expected the person who wasinjured to use, consume, or be affected by the goods in thisstate, provided that the person to be served also regularlydoes or solicits business, engages in any other persistent courseof conduct, or derives substantial revenue from goods usedor consumed or services rendered in this state;

(6) Having an interest in, using, or possessing real prop-erty in this state;

(7) Contracting to insure any person, property, or risk lo-cated within this state at the time of the contracting;

(8) Living in a marital relationship within this state not-withstanding subsequent departure from this state, as to allobligations arising for spousal support, custody, child sup-port, or property settlement, if the other party to the maritalrelationship continues to reside in this state;

(9) Causing tortuous injury in this state to any person byan act outside this state committed with the purpose of injur-ing persons, when the person to be served might reasonablyhave expected that some person would be injured by the actin this state;

(10) Causing tortuous injury to any person by a criminalact, any element of which takes place in this state, that per-son to be served commits or in the commission of which theperson to be served is guilty of complicity.

It is interesting to note that the rule tends to be morespecifically worded that the statute. Such is not always thecase in Ohio. The rule, for instance, includes specific refer-ence to torts caused by motor vehicles and aircraft (Rule4.3(A)(3)). The statute makes no such reference.

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PART II INITIATING LITIGATION

CHAPTER 3 PRELIMINARY CONSIDERATIONS

DETERMINING THE EXISTENCE OF ACAUSE OF ACTION

Not all damages suffered by individuals are recoverablethrough the litigation process. The mere fact that a partyhas been injured or has sustained some monetary loss doesnot in itself give that person the right to sue. A legal right torecover damages must exist. The legal process by which aperson seeks relief is known as an action. The Ohio Re-vised Code defines an action as “an ordinary proceeding ina court of justice, involving process, pleadings, and endingin a judgment or decree, by which a party prosecutes an-other for the redress of a legal wrong, enforcement of a le-gal right, or the punishment of a public offense.” (RC 2307.01)As early as 1897, the Ohio Supreme Court came up with adefinition for action, quite similar to this statutory defini-tion. In Missionary Soc. of Methodist Episcopal Church v.Ely, the court said an action is “any ordinary proceedings ina court of justice, by which a party prosecutes another forthe enforcement or protection of a right, the redress of orprevention of a wrong, or the punishment of a public of-fense, involving process and pleadings and ending in a judg-ment.” (47 NE 537, 538 (Ohio 1897))

Although often used as synonyms, in Ohio, the terms causeof action and right of action are not identical. Cause of ac-tion means the factual situation that creates the injured party’sright to sue the defendant (1 O. Jur. 3d Actions Sec. 3 (1980)).The cause of action consists of several elements. First, theinjured party must possess a right that the defendant has aduty not to violate. Second, the defendant must act in someway to breach that duty. Finally, the breach of duty mustcause injury to the innocent party (1 0. Jur. 3d Actions Sec.3 (1980)). For example, all people have the right to enjoytheir good reputation, which gives rise to a duty in all otherpeople not to violate that right. If a newspaper, which hasthat duty, prints a libelous statement about an innocent party,and as a result, that innocent party is injured, perhaps by

the loss of his or her job, then that innocent party has acause of action. In contrast to this is the term right of ac-tion, which is the actual lawful claim allowing the injuredparty to bring a case to court and, as a result, to correct thewrong. In other words, the cause of action is the set of factsthat creates the right of action. The right of action, then, isthe legally sanctioned ability to bring the case to court. Incontrast to all of this, the term action is the actual lawsuit(1 O. Jur. 3d Actions Sec. 3 (1980)).

TIME LIMITATIONSEven though all elements of a cause of action exist in a

particular case, a party may lose his or her right of action ifthe time limit for filing the action has passed. As a para-legal, you must be aware of these time limits in every case.

Statute of LimitationsThe basic time limit is known as a statute of limitations.

Unless a case is filed within the appropriate time periodestablished by the appropriate statute of limitations, it willbe dismissed, regardless of the merits of the case. In Ohio,these time limits differ depending on the type of case. Forexample, in Ohio, a case that is designed to recover the titleto or the possession of real property must be brought within21 years after the cause of action has arisen. The statute,however, does make allowances for individuals who are ei-ther minors or are suffering from a mental disability whenthe cause of action accrues. Under the provisions of the statute(RC 2305.04), “if a person entitled to bring the action is, atthe time the cause of action accrues, within the age of mi-nority or of unsound mind, the person, after the expirationof 21 years from the time the cause of action accrues, maybring the action within 10 years after the disability is re-moved.”

� In Ohio, RC 2305 controls the time limitations on the bringing of most civil lawsuits.

� In Ohio, different time limitations apply to different types of civil actions. Each of the followinghave different time limitations:

RC 2305.04/.05 Real Estate RC 2305.11 Libel, MalpracticeRC 2305.06/.07/.08 Contracts RC 2305.111 Assault, BatteryRC 2305.09/.10 Torts

� Ohio adopted the Code of Professional Responsibility of October 5, 1970.

� The Code of Judicial Conduct was adopted by Ohio on December 20, 1973.

KEY POINTS

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Breach of Contract

In Ohio, the statute of limitations for civil suits for breachof contract actually is found in three separate statutes. Ifthe contract is in writing, the time limit for bringing a law-suit is set at 15 years by RC 2305.06. Contracts not in writ-ing have a time limit of six years, as established by RC 2305.07.Moreover, if a party to a contract has, after a demand by theother party, acknowledged the demand in writing or signeda promise to pay the amount demanded, then an action maybe brought after the payment, acknowledgment, or prom-ise, according to the time limits established in RC 2305.06and RC 2305.07 (RC 2305.08). It is important to rememberthat neither RC 2305.06 nor RC 2305.07 applies to sale ofgoods contracts. The time limit for lawsuits involving salescontracts is set at four years by the Uniform CommercialCode (RC 1302.98(A)). This statute also allows the partiesto a sales contract to agree to a shorter time period as longas that shorter period is not less than one year. The statutedoes not, however, allow the parties to a sales contract toextend the time.

Trespass, Conversion, and Fraud

A variety of different time limits also apply to tort suits.Under RC 2305.09, actions for trespass on real property,for conversion, and for fraud have a four-year time limit.This statute also sets the starting date for measuring the timelimit for an action for fraud or conversion at the time thefraud is discovered, rather than at the time it actually oc-curs. The time limit for an action for conversion does notaccrue until the wrongdoer is discovered. The same is truefor trespass to real property, only if the trespass takes placeunderground or involves a mine (RC 2305.09).

School Boards and Asbestos Abatement Actions

A new provision specifically providing a statute of limi-tations for asbestos abatement actions brought by the boardsof education of school districts went into effect, in Ohio in1992. The new statute provides a four-year statute of limi-tations (RC 2305.091). The time limit begins to run on thedate that the board has been informed by “an official of astate, county, or local health department or of the UnitedStates environmental protection agency, the Ohio environ-mental protection agency, or the industrial commission whohas conducted an inspection for asbestos or who has receivedtest data concerning asbestos located in a building or otherstructure…that asbestos or materials that contain asbestos…should be removed from the building…because the as-bestos poses a health hazard or risk to persons who use thebuilding or other structure.” (RC 2305.09(B))

Bodily Injury, and Personal Property Damage

In contrast to this four-year time limit is the two-yearlimit set by RC 2305.10 for actions for bodily injury or fordamage to personal property.

Libel, Slander, Malicious Prosecution, False Imprisonment,and Malpractice

An entirely different statute of limitations is applied to

the torts of libel, slander, malicious prosecution, false im-prisonment, medical malpractice, assault, and battery. Ac-tions for libel, slander, malicious prosecution, falseimprisonment and malpractice have a one-year time limitas established by RC 2305.11(A).

Superimposed upon this is the written notice provisionof RC 2305.11(B)(1). Under this provision, the one-year timelimit in a case involving a medical claim, dental claim, op-tometric claim, or chiropractic claim can be extended by180 days, if the physician, podiatrist, optometrist, chiropractor,or hospital receives a written notice of the plaintiff’s intentto bring a lawsuit. The 180-day period begins to run whenthe potential defendant receives the written notice. The goalof this provision is to prevent the filing of unnecessary medical,dental, optometric, or chiropractic malpractice cases, promptedby patients who wait until the last minute to contact an at-torney. This type of “11th hour” search for legal advice maycompel an attorney to file a lawsuit without having a chanceto conduct a proper preliminary investigation, just so thatthe one-year statute does not run out, stranding the clientwith no legal recourse.

Illegal Abortion

Any civil action brought in the state of Ohio based on anillegal abortion must be commenced within one year of theabortion (RC 2305.11). Ohio criminal law prohibits abor-tions that are performed without obtaining the informed consentof the patient. The law also authorizes a civil action shouldinjury, death, or other loss result from the performance ofan abortion, without informed consent (RC 2317.56(B)). Sucha lawsuit must be commenced within one year of the abor-tion (RC 2305.11(B) and RC 2305.11(C)). Since RC 2317.56has been amended at least four times in the last 10 years,and since statutes like RC 2317.56 frequently are subject toconstitutional challenge, it would be wise to check the cur-rent status of the statute. The most recent version went intoeffect on July 1, 2000. Section B of this version of the stat-ute reads as follows:

(B) Except when there is a medical emergency or medical neces-sity, an abortion shall be performed or induced only if all ofthe following conditions are satisfied:(1) At least twenty-four hours prior to the performance or

inducement of the abortion, a physician meets with thepregnant woman in person in an individual, private set-ting and gives her an adequate opportunity to ask ques-tions about the abortion that will be performed or induced.At this meeting, the physician shall inform the pregnantwoman verbally, or if she is hearing impaired, by othermeans of communication, of all of the following:(a) The nature and purpose of the particular abortion pro-

cedure to be used and the medical risks associatedwith that procedure;

(b) The probable gestational age of the embryo or fetus;(c) The medical risks associated with the pregnant woman

carrying the pregnancy to term.The meeting need not occur at the facility where the abortion

is to be performed or induced, and the physician involved inthe meeting need not be affiliated with that facility or with thephysician who is scheduled to perform or induce the abortion.

(2) At least twenty-four hours prior to the performance or inducement

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of the abortion, one or more physicians or one or more agentsof one or more physician do each of the following in person,by telephone, by certified mail, return receipt requested, orby regular mail evidenced by a certificate of mailing:(a) Inform the pregnant woman of the name of the physician

who is scheduled to perform or induce the abortion;(b) Give the pregnant woman copies of the published mate-

rial described in division (C) of this section;(c) Inform the pregnant woman that the materials given pur-

suant to division (B)(2)(b) of this section are providedby the state and that they describe the embryo or fetusand list agencies that offer alternatives to abortion. Thepregnant woman may choose to examine or not to exam-ine the materials. A physician or an agent of a physicianmay choose to be disassociated from the materials andmay choose to comment or not comment on the materials.

(3) Prior to the performance or inducement of the abortion, thepregnant woman signs a form consenting to the abortion andcertifies both of the following on that form:(a) She has received the information and materials described

in divisions (B)(1) and (2) of this section and her ques-tions about the abortion that will be performed or inducedhave been answered in a satisfactory manner.

(b) She consents to the particular abortion voluntarily, know-

ingly, intelligently, and without coercion by any person,and she is not under the influence of any drug of abuseor alcohol.

(4) Prior to the performance or inducement of the abortion, thephysician who is scheduled to perform or induce the abortionor the physician’s agent receives a copy of the pregnant woman’ssigned form on which she consents to the abortion and thatincludes the certification required by division (B)(3) of thissection.

Assault and Battery

A one-year statute of limitations also applies to lawsuitsfor assault and battery (RC 2305.111). Unlike the victimsof most other torts, the victim of an assault or battery oftendoes know the identity of his or her attacker. For this rea-son, special provisions are included in RC 2305.111 to coverthis contingency. These provisions state that:

For purposes of this section, a cause of action for assault andbattery accrues upon the later of the following:

(A) The date on which the alleged assault or battery occurred;(B) If the plaintiff did not know the identity of the person who

Figure 3-1 Sample “180-Day Written Notice Letter”

GRUMMAN, VERNON, JENNINGS AND SINDELARAttorneys-at-Law

610 Union Commerce BuildingCleveland, OH 44115

June 11, 2000

Dr. Thomas KentCuyahoga County Hospital435 Euclid AvenueCleveland, OH 44114

Dear Dr. Kent:

The undersigned law firm has been retained to represent Mr. Lucas Kowalski in the matter of your treatmentof him from March 15, 1999 through April 16, 1999. During that time, Mr. Kowalski was under yourcare in Cuyahoga County Hospital being treated for a back injury. Mr. Kowalski spent the majority ofthis time at CCH in traction as the result of your orders.

On June 12, 1999, Mr. Kowalski discovered that certain back problems that he had suffered since thattime could be traced to the treatment he received during that period. Under RC 2305.11, the statute oflimitations began to run on that date.

This letter is being sent to you pursuant to the “written notice” provision of RC 2503.11, which allows a

plaintiff in a potential malpractice lawsuit to extend the statute of limitations 180 days. RC 2503.11specifically provides that the time limit in a medical claim will be extended by 180 days when the physicianreceives written notice of the plaintiff’s intent to file a lawsuit. Please consider this letter official notice ofMr. Kowalski’s intent to file a malpractice suit against you.

If I can answer any questions, please contact me either personally, or through your attorney.

Sincerely,

GRUMMAN, VERNON, JENNINGS & SINDELAR

Paula SindelarAttorney-at-Law

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allegedly committed the assault or battery on the date on whichit allegedly occurred, the earlier of the following dates:(1) The date on which the plaintiff learns the identity of that

person;(2) The date on which, by the exercise of reasonable diligence,

he should have learned the identity of that person.

Again, it is important to distinguish between RC 2305.111,which provides only a one-year statute of limitations forbattery, and RC 2305.10, which provides a two-year statuteof limitations for bodily injury. As noted above, the two-year bodily injury time limit generally applies to negligenceactions. A plaintiff cannot change a cause of action basedon assault and battery into a negligence action simply bylabeling the action as negligence. Feeney v. Eshack, 129 OhioApp. 3d 489, 718 N.E.2d 462 (1998).

Common Carriers

A special statute of limitations also exists for cases in-volving common carriers. The term common carriers includesthings such as truck companies and airlines. Common car-riers have three years to file a cause of action for recoveryof their charges. Customers who believe they were over-charged for the services of a common carrier also have athree-year time limit. In either situation, the case must in-volve the intrastate transportation of people or property. Foran action involving the delivery of goods, the time limit beginsto run when the carrier delivers or tries to deliver the goods(RC 2305.13). According to the statute, “‘[o]vercharge’ asused in this section means charges for transportation ser-vices in excess of those applicable thereto under the tariffslawfully on file with the public utilities commission” (RC2305.13).

Tolling of the Statute of Limitations

In the interests of justice and fair play, the general as-sembly has provided a tolling provision to the statute of limi-tations. This tolling provision applies to minors and peopleof “unsound mind.” Under its terms, a right of action is pre-served while a potential plaintiff remains a minor, or if apotential plaintiff has or develops a mental disability. Thetime limit begins to run again once the disability is removed.If even one party develops a disability, the statute is tolledfor all the parties, that is, assuming that the interests of theparties are inseparable (RC 2305.16). Conversely, after aright of action is created, a defendant cannot leave the stateor go into hiding until the statute of limitations runs out.While a person is in hiding or is outside the state, the timelimit stops running. It begins only when the defendant re-turns to the state or comes out of hiding. Similarly, if a per-son is placed in prison, the time he or she spends in prisonis not counted as part of the statute of limitations (RC 2305.15).

LachesIn addition to the statute of limitations, equitable cases

are governed by another time limitation known as laches.The doctrine of laches is an equitable principle which pre-vents lawsuits from being filed where, in fairness to the

defendant, too much time has elapsed, even though the stat-ute of limitations may not have expired. Ohio recognizesthe defense of laches in equitable cases.

ETHICAL CONSIDERATIONS IN ACCEPTINGA CASE

All attorneys are subject to a certain code of conduct,usually defined by state law and referred to as Canons ofEthics or Rules of Professional Conduct. In Ohio, this codeis called the Code of Professional Responsibility, and wasadopted on October 5, 1970. Ohio has also adopted a Codeof Judicial Conduct, which went into effect on December20, 1973.

The Code of Professional ResponsibilityOhio’s Code of Professional Responsibility consists of

nine canons. Each of the canons is supported by a series ofethical considerations which in turn are supported by a listof disciplinary rules. The preface to the code explains thefunction of each.

The Canons of this Code are statements of axiomatic norms,expressing in general terms the standards of professional con-duct expected of lawyers in their relationships with the public,with the legal system, and with the legal profession. They em-body the general concepts from which the Ethical Consider-ations and the Disciplinary Rules derive.

The Ethical Considerations are aspirational in character andrepresent the objectives toward which every member of the pro-fession should strive. They constitute a body of principles uponwhich a lawyer can rely for guidance in many specific situations.

The Disciplinary Rules, unlike the Ethical Considerations,are mandatory in character. The disciplinary Rules state the mini-mum level of conduct below which no lawyer can fall withoutbeing subject to disciplinary action.

As noted above, the canons are “axiomatic norms” whichrepresent “the standards of professional conduct expectedof lawyers.” The nine canons found in Ohio’s Code of Pro-fessional Conduct are as follows:

Canon 1 A Lawyer Should Assist in Maintaining the In-tegrity and Competence of the Legal Profession.

Canon 2 A Lawyer Should Assist the Legal Professionin Fulfilling Its Duty to Make Legal CounselAvailable.

Canon 3 A Lawyer Should Assist in Preventing the Un-authorized Practice of Law.

Canon 4 A Lawyer Should Preserve the Confidences andSecrets of a Client.

Canon 5 A Lawyer Should Exercise Independent Profes-sional Judgment on Behalf of a Client.

Canon 6 A Lawyer Should Represent a Client Competently.Canon 7 A Lawyer Should Represent a Client Zealously

Within the Bounds of the Law.Canon 8 A Lawyer Should Assist in Improving the Le-

gal System.Canon 9 A Lawyer Should Avoid Even the Appearance

of Professional Impropriety.

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The Ohio Supreme Court has made it clear that an attorney’sethical responsibilities extend beyond his or her time in opencourt Lorain Cty. Bar Assn. v. Papcke, 81 Ohio St. 3d 91,689 N.E. 2d 549 (1998).

The Code of Judicial ConductThe Code of Judicial Conduct also consists of a series of

canons, supported by a series of explanations of and com-mentaries on each. The canons are as follows:

Canon 1 A Judge Should Uphold the Integrity and Inde-pendence of the Judiciary.

Canon 2 A Judge Should Avoid Impropriety and the Ap-pearance of Impropriety in All His Activities.

Canon 3 A Judge Should Perform the Duties of His Of-fice Impartially and Diligently.

Canon 4 A Judge May Engage in Activities to Improvethe Law, the Legal System, and the Administra-tion of Justice.

Canon 5 A Judge Should Regulate His Extrajudicial Ac-tivities to Minimize the Risk of Conflict WithHis Judicial Duties.

Canon 6 A Judge Should Regularly File Financial Dis-closure Statements Required by Statutes andReports of Compensation Received forQuasijudicial and Extrajudicial Activities.

Canon 7 A Judge Should Refrain from Political ActivityInappropriate to Judicial Office.

Unlike the Code of Professional Responsibility, whichincludes not only mandatory conduct, but also aspirationalgoals, the Code of Judicial Conduct and all its explanationsand commentaries are considered mandatory in nature.

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CHAPTER 4 INVESTIGATION AND EVIDENCE

� In Ohio, RC 1701.07 controls litigation procedures in relation to statutory agents for serviceof process on a corporation.

� In Ohio, RC 1705.06 controls litigation procedures in relation to statutory agents for service ofprocess on a limited liability company.

� In Ohio, RC 1782.04 controls litigation procedures in relation to statutory agents for service ofprocess on a limited partnership.

� In Ohio, Article VII of the Ohio Rules of Evidence regulates the use of both lay and expertwitnesses:

Rule 701 Opinion Testimony by Rule 704 Opinion on Ultimate IssueLay Witnesses Rule 705 Disclosure of Facts or Data

Rule 702 Testimony by Experts Underlying Expert OpinionRule 703 Bases of Opinion Testimony

by Experts

� Ohio has not adopted Rule 706 of the Federal Rules of Evidence.

KEY POINTS

LOCATING FACT WITNESSES OR ELUSIVEDEFENDANTS

Prior to filing a lawsuit, all available facts should be ac-cumulated and organized. These facts normally are derivedfrom the client, documents, or fact witnesses. Steps mustbe taken to locate and interview all important fact witnesses.In addition to locating fact witnesses, the defendant shouldbe located before filing suit. Sometimes, pending litigationcauses potential defendants to become elusive. As a result,someone in your law firm will have to search for the oppos-ing party’s address for service of process. Often, this jobbecomes the responsibility of the paralegal. This effort shouldbe made early in the investigation, so it does not hamperprompt service of the complaint.

Witness QualificationsBefore taking any steps to locate potential fact witnesses,

you should double check the general rule of witness com-petency found in the Ohio Rules of Evidence. Like moststates, Ohio allows almost anyone to be a fact witness attrial. The rule, therefore, actually indicates who may notbe, rather than who may be, a fact witness.

RULE 601. GENERAL RULE OF COMPETENCY

Every person is competent to be a witness except:

(A) Those of unsound mind, and children under ten years ofage, who appear incapable of receiving just impressions of thefacts and transactions respecting which they are examined, orof relating them truly.

(B) A spouse testifying against the other spouse charged witha crime except when either of the following applies:

(1) a crime against the testifying spouse or a child of ei-ther spouse is charged;

(2) the testifying spouse elects to testify.(C) An officer, while on duty for the exclusive or main pur-

pose of enforcing traffic laws, arresting or assisting in the ar-

rest of a person charged with a traffic violation punishable as amisdemeanor where the officer at the time of the arrest was notusing a properly marked motor vehicle as defined by statute orwas not wearing a legally distinctive uniform as defined by statute.

As should be clear even from a cursory reading of therule, only paragraph (A) is applicable to civil cases. Never-theless, it is a good idea to understand the basic conceptscontained therein.

Paragraph (A) of Rule 601 is codified in the Ohio Re-vised Code (RC 2317.01). This statute also mandates thatin abuse, neglect, or dependency cases, the court may con-duct an examination to determine whether a child involvedin the case is competent to testify. However, such an exami-nation must not be made in a courtroom or a hearing room.Nor shall it be carried on in the presence of anyone otherthan someone whose presence the court considers neces-sary for the child’s well being. A court reporter must alsobe present. However, questions may be submitted by the child’sguardian ad litem, the prosecutor, or the attorney of any partyto the case (RC 2317.01). In determining a child’s compe-tence to testify, the judge is permitted to consider the child’sappearance, demeanor, and manner of responding to thequestions. The judge may also consider whether there is anyindication the child was coached on how to respond to questionsState v. Payton, 119 Ohio App. 3d 694, 696 N.E. 2d 240(Ohio App. 11 Dist. 1997).

Before contacting fact witnesses, it also is advisable tocheck whether the testimony you intend to elicit from anyof the potential witnesses is protected as privileged com-munication. Several special relationships create a privilegeunder Ohio law. These include the attorney-client relation-ship, the physician-patient relationship, the dentist-patientrelationship, the clergy-penitent relationship, and the hus-band-wife relationship (RC 2317.02(A)–(D)). The counse-lor-client relationship is also protected by this statute. The

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term counselor includes a school guidance counselor, a pro-fessional clinical counselor, a professional counselor, a counselorassistant, a social worker, a social work assistant, or inde-pendent social worker (RC 2317.02(G)(1)). However, thereare strict limits on the counselor-client privilege. The statute(RC 2317.02(G)(1)(a)–(f)) states that the privilege is in ef-fect, except in the following situations:

(a) The communication or advice indicates clear and presentdanger to the client or other person. For purposes of thisdivision, cases in which there are indications of presentor past child abuse or neglect of the client constitutesclear and present danger.

(b) The client gives express consent to the testimony.(c) If the client is deceased, the surviving spouse or the ex-

ecutor or administrator of the estate of the deceased cli-ent gives express consent.

(d) The client voluntarily testifies, in which case the schoolguidance counselor person licensed under Chapter 4757of the Revised Code and rules adopted under it may becompelled to testify on the same subject.

(e) The court in camera determines that the information com-municated by the client is not germane to the counselor-client or social worker–client relationship.

(f) A court, in an action brought against a school, its admin-istration, or any of its personnel by the client, rules afteran in camera inspection that the testimony of the schoolguidance counselor is relevant to that action.

Statute (RC 2317.02(H)) also grants a privilege to me-diators under the following conditions:

(H) A mediator acting under a mediation order…in any proceed-ing for divorce, dissolution, legal separation, annulment, orthe allocation of parental rights and responsibilities for thecare of children, in any action or proceeding, other than a criminal,delinquency, child abuse, child neglect, or dependent child actionor proceeding, that is brought by or against either parent whotakes part in mediation in accordance with the order and thatpertains to the mediation process, or to any information dis-cussed or presented in the mediation process, to the alloca-tion of parental rights and responsibilities for the care of theparents’ children, or to the awarding of visitation rights in re-lation to their children.

Under this statute, communications assistants also receivea grant of immunity, as long as they are providing telecom-munication relay service under federal law. Only communi-cation involving the telecommunication relay service isprotected (