Yahoo Group Posting from June 6 - July 1, 2001

July 2, 2001 More Yahoo Group Posting Date:  Thu Jun 21, 2001  9:45 am Subject:  Ohio Supreme Court Decision of In Re Anderson On June 13 the Ohio Supreme Court issued In Re Anderson (2001), 92 Ohio St. 3d 62. The decision held that a juvenile court proceeding is a civil action. The decision also contains language that applies to all civil proceedings. In the opinion Justice Sweeney makes clear that the time limit for filing an appeal is tolled unless the trial court's judgement entry contains the language required by Civil 58 B). The opinion also makes clear that it is necessary for the clerk of courts to serve the parties with notice of judgement and its date of entry.   All attorneys who engage in civil litigation may want to read this opinion.       From:  judgekimbler@yahoo.com Date:  Fri Jun 22, 2001  8:34 am Subject:  Motions for Intervention in Lieu of Conviction Good morning:   Starting July 1, 2001, I will be treating motions for intervention in lieu of conviction as a pretrial motion under Criminal Rule 12(B). This means that all such motions must be filed within 35 days of arraignment, or 7 days prior to trial, which ever is earlier. If a motion for intervention is not filed within those time limits, then it will be summarily overruled, unless a motion to enlarge time is filed and court approval obtained first.   Motions in limine must be filed at least 7 days prior to trial, or they will be summarily overruled.         From:  judgekimbler@yahoo.com Date:  Mon Jun 25, 2001  11:10 am Subject:  Motions for Summary Judgment Good Morning:   Attorneys who file motions for summary judgment pursuant to Civil Rule 56 need to make sure that the evidentiary basis for the motion complies with the specific requirements of Civil Rule 56 (C). In some cases motions have been filed with supporting documents but there was no affidavit filed establishing the foundational evidence necessary to allow the court to consider those documents.   Here is an example: In an contract action involving an insurance policy the parties did not stipulate nor admit in the pleadings that the contract was in the form claimed by the defendant. The defendant filed a motion for summary judgment with a copy of an insurance contract attached, but with no affidavit stating that the insurance contract attached was the contract between the parties. Consequently the motion was denied.       From:  judgekimbler@yahoo.com Date:  Mon Jun 25, 2001  11:16 pm Subject:  More on Civil Rule 56     Good Morning:     A group member posed an interesting question yesterday in response to the fact situation in my posting. He pointed out that Civil Rule 10 (C) provides that a document attached to a pleading becomes part of the pleadings for all purposes. He wonders what happens if a contract is attached to an answer. Can the court consider the contract on a Rule 56 motion even though an answer doesn't require a responsive pleading and even though, for the sake of argument, the defendant doesn't authenticate the contract in any other way?     My initial reaction was no, because the plaintiff has not admitted the authenticity of the contract and it has not been established by any other method. I must admit, though, that I have never been presented with this issue and therefore do not know if my initial reaction would be my ruling. I do believe that the better practice is to establish the authenticity of any document in a summary judgment motion by either requests for admission or affidavit.         From:  judgekimbler@yahoo.com Date:  Wed Jun 27, 2001  9:40 am Subject:  More thoughts on summary judgment motions Good morning:   Some group members sent me messages pointing out that there are unreported cases from various courts of appeals holding that it is not reversible error for a trial court to consider non-evidentiary material in ruling on a summary judgment motion, provided the other party doesn't object.   In Dresher v. Burt (1996), 77 Ohio St. 3d 280, 298, the following language appears: "There is a requirement, however, that a moving party in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ. R. 56 (C)."   I believe that this imposes on a trial court the obligation to make sure that the moving party follows Civil Rule 56 (C) even if the opposing party doesn't object.       From:  judgekimbler@yahoo.com Date:  Thu Jun 28, 2001  10:55 am Subject:  Continuances of Civil and Criminal Trials Good Morning:   Superintendence Rule 41 (A) requires that a motion for a continuance of any trial or hearing must be in writing. The motion must set forth the reason for the continuance. The motion must be endorsed by the party as well as the attorney representing the party. The requirement that a party endorse the motion may be waived by a court upon a showing of good cause. No court is to grant a continuance without first setting a definite date for the rescheduling of the trial or hearing.   On all trial notices sent out by my court there is a reference to Sup. R. 41 (A). What I am looking for is to have a party approve the motion for a continuance of a trial or hearing.       From:  judgekimbler@yahoo.com Date:  Fri Jun 29, 2001  10:30 am Subject:  Lemon Law Decision Good Morning:   Thursday the Ohio Supreme Court posted on its web site, www.sconet.state.oh.us, a decision interperting Ohio's Lemon Law. In the Royster decision the Ohio Supreme Court held that a purchaser of a new motor vehicle may recover damages if the vehicle is out of service due to repairs for more than 30 days during the first year of ownership even though the vehicle is successfully repaired after the 30 day period. This decision reversed a decision of the Eighth District Court of Appeals.   If you know of anyone who would like to join this e-mail group, please e-mail me at judgekimbler@aol.com or judgekimbler@yahoo.com. If you send me their name and e-mail address I will send them an invitation to join the group.

Judge James Kimbler Group Postings from Yahoo

June 19, 2001 Notes from 06/04/01 to 06/19/01 From: judgekimbler@yahoo.com Date: Mon Jun 4, 2001 9:59 pm Subject: New Uninsured/Underinsured law in Ohio The Ohio Senate passed Senate Bill 97 and sent it to the Ohio House. This bill modifies the existing R.C. 3937.18. Among other things it changes the requirement that an insurer selling auto liability insurance must offer UM/UIM coverage. If you would like a copy of the bill as it was introduced please call my secretary, Ms. Bev Poston at (330)-725-9737 and she will fax you a copy. From: judgekimbler@yahoo.com Date: Tue Jun 5, 2001 5:03 pm Subject: New Ohio Supreme Court case on UIM law The Ohio Supreme Court recently released Littrell v. Wigglesworth (2001), 91 Ohio St. 3d 425. The case deals with the "amounts available for payment" language in R.C. 3937.18 (A) (2), which is the underinsured part of R.C. 3937.18. The opinion holds that for purposes of setoff the amounts actually accessible to and recoverable by an underinsured motorist claimant from all bodily injury liability bonds and insurance policeis is the amount available for payment. This opinion is very important to anyone litigating a underinsured motorists case. It appears in the May 28th issue of Ohio Bar Report and the advance sheets put out by West Publishing Company. From: judgekimbler@yahoo.com Date: Wed Jun 6, 2001 8:26 am Subject: Wigglesworth continued In the opinion Justice Douglas seems to be saying that Medicare liens are to be treated as another claimant. For example a Plaintiff receives $100,000 from the tortfeasor's carrier, but the Medicare lien is for $35,000. The amount "available for payment" is now $65,000 and not $100,000. Therefore the UIM carrier can only offset the $65,000 and not the $100,000. The same analysis was not used by Justice Douglas regarding attorney fees and expenses. Therefore, in the above example, if the Plaintiff's attorney fees and expenses were $40,000, the amount available for payment would still be %65,000. If anyone has a different analysis, please let me know. From: judgekimbler@yahoo.com Date: Wed Jun 6, 2001 11:35 am Subject: More Wigglesworth REMEMBER: Wigglesworth involved multiple claimants going after Underinsured benefits. It is not known whether the same analysis regarding Medicare liens would apply in cases involving single claimants. From: judgekimbler@yahoo.com Date: Thu Jun 7, 2001 2:08 pm Subject: RE: New Case on Choice of Law in UM/UIM Cases The Ohio Supreme Court ruled that while Uninsured Motorists/Underinsured Motorist cases involve tortious conduct, they sound in contract and therefore when deciding what state's law to apply in a choice of law situation, trial courts should look to the Restatement of Contracts Sec. 188 for guidance. The case is Ohayon v. Safeco. It involved an accident that happened in Pennsylvania with people who entered into the contract in Ohio. Under the Supreme Court's analysis Ohio law was chosen as the correct law to apply. The case can be read at the Ohio Supreme Court's web site. From: judgekimbler@yahoo.com Date: Mon Jun 11, 2001 1:41 pm Subject: Filing Information Pursuant to Civ. R. 36 (D), all dismissed and subsequently refiled cases must be assigned to the judge to which they were originally assigned. The Medina County Court of Common Pleas, General Division, has revised its filing category sheet to ensure compliance with this rule. This sheet MUST accompany every new filing. Copies of the new filing sheet are available at the Medina County Clerk's Office. From: judgekimbler@yahoo.com Date: Mon Jun 11, 2001 3:55 pm Subject: Filing Information Continued Should be Sup.R. 36 (D)and not Civ.R.36 (D). Sorry about that. From: judgekimbler@yahoo.com Date: Tue Jun 12, 2001 9:50 am Subject: Change in the Code of Professional Responsibility Effective July 1, 2001, the Ohio Code of Professional Responsibility will require that attorneys who do NOT have malpractice insurance disclose that fact to their clients in writing. They also have to have their clients sign the disclosure statement and keep it in the client's file for five years. The malpractice insurance must have liability limits of $100,000 per occurrence claim and $300,000 in the aggregate. There is a model disclosure form that was prepared by Ohio Supreme Court. It can be found in the May 7th. issue of Ohio Bar Report at page 444. From: judgekimbler@yahoo.com Date: Wed Jun 13, 2001 9:50 am Subject: Changes in Civil Rule 41 On July 1, 2001, changes to Civil Rule 41 take place. The most important of these changes is to Civil Rule 41(A). In Civil Rule 41 (A)(1) the Supreme Court added language that makes it clear that a voluntary dismissal must dismiss all claims against a defendant. In Civil Rule 41 (A)(2) language was added to make it clear that a trial court may dismiss by order a claim, as opposed to an action, against a defendant. It appears that after July 1, 2001, the only way a plaintiff could dismiss one claim of a multi-claim action against a defendant is by court order pursuant to Civil Rule 41 (A)(2). One issue that may come up after July 1, 2001, is what is the effect of a voluntary dismissal of one claim in a multi-claim action? Does the filing of such a dismissal dismiss all claims against that defendant or is the filing of such a dismissal a nullity? From: judgekimbler@yahoo.com Date: Fri Jun 15, 2001 8:36 am Subject: Civil Rule 11 Changes Civil Rule 11 will be amended on July 1, 2001, to require that attorneys list their telephone numbers, fax numbers, if any; and business e-mail addresses, if any, on pleadings, motions, and other documents. Previously the rule only required addresses and attorney registration numbers, although most attorneys also listed their telephone numbers. From: judgekimbler@yahoo.com Date: Thu Jun 14, 2001 6:54 am Subject: Ohio Adopts Attractive Nuisance Doctrine Yesterday in Bennett v. Stanley (2001), 92 Ohio St. 3d 35, the Ohio Supreme Court adopted the attractive nuisance doctrine. In the first paragraph of the syllabus the Court sets forth the elements of the cause of action. The Court adopted Section 339 of the Restatement of the Law, Torts, (1965). The justices concurring in that paragraph were Chief Justice Moyer and Justices Douglas, Pfeifer, Resnick, and Sweeney. Justices Cook and Lundberg Stratton dissented. In the second paragraph the Court holds that while the doctrine is not ordinarily applicable to adults, an adult seeking damages for his/her own injuries may invoke the doctrine if the injury was suffered in an attempt to rescue a child from a danger created by the defendant's negligence. The Justices agreeing on the second paragraph were again Douglas, Pfeifer, Resnick, and Sweeney, but Chief Justice Moyer did not concur in the second paragraph. He dissented along with Justices Cook and Lundberg Stratton from this paragraph. From: judgekimbler@yahoo.com Date: Mon Jun 18, 2001 9:53 am Subject: Motions to Compel Discovery Under Ohio Civil Rule 37 (E) Good Morning: Motions to compel discovery under Ohio Civil Rule 37 must be accompanied by a "statement" reciting the efforts made to resolve any discovery disputes. Recently motions to compel have been filed in my court which did not contain such statements. Motions which do not contain such statements run the risk of being summarily overruled. Some courts require that the parties engage in oral discussions to resolve the dispute before filing a Civil Rule 37 motion. Although a literal reading of the Rule supports such a position, I have never adopted that position. I believe that letters between parties and/or their attorneys complies with the spirit and wording of the rule. From: judgekimbler@yahoo.com Date: Tue Jun 19, 2001 9:31 am Subject: Medina County Civil Filing Fees to Increase July 1, 2001 Good Morning: The Medina County Common Pleas Court, General Division, will increase its filing fees on July 1, 2001. The $50.00 increase will be used to help fund the Court's mediation program when the grant from the Ohio Supreme Court expires on June 30, 2002. The increase will apply to complaints and there will now be a $50.00 filing fee for filing an answer with a counterclaim. All the funds generated by either the increase for complaints or the new filing fee for counterclaims will be earmarked for funding the mediation program. The Ohio Revised Code allows such fees to be imposed, but they cannot be used for any other purpose. There will be no fee for filing answers with cross-claims.

YEAR IN REVIEW

January 1, 2001 New Chief Probation Officer Hired in 2000 In October Judge Kimbler and Judge Collier hired a new Chief Probation Officer for the Medina County Adult Probation Department. Ms. Veronica Perry previously served in Cuyahoga County as a supervisor in the Cuyahoga County Adult Probation Department. Ms. Perry brings over 11 years experience as a probation officer to her new position. A graduate of Kent State University, Ms. Perry worked in various positions in the Cuyahoga County Adult Probation Department including acting as a probation officer in welfare fraud cases; writing presentence reports; and managing a intensive probation office caseload. Ms. Perry assumed her new position on October 10, 2001.

January 1, 2001 2000 Criminal Sentencings Judge Kimbler sentenced 157 defendants in the year 2000. Of these 157 people, 45 were sentenced to a state prison; 64 to the Medina County Jail; 35 to the Medina County Home Arrest program; and 13 to other community control sanctions. Defendants sentenced to jail, home incarceration, or other sanctions were often also put under the supervison of the Medina County Adult Probation Department. If they violate the terms and conditions of such supervision, they may be sentenced to either prison, jail or home incarceration. In 2000, Judge Kimbler sentenced 61 defendants for violating the terms of thier supervision. Of these, 7 were sent to prison, 37 to the Medina County Jail; and 10 to home incarceration.

January 1, 2001 2000 Jury Trials In 2000, Judge Kimbler impaneled 27 juries. There were juries impaneled for 16 criminal trials. Guility verdicts were returned in 8 criminal trials; not guility verdicts in 4 criminal trials; and in 4 trials, the defendant changed his/her plea during the trial. In civil cases there were 5 verdicts returned for plaintiffs; 3 verdicts returned for defendants; 1 mistrial; and 2 civil cases settled during trial. The highest verdict returned in a personal injury case was $6,400.00 and in a non-personal injury case, $27,000.00.