The Distinguished Clown Corps has been a mainstay of Toledo’s Downtown Holiday Parade since 1987 and boasts a long and distinguished list of business leaders, politicians and other participants. The Corps’ members wear custom-made costumes and full clown makeup, and wear bells to mark the number of years each clown has participated in the parade. During the parade, the clowns give candy and balloons to spectators. The Corps was originally founded to help fund the parade, and members of the Corps make a financial contribution to help make the parade happen each year. The Corp’s website can be found here.
The case heard by the Supreme Court involved a loan made to Daniel Inks and David Slyman, who borrowed $3.5 million from FirstMerit Bank. A promissory note memorializing the terms of the agreement was executed and the property was secured by a mortgage. The note included personal guarantees on the part of the debtors and contained a cognovit provision authorizing a confession of judgment by the debtors in case of a default. This meant that in the case of non-payment, the bank could automatically obtain a judgment against the borrowers.
Predictably, the debtors defaulted on the promissory note and FirstMerit initiated foreclosure proceedings. Inks and Slyman stated, however, that a Senior Vice President of FirstMerit had informed them that the bank would change the terms of the promissory note or loan and would release its mortgage and balance on the deficiencies. In fact, a term sheet was sent to Inks and Slyman regarding this issue. The term sheet included a date that it had to be accepted by, upon which FirstMerit would cancel the auction for the property. The key was that the term sheet stated that a cash settlement of $200,000 had to be provided to FirstMerit. Just two days before the auction, Inks informed the Senior Vice President that he could only raise $150,000. Inks stated that the Senior Vice President orally agreed to accept this $150,000 payment. However, on the very next day, the Senior Vice President informed Inks that the $150,000 would not be acceptable and the property would be sold the following day. The sale did occur. As such, Inks and his partner asserted the defense of an oral agreement, arguing that they should not be liable for the deficiency in the sale proceeds of $3,337,467.15.
R.C. 1335.05 sets forth Ohio’s statute of frauds. In Ohio, it has always been my belief in which there is real property involved, and there is a written note and mortgage involved, that subsequent modifications to the terms of the note or mortgage would need to be in writing. R.C. 1335.05 states, in part, that:
No action shall be brought whereby to charge the Defendant . . . upon a contract or sale of lands . . . or interest or concerning them . . . unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith.
In its ruling, the Supreme Court indicated that the issue of whether the statute of frauds precludes a defendant from asserting an oral agreement as a defense to an action was resolved more than 150 years ago in the case of Finch v. Finch (1860), 10 Ohio St. 501. As the Court explained in its analysis, where the statute of frauds applies to an oral agreement, defendants are precluded as raising the modification in a motion for relief from judgment. The same issue was also considered in 1877 and in 1938, and the conclusion reached by the Court is even in the Restatement of Law Second of Contracts (1981). As the Court explained:
. . . while a mortgage is a lien for a debt, it also is a conveyance of property that passes a property conditionally to the mortgagee as well as a transfer of the property as security of the debt.
Therefore, if there is to be any change in the terms of your mortgage it must be in writing and signed by both parties. The moral of this story as it relates to real property? Only trust your bank if it puts its promises in writing and both the bank and you sign the document.]]>
PAYING BACK AND PAYING FORWARD:
THE TOM AND CAROL MANAHAN SCHOLARSHIP
Three words best describe the Manahan Family: passionate, loyal, and generous. Raising an Irish-Catholic family in West Toledo, Tom and Carol Manahan placed a strong emphasis on Catholic education to help perpetuate the faith and create lifetime opportunities for their children. They instilled in their offspring a drive to succeed. It has paid off handsomely for their children and grandchildren.
Tom and Carol Manahan, both of whom are deceased, had four children. The two boys, Michael and Thomas, Jr., graduated from St. Francis in 1971 and 1977 respectively. The two girls, Marsha and Megan, graduated from St. Ursula Academy in 1973 and 1976 respectively. The Manahan children have eight degrees among them. Marsha and Michael are attorneys, following in the footsteps of their father, and Megan and Tom, Jr. both earned their MBA’s.
If you are a male in the Manahan family your educational path would take you to St. Francis. If you are female, you were destined to attend St. Ursula. Michael’s son, Brendan, graduated from St. Francis in 2010. Tom’s son, Tommy, is currently a junior. As Mike Manahan likes to state, “We all drank the St. Francis kool-aid.”
St. Ursula Academy also runs deep in their blood since Carol, whose maiden name is Diethelm, also a well-known name in the St. Francis family, attended St. Ursula previously located on Collingwood Blvd. in Toledo’s Old West End. Carol is the sister of Dr. James Diethelm, one of the original founders of St. Francis de Sales High School. His name can also be found on the plaque that hangs in a front entrance of the school. That Knight loyalty has been instilled in the Diethelm/Manahan family members ever since the beginning of the school in 1955.
Mike and Tom are deeply appreciative of the education they received at St. Francis. “My father sacrificed everything for the education of his children,” stated Michael. “Above and beyond the education we received at St. Francis, the experience also taught us about the importance of humility,” Michael observes. To recognize this commitment to Catholic education and the ongoing relationship with the school, Michael, a partner at Rohrbachers, Cron, Manahan, Trimble and Zimmerman, and Tom, President of the Lathrop Company, decided to honor their parents and establish a scholarship within the St. Francis Endowment fund in their parents’ name.
Their scholarship is to be rewarded to a student who desires a St. Francis education but cannot afford the cost of tuition.
When Michael started high school in 1967, it was a turbulent time in our society. “St. Francis was an anchor during those difficult times,” he recalls. Yet St. Francis was a bedrock and the school remained deeply committed to educational excellence. Two years after Michael graduated, Tom began his St. Francis career. “St. Francis had an incredible impact on our entire family. We want to provide the same opportunities we were afforded to those young men from families who desire this education, but could not otherwise afford it,” adds Tom.
“Mike and Tom Manahan are among the most ardent advocates for our school. They have demonstrated their loyalty and generosity by sending their sons to our school in addition to making their commitment to this scholarship,” states Joe Sweeney, Director of Development.
If you are interested in establishing a scholarship at St. Francis de Sales, please contact Joe Sweeney at 419-531-1618 ext. 305.
In addition, Mark has also agreed to join the board of directors for the Greater Toledo Aquatic Club. The club is a year-round USAA competitive swimming program serving Northwest Ohio. Its website can be found at http://www.teamunify.com/Home.jsp?team=ohgtac .]]>
The one-hour program was titled “What Every Estate Planning Attorney Needs to Know About Florida Law” and was available for Ohio attorneys to earn credits towards their yearly obligation to update their knowledge of the law they practice in. Nick traveled to Columbus to present the seminar directly from the Bar Association’s studio.]]>
Although the firm’s client, Mr. Scott, admitted liability for the second accident, he argued that none of the Plaintiff’s alleged injuries stemmed from that accident. After a trial which lasted over three separate days of court proceedings, punctuated by a day-long delay due to winter weather, the jury held deliberations. Ultimately, the jury returned a verdict in favor of Mr. Scott, finding that he owed the Plaintiff zero damages as a result of the second accident, marking a successful outcome for the firm’s client.]]>
Shareholder Todd Zimmerman was recently featured on Newsradio 610 WTVN in Columbus, Ohio, as an expert on drivers’ liability for snow or ice falling off of their vehicle. The audio of Todd’s interview with station host Joel Riley can be found on WTVN’s website.
Shareholders Mark Trimble and Todd Zimmerman attended the Property & Liability Resource Bureau’s 2014 Claims Conference, which was held from March 16-19 in Indianapolis. The conference serves as the premier educational and networking event for the property and casualty claim industry and offers education and industry updates for thousands of participants from across the country.]]>
A lawyer shall not reveal information relating to the representation of a client, including information protected by the Attorney-Client Privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by Division B or regarded by Division E of the Rules.
This means that any conversation between an attorney and his client is privileged unless the client themselves reveals the substance of the conversation or allows the attorney to reveal the substance of the conversation, or unless disclosure is necessary to further the lawyer’s representation of the client.
Further, the Ohio Revised Code states in 2317.02 that attorneys generally shall not testify:
concerning a communication made to the attorney by a client in that relation or concerning the attorney’s advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client. However, if the client voluntarily reveals the substance of attorney-client communications in a non-privileged context or is deemed by Section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject.
When we review e-mails, if it has been determined that the contents of the email relate to a personal matter or the individual uses their personal e-mail to discuss matters related to the attorney’s representation of the client, then that communication is usually privileged. Further, in a business setting, if a representative of a company or owner of a company talks to their attorney via e-mail, that that communication is also usually privileged. It becomes much trickier, however, when the communication is by an individual using their work e-mail account to communicate with their attorney on a private matter.
Such a situation arose in the State of Delaware in the case of In re: Information Management Services, Inc. In this situation, the company through its policy manual had reserved the right to gain access to all e-mail communications on its computer system. Also, it notified its employees through the employee manual that the e-mail accounts were not private. An executive used his work e-mail to make private communications with his personal attorney related to a private legal issue. The court determined that the attorney-client privilege did not apply under this situation. The basis was the legal communication did not involve the company’s matters and the executive’s expectation of confidentiality had been eliminated due to the company reserving its rights to gain access to e-mail communications.
Therefore, it is our suggestion that you should not use your corporate e-mail account for personal legal matters when communicating with your attorney. Otherwise, it may not be considered privileged information and, if you are in a divorce or criminal proceeding, the prosecutor or the other counsel may be able to obtain those sensitive communications.
If you have any questions regarding this issue, please do not hesitate contact the author or any of our attorneys here at Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.]]>
Forming an LLC in Ohio is very easy, requiring only a few steps, and can be completed in a matter of days. The first stage in creating a limited liability company is to decide what name you would like the LLC to have. While this might seem like an obvious first step, it actually is an important part of the formation process. An LLC needs to have a unique name – i.e. it can’t be identical to or too similar to another business entity’s name – or it cannot be created. Fortunately, Ohio has created an easy way to check the availability of your proposed name. Go to the Ohio Secretary of State’s website, then click on the “Businesses” tab. Under “Business Services,” click the “Business Name Search” tab, then type in the name you’re thinking of for your LLC.
When you search for a particular name, the search engine will display any other names that contain those words. It is important to note that the more general your search term, the more potential conflicts you are likely to see. For example, if you want to name your company “Acme Color, LLC,” you are likely to see a lot more results, and potential conflicts, if you search merely for “Acme” instead of “Acme Color.” Ultimately, your name must be distinct enough from any other names, or the Secretary of State will reject your attempt to use that name without you first getting permission from the conflicting entity. If you file for “Acme Color, LLC,” you probably will not run into any problems if the closest name is “Diversified Color, LLC,” but you will likely have an issue if an “Acme Colors, LLC” exists.
Once you have settled on an acceptable name, the next step is to draft the Articles of Organization for the LLC. This requires downloading and completing the Articles of Organization form which is found on the Secretary of State’s website. Since you are forming the LLC in Ohio, you will need to look under the “Domestic” LLC forms section. Domestic, in this case, merely means that the LLC will be an Ohio entity, rather than an LLC from another state. The form will come with an instruction page, which you should follow carefully to ensure that the Secretary of State accepts your filing. You will need to state the exact name of your new LLC, being sure to include the required words or abbreviations of “limited liability company,” “LLC,” “L.L.C,” or other phrases as indicated on the form.
You may also designate some other information. You may choose the effective date of the LLC, that is, a date on which the LLC will begin to exist other than the date of filing the Articles, provided that the date is not more than 90 days after filing. You may also specify that the LLC will only last for a period of time. Most often, particularly in the case of businesses, the founders of the LLC want the entity’s existence to be “perpetual,” or for no set ending time. If this is the case, you can either type in “perpetual,” or just leave the blank empty; in either case the duration of the company shall be perpetual. Finally, you can choose to state a purpose for the limited liability company. The most common purpose that you will see in that blank is “Any lawful purpose,” which means that the LLC is reserving for itself the right to engage in any legal business that it chooses. Leaving the blank empty will have the same effect. Be warned that if you insert a purpose, you may be limiting the LLC’s ability to engage in business or activities other than that purpose. Usually, all three of these sections for additional information can be left blank – they are optional. However, note that if you are attempting to form a not-for-profit entity, you may be required to have a specific purpose clause – in that case you should consult an attorney to ensure that the necessary requirements are met.
You must also appoint a statutory agent. The agent must be a resident of Ohio, and serves as a representative of the LLC in the event that legal documents must be sent to or served on the entity. The agent must sign the Articles as proof of their acknowledgment and acceptance of the job of agent. There are a number of individuals and companies that are willing, for a price, to serve as a statutory agent in the event that you do not reside in the state or otherwise have someone you can appoint as an agent. Lastly, a representative of the company – either an owner, or a manager, or some other agent of the entity – must sign the Articles acknowledging that the information is correct to the best of their knowledge.
Once the Articles have been completed, they must be mailed to the Secretary of State for filing. In addition, the Secretary requires that a fee of $125.00 be paid to file the Articles. Additional amounts can be paid to expedite the filing if necessary. Once the Articles and fee have been paid, and once the Secretary of State approves and files the Articles, the LLC has been created, and you’ll have a bare-bones business entity.
Although the process of creating an LLC is simple enough that anyone can do it, it is often, if not always, advisable to talk with an attorney to decide if additional work is necessary to ensure that your limited liability company is adequate for your needs and can protect you from liability and other potential pitfalls. Often, an LLC also needs a tax ID number and an Operating Agreement, particularly if the company will have employees or more than one owner. Although filing the Articles creates the LLC, don’t let the simplicity of the creation process fool you into believing that having an LLC solves all of your legal and business needs. It is always advisable to talk with an attorney to make sure you are adequately protected.
If you have any questions or would like assistance creating an LLC or other business entity, please do not hesitate to contact the author or one of our other attorneys.]]>